task
stringclasses 260
values | output
stringlengths 2
5
| instruction
stringlengths 576
44k
|
|---|---|---|
songer_respond1_5_2
|
B
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "state government (includes territories & commonwealths)". Your task is to determine which category of state government best describes this litigant.
GOVERNMENT SUPPLIERS CONSOLIDATING SERVICES, INCORPORATED and Jack Castenova, Incorporated, Plaintiffs-Appellants, Cross-Appellees, v. Honorable Evan BAYH, Governor of the State of Indiana, and Honorable Kathy Prosser, Commissioner of the Indiana Department of Environmental Management, Defendants-Appellees, Cross-Apellants.
Nos. 92-1318, 92-1515.
United States Court of Appeals, Seventh Circuit.
Argued April 27, 1992.
Decided Sept. 17, 1992.
Ronald J. Waicukauski, White & Raub, Indianapolis, Ind., Bruce L. Thall (argued), Abramson Freedman & Thall, Philadelphia, Pa., for plaintiffs-appellants.
Robert S. Spear, Chief Counsel, Office of Atty. Gen., Federal Litigation, Arend J. Abel, John R. Maley, Barnes & Thornburg, David F. Hamilton (argued), Rosemary G. Spalding, Indiana Dept, of Environmental Management, Indianapolis, Ind., for defendants-appellees.
Before CUMMINGS, EASTERBROOK, and RIPPLE, Circuit Judges.
RIPPLE, Circuit Judge.
The plaintiffs, who are brokers of municipal solid waste, arrange for trucks to haul waste from temporary storage sites in New York, New Jersey, and Pennsylvania to landfills in Indiana. Seeking a declaratory judgment and injunctive relief, they brought suit in the United States District Court for the Southern District of Indiana to challenge the constitutionality, under the Commerce Clause, of Indiana statutes regulating the trucking of municipal waste. The district court upheld all but one of the provisions at issue, and the plaintiffs appeal. The defendants cross-appeal, challenging both the district court’s determination that the plaintiffs had presented a controversy ripe for review and its determination as to the one provision struck down. For the reasons set forth in this opinion, we reverse in part and affirm in part.
I
BACKGROUND
A. The Challenged Provisions
The plaintiffs challenge a set of statutory provisions regulating the transport and disposal of municipal waste in Indiana. According to the plaintiffs, the challenged provisions, which were enacted as a package in 1991, are aimed at reducing or eliminating, and will in fact reduce or eliminate, the disposal of out-of-state waste in Indiana.
1. The backhaul ban
Under Indiana Code § 13-7-31-13.1, trucks that are used to haul municipal waste to Indiana landfills or disposal facilities may be used to haul only a limited number of other items. The statute provides that “municipal waste collection and transportation vehicles” may only be used to collect and transport the following:
(1)Municipal waste.
(2) Special waste (as defined in 329 IC 2-2-1 as in effect January 1, 1990).
(3) Hazardous waste regulated under:
(A) IC 13-7-8.5; or
(B) the federal Solid Waste Disposal Act (42 U.S.C. 6901 et seq. as in effect January 1, 1990).
(4) Waste described under IC 13-1-12-9 ' that results from the combustion of coal.
(5) Material that is being transported to a facility, except an incinerator or a landfill, for reprocessing or reuse.
(6) Wood, concrete, brick, and other construction and demolition materials.
(7) Dirt, sand, gravel, asphalt, salt, and other highway maintenance material.
(8) Coal, gypsum, slag, scrap metal, and other bulk industrial commodities.
(9) Infectious waste (as defined under IC 16-1-9.7-3).
Ind.Code § 13-7-31-13.1. The practical impact of this law is to require the use of semi-dedicated fleets of trucks to haul garbage to Indiana. As the district court stated, if this provision is enforced, “a significant number of the remaining truckers now willing to haul trash to Indiana will become unwilling because they cannot afford to dedicate their trucks to so limited a range of payloads.” No. 91 C 899, Order at 16 (R. 132) (Feb. 5, 1992).
2. Vehicle registration and stickering
Indiana enforces its backhaul ban by requiring that municipal waste collection and transportation vehicles be registered with the Indiana Department of Environmental Management, Ind.Code § 13-7-31-8, and bear identification stickers. Ind. Code § 13-7-31-8.2(d). The Department must issue the registration and identification stickers within thirty days after receipt of the application. Ind.Code § 13-7-31-8(d). The registration must be renewed every two years, Ind.Code § 13-7-31-8.1(a), and the fee for registration or renewal is $100. Ind.Code § 13-7-31-16.-1(a)(1). A person who owns, leases, or operates more than one municipal waste collection and transportation vehicle need obtain only one registration listing all such vehicles. Ind.Code § 13-7-31-8.2(a). A copy of the current registration must be carried by each vehicle at all times. Ind. Code § 13-7-31-8.2(c). All vehicles must bear stickers:
Vehicle identification stickers provided by the department, indicating that the vehicle carries municipal waste, must be affixed adhesively at all times in a prominent location on each side of each registered municipal waste collection and transportation vehicle’s cargo compartment or, at the option of the person to whom the registration is issued, on each side of a truck cab of a vehicle.
Ind.Code § 13-7-31-8.2(d). .Landfills are not permitted to accept a shipment of municipal waste if the vehicle carrying it does not have a vehicle identification sticker properly affixed. Ind.Code § 13 — 7—31— 14(1).
3. Surety bond and disposal fees
Indiana law also provides that “nonresident operators,” that is, brokers like the appellants, managers of transfer stations, or transporters of municipal waste, who are not residents of Indiana, must post a surety bond with the Indiana Department of Environmental Management. Ind.Code § 13-7-10.5-15. This provision is intended to “ensure the collection and payment of any civil penalties that the operator may be required to pay in Indiana because of the solid waste transfer activities of the operator.” Ind.Code § 13-7-10.5-15(l)(B). The amount of the surety bond and the time for payment are to be determined under rules adopted by the Solid Waste Management Board. Ind.Code § 13-7-10.5-15(l)(A). Such rules have not yet been adopted. In addition, the nonresident operator is “considered to appoint the Secretary of State as the operator’s agent for purposes of service of process in connection with any matter involving solid waste transfer activities.” Ind.Code § 13-7-10.5-15(2).
Lastly, the appellants challenge Indiana’s disposal fees. Indiana Code § 13-9.5-5-1 provides not only for fees that apply uniformly to all waste, regardless of origin, but also for fees that apply only to waste generated outside Indiana. These latter fees are to be determined by rules to be adopted by the Solid Waste Management Board, and “shall be set at an amount necessary to offset the costs incurred by the state or a county, municipality, or township that can be attributed to the importation of the solid waste into Indiana and the presence of the solid waste in Indiana.” Ind.Code § 13-9.5-5-l(b). Rules have not yet been adopted.
B. Facts
We give the facts as found'by the district court. Indiana is an economically favorable disposal site for municipal waste from other regions of the United States. Indiana’s first attempt to regulate the hauling of waste into Indiana was declared unconstitutional under the Commerce Clause in 1990. See Government Suppliers Consolidating Serv., Inc. v. Bayh, 753 F.Supp. 739 (S.D.Ind.1990). After this ruling, which was not appealed, Indiana enacted new provisions regulating the disposal of municipal waste. Those provisions are the ones at issue in the present case. The primary target of the provisions is a practice known as backhauling or crosshauling.
Truckers who haul municipal waste from the eastern United States to the Midwest normally are engaging in backhauling or crosshauling. The truckers haul goods from the Midwest to New York, New Jersey, or Pennsylvania; these trips (known as fronthauls) are a trucker’s main source of income. Instead of returning to the Midwest with empty trucks, they haul back trash for disposal in midwestern landfills. Trash collected in eastern cities is stored temporarily in transfer and recycling stations. At these stations, the waste is compacted and bound into large bundles. Brokers (like the appellants) identify truckers looking for backhauls of trash and arrange a pick-up for them from a transfer station and also arrange for disposal of the trash in a landfill in Indiana (or another midwest-ern state). Flatbed trailers, box-type semi trailers, and open-top dump trailers are used to carry the trash to Indiana. An individual trucker may haul waste to Indiana only once in several years or may haul waste regularly. The brokers do not have long-term contracts with truckers; arrangements for transport of each load of waste are made on an ad hoc, one-time basis.
Many customers of trucking companies refuse to load their goods onto any vehicle that has hauled municipal waste. As the appellants candidly conceded before the district court, trucking companies would prefer that their other customers remain unaware that their trailers have hauled municipal waste. Order at 32. Evidence at trial showed that even commercial entities that are not involved in food products do not want their products transported in trucks that previously hauled trash. These shippers were concerned about potential adverse effects on product reputation. Order at 27. Shippers, apparently thinking that if a truck is very clean it must have been recently washed after hauling garbage, have rejected trucks because they are too clean. As the district court noted, “this illustrates that shippers are more concerned with reputation' than with the actual health risks.” Order at 27 n. 10. One trucker testified in the district court that he would not voluntarily tell a shipper that a trailer had previously hauled trash because of the stigma attached to crosshaul-ing. Order at 32. However, in spite of pressure from shippers not to haul waste, “it is also clear that many truckers, especially small operators, are still willing to crosshaul trash. If the questioned provisions are enforced, then a significant number of the remaining truckers now willing to haul trash to Indiana will become unwilling because they cannot afford to dedicate their trucks to so limited a range of payloads.” Order at 16.
The district court found that, unlike out-of-state waste, “Indiana-generated municipal waste generally is not cross-hauled— that is, trash is usually shipped intrastate in traditional, dedicated garbage trucks, not dry vans.” Order at 25.
Today a broker must pay a trucker approximately $35 a ton for hauling municipal waste from New York to Indiana. If a dedicated fleet of garbage trucks is used, the cost will double to about $70 a ton. Including a typical Indiana tipping fee of $15 per ton (the disposal fee that must be paid to the landfill), the total disposal cost of crosshauled trash is approximately $50 a ton. If a dedicated fleet is used, the total cost for disposing of New York waste in Indiana will be $85 a ton. At $85 a ton, Indiana will no longer be the most economically reasonable state for the disposal of trash. According to the testimony of the brokers, transfer stations will not pay $85 a ton to dispose of waste; thus the back-hauling ban, if enforced, will eliminate interstate transport of waste to Indiana. Order at 28.
C. District Court Proceedings
The district court first determined that the plaintiffs’ challenges to all of the provisions described above were properly before it. It then examined the constitutionality of the prohibition on backhauling and the registration/stickering provisions as applied. The district court determined that the backhaul ban was facially neutral and applied identically to similarly situated waste haulers, regardless of their residence and the origin of the waste they carried. Therefore, it evaluated its constitutionality under the standard enunciated in Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 90 S.Ct. 844, 847, 25 L.Ed.2d 174 (1970), noting that, under this standard, “a statute will not be held unconstitutional unless the burden imposed on commerce is clearly excessive in relation to the local benefits.” Determining that the putative local benefits (protection of health and of the reputation of Indiana products) justified the burden on interstate commerce (lower profits for waste haulers), the court upheld the statute.
The district court also upheld the registration and stickering provisions. Noting that the statute does not distinguish on its face between local trash haulers and national waste disposal companies, the district court also found that it did not discriminate in practical effect. Moreover, the court noted, “there is no evidence that an Indiana entity will benefit economically from the registration/stickering provision so it does not constitute economic protectionism.” Order at 31. According to the district court, the primary local benefit of the statute was to assist Indiana in enforcing its backhauling prohibitions. Also, registration and stickering would promote private enforcement of the backhauling ban: “All sides agree that if shippers see the stickers, they will probably not use the truck. Thus, crosshauling will be effectively eliminated by private enforcement.” Order at 31. The court rejected the plaintiffs’ arguments that “sticker stigma” was a burden on interstate commerce; rather, it noted, “the dormant Commerce Clause does not give trucking companies a constitutional right to conceal information from their customers.” Order at 32. In addition, the district court stated that, while “there [was] no doubt that enforcement of the vehicle registration greatly w[ould] change how the plaintiffs do business,” Order at 33, the Commerce Clause does not protect a particular method of doing business. Lastly, the court rejected the plaintiffs’ assertions that the registration and stickering requirements were duplicative and ineffective.
The district court reviewed the remaining two provisions at issue here, the disposal fee and surety bond, for facial validity. It upheld the disposal fee provision; however, it struck down the surety bond provision as an unnecessary burden on interstate commerce, noting that other provisions of the Indiana Code require out-of-state operators to register with the Indiana Department of Environmental Management, and that the registration process “should provide the state with all information it requires to adequately effectuate its judgments.” Order at 40.
D. Contentions of the Parties
Government Suppliers and Castenova submit that the district court erred in upholding the backhaul ban, the registration and stickering provisions, and the disposal fees to be imposed on out-of-state waste. They contend that the court should have examined the backhaul ban and the registration and stickering provisions under what they denominate the “per se” test, that is, the elevated scrutiny applied by the Supreme Court where the statute in question is discriminatory on its face or in practical effect. See, e.g., Brown-Forman Distillers v. New York State Liquor Auth., 476 U.S. 573, 106 S.Ct. 2080, 90 L.Ed.2d 552 (1986); Hughes v. Oklahoma, 441 U.S. 322, 336, 99 S.Ct. 1727, 1736, 60 L.Ed.2d 250 (1979).
In a cross-appeal, Indiana submits that the plaintiffs’ challenge to the backhauling ban should be dismissed for lack of a case or controversy and that the plaintiffs’ challenges to the surety bond and the disposal fee are not ripe for judicial resolution, because as yet no implementing rules have been adopted. They also appeal the district court’s determination that the provision requiring out-of-state operators to post a surety bond is invalid under the Commerce Clause.
II
JURISDICTION
“The appropriate test to determine if there is an actual controversy, one ripe for decision, under the Declaratory Judgment Act is the one stated in Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270 [61 S.Ct. 510, 85 L.Ed. 826] (1941).” Oneida Tribe of Indians v. State of Wisconsin, 951 F.2d 757, 760 (7th Cir.1991) (citing Lake Carriers’ Ass'n v. MacMullan, 406 U.S. 498, 506, 92 S.Ct. 1749, 1755, 32 L.Ed.2d 257 (1972)). “Basically, the question in each case is whether the facts alleged, under all the circumstances, show that there is a controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant issuance of a declaratory judgment.” Maryland Casualty, 312 U.S. at 273, 61 S.Ct. at 512. Indiana submits that the district court erred in finding that it had subject matter jurisdiction over the claims asserted by Government Suppliers and Castenova. It argues that, in challenging the backhaul ban, the plaintiffs have presented “no concrete, justiciable controversy.” Appellees’ Br. at 41. We find little merit in Indiana’s arguments on this point. Jurisdiction is clearly proper as to the backhaul ban and the registration and stickering provisions that accompany it. The plaintiffs do not themselves engage in backhauling; their business consists in arranging for others to do so. It is undisputed that their business would suffer severe adverse effects from enforcement of the backhaul ban. Such economic injury, though indirect, is sufficient to confer standing. Association of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 154, 90 S.Ct. 827, 830, 25 L.Ed.2d 184 (1970). The interest they seek to vindicate is within the zone of interests protected by the Commerce Clause. See Boston Stock Exchange v. State Tax Comm’n, 429 U.S. 318, 320-21 n. 3, 97 S.Ct. 599, 602-03 n. 3, 50 L.Ed.2d 514 (1977); Bacchus Imports Ltd. v. Dias, 468 U.S. 268, 267, 104 S.Ct. 3049, 3055, 82 L.Ed.2d 200 (1984).
Indiana’s contention that the plaintiffs presented only an abstract, and therefore unripe, question appears to rest on the assertion that the plaintiffs did not specify what sorts of goods they claim the “Constitution mandates be allowed to travel in municipal waste vehicles, and under what circumstances.” Appellees’ Br. at 43. “In sum, Plaintiffs have asked the Court for a broad advisory opinion that they (or more precisely, the trucking companies with whom they do business) can haul in trash trucks a broad range of goods, the specifics of which the Court can only guess.” Id. However, as will become clear in our discussion, the legal issue presented “is one the resolution of which would be essentially unaffected by further factual development.” Peick v. Pension Benefit Guar. Corp., 724 F.2d 1247, 1261 (7th Cir.1983), cert. denied, 467 U.S. 1259, 104 S.Ct. 3554, 82 L.Ed.2d 855 (1984). The case presents “a substantial controversy between parties having adverse interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.” Lake Carriers’ Ass’n v. MacMullan, 406 U.S. at 506, 92 S.Ct. at 1755.
The ripeness for facial review of the surety bond provision and the disposal fees is a closer question. The implementing regulations have not yet been written or adopted. However, as the Supreme Court stated in Pacific Gas & Electric Co. v. State Energy Resource Conservation & Development Commission, 461 U.S. 190, 201, 103 S.Ct. 1713, 1721, 75 L.Ed.2d 752 (1983), “[o]ne does not have to await the consummation of threatened injury to obtain preventative relief.” In order to protect against a feared future event, “the plaintiff must demonstrate that the probability of that future event occurring is real and substantial, ‘of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.’ ” Salvation Army v. Department of Community Affairs, 919 F.2d 183, 192 (3d Cir.1990) (quoting Steffel v. Thompson, 415 U.S. 452, 460, 94 S.Ct. 1209, 1216, 39 L.Ed.2d 505 (1974)). When “present harms will flow from the threat of future actions,” Armstrong World Industries, Inc. v. Adams, 961 F.2d 405, 412 (3d Cir.1992), those present harms may mean a controversy is ripe for review. See Volvo N. Am. Corp. v. Men’s Int’l Professional Tennis Council, 857 F.2d 55, 63-64 (2d Cir.1988) (“the prospect or fear of future events may have a real impact on present affairs, such that a preemptive challenge is ripe”).
The district court found, based on defendants’ own affidavits, that Indiana intends to enforce the surety bond provision and disposal fee provision once enabling rules are promulgated, and that enforcement would affect the plaintiffs’ businesses. And, according to the plaintiffs, these statutes, though not yet enforced, have an immediate damaging effect on their businesses. As Judge Tinder recognized in the earlier case between the parties, “advance planning required for the interstate shipment of solid waste could well be impaired by the fear of increased future costs.” Government Suppliers Consol. Serv., Inc. v. Bayh, 734 F.Supp. 853, 861 (S.D.Ind.1990). Moreover, faced with future enforcement of provisions which, as the district court recognized, might eliminate disposal of out-of-state waste in Indiana, the appellants “are now incurring increased costs and diminution of revenues and profits based upon the need to secure and use disposal sites outside of the State of Indiana.” Appellants’ Combined Reply Br./Answering Br. at 12. In some cases, the absence of implementing regulations may render the actual effect of the statute too uncertain to make review possible. See MacDonald, Sommer & Frates v. Yolo County, 477 U.S. 340, 348, 106 S.Ct. 2561, 2566, 91 L.Ed.2d 285 (1986) (“A court cannot determine whether a regulation has gone ‘too far’ unless it knows how far the regulation goes.”); Nixon v. Administrator of Gen. Serv., 433 U.S. 425, 438, 97 S.Ct. 2777, 2788, 53 L.Ed.2d 867 (1977) (“For [the Court] to review regulations not yet promulgated, the final form of which has been only hinted at, would be wholly novel.”). In the present case, however, what the statutes authorize is clear; only procedures and amounts are uncertain. There is no need to wait for regulations or specific applications to evaluate and make a conclusive determination as to the legal issue presented. See Pacific Gas & Elec. Co., 461 U.S. at 201, 103 S.Ct. at 1720; Armstrong World Indus., 961 F.2d at 412. The provisions are ripe for review.
Ill
ANALYSIS
The Commerce Clause not only gives the Congress the power to regulate, through the use of its legislative power, commerce among the states, but also limits the power of the states, even in the absence of federal legislation, to burden interstate commerce. See Cooley v. Board of Wardens, 12 How. 299, 13 L.Ed. 996 (1851). In City of Philadelphia v. New Jersey, 437 U.S. 617, 623-24, 98 S.Ct. 2531, 2535-36, 57 L.Ed.2d 475 (1978), Justice Stewart, writing for the Court summarized this latter aspect of the Commerce Power and the need for “delicate adjustment of the conflicting state and federal claims”:
Although the Constitution gives Congress the power to regulate commerce among the States, many subjects of potential federal regulation under that power inevitably escape congressional attention “because of their local character and their number and diversity.” South Carolina State Highway Dept. v. Barnwell Bros., Inc., 303 U.S. 177, 185 [58 S.Ct. 510, 514, 82 L.Ed. 734]. In the absence of federal legislation, these subjects are open to control by the States so long as they act within the restraints imposed by the Commerce Clause itself. See Raymond Motor Transportation, Inc. v. Rice, 434 U.S. 429, 440 [98 S.Ct. 787, 793, 54 L.Ed.2d 664], The bounds of these restraints appear nowhere in the words of the Commerce Clause, but have emerged gradually in the decisions of this Court giving effect to its basic purpose. That broad purpose was well expressed by Mr. Justice Jackson in his opinion for the Court in H.P. Hood & Sons, Inc. v. Du Mond, 336 U.S. 525, 537-538 [69 S.Ct. 657, 664-665, 93 L.Ed. 865]:
“This principle that our economic unit is the Nation, which alone has the gamut of powers necessary to control of the economy, including the vital power of erecting customs barriers against foreign competition, has as its corollary that the states are not separable economic units. As the Court said in Baldwin v. Seelig, 294 U.S. [511], 527 [55 S.Ct. 497, 502, 79 L.Ed. 1032], ‘what is ultimate is the principle that one state in its dealings with another may not place itself in a position of economic isolation.’ ”
The opinions of the Court through the years have reflected an alertness to the evils of “economic isolation” and protectionism, while at the same time recognizing that incidental burdens on interstate commerce may be unavoidable when a State legislates to safeguard the health and safety of its people. Thus, where simple economic protectionism is effected by state legislation, a virtually per se rule of invalidity has been erected.
The jurisprudence of this “dormant” or “negative” Commerce Power described by Justice Stewart is the product of the inevitable tension between the need to preserve the capacity of the country to address national economic concerns and the need of state government to exercise its residual police powers for the betterment and protection of its citizens. It should not be surprising, therefore, that litigation in this area often centers on areas of acute economic and social concern where the interests of preserving the national capacity to act and of allowing state government to solve local problems is particularly urgent. Consequently, in these last decades of the twentieth century, environmental problems have produced heightened concerns about waste management, and garbage has become a frequent focal point of dormant commerce power jurisprudence.
Garbage is, under the prevailing ease law of the Supreme Court, indisputably an article of commerce, and “ ‘States are not free from constitutional scrutiny when they restrict’ ” its interstate movement. Fort Gratiot Sanitary Landfill, Inc. v. Michigan Dept. of Natural Resources, — U.S. -,-n. 3, 112 S.Ct. 2019, 2023 n. 3, 119 L.Ed.2d 139 (1992) (quoting Philadelphia v. New Jersey, 437 U.S. at 622-23, 98 S.Ct. at 2534-35). States faced with increased and rising waste volumes and foreseeable shortages of landfill space have attempted by various statutory means to slow down or halt the inflow of waste from other states where disposal costs are higher. In Philadelphia v. New Jersey, 437 U.S. 617, 98 S.Ct. 2531, the Supreme Court struck down a New Jersey law that, with a few minor exceptions, prohibited the importation of “solid or liquid waste which originated or was collected outside the territorial limits of the state.” More recently, in Fort Gratiot, — U.S.-, 112 S.Ct. 2019, and Chemical Waste Management, Inc. v. Hunt, — U.S. -, 112 S.Ct. 2009, 119 L.Ed.2d 121 (1992), the Court struck down Michigan and Alabama laws that discriminated against interstate commerce in trash. In these cases, the Court reaffirmed the basic principle behind Philadelphia v. New Jersey: one state may not “isolate itself from a problem common to many by erecting a barrier against the movement of interstate trade.” Philadelphia v. New Jersey, 437 U.S. at 628, 98 S.Ct. at 2538; see Chemical Waste, — U.S. at -, 112 S.Ct. at 2012; Fort Gratiot, — U.S. at -, 112 S.Ct. at 2024.
A. The Backhaul Ban, Registration, and Stickering
The heart of the Indiana regulatory scheme under review is the so-called back-haul ban and its attendant registration and stickering provisions. Our evaluation of these provisions requires that we set forth in more detail the principles developed by the Supreme Court to guide dormant Commerce Clause analysis. As the Court explicitly noted in Brown-Forman Distillers Corp. v. New York State Liquor Authority, 476 U.S. 573, 579, 106 S.Ct. 2080, 2084, 90 L.Ed.2d 552 (1986), there are two alternate analytical perspectives for problems under the dormant Commerce Clause. The “critical consideration” in determining the appropriate analysis “is the overall effect of the statute on both local and interstate activity.” Brown-Forman Distillers, 476 U.S. at 579, 106 S.Ct. at 2084.
Under the first test, a statute “which clearly discriminates against interstate commerce is unconstitutional ‘unless the discrimination is demonstrably justified by a valid factor unrelated to economic protectionism.’ ” Fort Gratiot, — U.S. at- -, 112 S.Ct. at 2023-24 (quoting New Energy Co. of Indiana v. Limbach, 486 U.S. 269, 274, 108 S.Ct. 1803, 1808, 100 L.Ed.2d 302 (1988)). By contrast, under the second test (the Pike test), if a statute is neutral on its face, has only indirect or incidental effects on interstate commerce, and regulates evenhandedly, the statute will be upheld “unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits.” Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 90 S.Ct. 844, 847, 25 L.Ed.2d 174 (1970). Under the Pike test, if a legitimate local purpose is “credibly advanced,” Chemical Waste, — U.S. at-n. 5, 112 S.Ct. at 2014 n. 5 (quoting Philadelphia v. New Jersey, 437 U.S. at 624, 98 S.Ct. at 2535), “then the question becomes one of degree. And the extent of the burden that will be tolerated will of course depend on the nature of the local interest involved, and on whether it could be promoted as well with a lesser impact on interstate activities.” Pike, 397 U.S. at 142, 90 S.Ct. at 847.
The district court applied the lesser level of scrutiny enunciated in Pike. It reasoned that the statutes under review were “facially neutral,” that they “treat[ ] similarly situated waste haulers alike, regardless of their residence or the origin of the wastes they carry. Neither intrastate nor interstate waste haulers may crosshaul municipal waste and any non-exempt item.” Order at 25. The district court rejected the plaintiffs’ argument that the backhaul ban was discriminatory because it affected primarily interstate haulers of waste (Indiana-generated waste generally is not crosshauled, but usually shipped intrastate in traditional, dedicated garbage trucks). In the district court’s view, the plaintiffs’ argument boiled down to an assertion that the statute would apply most often to out-of-state entities, and that circumstance alone did not render the statute discriminatory. Order at 25 (citing CTS Corp. v. Dynamics Corp. of Am., 481 U.S. 69, 88, 107 S.Ct. 1637, 1649, 95 L.Ed.2d 67 (1987); see Amanda Acquisition Corp. v. Universal Foods Corp., 877 F.2d 496 (7th Cir.), cert. denied, 493 U.S. 955, 110 S.Ct. 367, 107 L.Ed.2d 353 (1989)).
However, a determination that a statute does not discriminate on its face and “purports to regulate evenhandedly” does not end the question of which scrutiny should apply. See Brimmer v. Rebman,
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "state government (includes territories & commonwealths)". Which category of state government best describes this litigant?
A. legislative
B. executive/administrative
C. bureaucracy providing services
D. bureaucracy in charge of regulation
E. bureaucracy in charge of general administration
F. judicial
G. other
Answer:
|
songer_circuit
|
C
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case.
MOBAY CHEMICAL CORPORATION, Appellant in 81-2190 and 81-2191 v. Anne M. GORSUCH, Administrator Environmental Protection Agency, Appellee. PENNWALT CORPORATION, Appellant in 81-2469 v. Anne M. GORSUCH, Administrator Environmental Protection Agency, Appellee.
Nos. 81-2190, 81-2191 and 81-2469.
United States Court of Appeals, Third Circuit.
Argued April 28, 1982.
Decided June 22, 1982.
Certiorari Denied Nov. 8,1982.
See 103 S.Ct. 343.
Daniel M. Dibble (argued), C. David Barrier, Lathrop, Koontz, Righter, Clagett & Norquist, Kansas City, Mo., Cloyd R. Mellott, John W. Ubinger, Jr., Eckert, Seamans, Cherin & Mellott, Pittsburgh, Pa., for appellant Mobay Chemical Corp.
Aaron C. F. Finkbiner, III (argued), Bradford F. Whitman, Jonathan L. Braff, Dechert, Price & Rhoads, Philadelphia, Pa., for appellant Pennwalt Corp.
Marcia E. Mulkey (argued), Carol E. Dinkins, Asst. Atty. Gen., Donald W. Stever, Jr., Anne Almy, Patrick J. Cafferty, Jr., Attys., Dept. of Justice, Washington, D. C., Robert S. McLaughlin, Environmental Protection Agency, Washington, D. C., for appellee.
Before ALDISERT, WEIS and BECKER, Circuit Judges.
OPINION OF THE COURT
WEIS, Circuit Judge.
In this appeal, two pesticide manufacturers contend that the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) permits an uncompensated taking of their proprietary data. In addition, one manufacturer asserts that certain regulations promulgated by the Environmental Protection Agency are inconsistent with the statute and were adopted without proper observance of the Administrative Procedure Act. We reject the constitutional challenges but, finding lack of compliance with the APA, grant the EPA six months to adopt regulations in the appropriate manner.
Three cases have been consolidated here. In the suit brought in the Eastern District of Pennsylvania, Pennwalt Corporation challenged the constitutionality of the 1978 amendments to FIFRA, 7 U.S.C. § 136 et seq., but the district court granted summary judgment in favor of the EPA. Mobay Chemical Corporation mounted a similar attack in the Western District of Pennsylvania, and questioned certain implementing regulations promulgated in 1979 by the EPA. After trial, the district court upheld the statute and regulations. Mobay Chemical Corp. v. Costle, 517 F.Supp. 254 (W.D.Pa.1981). In a separate action, the court modified an injunction against the EPA entered in Mobay Chemical Corp. v. Costle, 447 F.Supp. 811 (W.D.Mo.1978), before the 1978 amendments were enacted and before the case had been transferred to Pennsylvania. Because the 1978 legislation authorized what the Missouri court had enjoined, the injunction was modified to reflect the statutory changes. Mobay Chemical Corporation v. Costle, 517 F.Supp. 252 (W.D.Pa.1981).
I
FIFRA was enacted originally in 1947. Ch. 125, 61 Stat. 163 (1947). It makes the EPA responsible for regulating pesticides by “registering” only those products whose use will not harm the environment. 7 U.S.C. § 136a. As part of the licensing process, applicants must submit test data to the EPA demonstrating the safety and efficacy of their products. The development of new pesticides requires a great deal of time, money and skill, and consequently the test data represent a substantial investment by applicants.
As amended by the Federal Environmental Pesticide Control Act of 1972, FIFRA permitted applicants to designate portions of their data as trade secrets and prohibited the EPA from disclosing this information. Section 10(a) & (b), Pub.L.No.92-516, 86 Stat. 973 (1972). In addition, the statute was changed so that data submitted in support of an application could not be considered by the agency in support of a subsequent application, unless two conditions were met. First, the later applicant had to compensate the original submitter for use of the data, and second, the original submitter did not designate the data as trade secrets. § 3(c)(1)(D). The 1975 amendments to this section further limited the protection against use of information to data submitted on or after January 1, 1970. Act of Nov. 28, 1975, Pub.L.No. 94-140, 89 Stat. 755 (1975).
The Federal Pesticide Act of 1978 removed the trade secret protection over test data provided by § 10(b) of the earlier legislation. Pub.L.No.95-396, 92 Stat. 819 (1978). Applicants were granted a 10-year period of exclusive use for information about new chemicals contained in pesticides registered after September 30, 1978. Section 3(c)(1)(D)(i), 7 U.S.C. § 136a(c)(1)(D)(i). But the EPA may, without the permission of the original applicant, use data presented after December 31, 1969, which is not entitled to exclusive use, in support of another application for 15 years following the original submission. In this event, the later applicant must offer to compensate the original submitter. Section 3(c)(1)(D)(ii), 7 U.S.C. § 136a(c)(1)(D)(ii). If the parties cannot agree on the amount of compensation, either may initiate binding arbitration proceedings. Id. No limitation exists on the EPA’s use of data that does not qualify for either the 10-year period of exclusive use or the 15-year period of compensation. Section 3(c)(1)(D)(iii), 7 U.S.C. § 136a(c)(1)(D)(iii).
The 1978 amendments also provide for broader disclosure of test data. The EPA may make available to the public any information about the safety and efficacy of pesticides. Section 10(d), 7 U.S.C. § 136h(d). See also, § 3(c)(2)(A), 7 U.S.C. § 136a(e)(2)(A). If necessary, the agency also may disclose trade secret data to contractors with the United States, so long as adequate security measures are taken. Section 10(e), 7 U.S.C. § 136h(e). The EPA may not, however, disclose data to foreign or multinational pesticide producers, unless the original submitter consents. Section 10(g), 7 U.S.C. § 136h(g).
Both Pennwalt and Mobay contend that the test data are trade secrets and, as such, constitute intellectual property of “incalculable value.” In their view, the FIFRA provisions allowing the EPA to use and disclose the information amount to a taking without just compensation. The companies also argue that the provision for binding arbitration denies them the right to a judicial determination of just compensation.
We have reviewed the statutory amendments only briefly because the challenges made to the constitutionality of the use provisions mirror the contentions advanced in Chevron Chemical Co. v. Costle, 641 F.2d 104 (3d Cir.), cert. denied, 452 U.S. 961, 101 S.Ct. 3110, 69 L.Ed.2d 972 (1981). There, we reviewed at length the legislative history of the amendments and their predecessors, and analyzed the claims of property deprivation. We rejected the constitutional challenges, concluding that, in the “use” context, applicants do not have a property interest in data submitted to the EPA beyond that conferred by FIFRA itself.
As a panel, we are bound by Chevron. United States Court of Appeals for the Third Circuit, Internal Operating Procedures Ch. VIIIC (1980). Moreover, the arguments advanced in this appeal fail to convince us that Chevron should be reconsidered by the court en banc. We therefore reiterate that an applicant does not have a property interest in data submitted to the EPA that would prevent the agency from using the information in considering other requests for registration. Since there is no protected property interest as against use of the data, we also reject the contention, as we did in Chevron, that the compulsory arbitration provision deprives the original submitters of the right to a judicial determination of just compensation. For the same reason, we will also uphold the action of the court for the Western District of Pennsylvania modifying the injunction against the EPA to reflect the changes made to FIFRA’s use provisions by the 1978 amendments.
Pennwalt and Mobay attempt to place FIFRA’s disclosure provision beyond the Chevron holding. Although that case did not decide whether the EPA’s disclosure of data constitutes a taking, the same rationale applies to this issue with equal force. As we said in Chevron, an applicant has no “continuing property interest, beyond that provided by federal law, applicable to material furnished to a federal agency as a precondition to selling a product in interstate commerce.” 641 F.2d at 116.
An applicant may retain his property rights in data by not disclosing it to anyone. But no taking occurs if the applicant chooses to present the information to the government in exchange for a registration with substantial commercial value. In another case, we rejected a similar constitutional claim where an agency’s disclosure of a company’s proprietary information was challenged as an uncompensated taking, saying: “[a] voluntary submission of information by an applicant seeking the economic advantages of a license can hardly be called a taking.” Westinghouse Electric Corp. v. United States, 555 F.2d 82, 95 (3d Cir. 1977).
FIFRA’s disclosure provision is not a blanket authorization for the EPA to release confidential information. It limits public disclosure of test data to such matters as the effects of pesticides on human, animal and plant life. Information disclosing manufacturing or quality control processes, details of methods for testing inert ingredients deliberately added to pesticides, and the identity or quantity of such inert ingredients, may not be made public unless necessary for safety purposes. In this circumstance, a mandatory 30-day notification period allows the data submitter to institute an action in a district court to challenge the proposed disclosure.
The principle of limited disclosure that Congress applied in § 10 is neither startling nor new. Pesticides serve a useful and important function, but they also may present significant hazards. The public has a very real interest in their use and abuse and may justifiably assert a need to have sufficient information for protection. Congress balanced the understandable desire of the manufacturers to keep their experimental results confidential against the public interest in protecting the health of the community. Both positions were pressed vigorously before Congress, and it adopted a middle ground by providing for limited disclosure. This legislative action was well within constitutional boundaries and we sustain it here.
In Corn Products Refining Co. v. Eddy, 249 U.S. 427, 39 S.Ct. 325, 63 L.Ed. 689 (1919), the Supreme Court had no difficulty in rejecting a taking challenge to a statute requiring disclosure of the confidential formula of a food product. After observing that the purpose of the law was to prevent adulteration and misbranding that might mislead purchasers as to the wholesomeness of the product, the Court said:
“[I]t is too plain for argument that a manufacturer or vendor has no constitutional right to sell goods without giving to the purchaser fair information of what it is that is being sold. The right of a manufacturer to maintain secrecy as to his compounds and processes must be held subject to the right of the State, in the exercise of its police power and in promotion of fair dealing, to require that the nature of the product be fairly set forth.”
249 U.S. at 431-32, 39 S.Ct. at 327. See also National Fertilizer Association v. Bradley, 301 U.S. 178, 57 S.Ct. 748, 81 L.Ed. 990 (1937). The same principle requires us to reject Pennwalt’s and Mobay’s attacks on FIFRA’s disclosure provision as well.
Mobay’s final constitutional challenge is that FIFRA § 3(g), 7 U.S.C. § 136a(g), which directs the EPA to re-register all pesticides “in the most expeditious manner practicable,” deprives the company of its right to compensation for data that other applicants relied on in obtaining twenty-three previous registrations. In Mobay Chemical Corp. v. Costle, 447 F.Supp. 811 (W.D.Mo.1978), the Missouri district court decided that the EPA violated the data compensation requirements of the 1972 amendments by failing to require other companies to compensate Mobay for the use of its data. The court refused to declare the registrations invalid, however, because Mobay would be compensated upon re-registration. At the time the Missouri court decided the case, the statute provided that re-registration was to be completed by October 21, 1977. The 1978 amendments removed this deadline, and Mobay asserts that this change is an uncompensated taking.
The district court for Western Pennsylvania held that the delay caused by the 1978 amendment does not amount to a constitutional violation. We agree, and note that the Missouri court did not rely on a set date for the completion of re-registration. On the contrary, that court knew that the process was behind schedule, observing that the statutory deadline had already passed. 447 F.Supp. at 823 n.18.
II
In addition to the constitutional challenges to FIFRA made by both appellants, Mobay attacks certain regulations adopted by the EPA. This assault has two phases— lack of conformity to the enabling statute, and failure to observe the rulemaking requirements set out in the Administrative Procedure Act.
As part of its program to implement the 1978 amendments, the EPA adopted a policy of generally granting only “conditional registrations” under FIFRA § 3(c)(7), 7 U.S.C. § 136a(c)(7). 40 C.F.R. § 162.7(d) and (e). The agency wanted to use a new approach, known as the “generic standards system,” in considering registration and reregistration. 44 Fed.Reg. 76311-12 (Dec. 26, 1979). Under this system, the EPA intends to develop standards for each group of pesticide products containing the same active ingredient. Completion of the generic standards process is expected to take at least 10 years. In the meantime, only conditional registrations will be granted.
Mobay contends that FIFRA compels the EPA to review its data after receipt of an application and, as expeditiously as possible, either unconditionally register the pesticide, or deny the registration. Section 3(c)(3), (5), and (6), 7 U.S.C. § 136a(c)(3), (5), and (6). The district court held, however, that the EPA’s conditional registration policy does not contravene the statute.
Most of Mobay’s fire is directed at the agency’s “cite all”, or data compensation, regulations. These require that, even if he has presented his own data, an applicant must rely on all information in the EPA files which are pertinent to an evaluation of his product and must compensate each data submitter individually. 40 C.F.R. 162.9-4, -5.
Mobay contends that the “cite all” regulations violate FIFRA because the statute allows an applicant a choice of three alternate methods of support. Section 3(c)(1)(D), 7 U.S.C. § 136a(c)(l)(D). He may (1) proffer his own test data, “or alternatively” (2) cite that appearing in the public literature, or (3) rely on information previously submitted to the EPA. Since Mobay believes that its own data is adequate to support its applications, it would not choose to cite that of, and pay compensation to, other manufacturers.
At one stage of the proceedings in the district court, the EPA conceded that it shared Mobay’s interpretation of the statute. At other times in the district court, however, and on appeal, the agency has taken the position that the “cite all” regulations are consistent with FIFRA. On these occasions, the EPA views the phrase “if requested by the Administrator” that appears in the subsection as authorizing it to demand cumulative rather than alternative methods of support. The district judge agreed that the regulations are supported by this reading of the statute.
Mobay also complained that an EPA data compensation regulation misconstrues the “formulator’s exemption” created by the Act. Section 3(c)(2)(D), 7 U.S.C. § 136a(c)(2)(D). This provision applies to an applicant who seeks to register an end-use product that incorporates a previously registered pesticide purchased from another manufacturer. The end-use applicant is not required to submit or cite data for the incorporated pesticide, nor to offer to pay compensation for the use of previously submitted data.
The EPA regulation exempts an end-use formulator from paying any firm for data bearing on the incorporated pesticide. 40 C.F.R. § 162.9-7. Mobay asserts that the exemption should apply only to the manufacturer from whom the formulator purchased the pesticide, since presumably it has included a proportionate share of the testing expense in the price. On the other hand, says Mobay, every other manufacturer who has registered the pesticide is entitled to compensation. The district court disagreed and held that the regulation was consistent with the statute.
We need not decide whether the conditional registration and “cite all” regulations are an unreasonable interpretation of FIFRA because we accept Mobay’s contention that the regulations were promulgated in violation of the notice-and-comment and effective date requirements of the Administrative Procedure Act. 5 U.S.C. § 553(b) and (d), and § 706(2)(D).
Congress enacted the 1978 FIFRA amendments on September 30, 1978. The EPA published proposed data compensation rules on June 20, 1977, based on the provisions of the then-current statute and on the agency’s then-current policies. 42 Fed.Reg. 31284. As the agency admits, however, the 1978 amendments “drastically altered” the compensation portions of the Act. 44 Fed. Reg. 27945 (May 11, 1979).
On July 25, 1978, the EPA published an Advance Notice of Interim Final and Proposed Rulemaking (ANPR) for the conditional registration program, and solicited comments. It included a suggestion that commenters might also wish to address compensation for the use of data. 43 Fed. Reg. 32154-55. On October 6, 1978, the EPA circulated working drafts of the conditional registration and data compensation regulations to over 2500 interested groups, agencies, and organizations. See 44 Fed. Reg. 27932-33. Then, on October 10, 1978, the agency published a notice of open public meetings to be held in Washington, D. C. during the next month to solicit comments on the conditional registration of pesticides as well as on data review and compensation. 43 Fed.Reg. 46555.
On May 11, 1979, the EPA promulgated the present conditional registration regulations as interim final rules, and the data compensation regulations as final rules. 44 Fed.Reg. 27932, 27945. Both sets of regulations were made effective immediately.
The EPA recognized that the data compensation regulations “differ significantly” from those proposed in June 1977. 44 Fed. Reg. 27950-51. Nevertheless, it invoked the “good cause” exception to the APA’s notice-and-comment requirements on the grounds that reproposal would be “contrary to the public interest” because of the long delay it would cause in resuming the registration program. 5 U.S.C. § 553(b)(B). The EPA justified its action by noting that a working draft was circulated in October and public meetings were held in November 1978, and said it would revise the regulations to the extent appropriate, as judged by its experience and by comments received. Finally, the agency found that these same reasons constituted “good cause” for making the regulations effective immediately, instead of observing the 30-day period between publication and effective date that is otherwise required. 5 U.S.C. § 553(d)(3).
The EPA decided not to publish the conditional registration regulations in proposed form because the ANPR, the circulated working draft, and the public meetings had already provided “considerable opportunity for public comment.” 44 Fed.Reg. 27933. Publication of a general notice of proposed rule making is not necessary when the “persons subject thereto . .. otherwise have actual notice....” 5 U.S.C. § 553(b). The agency again asserted a compelling public interest in resuming the registration program as quickly as possible as a reason for making the regulations effective immediately.
The district court found that the June 1977 publication of the proposed data compensation regulations was insufficient notice, since it occurred more than one year before the relevant portion of FIFRA was significantly changed. Moreover, circulation of the working draft in October 1978 was an inadequate substitute for the notice- and-comment procedure because many pesticide companies received their copies too late for review and submission of comments.
The court concluded, however, that the EPA had good cause not to re-propose the data compensation regulations because of the need to resume the registration process quickly. As for the conditional registration regulations, the court found that the July 25, 1978 ANPR provided the public with sufficient notice and opportunity to comment. Finally, the court held that the same reasons that justified noncompliance with the notice-and-comment procedure for the data compensation regulations also constituted good cause for making both sets of regulations effective immediately.
In considering whether there was good cause for the agency to adopt the data compensation regulations without prior notice-and-comment, we are guided by the principle that the exception is to be narrowly construed. American Iron & Steel Institute v. EPA, 568 F.2d 284, 292 (3d Cir. 1977). Adherence to this principle led us twice before to strike down final regulations published by this agency. Sharon Steel Corp. v. EPA, 597 F.2d 377 (3d Cir. 1979); American Iron & Steel Institute v. EPA, 568 F.2d at 291-92. In Sharon Steel, as here, the EPA asserted an urgent need for action as grounds for disregarding the notice-and-comment procedure. The court rejected this contention, even though it was based on a statutory deadline, and also held that a period for comments after promulgation of a rule cannot substitute for the prior notice and comment required by the APA. 597 F.2d at 381. Cf. Philadelphia Citizens In Action v. Schweiker, 669 F.2d 877 (3d Cir. 1982) (agency’s invocation of good cause exception upheld).
We still adhere to this view of the matter today, and hold that the agency did not establish good cause to excuse compliance with the APA. As we said in Sharon Steel, “[provision of prior notice and comment allows effective participation in the rule-making process while the decisionmaker is still receptive to information and argument.” 597 F.2d at 381. Suggestions from informed sources are especially valuable when, as here, the agency must implement a complex and technical statute.
The record here demonstrates the wisdom of the notice-and-comment procedure. The EPA seems to find FIFRA’s mandate confusing because, as mentioned earlier, at trial it admitted that the statute gives applicants a choice of methods for supporting applications, whereas the agency’s “cite all” regulations foreclose these alternatives. Understandably, those subject to the regulations profess confusion as well. The EPA's difficult task would have been facilitated had it scrupulously observed the notice-and-comment procedure, since it “enables the agency promulgating the rule to educate itself before establishing rules and procedures which have a substantial impact on those regulated.” Texaco, Inc. v. FPG, 412 F.2d 740, 744 (3d Cir. 1969). Procedural regularity would also help to inspire public confidence in the agency’s workings.
In evaluating whether the July 25, 1978 ANPR gave sufficient actual notice for the EPA to dispense with the usual APA procedures, “the adequacy of the notice must be tested by determining whether it would fairly apprise interested persons of the ‘subjects and issues’ before the Agency.” American Iron & Steel Institute v. EPA, 568 F.2d at 293. Inspection of the ANPR shows that it falls short of this standard. It states that “[t]he regulations will address the registration of pesticide products on a conditional basis, that is, contingent upon the later submission of certain data normally required prior to registration,” and adds that “[t]he regulations will specifically discuss ... the procedures and conditions under which conditional registrations will be granted.” 43 Fed.Reg. 32155. Plainly, these generalities are insufficient to alert interested parties to the full extent of the “conditional only” program actually envisioned by the EPA. Consequently, we do not agree with the district court’s conclusion that good cause for waiver of the APA has been demonstrated.
We are persuaded that the EPA’s failure to observe the proper notice-and-comment procedure is directly responsible for many of the problems caused by the regulations. We therefore reject the agency’s contention that its violation of the APA is only “harmless error.” Nevertheless, we are convinced that to strike down the regulations immediately would generate confusion in the administrative process and unduly delay effective implementation of FIFRA’s registration provisions.
In reviewing administrative actions, a court of appeals may exercise equitable powers in the choice of a remedy, as long as the court confines itself to the terms of the statute and does not improperly intrude on the agency’s powers. Sharon Steel Corp. v. EPA, 597 F.2d at 381. Although appellants are entitled to relief, we should not fashion a remedy so broad as to endanger the Congressional plan for the control of pesticides. Id. To accommodate the conflicting interests at stake here, we shall delay for a period of six months the issuance of a mandate invalidating the regulations. During that time, the EPA shall take all necessary steps to promulgate appropriate regulations in accordance with the Administrative Procedure Act.
The judgment of the District Court for the Eastern District of Pennsylvania, our docket No. 81-2469, will be affirmed. The judgment of the Western District of Pennsylvania in No. 81-2190 will be affirmed insofar as it rejected the constitutional challenge of the appellants, but will be vacated as to the EPA regulations which the district court sustained. The judgment of .the Western District of Pennsylvania in No. 81 — 2191 will also be affirmed.
. Mobay agrees that its two appeals from the Western District of Pennsylvania stand or fall together on the use issue.
. Mobay submitted a set of requests for admissions to the EPA which we reproduce here along with the answers:
“42. Section 3(c)(1)(D) of the Act provides three distinct methods by which an applicant may satisfy the Act’s requirements for data ■to support his application.
Answer: Admit.
43. The option to support an application by any of the methods provided in Section 3(c)(1)(D) of the Act lies with the applicant. Answer: Admit.”
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_casetyp1_7-2
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation".
John W. WILLIAMS, Plaintiff-Appellant, v. WESTINGHOUSE ELECTRIC CORPORATION, Defendant-Appellee.
No. 73-2898
Summary Calendar.
United States Court of Appeals, Fifth Circuit.
Nov. 28, 1973.
Rein J. Vander Zee, Kerrville, Tex., for plaintiff-appellant.
Robert B. Summers, Claude B. Masters, San Antonio, Tex., for defendant-appellee.
Before WISDOM, AINSWORTH and CLARK, Circuit Judges.
Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir., 1970, 431 F.2d 409; Part I.
PER CURIAM:
This suit in diversity arose from an automobile collision between plaintiff-appellant Williams and Lewis Charles Elliott, who was driving a car owned by his employer, Westinghouse. At the time of the accident, not only was Elliott engaged in a personal errand, he was on an extended medical leave from Westinghouse. The lower court correctly concluded that Elliott was not acting within the course and scope of his employment, and it found no evidence of negligence on Westinghouse’s part in connection with Elliott’s use of the company car. Accordingly, the court granted summary judgment for Westinghouse. We affirm.
Affirmed.
Question: What is the specific issue in the case within the general category of "economic activity and regulation"?
A. taxes, patents, copyright
B. torts
C. commercial disputes
D. bankruptcy, antitrust, securities
E. misc economic regulation and benefits
F. property disputes
G. other
Answer:
|
songer_timely
|
D
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to some threshold issue at the trial court level. These issues are only considered to be present if the court of appeals is reviewing whether or not the litigants should properly have been allowed to get a trial court decision on the merits. That is, the issue is whether or not the issue crossed properly the threshhold to get on the district court agenda. The issue is: "Did the court conclude that it could not reach the merits of the case because the litigants had not complied with some rule relating to timeliness, a filing fee, or because a statute of limitations had expired?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
Annie E. KAVANAUGH, alias, Defendant, Appellant, v. James D. McQUAID, Trustee, Plaintiff, Appellee.
Circuit Court of Appeals, First Circuit.
January 14, 1929.
No. 2236.
E. M. Shanley and Benjamin Tannenbaum, both of Boston, Mass., for appellant.
James R. Flanagan, of Boston, Mass., for appellee.
Before BINGHAM, JOHNSON, and ANDERSON, Circuit Judges.
PER CURIAM.
It is ordered that this ease be, and the same hereby is, dismissed for want of prosecution.
Question: Did the court conclude that it could not reach the merits of the case because the litigants had not complied with some rule relating to timeliness, a filing fee, or because a statute of limitations had expired?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_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.
Wesley E. GREEN, Plaintiff-Appellant, v. Margaret M. HECKLER, Secretary, Department of Health and Human Services, Defendant-Appellee.
No. 85-3876.
United States Court of Appeals, Ninth Circuit.
Submitted April 24, 1986.
Decided Oct. 28, 1986.
James L. Edmunson, Malagon & Associates, Eugene, Or., for plaintiff-appellant.
Richard H. Wetmore, Sp. Asst. U.S. Atty., Seattle, Wash., for defendant-appellee.
Before FARRIS, BEEZER and BRUN-ETTI, Circuit Judges.
The panel is unanimously of the opinion that oral argument is not required in this case. Fed.R.App.P. 34(a).
BRUNETTI, Circuit Judge:
Wesley E. Green appeals the district court judgment affirming the decision of the Secretary of Health and Human Services (the Secretary) denying disability benefits. Green contends that (1) the administrative law judge’s (AU) negative credibility finding was legally improper; and (2) the Secretary’s determination that Green can do light or sedentary work was therefore not supported by substantial evidence.
We disagree and affirm.
I.
FACTS AND PROCEEDINGS BELOW
Green was fifty-four years old when he appeared before the AU. He has an eighth-grade education. He had done primarily heavy, skilled labor as a millwright. He applied for disability benefits in 1978 and 1981, and was denied both times. In February 1983 he again applied for disability benefits, alleging onset of disability in December 1980 due to degenerative arthritis in his right knee, coronary artery disease, chronic obstructive pulmonary disease, and some history of seizures of undetermined etiology.
The Secretary of Health and Human Services (Secretary) denied Green’s application initially and again on reconsideration. After a hearing, an AU ruled that Green’s medical impairments prevent him from returning to his former job, but found that Green retains the residual functional capacity to perform light or sedentary work. In addition, the AU found that jobs Green could perform exist in the region. The AU therefore concluded that Green was not disabled. After the Appeals Council denied his request for review, Green filed a complaint in district court. The district court affirmed the Secretary’s denial. Green timely appeals.
II.
STANDARD OF REVIEW
The Secretary’s decision denying benefits will be disturbed only if it is not supported by substantial evidence or it is based on legal error. Nyman v. Heckler, 779 F.2d 528, 530 (9th Cir.1985), amended on other grounds, No. 85-3726 (9th Cir. Feb. 24, 1986). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 216, 83 L.Ed. 126 (1938)). This court must consider the record as a whole, weighing both the evidence that supports and detracts from the Secretary’s conclusion. Jones v. Heckler, 760 F.2d 993, 995 (9th Cir.1985); see also Swanson v. Secretary of Health & Human Services, 763 F.2d 1061, 1064 (9th Cir.1985).
III.
DISCUSSION
To qualify for disability benefits, the claimant must establish that a medically determinable physical or mental impairment prevents him from engaging in substantial gainful activity. The claimant must demonstrate that the impairment is expected to result in death or to last for a continuous period of at least twelve months. Jones, 760 F.2d at 995; Gallant v. Heckler, 753 F.2d 1450, 1452 (9th Cir. 1984); 42 U.S.C. § 423(d)(1)(A). Additionally, the impairment must result from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical or laboratory diagnostic techniques. Gallant, 753 F.2d at 1452; 42 U.S.C. § 423(d)(3).
In hearings arising out of a claimant’s initial application for benefits, the claimant has the burden of proving he is disabled. Swanson, 763 F.2d at 1064; Gallant, 753 F.2d at 1452. The claimant establishes a prima facie case of disability by showing that a physical or mental impairment prevents him from performing his previous occupation. Gallant, 753 F.2d at 1452. The burden then shifts to the Secretary to show that the claimant can perform other types of work existing in the national economy, given his residual functional capacity, age, education, and work experience. Id.; see also 20 C.F.R. §§ 404.1520(f), 404.-1560-.1568 (1985).
In addition, when a claimant reapplies for disability benefits after an earlier denial, that earlier denial precludes the claimant from arguing that he was disabled during the period covered by the earlier decision. Furthermore, it creates a presumption that the claimant was able to work beyond the date of the earlier decision. Miller v. Heckler, 770 F.2d 845, 848 (9th Cir.1985); Taylor v. Heckler, 765 F.2d 872, 875 (9th Cir.1985). The claimant therefore carries the burden of showing “changed circumstances,” i.e., showing that his impairments have become more severe since the date of the earlier decision. Taylor, 765 F.2d at 875.
A. Green’s Testimony
Green testified that he experienced severe shortness of breath or asthma attacks after engaging in mild exercise, such as walking for fifty to one hundred yards or climbing a flight of stairs. He stated that he experiences “very bad pain” in various joints at different times, not just in his right knee, and that when he maintains one position for very long, the pain becomes so bad that he cannot concentrate. He reported that he fairly predictably has chest pain four to six hours after exerting himself.
Green has not worked since January 1978. He is no longer able to enjoy his normal recreational activities, such as hunting and fishing. He testified that he is largely housebound, and his activities are mainly limited to reading and watching television. He also reported numbness and stiffness in his hands, which often causes him to drop dishes or spill his coffee.
B. The Medical Evidence
Green submitted evidence to substantiate the following medical impairments:
First, he has chronic pain and some instability and functional limitation in his right knee, stemming from an injury in 1948. The knee has required surgery four times, most recently in 1978. His condition has been diagnosed variously as “moderate osteoarthritis,” “moderately advanced degenerative joint disease,” or “severe degenerative arthritis.” He uses a weight-bearing brace and one treating physician reported that he cannot squat.
Second, he has chronic obstructive pulmonary disease. This condition was described as “fairly minimal” based on November 1981 test results. Based on a pulmonary function test administered in April 1983, Green’s physician concluded that he had “minimal restrictive disease with moderately severe obstructive disease, partially responsive to bronchodilators.”
Third, he has coronary artery disease, which has been documented by angiography. He reports chest pain, and a number of treating physicians have concluded that this chest pain is probably due to angina. At the same time, however, several treating physicians have commented that the pain Green reports is not typical angina pain, and therefore might not be angina. The pain is not reliably produced by exercise. One doctor suggested that the pain might be due to coronary artery spasm.
Finally, on at least two occasions (October 1982 and January 1983), Green has sought medical attention as a result of seizure-like episodes. A consulting neurologist concluded that these were probably epileptic seizures, but an electroencephalogram and a neurological examination failed to confirm this clinically. One consulting physician concluded that the incidents were probably hysterical or psychosomatic in origin.
A number of the treating physicians have evaluated or at least commented on Green’s residual functional capacity. None considered Green totally disabled. Dr. Zidd, who saw Green after his October 1982 seizure, commented that upon discharge Green could “resume full activity.” Dr. Wheeler administered a treadmill exercise tolerance test in May 1983 as part of a disability assessment. He commented that the electrocardiogram yielded no evidence that exercise induced ischemia. He rated Green’s overall cardiorespiratory fitness as “average.” He concluded that Green is able to stand, walk, or sit for six hours per eight-hour day, and is able to lift or carry twenty-five pounds frequently.
C. The AU’s Findings
The AU conceded that Green has certain medical impairments (i.e., severe degenerative arthritis of the right knee, coronary artery disease, and chronic obstructive pulmonary disease), and concluded that these impairments render Green unable to return to his former occupation. The AU believed that Green’s subjective complaints were “made sincerely,” but he found this testimony “not credible” to the extent it was “not corroborated by the objective medical evidence.” The AU found that Green therefore had the residual functional capacity to perform light or sedentary work, and that he is accordingly able to perform jobs that exist in the region. Based on these findings, the AU concluded that Green was not disabled.
The medical reports provide substantial evidence supporting the Secretary’s determination that Green has the residual functional capacity to perform light or sedentary work. See 20 C.F.R. § 404.1567(b) (1985).
D. Analysis
Green contends that the AU’s finding of no disability is not supported by substantial evidence. He argues that the AU erroneously found Green’s pain testimony incredible. Moreover, the Secretary’s own vocational expert testified that if Green’s pain testimony is believed, Green should be considered disabled.
It is undisputed that Green has certain medical impairments that could reasonably be expected to produce a certain amount of pain and limitation. Green’s testimony, however, indicated that he experienced significantly more pain and limitation than would normally be expected for a person with his impairments.
The Secretary is not required to believe a claimant’s complaints of pain. The Secretary can disregard such self-serving testimony whenever the claimant fails to submit objective medical findings establishing a medical impairment that could reasonably be expected to produce the claimed pain. Nyman, 779 F.2d at 531; Taylor v. Heckler, 765 F.2d 872, 876 (9th Cir.1985). However, she must make specific findings justifying that decision. Miller v. Heckler, 770 F.2d 845, 848 (9th Cir.1985); Bellamy v. Secretary of Health and Human Services, 755 F.2d 1380, 1382 (9th Cir.1985).
Section 423(d)(5)(A) states that an “individual’s statement as to pain ... shall not alone be conclusive evidence of disability ... there must be medical signs and findings ... which show the existence of a medical impairment ... which could reasonably be expected to produce the pain____ Objective medical evidence of pain ... must be considered in reaching a conclusion as to whether the individual is under a disability.” However, this court recently stated that we have “never required that the medical evidence identify an impairment that would make the pain inevitable.” Howard v. Heckler, 782 F.2d 1484, 1488 (9th Cir.1986). We further stated that Congress intended section 423(d)(5)(A) to mean that “so long as the pain is associated with a clinically demonstrated impairment, credible pain testimony should contribute to a determination of disability.” Id. at 1488 n. 4 (emphasis in original).
Howard must be distinguished from the instant case on its administrative procedural posture. In Howard, the ALJ believed the claimant testified truthfully and had severe impairments that could reasonably produce his pain. The Appellate Council, however, rejected the claimant’s pain testimony with no analysis or reference to the AU’s detailed findings of severe impairments. We held that when the Council rejects an AU’s credibility findings, it must state reasons for doing so and the reasons must be based upon substantial evidence in the record. Id. at 1487. An AU’s assessment of pain level is entitled to great weight. Id. at 1488; see also Nyman, 779 F.2d at 531.
In the instant case, the Appellate Council accepted the AU’s finding that Green’s pain testimony was incredible. The AU thoroughly discussed the medical evidence in making his credibility finding. The physicians’ reports consistently fail to find an association between Green’s medical ailments and his degree of pain. Therefore, as stated in Howard and Nyman, we will give the AU’s assessment great deference. We hold that the AU’s credibility finding was not erroneous and affirm the Secretary’s decision denying disability benefits.
AFFIRMED.
. A claimant’s residual functional capacity is what he can still do despite his physical or mental limitations. 20 C.F.R. § 404.-1545(a) (1985).
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_procedur
|
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 rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant.
THOMAS A. EDISON, Inc., v. BLACKMAN DISTRIBUTING CO., Inc.
No. 270.
Circuit Court of Appeals, Second Circuit.
Aug. 29, 1933.
Palmer & Series, of New York City (William Huck, Jr., and Joseph A. Clossick, both of New York City, of counsel), for appellant.
Clark, Reynolds & Hinds, of New York City (Roger Hinds and Leonard J. Reynolds, both of New York City, of counsel), for appellee.
Before MANTON, AUGUSTUS N. HAND, and CHASE, Circuit Judges.
AUGUSTUS N. HAND, Circuit Judge.
The plaintiff, a New Jersey corporation, brought this action against the defendant, a New York corporation, to recover “the agreed and reasonable value” of goods sold and delivered to the defendant, asking judgment for $20,634.98 and interest thereon from February 1, 1931. The defendant filed an amended answer to the complaint setting forth a separate and distinct defense to the alleged cause of action and four counterclaims. The plaintiff moved to dismiss all four counterclaims on the ground that none of them stated facts sufficient to constitute a cause of action, to dismiss the second counterclaim on the additional ground that it could not properly be interposed in the action, and to strike out the separate defense on the ground that it was insufficient in law upon its face. The District Court, by an order dated July 2, 1931, granted the motion and ordered that all four counterclaims be dismissed and the separate defense stricken out. In an opinion dated July 2, 1931, however, the District Court held that certain of the allegations in the first counterclaim might “form the basis of affirmative relief against the plaintiff,” and accordingly the order of dismissal gave the defendant leave to serve an amended answer in conformity with the directions in the opinion. The defendant filed exceptions to the order, and seasonably interposed a second amended answer, setting forth a single counterclaim, to which the defendant replied. The matter was referred by the court to a referee, who determined that the plaintiff was entitled to recover from the defendant the principal sum of $19,119.47, and that the defendant might set off the principal sum of $2,533:80 on the basis of its counterclaim. Interest was allowed on various fractions of the principal sums from various dates. The District Court confirmed the referee’s report, and judgment was entered for the plaintiff for $19,053.58. The defendant has appealed from the judgment in so far as it dismisses the second, third, and fourth counterclaims set forth in. the first amended answer. The plaintiff has taken a cross-appeal from so much of the judgment as allows the defendant a set-off on the basis of the counterclaim set forth in the second amended answer.
This litigation arises out of an agreement in-the form of a letter sent by the defendant to the plaintiff on February 1, 1929, “to confirm and set forth the terms of the agreement arrived at on January 22, 1929, between yourselves and our company,” and accepted by the plaintiff as expressing the agreement on February 25, 1929. By the terms of this agreement, the plaintiff, a manufacturer of radios and phonographs, appointed the defendant distributor of the plaintiff’s products in a designated territory, and agreed to appoint no other distributor, or to act as its own distributor, within that territory “while this agreement remains in effect.” The defendant might elect to discontinue handling and distributing the plaintiff’s products “at any time during the life of this agreement,” in which ease the plaintiff might appoint other distributors within the territory. The agreement further provided that: “We are to be free, if we so desire, to handle other radio, combination radio and phonograph, and phonograph products, including records, in said territory until June 1, 1930, and we are to advise you on February 1, 1930, whether or not we desire to “continue as distributors of your said products after June 1, 1930. If we advise you on. February 1, 1930, that we desire to continue to act as distributors of your said products, we shall continue, to act as such distributors in said territory, until February 1, 1933, with the understanding that during the period from June 1, 1930, to February 1, 1933, we will agree if you so desire, to handle only Edison radio, combination radio and phonograph, and phonograph products including records, and with the further understanding that if we so elect to extend the term of our distributorship to February 1, 1933, this agreement may be cancelled by either party on six (6) months written notice given at any time after December 1, 1930.”
The defendant duly exercised its option to extend the life of the agreement to February 1, 1933, and agreed, waiving a request from the plaintiff, to handle only Edison products. It is conceded that the defendant became bound to handle only radios and phonographs manufactured by the plaintiff. The parties acted under the agreement for several months during 1930. Other pertinent provisions of the agreement are as follows:
“If you” (the plaintiff) “should elect * * * to cancel this agreement and give us said six months’ notice, you mil, at our option, take over and assume the lease covering the premises occupied by us at 28 West 23rd Street, New York City, which runs to February 1, 1933, and will purchase the furniture and fixtures, reasonably comparable with the present furniture and fixtures, which we have installed in said premises at a price which shall be mutually agreeable, or in the event that the price cannot be mutually agreed upon, a third party, agreeable to both of us, shall be selected .as an arbitrator and the price determined by him shall be final and accepted by both of us and you will make payment for the said furniture and fixtures at the time this agreement terminates. It is further understood that in the event you elect to cancel this agreement and give us the said required notice, you will, upon the termination of the agreement, take back from us all the merchandise of your manufacture and purchased by us from you, which we then have on hand and which is new or saleable in the regular course of business as new, and will pay us for such merchandise the net cost to us of same. * * *
“All prices are to be F. O. B. your factory and the list prices are to be no greater than those made to other distributors; also discounts from list prices and for cash payments to be no less than that given to other distributors. It is also understood that if the prices of your said products are lowered at any time during the period of this agreement, we shall be refunded the difference between the cost to us under new prices and the cost to us under the old prices of any of such products which have been billed to us within the preceding ninety (90) days, which are on hand unsold, whether they are on hand in our establishment or whether they have been delivered to our dealers' and remain on hand unsold by them. * * *
“It is further understood that it is your intention to manufacture and that you will endeavor to have ready to market on or about June 1, 1929, a reasonably complete line of radio sots, phonographs or combination phonograph and radio sets to be sold at list prices commencing at or about One hundred and twenty-five dollars ($125.00) and ranging upwards in accordance with the type of such products, and it is your intention that these list prices shall be reasonably competitive with similar merchandise offered to the public by other manufacturers.”
On June 20, 1930, the defendant by letter indicated some dissatisfaction with the highpriee range of the plaintiff’s products, and asked whether the latter would insist that the defendant comply with the requirement that no other “make” of radio or phonograph should be handled by the defendant. The plaintiff by a letter dated June 25, 1930, replied that, unless the agreement under which the parties were acting should be substantially modified for the benefit of the plaintiff, the requirement that no other “make” might be handled would he insisted on. On July 11, 1930, the defendant by letter referred to the clause of the agreement stating the plaintiff’s “intention” to bring out “a reasonably complete line of radio sets, phonographs or combination phonograph and radio sets to be sold at list prices commencing at or about One hundred and twenty-five dollars ($125.00) and ranging upwards,” and called upon the plaintiff to furnish lower priced sets than had as yet been supplied. Ño answer to this communication appears in the record, but the referee found that the plaintiff had already on July 9, 1930, informed the defendant that it would not manufacture a cheaper linetef merchandise. The referee further found that the plaintiff did not consent to the defendant’s handling other makes, and that on August 6, 1930, the defendant notified the plaintiff that it had taken on and was handling the Clarion radio, which was not manufactured by the plaintiff. However, no protest was made by the plaintiff until nearly three months later, when, on November' 5, 1930, it informed the defendant by letter that the latter’s distribution of the Clarion radio “breaches in a vital respect your agreement with us” and that “we therefore notify you that our agreement is at an end.” To this letter the defendant replied on November 7, 1930, that: “We do not consider that your letter is proper notice to us of your cancellation of this agreement, and this is to advise you that we do not accept it as sueh.”
The goods for the agreed value of which this action is brought were all sold by the plaintiff to the defendant after the notice of cancellation of the agreement by the plaintiff and rejection of such notice by the defendant referred to above. These goods were sold pursuant to an offer by the plaintiff contained in a letter sent November 12¡, 1930, which made no reference to prior dealings or disputes between the parties, and was couched in the most cordial, not to say familiar, terms, and extended best wishes for “a bang-up holiday business.” This offer was accepted by the defendant in a letter dated November 22, 1930, and, accordingly the merchandise for the price of which this action is brought was delivered to the defendant by the plaintiff. The defendant admits that it is indebted to the plaintiff for this merchandise in an amount exceeding $17,000.
We shall deal first with the appeal taken by the defendant from the order and judgment of the District Court in so far as they dismiss the second, third, and fourth counterclaims set forth in the first amended answer.
Second Counterclaim.
The second counterclaim attempts to set forth a cause of action in tort for deceit. It alleged:
(1) That in order to induce the defendant to enter into the agreement, the plaintiff “falsely and fraudulently represented to the defendant and covenanted with the defendant * * * that it would manufacture and sell to the defendant a reasonably complete line of radio sets and other products to be sold at list prices commencing at or about $125.00 and ranging upwards in accordance with the type of such products, but being a cheaper line than the existing line of plaintiff’s products * *
(2) That the plaintiff after making the agreement “in order to deceive and defraud the defendant * * * falsely and fraudulently represented * * * that it was going to continue in the manufacture and sale of the radio sets; that it would not ‘dump’ its products and that it was in the business ‘for a long pull.’ ”
The second counterclaim also alleged that the “representations were false and were known to the plaintiff to be false when made and were made by the plaintiff with intent to deceive and defraud defendant by inducing the defendant * * to continue to purchase and stock plaintiff’s products which plaintiff had already manufactured and had on hand”; and alleged that defendant, “relying on the truth of such representations was induced to and did spend large sums of moneys for plaintiff’s goods, for advertising, advances to a large sales force, for credits and for promotion work, and refrained from carrying on other business which it could have engaged in for profit.” Finally, it alleged that the plaintiff fraudulently commenced to “dump” its radio sets “at prices which were so much less than the prices at which it was selling * * * to defendant * * * that the defendant could not sell the products which it had purchased from plaintiff in competition with the goods which had been so ‘dumped,’ ” and, in a letter dated December 15, 1930, announced to the defendant that it would retire fhom the radio business and did so retire. By reason of the foregoing, plaintiff claimed $150,000 damages.
This counterclaim incorporates by reference a letter from the plaintiff to the defendant which begins by saying: “This is to confirm and set forth the terms of the agreement * * * between yourselves and our company.” It is, therefore, a final memorial of the agreement of the parties and all the allegations about a contemporaneous oral agreement must under the parol evidence rule be disregarded. When the letter says, “It is understood that it is your intention to manufacture ■* * * a reasonably complete line of radio sets * * * to be sold at list prices commencing at about * * * $125.00,” it sets forth no promissory obligation or contractual relation, but an intention and nothing more, and affords no basis for recovery in contract. But the counterclaim sets forth a representation of an intention to manufacture cheap radio sets made to induce the defendant to enter into the agreement, that it was false and known to be false, was made to deceive the defendant and relied on by the latter to his damage-. If it had been alleged that the plaintiff after making such a representation as to its intention had failed to manufacture the cheap radio sets, the cause of action would be complete. Adams v. Gillig, 199 N. Y. 314, 92 N. E. 670, 32 L. R. A. (N. S.) 127, 20 Ann. Cas. 910; Ritzwoller v. Lurie, 225 N. Y. 464, 122 N. E. 634; Deyo v. Hudson, 225 N. Y. 602, 122 N. E. 635; Adams v. Clark, 239 N. Y. 403, 146 N. E. 642. The cause of action relied on is not that the plaintiff did not intend to do what it contracted to do when it induced the defendant to contract as in Continuous Zinc Furnace Co. v. American Smelting & Refining Co. (C. C. A.) 61 F.(2d) 958, for-it had never bound itself contractually to manufacture the-cheap radios. The tort here consists 'in a fraudulent representation of an intention to do something, though not contracted for, in order to induce the malting of the agreement.. There is, however, no allegation in the counterclaim (and the question arises wholly upon the pleading itself) that the plaintiff failed, to manufacture cheap radio sets, so the cause of action based on this item of the second counterclaim fails. There is no showing that the District Judge was requested to allow a repleader and no error is assigned because-of his failure to grant one.
The allegation that the plaintiff falsely represented that it would continue manufacturing and would not “dump” its products is-also unavailing. The representations are said to have been made after the contract was entered into, and not as an inducement to-the making of it. As we shall later show, the defendant was bound under the agreement to purchase the amount of its business requirements. Therefore, the on-Iy damage which could arise from these false representations would be that the defendant was thereby induced to purchase more goods than it was bound under the contract to take, and no such damage is alleged. The second counterclaim was properly dismissed.
Third Counterclaim.
The third counterclaim is based upon the allegation that the plaintiff, on December 15, 1930, announced to the defendant that it would retire from the radio business and would no longer manufacture radio sets; that it ceased operations on that date and thereby canceled the agreement and became liable to-purchase the furniture and fixtures and assume the lease and pay for the merchandise of plaintiff’s manufacture at 28 West Twenty-Third street as the agreement provided must be done if the plaintiff should give six months’written notice of cancellation after December 1, 1930. The counterclaim also sets forth that the plaintiff never gave the six months’’ notice called for by the agreement but, by announcing on December 15, 1930, that it. would no longer manufacture radio sets and' failing to manufacture the same, canceled the-contract on that date. It also alleges that the plaintiff failed to assume the lease and purchase the fixtures and pay for the products of plaintiff’s manufacture on hand, all to defendant’s damage in the sum of $102,340.
It is a fatal objection to this counterclaim that the announcement of cancellation of the agreement was given less than six. months before the date when the counterclaim was interposed so that the cause of action had not arisen when the counterclaim was asserted. Moreover, the cancellation provided for in the agreement was not a breach of contract by the plaintiff, and the breach of contract which occurred when the plaintiff ceased to manufacture and supply the business needs of the defendant was not the cancellation provided for in the agreement. Any damages arising out of a cancellation on notice would be entirely different from those arising out of a broach. The plaintiff had a right to choose which it would subject itself to and cannot be required to assume the lease and repay the plaintiff upon the theory that its announcement of retirement from business was the equivalent of notice of cancellation provided for in the contract. We think it clear that the third counterclaim cannot be sustained and was properly dismissed.
Fourth Counterclaim.
We have already said that the oral agreement between the parties merged in the letter, which is incorporated by reference in the fourth counterclaim. The question, therefore, arises, what is the proper interpretation and effect of the letter of the defendant on February 1,1929, which the plaintiff accepted and which constituted the agreement between the parties. The plaintiff contends that the letter simply set forth a course of proposed business dealings and that the only thing the parties agreed to do was to refrain from dealing with others for a definite period; that it did not contain any promise of the defendant to buy, or of the plaintiff to sell, any quantity of merchandise.
While the foregoing contention is not without some force, we think the letter by the defendant of February 1, 1929’, accepted by the plaintiff gave rise to an implied agreement that the plaintiff should sell the radio and other products described in the letter to the extent that .might be reasonably required to enable the defendant to carry on its business as distributor for the plaintiff, and that the defendant should purchase the same. If such was the contract, the plaintiff was not relieved from performing its obligations by going out of business. Wells v. Alexandre, 130 N. Y. 642, 29 N. E. 142, 15 L. R. A. 218.
Schnerb v. Caterpillar Tractor Co. (C. C. A.) 43 F.(2d) 920, was a decision by this court. Schnerb, who was the distributor, sought damages for breach by the defendant, who was the manufacturer, of its covenant .not to invade the territory that it had assigned to Schnerb. Schnerb asserted that the defendant had broken this covenant by selling tractors to the French government direct. The contract in that case consisted of a letter by the defendant to Schnerb which gave the latter “exclusive representation” in the sale of defendant’s tractors in certain territory, including France. The letter contained no promise to buy or sell. It might be argued, as here, that all that was left to the will of the parties. Nor did the letter set forth any definite number of tractors which it was proposed that Schnerb was to buy. It did provide, however, that a price “for the present” of a 60 horse power type of tractor should he $3,125 and that at all times the prices should be in keeping with those being charged other agents using a like amount of goods. In that ease we said in effect that there was an implied agreement by each party not to sell tractors in the other’s territory, that the defendant promised that the prices charged Schnerb should be in keeping with those charged other agents, and the defendant was under an implied obligation to fill Schnerb’s orders if the capacity of its plant permitted.
In Abrams v. George E. Keith Co. (C. C. A.) 30 F.(2d) 90, a manufacturer agreed to sell and deliver shoes to a customer at prices to be agreed on from time to time, and the customer undertook to resell the shoes, as the manufacturer’s agent, under the agreement that the customer should have the exclusive sale of the shoes of the manufacturer. It was argued that the contract was invalid for lack of mutuality, but the Court of Appeals of the Third Circuit held it valid and decided that when the manufacturer refused to fill orders furnished by the customer there was a breach of contract.
In Mills-Morris Co. v. Champion Spark Plug Co. (C. C. A.) 7 F.(2d) 38, 39, the plaintiff, who was a dealer in automobile accessories, agreed to keep on hand at all times a stock of the different types of spark plugs manufactured by the defendant and “sufficient to supply the requirements” of plaintiff’s regular trade, and also agreed that all of plaintiff’s purchases during the contract term should be at certain specified prices. Plaintiff further agreed to canvass the territory for customers and promote the defendant’s trade in every reasonable w7ay. The defendant did not agree in express terms to sell spark plugs to the plaintiff, but the Court of Appeals of the Sixth Circuit held that such an obligation was to be “implied” from the “undertakings and the requirements that it exacted of plaintiff” and that a repudiation of the agreement by the defendant gave rise to a good eanse of action on the part of the plaintiff.’
In Ehrenworth v. George F. Stuhmer & Co., 229 N. Y. 210, 128 N. E. 108, it was agreed betweeq the plaintiff and the defendant that the former should purchase, and the latter, should sell, all the pumpernickel which the plaintiff, who was a dealer in bread, required upon his route, and should pay therefor a price one cent less than the wholesale price and two cents less than the retail price. It was also agreed that the plaintiff was not to sell any other pumpernickel to its customers and that the defendant was to furnish plaintiff with such amount as his business required. The foregoing was held a valid contract not lacking in mutuality, although there was no express promise to purchase any particular amount of pumpernickel.
The decisions in Wood v. Lucy, Lady Duff-Gordon, 222 N. Y. 88, 118 N. E. 214; Moran v. Standard Oil Co., 211 N. Y. 187, 105 N. E. 217; N. Y. C. Iron Works Co. v. U. S. Radiator Co., 174 N. Y. 331, 66 N. E. 967; Wells v. Alexandre, 130 N. Y. 642, 29 N. E. 142, 15 L. R. A. 218; Horton v. Hall & Clark Mfg. Co., 94 App. Div. 404, 88 N. Y. S. 73; Phoenix Hermetic Co. v. Filtrine Mfg. Co., 164 App. Div. 424, 150 N. Y. S. 193; Jacquin v. Boutard, 89 Hun, 437, 35 N. Y. S. 496; Turner v. Goldsmith, L. R. 1 Q. B. (1891) 544, are to the same effect.
Plaintiff contends that the f oregoing eases are not in point because the defendant here was not an agent and there was no promise by plaintiff to supply the requirements of the defendant’s business. But the supposed difference seems tenuous. The letter on which the agreement between the parties is founded appointed the defendant plaintiff’s “distributor.” It provided that the appointment was to extend until February 1, 1933, but might be canceled by either party on or after December, 1930, upon six months’ written notice and that if the plaintiff gave such notice it should be required to assume the lease of the premises occupied by defendant which ran to February 1, 1933, and to purchase the furniture and fixtures therein and to take back and pay the cost of all merchandise of plaintiff’s manufacture which defendant might have on hand. It was also agreed that the plaintiff would not appoint any other distributor in its territory during the life of the contract and that, if desired, the defendant would only handle plaintiff’s products. It was provided that the prices to the defendant should be no greater than those made to ‘Other distributors, and that if prices were lowered after goods had been delivered to the defendant, certain rebates were to be allowed to it and its customers for all products unsold by it, or them, and purchased within ninety days. Provision was also made for discounts to defendant’s dealers, and defendant was required to send plaintiff reports of net billings, together with copies of invoices. It was agreed that plaintiff should pay one-half the cost of newspaper or magazine advertising incurred either by the defendant or its dealers in connection with the sale of plaintiff’s products. It was also agreed that the plaintiff should consult with defendant and give due consideration to its suggestions as to changes in designs and types of instruments and records which defendant might consider desirable and that the latter should offer suggestions based on its long experience which it wished to place at plaintiff’s disposal. We can see no distinction between a distributor’s contract of this kind and the so-called agency contracts in which it is apparently admitted that agreements to sell and purchase would be implied. Under the agreement of February 1, 1929, as extended, defendant was compelled to do no business in radio products within a specified territory except with plaintiff, and the contract plainly required co-operation. It would defeat its purposes if agreements to purchase and sell were not implied. While the word “requirements” was not used, it must be supplied to render what was plainly a contract founded on mutual promises intelligible and effective. The plaintiff, having appointed the defendant distributor and obtained from the latter a promise to deal exclusively in plaintiff’s products, would not fulfill its contract unless it to a reasonable extent filled defendant’s orders.
The decision in Schlegel Mfg. Co. v. Peter Cooper’s Glue Factory, 231 N. Y. 459, 132 N. E. 148, 150, is relied upon by plaintiff, but is clearly distinguishable. In that case the defendant, a manufacturer of glue, wrote a letter to the plaintiff saying it had entered the “contract for your requirements of 'Special B. V.’ glue for the year 1916, price to be 9i>1 per lb. terms 2% 20th to 30th of month following purchase. Deliveries to be made to you as per your orders during the year * * At the bottom of the letter, the plaintiff 'wrote: “Accepted.” But the plaintiff did not agree “to sell any of the defendant’s glue, to make any effort towards bringing about such sale, or not to sell other glues in competition with it.” As the court said: “The only obligation assumed by it was to pay nine cents a pound for such glue as it might order.” There was no appointment of an exclusive agent or distributor as in the ease before us. The buyer did not agree to handle only the seller’s products, but was a mere jobber engaged in no business requiring glue so that there was no ascertainable standard of “requirements.” Nassau Supply Co. v. Ice Service Co., 252 N. Y. 277, 169 N. E. 383.
In Smith v. Diem, 223 App. Div. 572 229 N. Y. S. 56, affirmed 249 N. Y. 590, 164 N. E. 595, the defendant promised to sell no cigars to any other dealer Ilian the plaintiff so long as the latter bought 10,000 per week. The plaintiff did not, as in our case, agree to buy of no other manufacturer. There was no more than a unilateral offer in a letter by the plaintiff, to which the defendant made no reply.
We think the contract set up in the fourth counterclaim is governed by the principles laid down in Schnerb v. Caterpillar Tractor Co. (C. C. A.) 43 F.(2d) 920; Abrams v. George E. Keith Co. (C. C. A.) 30 F.(2d) 90; Ehrenworth v. George F. Stuhmer & Co., 229 N. Y. 210, 128 N. E. 108; Turner v. Goldsmith, 1 Q. B. (1891) 544; and other decisions we have referred to, and that the judgment dismissing this counterclaim must, therefore, be reversed with leave to interpose an answer thereto, if the plaintiff should be so advised.
Amended First Counterclaim in Second Amended Answer.
As already stated, Judge Coxe dismissed the first counterclaim as well as the three others and allowed the defendant to amend it, whereupon it alleged the making of the agreement of February 1, 1929, and the extension thereof to February 3,1933, and set forth that it was provided in such agreement that if the prices of the plaintiff’s products wore lowered at any time there should be refunded to the defendant the difference between the cost under the new prices and the cost thereof under the old prices on all products which had been billed to the defendant within the preceding ninety days and were on hand unsold at the time of such reduction. The amended counterclaim further alleged that on or about October 15, 1930, plaintiff, without notice to the defendant, reduced its prices on its products and the defendant thereupon became entitled to a refund; that on or about that date the defendant had on hand certain products purchased by it from plaintiff and billed within the preceding ninety days on which the plaintiff had reduced its prices; that after the 15th day of October, and while the agreement was still in force, the defendant purchased from the plaintiff certain additional products of a class upon which the plaintiff had reduced its prices on or about the 15th day of October. That by reason of the aforesaid reduction in prices by the plaintiff, the defendant became entitled to a refund of a specified amount, no part of which had been paid. Plaintiff filed a reply to this amended counterclaim in which it alleged that shortly prior to November 5,1930, defendant commenced to distribute a radio known as the Clarion radio in the territory specified in the agreement; that this was not an Edison radio and was not manufactured by plaintiff; that defendant’s distribution of the Clarion radios was in violation of the agreement that defendant should handle only Edison products and constituted a breach of a vital and dependent covenant of the agreement between the parties; that on or about November 5, plaintiff served upon defendant a notice in writing whereby and because of the defendant’s breach in distributing the Clarion radios the agreement was terminated and plaintiff’s obligations thereunder ceased and were discharged. In accordance with the foregoing pleadings the defendant demanded refunds in amounts specified and the plaintiff demanded judgment dismissing the counterclaim.
The plaintiff contends that the sales of goods after plaintiff gave notice on November 5 that the distribution of the Clarion radios constituted a vital breach of the agreement which was thereby terminated constituted a new transaction outside of the contract, to which the provisions relating to refunds did not apply. The referee found that as early as August 6, 1930, the plaintiff was notified that the defendant was selling Clarion radios, and yet went on shipping its products to the defendant and doing business with the lattei’. We agree with his conclusion that such conduct was a waiver by the plaintiff of its right to terminate the contract for this breach and that under such circumstances its only remedy was to sue for any damages that it could prove by reason of the breach. Termination of the contract for this partial breach could only be had after reasonable notice to perform. We also agree with the referee that the later sales cannot be treated as transactions separate from the contract.
We have already said in this opinion that the agreement between the parties set forth in the letter of February 1, 192-9, constituted a valid contract of purchase and sale. When the deliveries of radio products in December, 1930, were made, the agreement was still in existence and as a matter of law they were bound to become subject to its terms. The plaintiff appeals from the decision of the issues raised by its reply to the amended first counterclaim on the ground that its notice of rescission on November 5 was effectual to cancel the agreement and that even if'the contract was still in force the goods were sold under an independent arrangement that included no right to refunds because of price reduction. We differ with both contentions. Continuance by the plaintiff of sales under the contract, and acceptance of performance by the defendant, amounted to an election to continue the contract and not to terminate it because of the breach. In such a situation no new consideration was required to prevent cancellation and plaintiff’s letter of November 5, 1930, was ineffectual to terminate the agreement. Champion Spark Plug Co. v. Automobile Sundries Co. (C. C. A.) 273 F. 74; Rosenthal P. Co. v. Nat. Folding B. & P. Co., 226 N. Y. 313, 123 N. E. 766; Brady v. Cassidy, 145 N. Y. 171, 39 N. E. 814; Tipton v. Feitner, 20 N. Y. 423; Panoutsos v. Raymond Hadley Corporation (1917) 2 K. B. 473; McNicholas v. Prudential Insurance Co., 191 Mass. 304, 77 N. E. 756; Williston on Contracts, §§ 682, 687.
Defendant quite properly replied to the letter of November 5, 1930, that it did not consider plaintiff’s letter a proper notice of cancellation of the agreement. As a matter of fact, the contract contained a clause, which we have already discussed, stating that it was plaintiff’s intention to put out a cheaper radio line. Defendant had constantly urged it to do this because cheaper sets were needed for the trade than those which the plaintiff was selling. The defendant never dealt in any radio of a price comparable to the plaintiff’s that did not originate with the latter. Under these circumstances, we think that the breach was partial. But whatever it was, the conduct of the plaintiff had precluded it from treating the contract as terminated until after giving the defendant a reasonable notice that it must cease selling the Clarion line and resume total performance.
We hold that the refunds were properly computed and the amount due .from the defendant was correctly reported by the referee. The amount of the judgment must, however, depend on what damages, if any, the defendant may be able to establish under itsjEourth counterclaim. The judgment is affirmed in so far as it' dismisses the first, second, and third counterclaim, and is reversed in so far as it dismisses the fourth counterclaim, with leave to the plaintiff to reply thereto within a time to be fixed by the District Court. The judgment is likewise reversed in so far as it adjudges that the plaintiff recover $16,585.67, interest and eosts, because the amount of the recovery by either party will depend on the result of the trial of the issues under the fourth counterclaim. When they are determined, judgment must be entered in accordance with the findings of fact heretofore made by the referee and the decision of the issues raised by the fourth counterclaim and the reply thereto. Parker Washington Co. v. Cramer (C. C. A.) 201 F. 878.
The ease is remanded, with directions to-proceed in accordance with the views expressed in this opinion.
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. Samuel E. MUSE, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Anthony R. WEST, Defendant-Appellant.
Nos. 81-2436, 81-2523.
United States Court of Appeals, Tenth Circuit.
May 17, 1983.
Vernon E. Lewis, Asst. U.S. Atty., and Jim J. Marquez, U.S. Atty., Kansas City, Kan., with him on brief, for plaintiff-appel-lee.
David J. Phillips, Asst. Federal Public Defender, and Charles D. Anderson, Federal Public Defender, Ira R. Kirkendoll, Asst. Federal Public Defender, and Robert M. Isenberger, Kansas City, Kan., with him on brief, for defendants-appellants.
Before DOYLE and McKAY, Circuit Judges, and BROWN , Senior District Judge.
Hon. Wesley E. Brown, Senior District Judge for the District of Kansas, is sitting by designation.
WESLEY E. BROWN, Senior District Judge.
These appeals were taken by defendants after their joint trial and conviction by a jury of one count of distribution of cocaine, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. i 2. Defendants submitted a joint brief, raising three issues. The facts shown by the evidence at trial are not in dispute.
The first issue raised by defendants is whether they were denied a fair trial by the government’s failure to produce the confidential informant for interview by defense counsel. On September 28, 1981, the trial court granted defendant’s pre-trial motion for disclosure of the identity of the confidential informant. In its order, the court stated that the government was to disclose the identity of the informant one week prior to trial and was to make the informant available to the defendants the morning of trial. Before trial commenced on October 28, 1981, the government announced to the court that the confidential informant was Michael Scheetz, and that it was unable to produce him for interview by defendant counsel. Mr. Scheetz had been in the witness protection program, but the Assistant United States Attorney learned approximately two weeks before trial that Scheetz had been released from that program. The prosecutor explained that Scheetz had been maintaining contact with the Drug Enforcement Administration, that he had spoken with Scheetz the previous Friday, October 23, 1981, and that Scheetz at that time had indicated his willingness to appear at trial. Scheetz also said he was going to Las Vegas, and would check with the United States Marshal’s office there for a subpoena. The prosecutor had the Marshal’s Service serve a subpoena in Kansas City, which was sent by Telex to the Marshal’s office in Las Vegas.
On Monday, October 26, 1981, the prosecutor learned that Scheetz had not gone to Las Vegas, but rather had returned to Scranton, Pennsylvania, where he supposedly could be contacted. The prosecutor telephoned the Marshal’s Service in Scranton several times the next day, October 27, 1981, and was informed that they had been in contact with Scheetz. Scheetz apparently gave a pay phone as the number where he could be reached, but had left that location when the prosecutor attempted to call him at that number. The Marshal’s Service was never able to serve Scheetz with the subpoena, which remained outstanding, despite efforts to locate Scheetz until approximately 9:00 p.m. the night before trial.
We start with the principle that the government’s refusal to disclose the identity of a confidential informant may violate a defendant’s due process rights. Gaines v. Hess, 662 F.2d 1364 (10 Cir.1981). Of course, the question before us is not disclosure, because the identity of the informant was disclosed. Instead, the first aspect of this issue to be resolved is whether defendants were denied due process by the failure of the government to produce the informant for interview, as ordered by the trial court. The government must use reasonable efforts to produce an informant so that a defendant may interview him or use him as a witness, but it is not the guarantor of an informant’s presence at trial. United States v. Hart, 546 F.2d 798 (9 Cir.1976), en banc, cert. denied, 429 U.S. 1120, 97 S.Ct. 1155, 51 L.Ed.2d 571 (1977); United States v. Hayes, 477 F.2d 868 (10 Cir.1973).
It is clear from the trial court’s ruling that it accepted the government’s statements as to its efforts to locate and produce the informant, and found them reasonable. We agree with this assessment. As the majority of the en banc Court held in Hart, supra, there was no reason to anticipate or suspect that the informant would fail to appear. Until Scheetz failed to go to Las Vegas as he said he would, he had maintained contact with the Drug Enforcement Administration [DEA] and had told the Assistant United States Attorney that he would be present at trial. On Monday, October 26,1981, after the Assistant United States Attorney discovered Scheetz had not been served with a subpoena in Las Vegas, he actively tried to locate Scheetz in the less than two days remaining before trial. The Marshal’s Service, however, was simply unable to find Scheetz. Under the circumstances recited above, we conclude that the government used reasonable efforts to produce Scheetz as soon as it knew that his appearance was doubtful or problematic, which is all that is required of it.
The second aspect of the failure to produce Scheetz is whether the trial court erred in denying the defense motion for a continuance until Scheetz could be located and interviewed. It has been held without additional justification that where the government has made a reasonable effort to locate and produce the informant, the trial court does not abuse its discretion in denying a continuance. United States v. Gonzalez, 582 F.2d 991 (5 Cir.1978); Hart, supra. Thus, neither Gonzalez nor Hart treated denial of a continuance as a separate question. Even if it is considered as one, we hold there was no error in denying a continuance here. Where the government has been unsuccessful in locating the informant despite its reasonable efforts, there is nothing more to be achieved by a continuance unless there is some reasonable possibility that the defendants could find the informant themselves. Here as in Gonzalez, there was no reason to believe that defendants could find the informant in the foreseeable future.
A second issue asserted by defendants is that the trial court erred in refusing to give defendant Muse’s requested instruction on his theory of defense. The jury was instructed that defendants’ “not guilty” pleas put in issue every material ingredient of the crime charged, and made it incumbent upon the United States to establish by the evidence, to the jury’s satisfaction beyond a reasonable doubt, every material allegation of the offense charged. This is in substance, of course, the first paragraph of defendant’s request. The instruction as to elements of the offense was:
“You are instructed that the elements of the offense charged in the indictment are as follows:
First: That on or about February 17, 1981, in the District of Kansas, the defendants did distribute the controlled substance described;
Second: That said substance was cocaine;
Third: That the acts of said defendants were done knowingly and intentionally.”
The trial court found that the requested instruction set out in Footnote 2 was adequately covered by other instructions given, and we agree. The requested instruction, particularly the last three numbered paragraphs, was merely a statement of the essential elements in the negative. Thus, it was repetitious of the instruction stating the effect of the “not guilty” plea. The first numbered paragraph, embodying the defense of mistaken identity, was likewise unnecessary. It is obvious that the court’s instructions required the jury to find beyond a reasonable doubt that the defendants, not some other person, committed the offense. The trial court’s refusal to give defendant Muse’s instruction in the form he requested did not deprive either defendant of a fair trial.
The final issue presented by these appeals concerns the government’s failure to provide certain material which the defendants contend was discoverable. Defendants’ first complaint in this regard is a failure by the government to supply an updated or current “rap sheet” for the informant Scheetz. As defendants recognize in their brief, this matter is rendered moot by the fact that Scheetz did not testify at trial, and was therefore not subject to cross-examination or impeachment.
In the other related assignment of error, defendants contend that the trial court erred in denying defendant Muse’s motion for “access to the government personnel files of government agents David Cigich, Edward King, F.B.I. forensic chemist Ronald J. Wagenhofer” and others. Defendants cite Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) as support for their contention that they were entitled to inspect government employees’ personnel files. Brady held that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment...” 373 U.S. at 87, 83 S.Ct. at 1196, 10 L.Ed.2d at 218. In Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), one Assistant United States Attorney stated in a post-conviction affidavit that he had promised the co-conspirator he would not be prosecuted if he testified for the government against the defendant. This newly discovered evidence, presented in support of Giglio’s motion for new trial, was contrary to statements by the Assistant United States Attorney who tried the case, and the co-conspirator’s trial testimony. The Supreme Court found that the co-conspirator’s “credibility as a witness was ... an important issue in the case, and evidence of any understanding or agreement as to a future prosecution would be relevant to his credibility and the jury was entitled to know of it.” Giglio, supra, 405 U.S. at 155, 92 S.Ct. at 766, 31 L.Ed.2d at 109. As a result, it was held in that case that due process required a new trial.
The Fifth Circuit had occasion to apply Brady and Giglio, supra, in United States v. Deutsch, 475 F.2d 55 (5 Cir.1973), a bribery case involving a defendant’s right to review the personnel file of the government employee who testified against him. In Deutsch, defendants moved for production of postal employee Morrison’s personnel file, for “ ‘insight into the character of said prospective witness.’ ” 475 F.2d at 57. The government sought to avoid production claiming that the Post Office was not an “arm of the prosecution” and that the United States Attorney’s office did not have Morrison’s personnel file. The Deutsch Court held that where Morrison was the “government’s whole case,” Brady required the government to produce his personnel file if it contained evidence useful to defendants for impeachment purposes, regardless of the fact that Morrison was employed by a different “arm” of the government. Deutsch recognized that a new trial was required only if defendants were deprived of something of value, and so remanded the case to the district court for examination of the personnel file to determine whether it would have afforded useful cross-examination.
We agree with the statement in Deutsch that the government must supply evidence useful to the defendant simply for impeachment purposes. However, in contrast to Deutsch, we hold that a remand is not necessary on the facts presented here. Unlike this case, Deutsch apparently involved a single request for production of the personnel file in question. In the instant case, defendant Muse made three specific requests and one general request for disclosure of evidence useful for impeachment, all of which were granted by the trial court. These asked for disclosure of: (1) all prior felony convictions and juvenile adjudications of any government witness; (2) all considerations, promises, and beneficial treatment given to government witnesses or government employees in connection with the prosecution; (3) all evidence showing “bad acts” of government witnesses; and (4) any and all other materials which would be favorable to the accused or discrediting to the government’s case. The government contends that the further request for access to personnel files, the only discovery denied by the trial court, was “a fishing expedition.” Whether it was that or not, the section of defendant Muse’s motion requesting personnel files was certainly overly broad and in our view superfluous, considering the granted portions of Muse’s motion. Defendants do not claim that the government failed to produce any materials pursuant to the requests summarized above. We think these requests, granted by the trial court, were quite thorough in seeking “evidence useful to the defendant(s) simply for impeachment purposes,” Deutsch, 475 F.2d at 57, whether such evidence was contained in personnel files or elsewhere. It is to be kept in mind that it was such evidence defendants were entitled to, not the personnel files as such. The trial court’s refusal to order production of the personnel files was not error, because the court did in fact order production of all material favorable or useful to the defense.
We find no error, and the judgments appealed from are therefore AFFIRMED.
. It does not appear that Scheetz was trying to avoid the subpoena even when he went to Scranton instead of Las Vegas, since he contacted the Marshal’s Service to leave a telephone number in Scranton.
. The instruction requested by defendant Muse was as follows:
“Defendant Muse has pleaded ‘not guilty’ to the charge contained in the indictment. This plea puts in issue each of the essential elements of the offense as described in these instructions, and imposes on the government the burden of establishing each of these elements by proof beyond reasonable doubt.
Defendant Sam Muse’s theory of defense is:
(1) That Defendant Muse has not been identified beyond a reasonable doubt as being present on February 17, 1981, in Kansas City, Kansas at the scene of the alleged transaction;
(2) That it has not been established beyond a reasonable doubt that Defendant Muse possessed cocaine;
(3) That it has not been established beyond a reasonable doubt that Defendant Muse knowingly and intentionally distributed cocaine;
(4) That it has not been established beyond a reasonable doubt that the substance in question on February 17, 1981 was illegal cocaine.”
Question: What party initiated the appeal?
A. Original plaintiff
B. Original defendant
C. Federal agency representing plaintiff
D. Federal agency representing defendant
E. Intervenor
F. Not applicable
G. Not ascertained
Answer:
|
sc_petitioner
|
144
|
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.
SHEPPARD v. MAXWELL, WARDEN.
No. 490.
Argued February 28, 1966.
Decided June 6, 1966.
F. Lee Bailey argued the cause for petitioner. With him on the brief were Russell A. Sherman and Benjamin L. Clark.
William B. Saxbe, Attorney General of Ohio, and John T. Corrigan argued the cause for respondent. With Mr. Saxbe on the brief was David L. Kessler, Assistant Attorney General.
Bernard A. Berkman argued the cause for the American Civil Liberties Union et al., as amici curiae, urging reversal. With him on the brief was Melvin L. Wulf.
John T. Corrigan and Gertrude Bauer Mahon filed a brief for the State of Ohio, as amicus curiae, urging affirmance.
Mr. Justice Clark
delivered the opinion of the Court.
This federal habeas corpus application involves the question whether Sheppard was deprived of a fair trial in his state conviction for the second-degree murder of his wife because of the trial judge’s failure to protect Sheppard sufficiently from the massive, pervasive and prejudicial publicity that attended his prosecution. The United States District Court held that he was not afforded a fair trial and granted the writ subject to the State’s right to put Sheppard to trial again, 231 F. Supp. 37 (D. C. S. D. Ohio 1964). The Court of Appeals for the Sixth Circuit reversed by a divided vote, 346 F. 2d 707 (1965). We granted certiorari, 382 U. S. 916 (1965). We have concluded that Sheppard did not receive a fair trial consistent with the Due Process Clause of the Fourteenth Amendment and, therefore, reverse the judgment.
I.
Marilyn Sheppard, petitioner’s pregnant wife, was bludgeoned to death in the upstairs bedroom of their lake-shore home in Bay Village, Ohio, a suburb of Cleveland. On the day of the tragedy, July 4, 1954, Sheppard pieced together for several local officials the following story: He and his wife had entertained neighborhood friends, the Aherns, on the previous evening at their home. After dinner they watched television in the living room. Sheppard became drowsy and dozed off to sleep on a couch. Later, Marilyn partially awoke him saying that she was going to bed. The next thing he remembered was hearing his wife cry out in the early morning hours. He hurried upstairs and in the dim light from the hall saw a “form” standing next to his wife’s bed. As he struggled with the “form” he was struck on the back of the neck and rendered unconscious. On regaining his senses he found himself on the floor next to his wife’s bed. He rose, looked at her, took her pulse and “felt that she was gone.” He then went to his son’s room and found him unmolested. Hearing a noise he hurried downstairs. He saw a “form” running out the door and pursued it to the lake shore. He grappled with it on the beach and again lost consciousness. Upon his recovery he was lying face down with the lower portion of his body in the water. He returned to his home, checked the pulse on his wife’s neck, and “determined or thought that she was gone.” He then went downstairs and called a neighbor, Mayor Houk of Bay Village. The Mayor and his wife came over at once, found Sheppard slumped in an easy chair downstairs and asked, “What happened?” Sheppard replied: “I don’t know but somebody ough't to try to do something for Marilyn.” Mrs. Houk immediately went up to the bedroom. The Mayor told Sheppard, “Get hold of yourself. Can you tell me what happened?” Sheppard then related the above-outlined events. After Mrs. Houk discovered the body, the Mayor called the local police, Dr. Richard Sheppard, petitioner’s brother, and the Aherns. The local police were the first to arrive. They in turn notified the Coroner and Cleveland police. Richard Sheppard then arrived, determined that Marilyn was dead, examined his brother’s injuries, and removed him to the nearby clinic operated by the Sheppard family. When the Coroner, the Cleveland police and other officials arrived, the house and surrounding area were thoroughly searched, the rooms of the house were photographed, and many persons, including the Houks and the Aherns, were interrogated. The Sheppard home and premises were taken into “protective .custody” and remained so until after the trial.
From the outset officials focused suspicion on Sheppard. After a search of the house and premises on the morning of the tragedy, Dr. Gerber, the Coroner, is reported — and it is undenied — to have told his men, “Well, it is evident the doctor did this, so let’s go get the confession out of him.” He proceeded to interrogate and examine Sheppard while the latter was under sedation in his hospital room. On the same occasion, the Coroner was given the clothes Sheppard wore at the time of the tragedy together with the personal items in them. Later that afternoon Chief Eaton and two Cleveland police officers interrogated Sheppard at some length, confronting him with evidence and demanding explanations. Asked by Officer Shotke to take a lie detector test, Sheppard said he would if it were reliable. Shotke replied that it was “infallible” and “you might as well tell us all about it now.” At the end of • the interrogation Shotke told Sheppard: “I think you killed your wife.” Still later in the same afternoon a physician sent by the Coroner was permitted to make a detailed examination of Sheppard. Until the Coroner’s inquest on July 22, at which time he was subpoenaed, Sheppard made himself available for frequent and extended questioning without the presence of an attorney.
On July 7, the day of Marilyn Sheppard’s funeral, a newspaper story appeared in which Assistant County Attorney Mahon — later the chief prosecutor of Sheppard— sharply criticized the refusal of the Sheppard family to permit his immediate questioning. From there on headline stories repeatedly stressed Sheppard’s lack of cooperation with the police and other officials. Under the headline “Testify Now In Death, Bay Doctor Is Ordered,” one story described a visit by Coroner Gerber and four police officers to the hospital on July 8. When Sheppard insisted that his lawyer be present, the Coroner wrote out a subpoena and served it on him. Sheppard then agreed to submit to questioning without counsel and the subpoena was torn up. The officers questioned him for several hours. On July 9, Sheppard, at the request of the Coroner, re-enacted the tragedy at his home before the Coroner, police officers, and a group of newsmen, who apparently were invited by the Coroner. The home was locked so that Sheppard was obliged to wait outside until the Coroner arrived. Sheppard’s performance was reported in detail by the news media along with photographs. The newspapers also played up Sheppard’s refusal to take a lie detector test and “the protective ring” thrown up by his family. Front-page newspaper headlines announced on the same day that “Doctor Balks At Lie Test; Retells Story.” A column opposite that story contained an “exclusive” interview with Sheppard headlined: “ 'Loved My Wife, She Loved Me,’ Sheppard Tells News Reporter.” The next day, another headline story disclosed that Sheppard had “again late yesterday refused to take a lie detector test” and quoted an Assistant County Attorney as saying that “at the end of a nine-hour questioning of Dr. Sheppard, I felt he was now ruling [a test] out completely.” But subsequent newspaper articles reported that the Coroner was still pushing Sheppard for a lie detector test. More stories appeared when Sheppard would not allow authorities to inject him with “truth serum.”
On the 20th, the “editorial artillery” opened fire with a front-page charge that somebody is “getting away with murder.” The editorial attributed the ineptness of the investigation to “friendships, relationships, hired lawyers, a husband who ought to have been subjected instantly to the same third-degree to which any other person under similar circumstances is subjected . . . .” The following day, July 21, another page-one editorial was headed: “Why No Inquest? Do It Now, Dr. Gerber.” The Coroner called an inquest the same day and subpoenaed Sheppard. It was staged the next day in a school gymnasium; the Coroner presided with the County Prosecutor as his advisor and two detectives as bailiffs. In the front of the room was a long table occupied by reporters, television and radio personnel, and broadcasting equipment. The hearing was broadcast with live microphones placed at the Coroner’s seat and the witness stand. A swarm of reporters and photographers attended. Sheppard was brought into the room by police who searched him in full view of several hundred spectators. Sheppard’s counsel were present during the three-day inquest but were not permitted to participate. When Sheppard’s chief counsel attempted to place some documents in the record, he was forcibly ejected from the room by the Coroner, who received cheers, hugs, and kisses from ladies in the audience. Sheppard was questioned for five and one-half hours about his actions on the night of the murder, his married life, and a love affair with Susan Hayes. At the end of the hearing the Coroner announced that he “could” order Sheppard held for the grand jury, but did not do so.
Throughout this period the newspapers emphasized evidence that tended to incriminate Sheppard and pointed out discrepancies in his statements to authorities. At the same time, Sheppard made many public statements to the press and wrote feature articles asserting his innocence. During the inquest on July 26, a headline in large type stated: “Kerr [Captain of the Cleveland Police] Urges Sheppard’s Arrest.” In the story, Detective McArthur “disclosed that scientific tests at the Sheppard home have definitely established that the killer washed off a trail of blood from the murder bedroom to the downstairs section,” a circumstance casting doubt on Sheppard’s accounts of the murder. No such evidence was produced at trial. The newspapers also delved into Sheppard’s personal life. Articles stressed his extramarital love affairs as a motive for the crime. The newspapers portrayed Sheppard as a Lothario, fully explored his relationship with Susan Hayes, and named a number of other women who were allegedly involved with him. The testimony at trial never showed that Sheppard had any illicit relationships besides the one with Susan Hayes.
On July 28, an editorial entitled “Why Don’t Police Quiz Top Suspect” demanded that Sheppard be taken to police headquarters. It described him in the following language:
“Now proved under oath to be a liar, still free to go about his business, shielded by his , family, protected by a smart lawyer who has made monkeys of the police and authorities, carrying a gun part of the time, left free to do whatever he pleases . . . .”
A front-page editorial on July 30 asked: “Why Isn’t Sam Sheppard in Jail?” It was later titled “Quit Stalling — Bring Him In.” After calling Sheppard “the most unusual murder suspect ever seen around these parts” the article said that “[e]xcept for some superficial questioning during Coroner Sam Gerber’s inquest he has been scot-free of any official grilling . . . .” It asserted that he was “surrounded by an iron curtain of protection [and] concealment.”
That night at 10 o’clock Sheppard was arrested at his father’s home on a charge of murder. He was taken to the Bay Village City Hall where hundreds of people, newscasters, photographers and reporters were awaiting his arrival. He was immediately arraigned — having been denied a temporary delay to secure the presence of counsel — and bound over to the grand jury.
The publicity then grew in intensity until his indictment on August 17. Typical of the coverage during this period is a front-page interview entitled: “DR. SAM: T Wish There Was Something I Could Get Off My Chest— but There Isn’t.’ ” Unfavorable publicity included items such as a cartoon of the body of a sphinx with Sheppard’s head and the legend below: “ ‘I Will Do Everything In My Power to Help Solve This Terrible Murder.’ —Dr. Sam Sheppard.” Headlines announced, inter alia, that: “Doctor Evidence is Ready for Jury,” “Corrigan Tactics Stall Quizzing,” “Sheppard 'Gay Set’ Is Revealed By Houk,” “Blood Is Found In Garage,” “New Murder Evidence Is Found, Police Claim,” “Dr. Sam Faces Quiz At Jail On Marilyn’s Fear Of Him.” On August 18, an article appeared under the headline “Dr. Sam Writes His Own Story.” And reproduced across the entire front page was a portion of the typed statement signed by Sheppard: “I am not guilty of the murder of my wife, Marilyn. How could I, who have been trained to help people and devoted my life to saving life, commit such a terrible and revolting crime?” We do not detail the coverage further. There are five volumes filled with similar clippings from each of the three Cleveland newspapers covering the period from the murder until Sheppard’s conviction in December 1954. The record includes no excerpts from newscasts on radio and television but since space was reserved in the courtroom for these media we assume that their coverage was equally large.
II.
With this background the case came on for trial two weeks before the November general election at which the chief prosecutor was a candidate for common pleas judge and the trial judge, Judge Blythin, was a candidate to succeed himself. Twenty-five days before the case was set, 75 veniremen were called as prospective jurors. All three Cleveland newspapers published the names and addresses of the veniremen. As a consequence, anonymous letters and telephone calls, as well as calls from friends, regarding the impending prosecution were received by all of the prospective jurors. The selection of the jury began on October 18, 1954.
The courtroom in which the trial was held measured 26 by 48 feet. A long temporary table was set up inside the bar, in back of the single counsel table. It ran the width of the courtroom, parallel to the bar railing, with one end less than three feet from the jury box. Approximately 20 representatives of newspapers and wire services were assigned seats at this table by the court. Behind the bar railing there were four rows of benches. These seats were likewise assigned by the court for the entire trial. The first row was occupied by representatives of television and radio stations, and the second and third rows by reporters from out-of-town newspapers and magazines. One side of the last row, which accommodated 14 people, was assigned to Sheppard’s family and the other to Marilyn’s. The public was permitted to fill vacancies in this row on special passes only. Representatives of the news media also used all the rooms on the courtroom floor, including the room where cases were ordinarily called and assigned for trial. Private telephone lines and telegraphic equipment were installed in these rooms so that reports from the trial could be speeded to the papers. Station WSRS was permitted to set up broadcasting facilities on the third floor of the courthouse next door to the jury room, where the jury rested during recesses in the trial and deliberated. Newscasts were made from this room throughout the trial, and while the jury reached its verdict.
On the sidewalk and steps in front of the courthouse, television and newsreel cameras were occasionally used to take motion pictures of the participants in the trial, including the jury and the judge. Indeed, one television broadcast carried a staged interview of the judge as he entered the courthouse. In the corridors outside the courtroom there was a host of photographers and television personnel with flash cameras, portable lights and motion picture cameras. This group photographed the prospective jurors during selection of the jury. After the trial opened, the witnesses, counsel, and jurors were photographed and televised whenever they entered or left the courtroom. Sheppard was brought to the courtroom about 10 minutes before each session began; he was surrounded by reporters and extensively photographed for the newspapers and television. A rule of court prohibited picture-taking in the courtroom during the actual sessions of the court, but no restraints were put on photographers during recesses, which were taken once each morning and afternoon, with a longer period for lunch.
All of these arrangements with the news media and their massive coverage of the trial continued during the entire nine weeks of the trial. The courtroom remained crowded to capacity with representatives of news media. Their movement in and out of the courtroom often caused so much confusion that, despite the loud-speaker system installed in the courtroom, it was difficult for the witnesses and counsel to be heard. Furthermore, the reporters clustered within the bar of the small courtroom^ made confidential talk among Sheppard and his counsel almost impossible during the proceedings. They frequently had to leave the courtroom to obtain privacy. And many times when counsel wished to raise a point with the judge out of the hearing of the jury it was necessary to move to the judge’s chambers. Even then, news media representatives so packed the judge’s anteroom that counsel could hardly return from the chambers to the courtroom. The reporters vied with each other to find out what counsel and the judge had discussed, and often these matters later appeared in newspapers accessible to the jury.
The daily record of the proceedings was made available to the newspapers and the testimony of each witness was printed verbatim in the local editions, along with objections of counsel, and rulings by the judge. Pictures of Sheppard, the judge, counsel, pertinent witnesses, and the jury often accompanied the daily newspaper and television accounts. At times the newspapers published photographs of exhibits introduced at the trial, and the rooms of Sheppard’s house were featured along with relevant testimony.
The jurors themselves were constantly exposed to the news media. Every juror, except one, testified at voir dire to reading about the case in the Cleveland papers or to having heard broadcasts about it. Seven of the 12 jurors who rendered the verdict had one or more Cleveland papers delivered in their home; the remaining jurors were not interrogated on the point. Nor were there questions as to radios or television sets in the jurors’ homes, but we must assume that most of them owned such conveniences. As the selection of the jury progressed, individual pictures of prospective members appeared daily. During the trial, pictures of the jury appeared over 40 times in the Cleveland papers alone. The court permitted photographers to take pictures of the jury in the box, and individual pictures of the members in the jury room. One newspaper ran pictures of the jurors at the Sheppard home when they went there to view the scene of the murder. Another paper featured the home life of an alternate juror. The day before the verdict was rendered — while the jurors were at lunch and sequestered by two bailiffs — the jury was separated into two groups to pose for photographs which appeared in the newspapers.
III.
We now reach the conduct of the trial. While the intense publicity continued unabated, it is sufficient to relate only the more flagrant episodes:
1. On October 9, 1954, nine days before the case went to trial, an editorial in one of the newspapers criticized defense counsel’s random poll of people on the streets as to their opinion of Sheppard’s guilt or innocence in an effort to use the resulting statistics to show the necessity for change of venue. The article said the survey “smacks of mass jury tampering,” called on defense counsel to drop it, and stated that the bar association should do something about it. It characterized the poll as “nonjudicial, non-legal, and nonsense.” The article was called to the attention of the court but no action was taken.
2. On the second day of voir dire examination a debate was staged and broadcast live over WHK radio. The participants, newspaper reporters, accused Sheppard’s counsel of throwing roadblocks in the way of the prosecution and asserted that Sheppard conceded his guilt by hiring a prominent criminal lawyer. Sheppard’s counsel objected to this broadcast and requested a continuance, but the judge denied the motion. When counsel asked the court to give some protection from such events, the judge replied that “WHK doesn’t have much coverage,” and thiat “[ajfter all, we are not trying this case by radio or in newspapers or any other means. We confine ourselves seriously to it in this courtroom and do the very best we can.”
3. While the jury was being selected, a two-inch headline asked: “But Who Will Speak for Marilyn?” The front-page story spoke of the “perfect face” of the accused. “Study that face as long as you want. Never will you get from it a hint of what might be the answer . . . .” The two brothers of the accused were described as “Prosperous, poised. His two sisters-in law. Smart, chic, well-groomed. His elderly father. Courtly, reserved. A perfect type for the patriarch of a staunch clan.” The
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_usc1
|
42
|
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.
Roy M. LIVINGSTONE v. Marion B. FOLSOM, Secretary, Department of Health, Education and Welfare, Appellant.
No. 11758.
United States Court of Appeals Third Circuit.
Argued March 19, 1956.
Decided May 25, 1956.
Rehearing Denied June 20, 1956.
McLaughlin, Circuit Judge, dissented.
John J, ■ Coundy Washington, D. • C.y (Warren E. Burger, Asst. Atty. Gen., W. Wilson White, U. S. Atty., Philadelphia, Pa., Melvin Richter, John J. Cound, Attorneys, Department of Justice, Washington, D. C., on the brief), for appellant.
John Martin, Doyle, Philadelphia, Pa., for appellee.
Before MARIS, McLAUGHLIN and HASTIE, Circuit Judges.
MARIS, Circuit Judge.
' This is an appeal by the Secretary of Health, Education and Welfare from a judgment of the District Court for the Eastern District of Pennsylvania setting aside his decision disallowing plaintiff’s claim for old-age insurance benefits under the Social Security Act. Plaintiff’s claim was based on his assertion that his net earnings’ from his insurance business during the period January, 1951, through June, 1952,' entitled him to old-age insurance benefits. This claim was denied by the Secretary because he found that plaintiff'had no net income from his insurance business during that period.
Plaintiff is a lawyer. He has also been licensed,^s an insurance broker for many years. He does not advertise as an insurance broker, but has opportunities'to sell insurance in connection with his law practice which deals largely with corporate and reaf estate work. He described fils insurance work variously as “not a separate ’ "business * * * [but] .a separate activity”, “an incident' in the practice" , of law” and “a sideline”. A1-, though he conducted His insurance business from his law office, he testified that, he did" riot "rent "the office for that purpose and he clairiied further that none of his business expenses' were incurred' in connection with' this insurance work, not even telephone' or secretarial expense. ..In 1951 plaintiff .earned $1,524.95 from his insurance business, and $1,253.68 from his law practice; his total business' expenses were $5,112.61. In 1952, he earned $614.45 from his insurance business (all of which was earned in the first six months), and $2,397.96 from his law practice; his total business expenses were $3,608..65. Plaintiff paid Social Security taxes during these periods on his income from the insurance business. These payments were based on his entire insurance income in accord with his contention that he had no expenses at all in connection with- that activity.
Plaintiff applied for old-age benefits on July 18,1952. He could be eligible for these benefits only if he had received á riet income from his insurance business óf not less than $400 in both 1951 and 1952. His claim was denied by the Field Office of the Federal Security Agency on September 19, 1952, on the ¿round that his business expenses should have been allocated between his income from his insurance business and his income ■frofn' his law practice, and that if this was done he had not earned the amount of “self-employment income” required to qualify him for benefits. Plaintiff disagreed with this determination, reiterating his contention that he had no expenses in connection with his insurance' business. Pursuant to his request, a hearing before a referee was held on May 8, 1953, at which plaintiff repeated his contention, claiming that he could not see any other basis on which the expenses'' could be charged. On May 28, 1953, the referee found that “it does not appear reasonable * * * to charge all the business expenses to the. law practice”, that “on the evidence * * * it appears * * * that it. would be reasonable to prorate the expenses of both operations according to the gross income from” each, and that when the expenses are so prorated plaintiff had “no net income from the insurance business for the years. 1951 and 1952”. Plaintiff appealed to the Appeals Council of the Social Security Administration, which, on October 1, 1953, notified him that it had affirmed the referee’s decision and informed him that if he disagreed with this decision he might obtain judicial review by filing a civil action within sixty days from that date.
On November 27,1953 plaintiff filed a complaint in the District Court seeking review of the Appeals Council decision. Thereafter the Secretary moved for summary judgment. After argument the court filed an opinion in which it found that the Secretary’s decision to prorate plaintiff’s expenses on the basis of his gross income from each source would have been proper if there were no evidence of the actual expenses involved in each operation, but held that in view of plaintiff’s testimony that he had no expenses in connection with the insurance work, the Secretary’s formula was without support in the evidence. The court accordingly entered an order denying the Secretary’s motion for summary judgment, and reversing and setting aside the decision of the Secretary. D.C., 132 F.Supp. 638. The present appeal by the Secretary followed.
The order of the district court must be reversed. The Secretary drew the inference from the uncontradicted evidence that the plaintiff’s contention was unreasonable that all his business expenses for 1951 and 1952 were chargeable to his law practice and none to his insurance business. He found the plaintiff’s testimony that he had no expenses in his insurance business to be incredible in the light of his testimony that he conducted that business from his law office for which he paid rent, telephone and secretarial expense. We think that the inferences which the Secretary thus drew were binding upon the district court. For they have the support of substantial evidence. Walker v. Altmeyer, 2 Cir., 1943, 137 F.2d 531; Social Security Board v. Warren, 8 Cir., 1944, 142 F.2d 974; United States v. LaLone, 9 Cir., 1945, 152 F.2d 43. And see O’Leary v. Social Security Board, 3 Cir., 1946, 153 F.2d 704.
It was error for the district court to disregard these findings and base its conclusion upon the plaintiff’s unsupported statement that he had no expenses in connection with his insurance business. For in making this statement he ignored a basic principle of accounting that a reasonable share of overhead expenses is chargeable to a business activity in addition to the expenses directly incurred in carrying on the particular activity. Thus it is stated in Paton, Accountants’ Handbook, 3d Ed., at pp. 137-138:
“Joint Costs.- — In departmentalizing charges the accountant should endeavor to secure a fair and equitable distribution. Otherwise improper managerial decisions may result. This point of view is particularly important in the handling of joint or common charges. If any cost factor contributes to two or more functions or departments of activity the effect should be fairly apportioned; there should be no freeing of one department at the expense of another.”
Accordingly viewing the plaintiff’s insurance and legal activities as separate businesses, as the plaintiff' argues they are, and differentiating his income received from his insurance sales from that derived from his law practice, as he argues we must, it nonetheless is clear that the Secretary did not err in holding that each of these business activities should be charged with its share of the plaintiff’s overhead expenses, including the cost of maintaining his office from which he conducted both businesses.
The order of the district court will be reversed.
. 42 U.S.C.A. .§ 401 et seq.
. Under section 211 (cp (5) of the Social Security Act plaintiff’s income from the , practice of law was not subject to tbe act. 42 U.S.O.A. § 411 j[c) (5). . '
. The Appeals Council decision was the “final decision of the Secretary” for the purposes of judicial review under seetion 205(g) of the act. 20 C.FJR.1949 ed. § 403.710(e).
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_procedur
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant.
J. C. PENNEY CO., Inc., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, v. Retail Clerks International Association Local 253, AFL-CIO, Intervenor.
No. 17730.
United States Court of Appeals Sixth Circuit.
April 15, 1968.
John C. Egbert, Jr., Cincinnati, Ohio, James R. Adams, Cincinnati, Ohio, on brief; Frost & Jacobs, Cincinnati, Ohio, of counsel, for petitioner.
Allen D. Eisenberg, N. L. R. B., Washington, D. C., Arnold Ordman, General Counsel, Dominick L. Manoli, Associate General Counsel, Marcel Mallet-Prevost, Asst. General Counsel, Allison W. Brown, Jr., Marsha Swiss, Attorneys, N. L. R. B., Washington, D. C., on brief, for respondent.
Before PHILLIPS, CELEBREZZE and PECK, Circuit Judges.
ORDER.
This case is before the Court upon the petition of J. C. Penney Co., Inc., to review an order of the National Labor Relations Board and upon the cross-petition of the Board to enforce the order. The decision and order of the Board are reported at 162 N.L.R.B. No. 144. The intervenor has filed a brief urging enforcement.
The Court holds that the findings of fact of the Board are supported by substantial evidence on the record considered as a whole.
It is ordered that the order of the Board be and hereby is enforced.
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_genapel1
|
G
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed appellant.
UNITED STATES of America, Appellee, v. Harry Blake JOHNSON, Appellant.
No. 71-1056.
United States Court of Appeals, Fourth Circuit.
Argued Aug. 31, 1971.
Decided Nov. 26, 1971.
Robert L. Dolbeare, Richmond, Va. (court-appointed counsel) [Obenshain, Hinnant & Dolbeare, Richmond, Va., on brief] for appellant.
Rodney Sager, Asst. U. S. Atty., for the Eastern District of Virginia (Brian P. Gettings, U. S. Atty., on the brief) for appellee.
Before BRYAN, CRAVEN, and BUTZNER, Circuit Judges.
PER CURIAM:
Harry Blake Johnson appeals his conviction of conspiracy and interstate travel in aid of racketeering in violation of 18 U.S.C. §§ 2, 371, and 1952. His principal assignment of error is the district court’s refusal to suppress evidence seized under the authority of a search warrant issued by a state justice of the peace. Johnson contends the evidence should have been excluded because Federal Rule of Criminal Procedure 41(a) requires that the state officer issuing a search warrant be a judge of a court of record. He makes no claim that the warrant or the search and seizure violated the fourth amendment. He relies on Lustig v. United States, 338 U.S. 74, 69 S.Ct. 1372, 93 L.Ed. 1819 (1948), Byars v. United States, 273 U.S. 28, 47 S.Ct. 248, 71 L.Ed. 520 (1927), and Navarro v. United States, 400 F.2d 315 (5th Cir. 1968), which hold that where federal officers participate, the search must be conducted according to federal standards. The district court admitted the evidence because in its opinion the federal agents did not participate in the search.
The evidence disclosed that an informant told the F.B.I. of gambling operations that had come to his attention. He also notified the state police, who conducted an investigation. The state officers obtained a search warrant, searched the gamblers’ premises, seized and marked the evidence and retained custody of it. They also prosecuted charges against the operators of the gambling establishment in a state court. Later when the federal case was tried, they testified about the search and laid the foundation for the introduction into evidence of the articles that they had seized.
Federal agents conferred with the state officers about the investigation, but they did not assist in obtaining the warrant. Three federal agents were present when the state officers searched the premises. They did not, however, join in the search, seize any evidence, or interrogate any suspects. We believe the district judge correctly held that the federal agents were present simply as observers and that they did not participate in the search. Cf. United States v. Coronna, 420 F.2d 1091 (5th Cir. 1970); Stonehill v. United States, 405 F.2d 738 (9th Cir. 1968), cert. denied, 395 U.S. 960, 89 S.Ct. 2102, 23 L.Ed.2d 747 (1969).
Johnson also complains that his motion for a severance and mistrial should have been granted after the other defendants changed their pleas to guilty during the trial. We think the court’s instructions to the jury about this unexpected occurrence fully protected Johnson, and we find no abuse of discretion in the denial of the motion.
Affirmed.
. Federal Kule of Criminal Procedure 41(a) provides:
“(a) Authority to Issue Warrant. A search warrant authorized by this rule may be issued by a judge of the United States or of a state, commonwealth or territorial court of record or by a United States commissioner within the district wherein the property sought is located.”
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_decisiondirection
|
B
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the ideological "direction" of the decision ("liberal", "conservative", or "unspecifiable"). Use "unspecifiable" if the issue does not lend itself to a liberal or conservative description (e.g., a boundary dispute between two states, real property, wills and estates), or because no convention exists as to which is the liberal side and which is the conservative side (e.g., the legislative veto). Specification of the ideological direction comports with conventional usage. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. In interstate relations and private law issues, consider unspecifiable in all cases.
BESSER MANUFACTURING CO. et al. v. UNITED STATES.
No. 230.
Argued April 21, 1952.
Decided May 26, 1952.
Carl R. Henry argued the cause for appellants. With him on the brief were William 3. Donovan, Roy W. McDonald, John W. Babcock and Peyton H. Moss.
Marcus A. Hollabaugh argued the cause for the United States. With him on the brief were Solicitor General Perlman, Assistant Attorney General Morison, James L. Morrisson, Charles H. Weston and Wharey M. Freeze.
Mr. Justice Jackson
delivered the opinion of the Court.
The United States brought this civil action under § 4 of the Sherman Act charging appellants and others with conspiring to restrain and monopolize interstate commerce in concrete block-making machinery in violation of §§ 1 and 2 of the Act, and charging appellants with monopolizing and attempting to monopolize the same industry in violation of § 2 of the Act.
The defendants below were the Stearns Manufacturing Company, second largest producer in the country of concrete block-making machines, Besser Manufacturing Company, the country’s dominant producer of such machinery and substantial stockholder in the Stearns Company, Jesse H. Besser, long-time president and virtually sole stockholder of the Besser Company, and two individuals, Gelbman and Andrus, co-owners of certain important patents in the concrete block-making machine field.
The United States District Court for the Eastern District of Michigan found the Government’s charges clearly proved, and entered a judgment intended to correct the Sherman Act violations found to exist.
Only the Besser Company and Jesse H. Besser have appealed, bringing their case here directly.
Appellants assert that the factual conclusions of the trial court are erroneous. Only recently we reiterated the narrow scope of review here with respect to issues of fact in antitrust cases. United States v. Oregon State Medical Society, 343 U. S. 326. In this case we think it enough to say that the conclusions of the trial judge that appellants conspired to restrain and monopolize interstate commerce in concrete block-making machinery and that they monopolized and attempted to monopolize that industry are overwhelmingly supported by the evidence. Not the slightest ground appears for concluding that the trial judge’s findings were “clearly erroneous.” Rule 52 (a), Fed. Rules Civ. Proc.
We turn now to the provisions of the judgment entered below which are attacked by appellants. It is unnecessary for us to review appellants’ activities in detail, for they are adequately set out in the opinion below. Suffice it to say that appellants sought to eliminate competition through outright purchase of competitors and strict patent-licensing arrangements with the Stearns Company and the patent owners, Gelbman and Andrus.
Appellants contend that the provisions of the judgment requiring them to issue patent licenses on a fair royalty basis and requiring them to grant to existing lessees of their machines an option, on terms “mutually satisfactory to the parties concerned,” (1) to terminate their lease, (2) to continue their lease, or (3) to purchase leased machines, are punitive, confiscatory and inappropriate.
However, compulsory patent licensing is a well-recognized remedy where patent abuses are proved in antitrust actions and it is required for effective relief. Hartford-Empire Co. v. United States, 323 U. S. 386, 413, 417-418; United States v. National Lead Co., 332 U. S. 319, 338; United States v. United States Gypsum Co., 340 U. S. 76, 94.
The compulsory sale provision of the judgment, strenuously attacked, is likewise a recognized remedy. International Salt Co. v. United States, 332 U. S. 392, 398-399. That required by the judgment in this case must be considered in conjunction with the alternatives associated with it. Appellants are left free to lease rather than sell if they can make a lease sufficiently attractive.
Appellants further argue that the method adopted by the court below for fixing reasonable royalty rates under their patent licenses deprives them of their property without due process of law. The court directed Besser and the Government each to select two persons to serve as arbitrators on a committee to establish fair royalty rates and the form and contents of royalty contracts. It was also provided that in the event of a stalemate the four representatives should choose a fifth to vote and break the deadlock. If they could not agree on a fifth representative, the trial judge was to sit as the fifth or appoint another person to serve in his place. After some delay, and under protest, Besser appointed his representatives, the Government having appointed its shortly after the plan had been promulgated by the court. The representatives selected by the Government were taken from the industry, the Government noting to the court that they were serving on their own behalf and as agents of other prospective licensees, and not as agents of the Department of Justice.
When an impasse was reached with regard to royalty rates on certain Besser patents, the judge stepped in as the fifth arbitrator and voted for the rates proposed by the government-appointed representatives. Appellants assail this procedure with the contention that royalties set must be “made in judicial proceedings based on the hearing and evaluation of evidence in the light of appropriate criteria.’'
Appellants’ argument fails on two counts. First, it necessarily attacks the sufficiency of the evidentiary material considered in arriving at the royalties finally established. We do not pass on matters of that character in the absence of glaring error not shown here. Secondly, appellants appear to have misunderstood the true nature of what was done, for it was always within the power of the trial judge to establish the royalty rates, and, in voting as he did, he did just that. They contend that the judge should either have held a full hearing himself or referred the royalty matters to a master for such a hearing. We do not, however, think that in reducing the terms of a decree to concrete measures such procedures are mandatory. It is true that the procedure adopted below is an innovation in certain aspects, but novelty is not synonymous with error.
In framing relief in antitrust cases, a range of discretion rests with the trial judge. United States v. National Lead Co., supra, at 338; International Salt Co. v. United States, supra, at 400-401, 405; United States v. Crescent Amusement Co., 323 U. S. 173, 185. We can see no abuse of discretion here. Compulsory licensing and sale of patented devices are recognized remedies. They would seem particularly appropriate where, as here, a penchant for abuses of patent rights is demonstrated. With respect to the procedure for establishing royalty rates, the court below was likewise acting within the discretion vested in it. “[The District Court] should provide for its determination of a reasonable royalty either in each instance of failure to agree or by an approved form or by any other plan in its discretion.” (Italics added.) United States v. United States Gypsum Co., supra, at 94. The procedure here was entirely reasonable and fair. A competent committee considered relevant evidence and the judge, on the basis of the evidence adduced before the committee, resolved the deadlock into which the negotiations had fallen.
Although not condemning the royalty-setting procedure used here, the Government indicates faint enthusiasm for it, and suggests that this Court consider the procedure outlined by it below and direct that it be utilized hereafter in the proceedings remaining in this litigation. We would exceed our appellate functions were we to adopt that suggestion in this case. “The framing of decrees should take place in the District rather than in Appellate Courts.” International Salt Co. v. United States, supra, at 400; United States v. Crescent Amusement Co., supra, at 185.
We have examined appellants’ other contentions and concluded that they are without merit.
In accordance with the foregoing, the judgment below is
Affirmed.
Mr. Justice Clark took no part in the consideration or decision of this case.
26 Stat. 209, as amended, 15 U. S. C. §4: “The several district courts of the United States are invested with jurisdiction to prevent and restrain violations of sections 1-7 of this title; and it shall be the duty of the several district attorneys of the United States, in their respective districts, under the direction of the Attorney General, to institute proceedings in equity to prevent and restrain such violations. . . .”
15 U. S. C. § 1: “Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States ... is declared to be illegal . . . .”
15 U. S. C. §2: “Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States . . . shall be deemed guilty of a misdemeanor . . . .”
96 F. Supp. 304.
Pursuant to § 2 of the Expediting Act of 1903, 32 Stat. 823, as amended, 15 U. S. C. § 29.
Question: What is the ideological direction of the decision?
A. Conservative
B. Liberal
C. Unspecifiable
Answer:
|
songer_respond1_1_4
|
D
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "manufacturing". Your task is to determine what subcategory of business best describes this litigant.
The FROSTIE COMPANY, Appellant, v. DR. PEPPER COMPANY, Appellee.
No. 21836.
United States Court of Appeals Fifth Circuit.
Feb. 12, 1965.
Daphne Robert Leeds, Washington, D. C., Anthony Atwell, Dallas, Tex., David H. Semmes, John Gibson Semmes, Washington, D. C., Atwell, Grayson & Atwell, Dallas, Tex., Semmes & Semmes, Washington, D. C., for appellant.
B. Thomas McElroy, W. D. White, White, McElroy & White, Dallas, Tex., for appellee.
Before TUTTLE, Chief Judge, and BROWN and GEWIN, Circuit Judges.
TUTTLE, Chief Judge:
This is an appeal by the owner of the trademark “Frostie” when used in connection with the sale of a soft drink from an order of the trial court denying an injunction against infringement of its trademark and against unfair competition resulting from the use by the Dr. Pepper Company of the words “Frosty Pepper” prominently printed on the cartons of its soft drink product. The suit is brought under the Lanham Act, 15 U.S.C.A. §§ 1114-1119, 1121 and 1125 (a).
The record disclosed without dispute that the appellant is the owner of the valid trademark Frostie which it acquired in connection with the sale of a root beer concentrate; that it had many franchised bottlers throughout the country including 45 independent bottlers franchised both by the appellant and the appellee. The products of both parties are used by bottlers to produce bottles of Frostie and Dr. Pepper respectively which are sold largely in six-pack cartons stacked up in the soft drink departments of supermarkets and other outlets.
Prior to the acquisition of the trademark by appellant, the Dr. Pepper Company had used in its advertising copy, but not on the packages containing its bottles, the adjective “Frosty,” in suggesting that Dr. Pepper should be served cold such as “Dr. Pepper in a fresh, frosty bottle,” “chilled to a frosty turn,” “ice-cold bottles that come to you frosty and cold,” “get your Dr. Pepper frosty and cold.” Appellants do not contest’the right of the appellees to use such terminology in their advertising and sales promotion work, as, of course, they could not. In 1959 the appellee began using the words “Frosty Pep” on its cartons. These cartons also contained a picture of a bottle of Dr. Pepper being poured into a glass containing ice cream, and also on the opposite side contained the trademark Dr. Pepper and the words beneath it, “and ice cream.” It has ceased using the words “Frosty Pep” following litigation in which it was held that the word “pep” infringed the trademark of the Pepsi Cola Company. Subsequently, during the summer months the Dr. Pepper Company began using on its cartons the words “Frosty Pepper” together with a picture of a bottle of Dr. Pepper, a glass containing ice cream combined with a liquid, and with the words of the Dr. Pepper trademark and the words “and ice cream.”
There was no substantial proof by the appellants of actual confusion, although appellant tendered in evidence proof that not infrequently bottles of Frostie were delivered by bottlers in cartons bearing the name Dr. Pepper. The court ruled out this evidence and other proof tending to link the products of the two parties together in the public mind. The court held that this evidence was inadmissible because it was not the act of the appellee. This was error. Once the mark is used by appellee, the tendency of that use to confuse the public may be shown. The question remains whether the prominent use of the words “Frosty Pepper,” embodying as it does, in effect, the entire trademark of the Frostie Company on the package that is put on display for the purpose of attracting customers, is a violation of the provisions of the Lanham Act.
The trial court found “a ‘noun’ is a name of a person, place or thing. An ‘adjective’ is a word that describes a noun. ‘Pepper’ is a noun and is a name for Defendant’s drink. ‘Frosty’ is an adjective, meaning that which is cold or frozen, and when applied to ‘Pepper’ serves merely to modify, describe, or qualify such name as to condition or suggested use.” This finding is contrary to the testimony by the witnesses testifying for the Dr. Pepper Company and is clearly erroneous in that the words “Frosty Pepper” clearly, according to all of the evidence, describe a drink consisting of the Dr. Pepper with ice cream added. While it is true that the Dr. Pepper Company was not in the business of selling what is thus called a “Frosty Pepper,” it can not be doubted that the words “Frosty Pepper” designated an article, one of the ingredients of which was the article sold by the Dr. Pepper Company. It is equally clear that the word “Frosty” in the combination did not qualify the Dr. Pepper drink that was on sale.
It can hardly be disputed that any person seeing a carton of soft drinks bearing the legend “Frosty Pepper” in prominent type who, for some reason, had learned of the existence of appellant’s drink “Frostie,” but without knowing the source or origin of the drink may well have been misled into picking up a carton of Dr. Pepper bearing such label. Obviously, appellee would not have used this legend had they not intended thereby to attract purchasers. To the extent that the attraction was based on the use of the word Frosty, the attraction was based on the use of appellant’s trademark.
The finding by the trial court that such use was not likely to confuse the consumer, must necessarily have been based on the impermissible assumption that a prospective purchaser who was familiar with the trademark Frostie also knew that Frostie was not a product of the Dr. Pepper Company. Here was a direct appeal to persons who might be attracted by the term Frosty, or Frostie. To the extent that such attraction resulted from the exploitation by the appellee of appellant’s trademark Frostie, to which appellant had the exclusive right as a trademark for such bottled goods, this would be an infringement of appellant’s rights.
This Court has, of course, held that an intent to infringe or an intent to mislead the public is not a necessary ingredient to an action such as this. American Foods, Inc. v. Golden Flake, Inc., .5 Cir., 312 F.2d 619. We have also held that proof of actual confusion is not required since under the terms of the Lanham Act the likelihood of confusion is the appropriate test. Abramson v. Coro, Inc., 5 Cir., 240 F.2d 854. In view of the difference in spelling here between Frostie and Frosty, the language used by this Court in the Abramson case is of particular significance. We there said:
“The authorities are legion in holding that proof of actual deception is not needed to justify an injunction against the use of a trademark if it is of such a character or used in such a way as to be likely to deceive a prospective purchaser, and that similarity of sound as well as appearance may be taken into account in weighing this probability.” citing, LaTouraine Coffee Co. v. Lorraine Coffee Co., 2 Cir., 157 F.2d 115; George W. Luft Co. v. Zande Cosmetic Co., 2 Cir., 142 F.2d 536; Esso, Inc. v. Standard Oil Co., 8 Cir., 98 F.2d 1; Queen Manufacturing Co. v. Isaac Ginsberg & Bros., 8 Cir., 25 F.2d 284; S. S. Kresge Co. v. Champion Spark Plug Co., 6 Cir., 3 F.2d 415; Coca Cola Co. v. Old Dominion Beverage Corp., 4 Cir., 271 F. 600.
Our detei’mination that the word Frosty does not describe the characteristics of Dr. Pepper is supported by a decision of the United States Court of Customs and Patent Appeals in the Frostie Company v. Sun-Glo Packers, Inc., 315 F.2d 932, 49 C.C.P.A. 983. In that case, the appellant here was opposing the registration of a trademax-k by SunGlo Paekei's, Inc. consisting of the words “Frosty Inn” when used in connection with a soft drink. The Court of Customs and Patent Appeals said, “We are in full agreement with the board [the trademark trial and appeal board] that neither ‘Frosty’ nor ‘Frostie’ describes any property of root beer or other soft drinks. Thus they are not desci-iptive.” Persuasive also in the decision of this case, the court there said, “Here, ‘Frosty Inn’ is applied to the same goods as those for which the ti'ademark ‘Frostie’ is registered. In px-actical effect the foi’mer incorporates the latter in its entirety.” The same is true here. The words Frosty Pepper “incorporates ‘Frostie’ in its entirety.”
The trial court, in its discussion of nouns and adjectives, proceeded on the assumption that if the term Frosty in the wox"ds Frosty Pepper was anything other than descriptive of the article being sold by the appellee then, because of its identity with appellant’s trademark this would amount to an infringement. In this the trial court was correct. However, in deciding that the word Frosty was descriptive, the trial court was clearly in error. As indicated in the Lanham Act, it is a defense to an action if “the use of the name, term, or device charged to be an infringement is a use, otherwise than as a trade or service mark [ti’ademai'k,] * * * of a term or device which is descriptive of and used fairly and in good faith only to describe to users the goods * * * of such parties * * (Emphasis added.) “Frosty” does not describe to prospective users the goods sold by Dr. Pepper Company. It is a description of something else, as all parties agree. It is used in such a manner as to attract prospective customers to the product of the Dr. Pepper Company. Since such use of it incorporates the entire trademark of the appellant and can not be excused as being descriptive of the ap-pellee’s product, then it is, almost by definition, the equivalent of an infringing mark.
In determining whether there was likelihood of confusion, a matter as to which there was no substantial evidence, we are of the view that a mere ocular examination of the two marks might permit the trial court to make its conclusion. However, all relevant evidence should be considered.
Since it is impossible to determine from the record whether the trial judge admitted and considered all of the relevant evidence which was tendered on the issue of confusion, the case must be remanded for a factual inquiry into this question. In determining whether the appellee’s use of the words “Frosty Pepper” on its soft drink cartons is likely to confuse the consumer as to the source and origin of the goods, all the relevant evidence should have been considered by the trial court, including the exhibits of Dr. Pepper cartons and Frostie cartons containing the products of both of the parties. Indeed, as Callman points out: “The exhibit is of more potent evidentiary value than the testimony of witnesses.” 3 Callman, Unfair Competition and Trade-Marks 1576 (2d Ed. 1950). The court- must determine in its own opinion whether there is a likelihood of confusion, and it may not assume that the ordinary purchaser is thoroughly familiar with the products of the two parties. While all the tendered evidence is before us on appeal, we would prefer not to rely on an ocular examination by an appellate tribunal, but to leave to the district court, after a consideration of all the relevant evidence, the task of making an initial determination whether in the use of “Frosty Pepper” by appellee there is the requisite likelihood of confusion.
The judgment of the trial court is, therefore, reversed and the ease is remanded for further proceedings not inconsistent with this opinion.
. Tlie relevant provision is as follows:
“Any person who shall, in commerce, (a) use, without the consent of the registrant, in the reproduction, counterfeit, copy or colorable imitation of any registered mark in connection with the sale, offering for sale, or advertising of any goods or services on or in connection with, which such use is likely to cause confusion or mistake or to deceive purchasers as to the source of origin of such goods or services * * * shall be liable to a civil action by the registrant * *
. As stated by the Court of Appeals for the District of Columbia Circuit in Panitz, et al. v. University Clothes, Inc., 59 App.D.C. 299, 40 F.2d 811: “In our view, a mere ocular examination of the two marks leads to the conclusion that being devoted to goods of the same descriptive properties, they are sufficiently alike to cause confusion in trade and deceive purchasers, within the meaning of the rule announced * * * ”
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_direct2
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for government tax claim; for person claiming patent or copyright infringement; for the plaintiff alleging the injury; for economic underdog if one party is clearly an underdog in comparison to the other, neither party is clearly an economic underdog; in cases pitting an individual against a business, the individual is presumed to be the economic underdog unless there is a clear indication in the opinion to the contrary; for debtor or bankrupt; for government or private party raising claim of violation of antitrust laws, or party opposing merger; for the economic underdog in private conflict over securities; for individual claiming a benefit from government; for government in disputes over government contracts and government seizure of property; for government regulation in government regulation of business; for greater protection of the environment or greater consumer protection (even if anti-government); for the injured party in admiralty - personal injury; for economic underdog in admiralty and miscellaneous economic cases. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards.
LOGAN SQUARE AUTO MART, INC., and Logan Square Motors, Inc., Illinois corporations, James E. Healy and Elizabeth Healy, Estate of Alvin A. Urban, deceased, Orville E. Urban, executor thereof, Estate of Alyce Urban, deceased, and Orville E. Urban, executor thereof, Petitioners-Appellants, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee.
No. 13141.
United States Court of Appeals Seventh Circuit.
May 22, 1961.
Rehearing Denied June 20, 1961.
Robert J. Downing, Robert G. Lussier, Chicago, Ill., Raskin & Downing, Chicago, Ill., of counsel, for petitioners-appellants.
Lee A. Jackson, Chief, Appellate Section, John A. Bailey, Atty., U. S. Dept, of Justice, Louis F. Oberdorfer, Asst. Atty. Gen., Meyer Rothwacks, Atty., Dept, of Justice, Washington, D. C., for respondent-appellee.
Before HASTINGS, Chief Judge, and DUFFY and SCHNACKENBERG, Circuit Judges.
SCHNACKENBERG, Circuit Judge.
The petitions for review of decisions of the Tax Court of the United States, filed by Logan Square Auto Mart, Inc., and Logan Square Motors, Inc., Illinois corporations, James E. Healy and Elizabeth Healy, Estate of Alvin A. Urban, deceased, Orville E. Urban, executor thereof, and Estate of Alyce Urban, deceased, and Orville E. Urban, executor thereof, bring before us a redetermination by that court of income tax liability of the individuals and corporations named for the years 1946, 1947 and 1948.
In the Tax Court the dockets involved were consolidated and heard on a stipulation of facts, and documentary and oral evidence.
The corporate taxpayers filed income tax returns on an accrual basis for the years 1946, 1947 and 1948. Healy and Urban and their respective wives filed joint income tax returns for 1948.
The corporate taxpayers were in the business of selling new and used automobiles in Chicago. Urban and Healy each owned 50% of the capital stock of each corporate taxpayer, with the exception of January 1 to 10, 1946 in respect to Logan Square Motors, when they each owned one-third of its stock. Each of these men occupied some office in one or the other of the corporations, except that in 1946 Urban held no office in Logan Square Auto Mart and Healy held none in Logan Square Motors, at which time their stock was held by nominees.
The returns of Logan Square Auto Mart were signed by Healy and those of Logan Square Motors were signed by Urban.
Healy received salaries from Logan Square Auto Mart and Logan Square Motors as follows:
Logan Square Year Auto Mart Logan Square Motors
1946 $12,000 $ 1,075.00
1947 15,000
1948 3,125 19,324.66
Urban received from Logan Square Motors as salary the amounts of $12,000, $20,000 and $1,300 in each year respectively. The corporate taxpayers deducted, and Healy and Urban included on their respective returns, the amounts of salary so paid. On December 1, 1948, Logan Square Motors declared a dividend on its common stock in the amount of $20,000, of which $10,000 was paid to Healy, and $10,000 to Urban. The payment of the dividend was reflected in a schedule, attached to the corporate return, as a charge to earned surplus. Healy and Urban reported the dividend on their respective 1948 income tax returns. Healy, Urban and their wives reported no other amounts as income for the years in issue. Both Logan Square Motors and Logan Square Auto Mart maintained their books and records on an accrual method.
Walter J. Smyth, employed by the corporate taxpayers, prepared the income tax returns of both corporations from their books and records; these returns reflected all and only all the items set forth in the respective books and records. Smyth also prepared the individual returns of Urban, Healy and their respective joint returns with their wives, from information obtained from the books and records of the corporations and from information supplied by the taxpayers.
There was a shortage of automobiles in relation to the demand. Consequently, automobile dealers, including the taxpayer corporations, were often able to demand of a customer that all or part of the sales price be paid in cash (i. e., currency). Further, they were able to demand that a customer trade in a used automobile (referred to as a “trade-in”), as a prerequisite to purchasing a new one, for which he would be allowed against the new car price an amount often considerably below the fair market value of such a used automobile sold outright either to an individual or to a. dealer.
Sales and trade-in allowances were entered on the books and records of Logan Square Motors and Logan Square Auto Mart from the information as to sales prices and trade-in allowances shown on bills of sale prepared by the corporations. If an additional amount was received on a sale and was not included on the bill of sale as part of the sales price, it would also be omitted from the books and records and income tax returns of the selling taxpayer. If there was a trade-in received but not shown on the bill of sale, such a trade-in would not be reflected on the books and records of the corporation and its subsequent sale would not be reported on its income tax return.
Al Kohn and his brother Seymour were eo-owners of Logan Square Willys, Inc. (hereinafter called Willys), and were engaged in the business of selling new and used automobiles. During the years 1947 and 1948 they purchased used cars from Logan Square Motors and Logan Square Auto Mart solely through Urban and Healy. A1 purchased about 95 per cent of such automobiles and paid for some by cheek and for some by cash. Occasionally he received a certificate of title in the name of an individual unknown to him. On some purchases Healy and Urban would request A1 to have Willys record the purchase as though made from the individual whose name appeared on the certificate of title; such individual would in fact be a customer who had traded in a car on the purchase of a new automobile from either Logan Square Motors or Logan Square Auto Mart.
The corporate taxpayers reported the following gross sales:
Logan Square Year Auto Mart Logan Square Motors
1946 $182,457.84 $439,381.17
1947 166,595.46 551,036.40
1948 30,420.90 637,573.86
According to their income tax returns, Logan Square Auto Mart and Logan Square Motors had earnings and profits in the amounts and as of the end of the years:
Year Logan Square Auto Mart Logan Square Motors
1946 $15,830.01 $24,679.11
1947 13,547.08 53,025.53
1948 11,842.61 68,470.03
Some of the sales made by each corporate taxpayer for each year here involved were properly recorded on its books and records, and the purchasers in those transactions were not requested to pay any part of the sales price in cash.
In the United States District Court for the Northern District of Illinois, on January 17, 1956, Urban pleaded guilty to counts 1 to 6, inclusive, of an indictment charging that he “did willfully and knowingly attempt to defeat and evade a large part of” the taxes due and owing by him and the corporate taxpayers for the years 1947 and 1948, and by his wife for the year 1948, “by filing and causing to be filed with the Collector * * * false and fraudulent” income tax returns, in violation of Section 145(b) of the Internal Revenue Code of 1989.
The Tax Court found, inter alia, that where part of the total sales price of any automobile sold was received in cash, only the amount of the payment exclusive of the cash was recorded on the books and records of the corporation as the sales price of the automobile sold. The Tax Court further found in regard to “Trade-ins”: (1) Where, on the sale of an automobile, a trade-in was received by a corporate taxpayer, it recorded as the sales price of the automobile it was selling the dollar amount it received, plus the trade allowance, if any. (2) If the taxpayer corporation allowed nothing on the trade-in, it recorded only the other amount received as the sales price. (3) Whether any such allowance was made or not, the fact that a trade-in was received by the corporation was not reflected either on the bill of sale or on the books and records of the corporation. (4) Further, where such a trade-in was sold to Willys, or any other concern, the fact that such a sale was made, and the amount received from the purchaser, were not recorded on the books and records of the taxpayer.
In addition to reciting specifically the facts relating to numerous sales by the corporations, the Tax Court found that in 1946 Logan Square Motors, acting through Urban, willfully understated its sales receipts on its bills of sale and books by certain payments which Urban required in cash from customers. Urban, during the year 1946, received payments in cash from customers of both corporate petitioners, which amounts he retained and deliberately failed to report on his income tax return for that year, and the deficiencies in tax of Logan Square Motors and Urban for the year 1946 are due in whole or in part to fraud with intent to evade tax.
The Tax Court also found that during 1947 and 1948 Healy and Urban cooperated in a course of conduct whereby some part of the corporate taxpayers’ sales income was omitted from their income tax returns, and during these same years, Healy and Urban received substantial amounts in cash from sales made by them which they retained .and failed to report as income.
The Tax Court further found that Logan Square Auto Mart and Logan Square. Motors filed false and fraudulent returns, for the years 1947 and 1948, with intent to evade tax, and a ..part of the deficiency for each year is due to fraud with intent to evade tax, and that Urban and Healy filed false and fraudulent returns for the year 1947 and joint returns (with their respective wives) for the year 1948, and a part of the deficiency for each year is due to fraud with intent to evade tax.
The Tax Court, sustaining the Commissioner’s deficiency determinations, held that the Commissioner had proved fraud on the part of both individual and corporate taxpayers for the taxable years 1947 and 1948, and had also proved fraud on the part of Urban and Logan Square Motors for the year 1946; but the Court held that the Commissioner had not proved fraud on the part of Healy and Logan Square Auto Mart for the year 1946. The Tax Court thus held that the: statutory penalty for fraud of 50 per cent, of the entire deficiency should be added to the deficiencies of Urban and Logaü Square Motors for the years 1946, 1941? and 1948 and to the deficiencies of Healy and Logan Square Auto Mart for the years 1947 and 1948, as determined by the Commissioner for those years; and further held that, in view of the findings of fraud, the statute of limitations, § 275(a) of the Internal Revenue Code of 1939, does not operate to bar recovery of the deficiencies for the years 1946, 1947 and 1948. The Commissioner has not sought review of the Tax Court’s failure to find fraud on the part of Healy and Logan Square Auto Mart for the year 1946.
1. Respondent was permitted to introduce into evidence a record of Alvin A. Urban’s plea of guilty in the criminal case involving the 1947 and 1948 tax returns of the corporate taxpayers and himself. Petitioners themselves introduced evidence to explain the health conditions of Urban and his wife Alyce at that time.
There was no error in the admission in evidence of this plea of guilty. It was competent evidence because it was an admission against interest. Levelle v. Powers, 10 Cir., 248 F.2d 774, 776; Dunham v. Panned, 5 Cir., 263 F.2d 725, 728.
Moreover the evidence in regard to the health of the Urbans was before the court for whatever value it had.
2. Petitioners contend that the Tax Court erred in admitting testimony against the deceased Alvin A. Urban wherein witnesses stated they made monetary payments to him. Eelying upon 26 U.S.C.A. § 7453, 1954 Code, petitioners quote, as applicable to the trial in the Tax Court, District of Columbia Code, § 14-302 (1951), providing:
“In any civil action against * * executor, administrator, heir, legatee, devisee, assignee, or other representative of a deceased person * * * no judgment or decree shall be rendered in favor of the plaintiff founded on the uncorroborated testimony of the plaintiff or of the agent, servant, or employee of the plaintiff as to any transaction with or action, declaration or admission of the deceased * * (Italics supplied.)
Petitioners contend that this “testimony against the deceased Alvin A. Urban was based solely upon his alleged transactions while a stockholder and officer of the corporate petitioners”, and that the testimony concerned seventeen transactions in which the witnesses alleged they made payments to Urban.
No error was committed in failing to strike this evidence for several reasons, one of which is that the testimony under attack was not that of the plaintiff or any agent, servant, or employee of the plaintiff, if it be assumed, as petitioners dubiously argue, that in this case the Commissioner, although a defendant in the Tax Court, is in reality a plaintiff. The witnesses whose testimony petitioners attack had no legal relation to the Commissioner or the government and were not within the prohibition of the act relied on by petitioners.
3. In their brief, as point III, petitioners contend that “the Tax Court erred in restricting cross-examination and petitioners should have been allowed to inspect certain income tax returns of certain respondent’s witnesses.”
We have read several times the entire argument under this heading. Our inability to comprehend what the brief writer is attempting to say probably arises in part from the fact that there has been a complete failure to comply with an essential part of rule 17(a) (1) of this court, 28 U.S.C.A., which reads:
“Then shall follow a concise statement of the facts, without argument or comment thereon, with the pages of the printed appendix or record where the recited facts appear.”
To find the facts loosely glossed over in point III of the brief, without any indication of the pages of the appendix where we may find definite statements thereof, would be a stupendous job, inasmuch as the appendix consists of 700 printed pages, mostly the printed testimony of 72 witnesses. We have no obligation or facility to perform this task and we are therefore not required to entertain point III.
4. From our inspection of the record we find that in the record as a whole there is substantial evidence to support the Tax Court’s findings and there is clear and convincing evidence to support its findings of fraud. Accordingly, we hold that the Commissioner has met his burden of proof as required by both the general quantitative test and the special qualitative test as to proof of fraud.
For the reasons herein stated, the decisions of the Tax Court are affirmed.
Decisions affirmed.
. The corporate petitioners will be referred to herein as Logan Square Auto Mart and Logan Square Motors, respectively.
Petitioner Alyce Urban died on October 28,1957 and Alvin A. Urban, her husband, died the next day.
During the taxable years James E„ Healy and Elizabeth Healy were husband! and wife.
. All events now stated occurred in each of the taxable years 1946, 1947, and 1948, unless otherwise indicated.
. Figures which we now quote from the returns reflect the “Earned surplus and undivided profits” for each of the years in question.
. 26 U.S.C.A. § 145(b),.
. Including wives joining in returns for the year 1948.
. 26 U.S.C.A. § 275(a).
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer:
|
sc_decisiontype
|
F
|
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.
WYGANT et al. v. JACKSON BOARD OF EDUCATION et al.
No. 84-1340.
Argued November 6, 1985
Decided May 19, 1986
Powell, J., announced the judgment of the Court and delivered an opinion, in which Burger, C. J., and Rehnquist, J., joined, and in all but Part IV of which O’Connor, J., joined. O’Connor, J., filed an opinion concurring in part and concurring in the judgment, post, p. 284. White, J., filed an opinion concurring in the judgment, post, p. 294. Marshall, J., filed a dissenting opinion, in which Brennan and Black-mun, JJ., joined, post, p. 295. Stevens, J., filed a dissenting opinion, .post, p. 313.
K. Preston Oade, Jr., argued the cause for petitioners. With him on the briefs were Constance E. Brooks and Thomas Rasmussen.
Jerome A. Susskind argued the cause and filed a brief for respondents.
Briefs of amici curiae urging reversal were filed for the United States by Acting Solicitor General Fried, Assistant Attorney General Reynolds, Deputy Assistant Attorney General Cooper, Samuel A. Alito, Jr., Walter W. Barnett, and David K. Flynn; for the American Federation of Teachers, AFL-CIO, by Bruce A. Miller and Stuart M. Israel; for the Anti-Defamation League of B’nai B’rith by Robert A. Helman, Michele Odorizzi, Daniel M. Harris, Justin J. Finger, Meyer Eisenberg, and Jeffrey P. Sinensky; for Local 36, International Association of Firefighters, AFL-CIO, et al. by George H. Cohen; for the Mid-America Legal Foundation by John M. Cannon, Susan W. Wanat, and Ann Plunkett Sheldon; and for the Pacific Legal Foundation.by Ronald A. Zumbrum and John H. Findley.
Briefs of amici curiae urging affirmance were filed for the State of Minnesota et al. by Hubert H. Humphrey III, Attorney General of Minnesota, John R. Tunheim, Assistant Attorney General, and Peter M. Ackerberg and Jean Boler, Special Assistant Attorneys General, John K. Van de Karnp, Attorney General of California, William J. Guste, Jr., Attorney General of Louisiana, Robert M. Spire, Attorney General of Nebraska, Paul Bardacke, Attorney General of New Mexico, and Bronson C. La Follette, Attorney General of Wisconsin; for the Affirmative Action Coordinating Center et al. by Jeanny Mirer, Jules Lobel, Frank E. Deale, and Anne Simon; for the Congressional Coalition by Morgan D. Hodgson, Richard Ruda, and Linda C. Kauskay; for the Greater Boston Civil Rights Coalition by John Reinstein, Marjorie Heins, and Mark A. Michelson; for the Jackson Education Association by James A. White; for the Lawyers’ Committee for Civil Rights Under Law et al. by Walter A. Smith, Jr., R. Claire Guthrie, James Robertson, Harold R. Tyler, Jr., Norman Redlich, Thomas D. Barr, William L. Robinson, Richard T. Seymour, Norman J. Chachkin, Robert Allen Sedler, and Burt Neubome; for the Mexican American Legal Defense and Educational Fund by Allen M. Katz, Antonia Hernandez, and John E. Huerta; for the Michigan Civil Rights Commission et al. by Frank J. Kelley, Attorney General of Michigan, Louis J. Caruso, Solicitor General, and Felix E. League, Howard E. Golberg, and Dianne Rubin, Assistant Attorneys General; for the National Association for the Advancement of Colored People by Grover G. Hankins; for the NAACP Legal Defense and Educational Fund, Inc., by Julius LeVonne Chambers, Ronald L. Ellis, and Eric Schnapper; for the National Education Association et al. by Robert H. Chanin; and for the National School Boards Association by Gwendolyn H. Gregory, August W. Steinhilber, and Thomas A. Shannon.
Briefs of amici curiae were filed for the city of Detroit by Daniel B. Edelman; for the Equal Employment Advisory Council by Robert E. Williams, Douglas S. McDowell, and Thomas R. Bagby; for the Michigan State Police Troopers Association, Inc., by Donald L. Reisig and Lawrence P. Schneider; and for the National Board, YMCA of the USA, et al. by Judith Lichtman.
Justice Powell
announced the judgment of the Court and delivered an opinion in which The Chief Justice and Justice Rehnquist join, and in all but Part IV of which Justice O’Connor joins.
This case presents the question whether a school board, consistent with the Equal Protection Clause, may extend preferential protection against layoffs to some of its employees because of their race or national origin.
I
In 1972 the Jackson Board of Education, because of racial tension in the community that extended to its schools, considered adding a layoff provision to the Collective Bargaining Agreement (CBA) between the Board and the Jackson Education Association (Union) that would protect employees who were members of certain minority groups against layoffs. The Board and the Union eventually approved a new provision, Article XII of the CBA, covering layoffs. It stated:
“In the event that it becomes necessary to reduce the number of teachers through layoff from employment by the Board, teachers with the most seniority in the district shall be retained, except that at no time will there be a greater percentage of minority personnel laid off than the current percentage of minority personnel employed at the time of the layoff. In no event will the number given notice of possible layoff be greater than the number of positions to be eliminated. Each teacher so affected will be called back in reverse order for positions for which he is certificated maintaining the above minority balance.” App. 13.
When layoffs became necessary in 1974, it was evident that adherence to the CBA would result in the layoff of tenured nonminority teachers while minority teachers on probationary status were retained. Rather than complying with Article XII, the Board retained the tenured teachers and laid off probationary minority teachers, thus failing to maintain the percentage of minority personnel that existed at the time of the layoff. The Union, together with two minority teachers who had been laid off, brought suit in federal court, id., at 30 (Jackson Education Assn. v. Board of Education (Jackson I) (mem. op.)), claiming that the Board’s failure to adhere to the layoff provision violated the Equal Protection Clause of the Fourteenth Amendment and Title VII of the Civil Rights Act of 1964. They also urged the District Court to take pendent jurisdiction over state-law contract claims., In its answer the Board denied any prior employment discrimination and argued that the layoff provision conflicted with the Michigan Teacher Tenure Act. App. 33. Following trial, the District Court sua sponte concluded that it lacked jurisdiction over the case, in part because there was insufficient evidence to support the plaintiffs’ claim that the Board had engaged in discriminatory hiring practices prior to 1972, id., at 35-37, and in part because the plaintiffs had not fulfilled the jurisdictional prerequisite to a Title VII claim by filing discrimination charges with the Equal Employment Opportunity Commission. After dismissing the federal claims, the District Court declined to exercise pendent jurisdiction over the state-law contract claims.
Rather than taking an appeal, the plaintiffs instituted a suit in state court, Jackson Education Assn. v. Board of Education, No. 77-011484CZ (Jackson Cty. Cir. Ct. 1979) (Jackson II), raising in essence the same claims that had been raised in Jackson I. In entering judgment for the plaintiffs, the state court found that the Board had breached its contract with the plaintiffs, and that Article XII did not violate the Michigan Teacher Tenure Act. In rejecting the Board’s argument that the layoff provision violated the Civil Rights Act of 1964, the state court found that it “ha[d] not been established that the board had discriminated against minorities in its hiring practices. The minority representation on the faculty was the result of societal racial discrimination.” App. 43. The state court also found that “[tjhere is no history of overt past discrimination by the parties to this contract.” Id., at 49. Nevertheless, the court held that Article XII was permissible, despite its discriminatory effect on non-minority teachers, as an attempt to remedy the effects of societal discrimination.
After Jackson II, the Board adhered to Article XII. As a result, during the 1976-1977 and 1981-1982 school years, nonminority teachers were laid off, while minority teachers with less seniority were retained. The displaced nonminority teachers, petitioners here, brought suit in Federal District Court, alleging violations of the Equal Protection Clause, Title VII, 42 U. S. C. § 1983, and other federal and state statutes. On cross-motions for summary judgment, the District Court dismissed all of petitioners’ claims. 546 F. Supp. 1195 (ED Mich. 1982). With respect to the equal protection claim, the District Court held that the racial preferences granted by the Board need not be grounded on a finding of prior discrimination. Instead, the court decided that the racial preferences were permissible under the Equal Protection Clause as an attempt to remedy societal discrimination by providing “role models” for minority schoolchildren, and upheld the constitutionality of the layoff provision.
The Court of Appeals for the Sixth Circuit affirmed, largely adopting the reasoning and language of the District Court. 746 F. 2d 1152 (1984). We granted certiorari, 471 U. S. 1014 (1985), to resolve the important issue of the constitutionality of race-based layoffs by public employers. We now reverse.
II
Petitioners’ central claim is that they were laid off because of their race in violation of the Equal Protection Clause of the Fourteenth Amendment. Decisions by faculties and administrators of public schools based on race or ethnic origin are reviewable under the Fourteenth Amendment. This Court has “consistently repudiated ‘[distinctions between citizens solely because of their ancestry’ as being ‘odious to a free people whose institutions are founded upon the doctrine of equality,’” Loving v. Virginia, 388 U. S. 1, 11 (1967), quoting Hirabayashi v. United States, 320 U. S. 81, 100 (1943). “Racial and ethnic distinctions of any sort are inherently suspect and thus call for the most exacting judicial examination.” University of California Regents v. Bakke, 438 U. S. 265, 291 (1978) (opinion of Powell, J., joined by White, J.).
The Court has recognized that the level of scrutiny does not change merely because the challenged classification operates against a group that historically has not been subject to governmental discrimination. Mississippi University for Women v. Hogan, 458 U. S. 718, 724, n. 9 (1982); Bakke, supra, at 291-299; see Shelley v. Kraemer, 334 U. S. 1, 22 (1948); see also A. Bickel, The Morality of Consent 133 (1975). In this case, Article XII of the CBA operates against whites and in favor of certain minorities, and therefore constitutes a classification based on race. “Any preference based on racial or ethnic criteria must necessarily receive a most searching examination to make sure that it does not conflict with constitutional guarantees.” Fullilove v. Klutznick, 448 U. S. 448, 491 (1980) (opinion of Burger, C. J.). There are two prongs to this examination. First, any racial classification “must be justified by a compelling governmental interest.” Palmore v. Sidoti, 466 U. S. 429, 432 (1984); see Loving v. Virginia, supra, at 11; cf. Graham v. Richardson, 403 U. S. 365, 375 (1971) (alienage). Second, the means chosen by the State to effectuate its purpose must be “narrowly tailored to the achievement of that goal.” Fullilove, supra, at 480. We must decide whether the layoff provision is supported by a compelling state purpose and whether the means chosen to accomplish that purpose are narrowly tailored.
Ill
A
The Court of Appeals, relying on the reasoning and language of the District Court’s opinion, held that the Board’s interest in providing minority role models for its minority students, as an attempt to alleviate the effects of societal discrimination, was sufficiently important to justify the racial classification embodied in the layoff provision. 746 F. 2d, at 1156-1157. The court discerned a need for more minority faculty role models by finding that the percentage of minority teachers was less than the percentage of minority students. Id., at 1156.
This Court never has held that societal discrimination alone is sufficient to justify a racial classification. Rather, the Court has insisted upon some showing of prior discrimination by the governmental unit involved before allowing limited use of racial classifications in order to remedy such discrimination. This Court’s reasoning in Hazelwood School District v. United States, 433 U. S. 299 (1977), illustrates that the relevant analysis in cases involving proof of discrimination by statistical disparity focuses on those disparities that demonstrate such prior governmental discrimination. In Hazelwood the Court concluded that, absent employment discrimination by the school board, “ ‘nondiscriminatory hiring practices will in time result in a work force more or less representative of the racial and ethnic composition of the population in the community from which employees are hired.’” Id., at 307, quoting Teamsters v. United States, 431 U. S. 324, 340, n. 20 (1977). See also 746 F. 2d, at 1160 (Wellford, J., concurring) (“Had the plaintiffs in this case presented data as to the percentage of qualified minority teachers in the relevant labor market to show that defendant Board’s hiring of black teachers over a number of years had equalled that figure, I believe this court may well have been required to reverse . . .”). Based on that reasoning, the Court in Hazelwood held that the proper comparison for determining the existence of actual discrimination by the school board was “between the racial composition of [the school’s] teaching staff and the racial composition of the qualified public school teacher population in the relevant labor market.” 433 U. S., at 308. Hazelwood demonstrates this Court’s focus on prior discrimination as the justification for, and the limitation on, a State’s adoption of race-based remedies. See also Swann v. Charlotte-Mecklenburg Board of Education, 402 U. S. 1 (1971).
Unlike the analysis in Hazelwood, the role model theory employed by the District Court has no logical stopping point. The role model theory allows the Board to engage in discriminatory hiring and layoff practices long past the point required by any legitimate remedial purpose. Indeed, by tying the required percentage of minority teachers to the percentage of minority students, it requires just the sort of year-to-year calibration the Court stated was unnecessary in Swann, 402 U. S., at 31-32:
“At some point these school authorities and others like them should have achieved full compliance with this Court’s decision in Brown I. . . . Neither school authorities nor district courts are constitutionally required to make year-by-year adjustments of the racial composition of student bodies once the affirmative duty to desegregate has been accomplished and racial discrimination through official action is eliminated from the system.”
See also id., at 24.
Moreover, because the role model theory does not necessarily bear a relationship to the harm caused by prior discriminatory hiring practices, it actually could be used to escape the obligation to remedy such practices by justifying the small percentage of black teachers by reference to the small percentage of black students. See United States v. Hazelwood School District, 392 F. Supp. 1276, 1286-1287 (ED Mo. 1975), rev’d, 534 F. 2d 805 (CA8 1976), rev’d and remanded, 433 U. S. 299 (1977). Carried to its logical extreme, the idea that black students are better off with black teachers could lead to the very system the Court rejected in Brown v. Board of Education, 347 U. S. 483 (1954) (Brown I).
Societal discrimination, without more, is too amorphous a basis for imposing a racially classified remedy. The role model theory announced by the District Court and the resultant holding typify this indefiniteness. There are numerous explanations for a disparity between the percentage of minority students and the percentage of minority faculty, many of them completely unrelated to discrimination of any kind. In fact, there is no apparent connection between the two groups. Nevertheless, the District Court combined irrelevant comparisons between these two groups with an indisputable statement that there has been societal discrimination, and upheld state action predicated upon racial classifications. No one doubts that there has been serious racial discrimination in this country. But as the basis for imposing discriminatory legal remedies that work against innocent people, societal discrimination is insufficient and over-expansive. In the absence of particularized findings, a court could uphold remedies that are ageless in their reach into the past, and timeless in their ability to affect the future.
B
Respondents also now argue that their purpose in adopting the layoff provision was to remedy prior discrimination against minorities by the Jackson School District in hiring teachers. Public schools, like other public employers, operate under two interrelated constitutional duties. They are under a clear command from this Court, starting with Brown v. Board of Education, 349 U. S. 294 (1955), to eliminate every vestige of racial segregation and discrimination in the schools. Pursuant to that goal, race-conscious remedial action may be necessary. North Carolina State Board of Education v. Swann, 402 U. S. 43, 46 (1971). On the other hand, public employers, including public schools, also must act in accordance with a “core purpose of the Fourteenth Amendment” which is to “do away with all govemmentally imposed discriminations based on race.” Palmore v. Sidoti, 466 U. S., at 432. These related constitutional duties are not always harmonious; reconciling them requires public employers to act with extraordinary care. In particular, a public employer like the Board must ensure that, before it embarks on an affirmative-action program, it has convincing evidence that remedial action is warranted. That is, it must have sufficient evidence to justify the conclusion that there has been prior discrimination.
Evidentiary support for the conclusion that remedial action is warranted becomes crucial when the remedial program is challenged in court by nonminority employees. In this case, for example, petitioners contended at trial that the remedial program — Article XII — had the purpose and effect of instituting a racial classification that was not justified by a remedial purpose. 546 F. Supp., at 1199. In such a case, the trial court must make a factual determination that the employer had a strong basis in evidence for its conclusion that remedial action was necessary. The ultimate burden remains with the employees to demonstrate the unconstitutionality of an affirmative-action program. But unless such a determination is made, an appellate court reviewing a challenge by nonminority employees to remedial action cannot determine whether the race-based action is justified as a remedy for prior discrimination.
Despite the fact that Article XII has spawned years of litigation and three separate lawsuits, no such determination ever has been made. Although its litigation position was different, the Board in Jackson I and Jackson II denied the existence of prior discriminatory hiring practices. App. 33. This precise issue was litigated in both those suits. Both courts concluded that any statistical disparities were the result of general societal discrimination, not of prior discrimination by the Board. The Board now contends that, given another opportunity, it could establish the existence of prior discrimination. Although this argument seems belated at this point in the proceedings, we need not consider the question since we conclude below that the layoff provision was not a legally appropriate means of achieving even a compelling purpose.
IV
The Court of Appeals examined the means chosen to accomplish the Board’s race-conscious purposes under a test of “reasonableness.” That standard has no support in the decisions of this Court. As demonstrated in Part II above, our decisions always have employed a more stringent standard — however articulated — to test the validity of the means chosen by a State to accomplish its race-conscious purposes. See, e. g., Palmore, supra, at 432 (“[T]o pass constitutional muster, [racial classifications] must be ‘necessary ... to the accomplishment’ of their legitimate purpose”) (quoting McLaughlin v. Florida, 379 U. S. 184, 196 (1964)); Fullilove, 448 U. S., at 480 (opinion of Burger, C. J.) (“We recognize the need for careful judicial evaluation to assure that any . . . program that employs racial or ethnic criteria to accomplish the objective of remedying the present effects of past discrimination is narrowly tailored to the achievement of that goal”)- Under strict scrutiny the means chosen to accomplish the State’s asserted purpose must be specifically and narrowly framed to accomplish that purpose. Fullilove, 448 U. S., at 480 (opinion of Burger, C. J.). “Racial classifications are simply too pernicious to permit any but the most exact connection between justification and classification.” Id., at 537 (Stevens, J., dissenting).
We have recognized, however, that in order to remedy the effects of prior discrimination, it may be necessary to take race into account. As part of this Nation’s dedication to eradicating racial discrimination, innocent persons may be called upon to bear some of the burden of the remedy. “When effectuating a limited and properly tailored remedy to cure the effects of prior discrimination, such a ‘sharing of the burden’ by innocent parties is not impermissible.” Id., at 484, quoting Franks v. Bowman Transportation Co., 424 U. S. 747, 777 (1976). In Fullilove, the challenged statute required at least 10 percent of federal public works funds to be used in contracts with minority-owned business enterprises. This requirement was found to be within the remedial powers of Congress in part because the “actual ‘burden’ shouldered by nonminority firms is relatively light.” 448 U. S., at 484.
Significantly, none of the cases discussed above involved layoffs. Here, by contrast, the means chosen to achieve the Board’s asserted purposes is that of laying off nonminority teachers with greater seniority in order to retain minority teachers with less seniority. We have previously expressed concern over the burden that a preferential-layoffs scheme imposes on innocent parties. See Firefighters v. Stotts, 467 U. S. 561, 574-576, 578-579 (1984); see also Steelworkers v. Weber, 443 U. S. 193, 208 (1979) (“The plan does not require the discharge of white workers and their replacement with new black hirees”). In cases involving valid hiring goals, the burden to be borne by innocent individuals is diffused to a considerable extent among society generally. Though hiring goals may burden some innocent individuals, they simply do not impose the same kind of injury that layoffs impose. Denial of a future employment opportunity is not as intrusive as loss of an existing job.
Many of our cases involve union seniority plans with employees who are typically heavily dependent on wages for their day-to-day living. Even a temporary layoff may have adverse financial as well as psychological effects. A worker may invest many productive years in one job and one city with the expectation of earning the stability and security of seniority. “At that point,' the rights and expectations surrounding seniority make up what is probably the most valuable capital asset that the worker ‘owns,’ worth even more than the current equity in his home.” Fallon & Weiler, Conflicting Models of Racial Justice, 1984 S. Ct. Rev. 1, 58. Layoffs disrupt these settled expectations in a way that general hiring goals do not.
While hiring goals impose a diffuse burden, often foreclosing only one of several opportunities, layoffs impose the entire burden of achieving racial equality on particular individuals, often resulting in serious disruption of their lives. That burden is too intrusive. We therefore hold that, as a means of accomplishing purposes that otherwise may be legitimate, the Board’s layoff plan is not sufficiently narrowly tailored. Other, less intrusive means of accomplishing similar purposes — such as the adoption of hiring goals — are available. For these reasons, the Board’s selection of layoffs as the means to accomplish even a valid purpose cannot satisfy the demands of the Equal Protection Clause.
V
We accordingly reverse the judgment of the Court of Appeals for the Sixth Circuit.
It is so ordered.
Prior to bargaining on this subject, the Minority Affairs Office of the Jackson Public Schools sent a questionnaire to all teachers, soliciting their views as to a layoff policy. The questionnaire proposed two alternatives: continuation of the existing straight seniority system, or a freeze of minority layoffs to ensure retention of minority teachers in exact proportion to the minority student population. Ninety-six percent of the teachers who responded to the questionnaire expressed a preference for the straight seniority system.
Article VII of the CBA defined “minority group personnel” as “those employees who are Black, American Indian, Oriental, or of Spanish descendancy.” App. 15.
Petitioners have sought review in this Court only of their claim based on the Equal Protection Clause.
School district collective-bargaining agreements constitute state action for purposes of the Fourteenth Amendment. Abood v. Detroit Board of Ed., 431 U. S. 209, 218, and n. 12 (1977).
Justice Marshall contends that “the plurality has too quickly assumed the absence of a legitimate factual predicate ... for affirmative action in the Jackson schools,” post, at 297. In support of that assertion, he engages in an unprecedented reliance on nonrecord documents that respondent has “lodged” with this Court. This selective citation to factual materials not considered by the District Court or the Court of Appeals below is unusual enough by itself. My disagreement with Justice Marshall, however, is more fundamental than any disagreement over the heretofore unquestioned rule that this Court decides eases based on the record before it. Justice Marshall does not define what he means by “legitimate factual predicate,” nor does he demonstrate the relationship of these nonrecord materials to his undefined predicate. If, for example, his dissent assumes that general societal discrimination is a sufficient factual predicate, then there is no need to refer to respondents’ lodgings as to its own employment history. No one disputes that there has been race discrimination in this country. If that fact alone can justify race-conscious action by the State, despite the Equal Protection Clause, then the dissent need not rely on nonrecord materials to show a “legitimate factual predicate.” If, on the other hand, Justice Marshall is assuming that the necessary factual predicate is prior discrimination by the Board, there is no escaping the need for a factual determination below — a determination that does not exist.
The real dispute, then, is not over the state of the record. It is disagreement as to what constitutes a “legitimate factual predicate.” If the necessary factual predicate is prior discrimination — that is, that race-based state action is taken to remedy prior discrimination by the governmental unit involved — then the very nature of appellate review requires that a factfinder determine whether the employer was justified in instituting a remedial plan. Nor can respondents unilaterally insulate themselves from this key constitutional question by conceding that they have discriminated in the past, now that it is in their interest to make such a concession. Contrary to the dissent’s assertion, the requirement of such a determination by the trial court is not some arbitrary barrier set up by today’s opinion. Rather, it is a necessary result of the requirement that race-based state action be remedial.
At any rate, much of the material relied on by Justice Marshall has been the subject of the previous lawsuit in Jackson II, where the court concluded that it “had not been established that the board had discriminated against minorities in its hiring practices.” App. 43. Moreover, as noted supra, at 271, in Jackson I the Board expressly denied that it had engaged in employment discrimination.
The term “narrowly tailored,” so frequently used in our cases, has acquired a secondary meaning. More specifically, as commentators have indicated, the term may be used to require consideration of whether lawful alternative and less restrictive means could have been used. Or, as Professor Ely has noted, the classification at issue must “fit” with greater precision than any alternative means. Ely, The Constitutionality of Reverse Racial Discrimination, 41 U. Chi. L. Rev. 723, 727, n. 26 (1974). “[Courts] should give particularly intense scrutiny to whether a nonracial approach or a more narrowly-tailored racial classification could promote the substantial interest about as well and at tolerable administrative expense.” Greenawalt, Judicial Scrutiny of “Benign” Racial Preference in Law School Admissions, 75 Colum. L. Rev. 559, 578-579 (1975).
Several commentators have emphasized that, no matter what the weight of the asserted governmental purpose, the means chosen to accomplish the purpose should be narrowly tailored. In arguing for a form of intermediate scrutiny, Professor Greenawalt contends that, “while benign racial classifications call for some weighing of the importance of ends they call for even more intense scrutiny of means, especially of the administrability of less onerous alternative classifications.” Greenawalt, supra, at 565. Professor Ely has suggested that “special scrutiny in the suspect classification context has in fact consisted not in weighing ends but rather in insisting that the classification in issue fit a constitutionally permissible state goal with greater precision than any available alternative.” Ely, supra, at 727, n. 26. Professor Gunther argues that judicial scrutiny of legislative means is more appropriate than judicial weighing of the importance of the legislative purpose. Gunther, The Supreme Court, 1971 Term — Foreword: In Search of Evolving Doctrine on a Changing Court: A Model For a Newer Equal Protection, 86 Harv. L. Rev. 1, 20-21 (1972).
Of course, when a State implements a race-based plan that requires such a sharing of the burden, it cannot justify the discriminatory effect on some individuals because other individuals had approved the plan. Any “waiver” of the right not to be dealt with by the government on the basis of one’s race must be made by those affected. Yet Justice Marshall repeatedly contends that the fact that Article XII was approved by a majority vote of the Union somehow validates this plan. He sees this ease not in terms of individual constitutional rights, but as an allocation of burdens “between two racial groups.” Post, at 309. Thus, Article XII becomes a political compromise that “avoided placing the entire burden of layoffs on either the white teachers as a group or the minority teachers as a group.” Post, at 299. But the petitioners before us today are not “the white teachers as a group.” They are Wendy Wygant and other individuals who claim that they were fired from their jobs because of their race. That claim cannot be waived by petitioners’ more senior colleagues. In view of the way union seniority works, it is not surprising that while a straight freeze on minority layoffs was overwhelmingly rejected, a “compromise” eventually was reached that placed the entire burden of the compromise on the most junior union members. The more senior union members simply had nothing to lose from such a compromise. See ibid. (“To petitioners, at the bottom of the seniority scale among white teachers, fell the lot of bearing the white group’s proportionate share of layoffs that became necessary in 1982.”) The fact that such a painless accommodation was approved by the more senior union members six times since 1972 is irrelevant. The Constitution does not allocate constitutional rights to be distributed like bloc grants within discrete racial groups; and until it does, petitioners’ more senior union colleagues cannot vote away petitioners’ rights.
Justice Marshall also attempts to portray the layoff plan as one that has no real invidious effect, stating that “within the confines of constant minority proportions, it preserves the hierarchy of seniority in the selection of individuals for layoff.” Post, at 309. That phrase merely expresses the tautology that layoffs are based on seniority except as to those nonminority teachers who are displaced by minority teachers with less seniority. This is really nothing more than group-based analysis: “[E]ach group would shoulder a portion of [the layoff] burden equal to its portion of the faculty.” Post, at 299. The constitutional problem remains: the decision that petitioners would be laid off was based on their race.
Similarly, the Court approved the hiring program in Steelworkers v. Weber, 443 U. S. 193, 208 (1979), in part because the plan did not “unnecessarily trammel the interests of the white employees.” Since Weber involved a private company, its reasoning concerning the validity of the hiring plan at issue there is not directly relevant to this case, which involves a state-imposed plan. No equal protection claim was presented in Weber.
There are cases involving alteration of strict seniority layoffs, see, e. g., Ford Motor Co. v. Huffman, 345 U. S. 330 (1953); Aeronautical Industrial District Lodge 727 v. Campbell, 337 U. S. 521 (1949), but they do not involve the critical element here — layoffs based on race. The Constitution does not require layoffs to be based on strict seniority. But it does require the State to meet a heavy burden of justification when it implements a layoff plan based on race.
The “school admission” cases, which involve the same basic concepts as cases involving hiring goals, illustrate this principle. For example, in DeFunis v. Odegaard, 416 U. S. 312 (1974), while petitioner’s complaint alleged that he had been denied admission to the University of Washington Law School because of his race, he also had been accepted at the Oregon, Idaho, Gonzaga, and Willamette Law Schools. DeFunis v. Odegaard, 82 Wash. 2d 11, 30, n. 11, 507 P. 2d 1169, 1181, n. 11 (1973). The injury to DeFunis was not of the same kind or degree as the injury that he would have suffered had he been removed from law school in his third year. Even this analogy may not rise to the level of harm suffered by a union member who is laid off.
We have recognized, however, that in order to provide make-whole relief to the actual, identified victims of individual discrimination, a court may in an appropriate ease award competitive seniority. See Franks v. Bowman Transportation Co., 424 U. S. 747 (1976).
The Board’s definition of minority to include blacks, Orient
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_stpolicy
|
A
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the interpretation of state or local law, executive order, administrative regulation, doctrine, or rule of procedure by the court favor the appellant?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
Esther Lee SMITH, Appellant, v. HUMBLE OIL AND REFINING COMPANY, Appellee.
No. 11929.
United States Court of Appeals Fourth Circuit.
Argued March 6, 1968.
Decided Aug. 7, 1968.
Henry Hammer, Columbia, S. C. (J. Carlisle Oxner, Jr., Columbia, S. C., on brief), for appellant.
George E. Lewis, Columbia, S. C. (Turner, Padget, Graham & Laney, Columbia, S. C., on brief), for appellee.
Before' BOREMAN, CRAVEN and BUTZNER, Circuit Judges.
BOREMAN, Circuit Judge:
This is an appeal in a diversity action involving plaintiff’s claim for damages arising from a collision between two motor vehicles at the intersection of two streets in Columbia, South Carolina. A jury trial resulted in a verdict for the defendant, Humble Oil and Refining Company, and plaintiff, Mrs. Smith, contends that the court erred in refusing to charge the jury with respect to certain South Carolina statutes which she contends are relevant in determining the question of negligence. Upon consideration of the record, including a street plat and photographs of the intersection filed as exhibits, and the statutes in question, we conclude that the court’s refusal to charge with respect to these statutes was not error.
Bull Street runs north and south and is intersected from the west by Elm-wood. Elmwood terminates at Bull Street and does not continue through the intersection. However, across Bull Street from Elmwood are the entrance and exit driveways to and from the South Carolina State Hospital.
Por some distance west of the intersection Elmwood Avenue is seven lanes wide. Separating eastbound from westbound traffic lanes is a dividing strip of concrete construction extending above the street surface. This strip does not run continuously in the center of Elmwood the full length of the block, but at a point some little distance from Bull Street it is positioned to the left in such a fashion as to create an additional traffic lane for the use of eastbound motorists desiring to make a left turn to the north into Bull Street. Thus, Elm-wood at its terminus at Bull Street has four lanes for eastbound and three lanes for westbound traffic. Bull Street, also with a raised center concrete strip, is a two-way street with two lanes for traffic in each direction at the area of its intersection with Elmwood. Traffic at the intersection, including that entering and leaving the hospital grounds, is controlled by electric signals.
The accident occurred in or near the center of the Bull-Elmwood intersection. During the afternoon rush hour Mrs. Smith, the plaintiff, was proceeding east on Elmwood and, as she wished to turn left onto Bull, had entered the off-set lane farthest to her left and closest to the Elmwood concrete strip as she approached the intersection. However, obeying the traffic signal, she brought her car to a stop at the stop line on Elmwood. While she was waiting for the light to change, defendant’s vehicle, a large tractor-trailer tank truck operated by a company driver, stopped beside her in the lane immediately to her right, i. e., the second lane from the concrete strip. The truck driver, McPheeters, like Mrs. Smith, intended to make a left turn into Bull Street, and, when the signal light changed, both vehicles began their left turns into the intersection, proceeding approximately abreast of one another. As they were doing so, according to the testimony of Humble’s driver, a third vehicle came out of the hospital drive and made such a wide turn to the left to head south on Bull Street that it entered the path of the approaching tanker. McPheeters further testified that, in an effort to avoid a collision with the third vehicle, he turned his truck more sharply to the left and in so doing collided with plaintiff’s car.
Since a basis for Mrs. Smith’s claim was the alleged negligence of defendant’s driver in not approaching the intersection in the proper lane for a left turn, and as Humble interposed the defense of sudden emergency, the plaintiff requested the court to charge the jury concerning certain South Carolina statutes prescribing the proper position of vehicles and method of making left turns at intersections. These statutes are set forth in the margin. The court declined to include all the requested statutory provisions. However, it did include an abbreviated version of § 46-405, instructing the jury that, “Section 46-405, of the code of this state, provides in connection with turning movements of automobiles: ‘No person shall turn a vehicle at an intersection unless and until such movement can be made with reasonable safety.’ Any violation of that would be negligence per se.” Following the adverse jury verdict plaintiff unsuccessfully moved for a new trial on several grounds, but the only point here urged as ground for reversal is the court’s refusal to include in its charge all the code sections as requested.
Mrs. Smith’s contention that these sections are applicable to turns at this intersection and hence relevant to the issue of negligence appears to be based on two assumptions: (1) that her lane, and not McPheeters’, is the lane designated for left turns by § 46-402(2), and (2) that a turn in some manner different from that prescribed in § 46-402(2) is neither permitted nor required by any marker or other device pursuant to § 46-403.
The trial transcript discloses that there was an extended discussion between court and counsel concerning the relevancy of the statutes in these circumstances. The court apparently recognized that the junction of Bull and Elmwood constitutes an intersection within the meaning of the South Carolina statutory definition. Nevertheless, the court concluded that, of the statutes in question, only a portion of § 46-405 was pertinent since both Elmwood and Bull were public streets and the fact that Elmwood’s four lanes for eastbound traffic came to a “dead-end” at Bull created a situation where left turns must be permitted from both Mrs. Smith’s lane and the lane next to it on the right. There was testimony to show that it was the common practice among motorists to make a left turn from either of the two lanes. Humble urges that an interpretation of § 46-402(2) which would require that left turns be made exclusively from Mrs. Smith’s lane would, in effect, render useless the middle two of Elmwood’s four eastbound traffic lanes.
The lane as described above being used by the plaintiff was obviously provided by local authorities as an additional lane for the use of motorists desiring to turn left from Elmwood at the intersection. But we find nothing in the cited statutory provisions or the evidence requiring that left turns be made from that lane only. There is no evidence of anything in the nature of markers, buttons or signs which would prohibit a left turn from the defendant’s lane. If the court had charged the jury with respect to § 46-402(2) it would have been under a duty to tell the jury that the defendant’s truck, in approaching the intersection for a left turn, was actually in that portion of the right half of Elmwood nearest the center line thereof.
We conclude that the portion of § 46-405 which the, court included in its charge was not misleading and that the court did not err in refusing to charge with respect to the other statutory provisions as requested.
Affirmed.
. At either side of the Elmwood intersection Bull Street also has an off-set lane for traffic making left turns into Elmwood or into the hospital driveway. These off-sets are not involved here.
. According to the truck driver’s testimony he had deliberately chosen the second lane since, in his view, the radius of a left turn made from the leftmost lane was such that the rear end of a vehicle the length of his truck would cut across the end of the raised concrete strip; also, that by using the second lane he permitted faster traffic in Mrs. Smith’s lane to pass.
. S.C.Oode Ann. (1962)
§ 46-402. Required position and method of turning at intersections.— The driver of a vehicle intending to turn at an intersection shall do so as follows : * * *
(2) Left turns on tioo-ioay roadioays. —At any intersection where traffic is permitted to move in both directions on each roadway entering the intersection, an approach for a left turn shall be made in that portion of the right half of the roadway nearest the center line thereof and by passing to the right of such center line where it enters the intersection, and after entering the intersection the left turn shall be made so as to leave the intersection to the right of the center line of the roadway being entered, and whenever practicable the left turn shall be made in that portion of the intersection to the left of the center of the intersection; * * *.
§ 46-403. Local markers requiring turns in some other manner.—Subject to the limitations [not pertinent here] prescribed in § 46-302, local authorities in their respective jurisdictions may cause markers, buttons or signs to be placed within or adjacent to intersections and thereby require and direct that a different course from that specified in § 46-402 be traveled by vehicles turning at an intersection, and when markers, buttons or signs are so placed, no driver of a velr'cle shall turn a vehicle at an intersection other than as directed and required by such markers, buttons or signs. (1952 Code § 46-403; 1949 (46) 466.)
§ 46—405. General rule for turning movements.—No person shall turn a vehicle at an intersection unless the vehicle is in proper position upon a roadway as required in §§ 46—402 and 46-403 or turn a vehicle to enter a private road or roadway or otherwise turn a vehicle from a direct course or move right or left upon a roadway unless and until such movement can be made with reasonable safety. (1952 Code § 46-405; 1949 (46) 466.)
. By statute South Carolina defines an intersection, insofar as is here applicable, as follows:
“Intersection. — An ‘intersection’ is the area embraced within the prolongation or connection of the lateral curb lines or, if none, then the lateral boundary lines of the roadways of two highways which join one another at, or approximately at, right angles or the area within which vehicles traveling upon different highways joining at any other angle may come in contact.” S.C.Code Ann. § 46-257 (1962).
Question: Did the interpretation of state or local law, executive order, administrative regulation, doctrine, or rule of procedure by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_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.
SIERRA DIESEL INJECTION SERVICE, INC., Plaintiff-Appellee, v. BURROUGHS CORPORATION, INC., Defendant-Appellant.
No. 87-2373.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted April 14, 1988.
Decided May 9, 1989.
Michael P. Bailey and Lawrence G.D. Scarborough, Brown & Bain, P.A., Phoenix, Ariz., for defendant-appellant.
M. Craig Haase, Haase and Harris, Reno, Nev., for plaintiff-appellee.
Before CANBY and BOOCHEVER, Circuit Judges, and STEPHENS, Jr., Senior District Judge.
Judge Canby was drawn to replace Judge Anderson.
Honorable Albert Lee Stephens, Jr., Senior United States District Judge for the Central District of California, sitting by designation.
STEPHENS, Senior District Judge:
Sierra Diesel Injection Service, Inc. (Sierra Diesel) is a family owned and operated business that services the fuel injection portions of diesel engines and sells related diesel engine parts. In September 1977,19 year old Caroline Cathey, the daughter-in-law of the Sierra Diesel’s owner and operator James Cathey, worked as the company bookkeeper. She went to the Reno, Nevada branch office of the Burroughs Corporation (Burroughs) to purchase a posting machine to speed up Sierra Diesel’s invoicing and accounting. The salespeople at Burroughs told Caroline Cathey that Sierra Diesel should buy a B-80 computer (B-80) instead of a posting machine. Caroline and James Cathey attended a demonstration of the B-80 at the Burroughs office. After the demonstration, Burroughs’ sales staff sent a letter to Mr. Cathey which said that the B-80 “can put your inventory, receivables, and invoicing under complete control.” The letter also informed Mr. Cath-ey that the information in the letter was “preliminary” and that “the order when issued shall constitute the only legally binding commitment of the parties.”
In October 1977, Mr. Cathey decided to purchase the B-80. Sierra Diesel and Burroughs signed various contracts for the sale of hardware and software and for maintenance service. Mr. Cathey’s highest level of formal education was a high school degree. At the time he bought the B-80 he was not knowledgeable about computers. He had a general knowledge of warranties and their limitations from the warranty service work Sierra Diesel did for diesel component parts manufacturers, but he did not understand the meaning of “merchantability.” He read the contracts from Burroughs to see that they contained the correct price information and product description and he glanced at the back of the contract to see, as he put it, that “I’m not actually signing away the deed to my home or something of this nature.”
The B-80 computer did not perform the invoicing and accounting functions for which it had been purchased. It experienced basic equipment breakdowns and was unable to “multiprogram.” Sierra Diesel personnel complained to the Burroughs service personnel. Burroughs responded to these complaints and its staff attempted to solve the problems and also attempted to repair the system during their regularly scheduled visits under the Maintenance Agreement. Eventually, the Burroughs staff recommended to Sierra Diesel that it purchase a different Burroughs computer (B-91) to remedy the problems. Sierra Diesel purchased the B-91 and took delivery in February 1981. The B-91 computer was no better able to perform the invoicing and accounting functions than the B-80. After additional unsuccessful attempts by Burroughs employees to correct the problems, Sierra Diesel employed an independent computer consultant who concluded that the Burroughs computers would never perform the functions for which they had been purchased. Sierra Diesel bought another computer from a different company. In 1984, Sierra Diesel initiated the present litigation.
Sierra Diesel sued Burroughs on six causes of action relating to Sierra Diesel’s dissatisfaction with the two computers. Burroughs moved for summary judgment on the grounds that the contracts were fully integrated and that the September 27th letter was not a part of the contract, that the warranties had been excluded, and that the statute of limitations had run. The case was referred to a Magistrate of the district court who recommended that the motion be granted on statute of limitations grounds. The district court rejected the recommendation. Sierra Diesel Injection Service v. Burroughs Corp. Inc., 648 F.Supp. 1148 (D.Nev.1987). Burroughs moved for reconsideration of the statute of limitations issue and asked the court to rule on the integration and exclusion of warranty claims. The court denied reconsideration and ordered a trial on the integration and exclusion of warranty questions. Sierra Diesel Injection Service v. Burroughs Corp., Inc., 651 F.Supp. 1371 (D.Nev.1987). After the trial, the court held that the exclusion of warranties clauses were not conspicuous and that the parties had not intended the contract to be fully integrated. Sierra Diesel Injection Service v. Burroughs Corp., Inc., 656 F.Supp. 426 (D.Nev.1987).
After the trial court’s ruling, Sierra Diesel and Burroughs entered into a settlement in which the court dismissed with prejudice all of Sierra Diesel’s claims as to the B-91 and most of the claims as to the B-80. The parties stipulated that Burroughs had breached its contracts with Sierra Diesel by failing to put Sierra Diesel’s inventory, receivables, and invoicing under complete control and that the B-80 was not merchantable. The trial court awarded Sierra Diesel $44,000 in damages. The judgment reserved to Burroughs a right to appeal the court’s integration and conspicuousness rulings. Burroughs timely appealed. This court has jurisdiction under 28 U.S.C. § 1291. This is a diversity case and Nevada law controls. Both the software and hardware sales agreements provide that “the laws of the State of Michigan shall govern....” We need not decide whether, under Nevada law, the small type reference to application of Michigan law would be given affect because the parties do not argue that Michigan law differs from that of Nevada.
I. INTEGRATION
The trial court found that the printed form contracts supplied by Burroughs did not represent a final integrated contract. The court considered the September 27 letter and found that the representations in the letter were part of the agreement between the parties.
Nevada has adopted the Uniform Commercial Code’s parol evidence rule in NRS § 104.2202. Under the code, a trial court must make an initial determination that a writing was “intended by the parties as a final expression of their agreement.” This is a question of fact and the trial court’s findings are reviewed for substantial error. Transamerica Oil Corp. v. Dynes, Inc., 723 F.2d 758, 763 (10th Cir.1983); R. Anderson, Uniform Commercial Code § 2-202:33 (1983).
In deciding whether a writing is final the most important issue is the intent of the parties. Interform Co. v. Mitchell, 575 F.2d 1270, 1275 (9th Cir.1978); Frazier v. Consolidated Equiyment Sales Inc., 64 Or.App. 833, 670 P.2d 153, 158, review denied, 296 Or. 236, 675 P.2d 490 (1983). One factor is the sophistication of the parties. S.M. Wilson & Co. v. Smith Intern Co., 587 F.2d 1363, 1366 (9th Cir.1978). The trial court found that Mr. Cathey was not a sophisticated businessman, that he had little knowledge of computers or of contract terms, and that he fully expected that the representations made to him by Burroughs’ representatives were part of the contract. The trial court also found that Burroughs knew of Mr. Cathey’s computer needs and knew that his sole purpose for buying the computer was to get Sierra Diesel’s inventory, receiving, and invoicing under control and that Mr. Cathey would not have purchased the B-80 if it were not capable of putting his inventory, receiving, and invoicing under control. The trial court’s findings are supported by the record.
Burroughs argues that the presence of a merger clause should, as a matter of law, determine that the contract was integrated, and some courts have so held. Redfern Meats Inc. v. Hertz Corp., 134 Ga.App. 381, 215 S.E.2d 10 (1975); Rajala v. Allied Corp., 2 UCCRS 2d 1203, 66 BR 582 (1986). However other courts and commentators have rejected this view, especially when the contract is a pre-printed form drawn by a sophisticated seller and presented to the buyer without any real negotiation. Whether several documents are integrated to form one contract is a factual question and the presence of a merger clause while often taken as a strong sign of the parties’ intent is not conclusive in all cases. Enrico Farms Inc. v. H.J. Heinz Co., 629 F.2d 1304, 1306 (9th Cir.1980); J.A. Zwierzycki v. Owens, 499 P.2d 996 (Wyo.1972); Restatement (Second) of Contract § 209 comment b, § 216 comment e; and R. Anderson, supra, § 2-202:25.
The agreement between Burroughs and Sierra Diesel involved at least four different kinds of writings: the contract for the sale of the hardware, the contracts for the sale of the software, the contract to finance the transaction through what was on its face a lease, and the contract for service and maintenance. No one writing stands alone, each must be read with reference to another document. The description of the computer components does not lead to recognition of how they relate to one another without additional explanation. The hardware could not function without the software. The lease appears on its face to be inconsistent with a sale. It is not possible to understand what the basic transaction was intended to be without some coordinating explanation. It is understandable that Mr. Cathey believed that he was justified in looking beyond the four corners of any one writing for the meaning of his agreement with Burroughs.
Additionally, the trial court found that Burroughs’ efforts to repair the B-80 showed that Burroughs intended to live up to the representations made in the September 27 letter. Cf. O’Neil v. International Harvester Co., 40 Colo.App. 369, 575 P.2d 862 (1978) (efforts by seller to repair truck show seller’s intent to warrant truck). Burroughs did not advise Sierra Diesel that the repairs were undertaken without prejudice to Burroughs’ contention that there were no warranties. Burroughs’ efforts are also evidence of Burroughs’ knowledge of Mr. Cathey’s expectations as to the scope and terms of their agreement.
An additional ground for upholding the trial court is that the statements in the September 27 letter are express warranties that the B-80 computer would put Sierra Diesel’s inventory, receivables, and invoicing under complete control. These representations became part of the basis of the bargain. NRS § 104.2313. Under NRS § 104.2316(1) when an express warranty is read together with a warranty disclaimer, the express warranty is given effect over the disclaimer. The warranty disclaimer clauses in the printed form contracts were ineffective to waive the express warranty.
There is sufficient evidence to support the trial court’s finding that the agreement between Sierra Diesel and Burroughs included the representations in the September 27th letter.
II. CONSPICUOUSNESS OF THE WARRANTY EXCLUSION
The trial court ruled that the warranty exclusion clauses in the Burroughs contracts were not conspicuous and therefore not effective to waive the implied warranty of merchantability.
Warranty exclusions are permitted under the UCC § 2-316 to allow parties to bargain to allocate the risk of loss. However, exclusions of warranties are generally disfavored, and standardized take it or leave it form contracts such as the one in this case are construed against the drafter. They are subject to the general obligation of good faith and of not imposing unconscionable terms upon a party. Restatement (Second) of Contracts § 211. Nevada has adopted the UCC waiver of warranty language in NRS § 104.2316. According to official comment one the purpose of the warranty waiver section is to “protect a buyer from unexpected and unbargained language of disclaimer by denying effect to such language when inconsistent with language of express warranty and permitting the exclusion of implied warranties only by conspicuous language or other circumstances which protect the buyer from surprise.”
Conspicuousness is defined by NRS § 104.1201(10): “A term or clause is conspicuous when it is so written that a reasonable person against whom it is to operate ought to have noticed it.... Language in the body of a form is “conspicuous” if it is in larger or other contrasting type or color.” Official comment 10 notes that “the test is whether attention can reasonably be expected to be called to it.”
“Whether a term or clause is ‘conspicuous’ or not is for decision by the court.” NRS § 104.1201(10). Review of the trial court’s finding is de novo. Collins Radio Co. of Dallas v. Bell, 623 P.2d 1039, 1051 (Okla.App.1980); J & W Equipment, Inc. v. Weingartner, 5 Kan.App.2d 466, 618 P.2d 862, 864 (1980).
Both the hardware and software agreements contained the following warranty disclaimer, “EXCEPT AS SPECIFICALLY PROVIDED HEREIN, THERE ARE NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.” In the hardware agreement the disclaimer appeared in the middle of the page at the left hand column in all capital bold type. It is one of the three paragraphs on the reverse side in all capital bold type. There are 15 separately numbered sections. The warranty exclusions clause is in section 4. There is no heading to identify it as a warranty section.
On the front of the software agreement a sentence standing alone in large capital bold letter directs the signor to read the warranty terms on the back, “THE TERMS AND CONDITIONS, INCLUDING THE WARRANTY AND LIMITATION OF LIABILITY, ON THE REVERSE SIDE ARE PART OF THE AGREEMENT.” The back of the contract contains 14 separately numbered and titled sections, some of which are further divided into paragraphs. The ninth section, entitled WARRANTY, contains the exclusion clause in the fourth paragraph of the section. The clause is in all capital letters, but it is not bold type. The only words in bold on the back of the form are the title headings and the words TERMS AND CONDITIONS at the top of the page.
Whether a disclaimer is conspicuous is not simply a matter of measuring the type size or looking at the placement of the disclaimer within the contract. A reviewing court must ascertain that a reasonable person in the buyer’s position would not have been surprised to find the warranty disclaimer in the contract. J. & W. Equipment Inc. v. Weingartner, 5 Kan.App.2d 466, 618 P.2d at 866. One factor to consider is the sophistication of the parties. See e.g., Collins Radio v. Bell, 623 P.2d at 1051 (“we note that the disclaimer [in capital letters] is of minimal compliance, and we do not venture to state what factors might alter this determination in future cases outside of the sophistication of the buyer.”) (emphasis in the original); FMC Finance Corp. v. Murphree, 632 F.2d 413, 419 (5th Cir.1980); Gilbert & Bennett Mfg. Co. v. Westinghouse Electric Corp., 445 F.Supp. 537 (D.Mass 1977); Avenell v. Westinghouse Electric Corp., 41 Ohio App.2d 150, 324 N.E.2d 583 (1974). Also relevant as to whether a reasonable person would have noticed a warranty disclaimer are the circumstances of the negotiation and signing.
The trial court found that Mr. Cathey was not familiar with computers or with contracts. Mr. Cathey read the front of the contracts, but did not notice the warranty disclaimer clauses on the back. Given Mr. Cathey’s lack of sophistication in the field of contracts and the written and oral representations made by Burroughs, it is not surprising that it would require more than a collection of standardized form contracts on various subjects involved in a transaction to notify a reasonable person in Mr. Cathey’s position that the B-80 came without any warranty of merchantability.
Burroughs faults the trial court for holding that all warranty disclaimers must be in capital letters and in bold type, but the trial court did not rule in so mechanistic a fashion. The trial court’s rulings consider type size and boldness as factors in an overall analysis and also the fact that the disclaimers were on the back of the page. Cf. Sellman Auto, Inc. v. McCowan, 89 Nev. 353, 513 P.2d 1228, 1230 (1973) (Under Uniform Sales Act, a waiver of an express warranty printed on the back of a contract is not effective unless the buyer is actually aware of it.) The trial court also considered the relative sophistication of the parties.
Burroughs points to two Nevada cases interpreting NRS § 104.2316. In Bill Stremmel Motors, Inc. v. IDS Leasing Corp., 89 Nev. 414, 514 P.2d 654 (1973), the Nevada Supreme Court affirmed a trial court judgment holding that a warranty exclusion clause in all capital letters was conspicuous. In Stremmel the trial court found that both parties were sophisticated, that there was no evidence that the buyer had not read the contract, and that the disclaimer was conspicuous. There is a marked difference in the dispute between Burroughs and Sierra Diesel. The district court found that Mr. Cathey was not a sophisticated buyer, he had not read the contract, and the trial court found that the disclaimers were not conspicuous. In the second case, Sierra Creek Ranch v. J.I. Case, 97 Nev. 457, 634 P.2d 458 (1981), the Nevada Supreme Court again affirmed a trial court finding that an exclusion clause was conspicuous. Both Stremmel and Sierra Creek show that a disclaimer in capital letters that mentions merchantability can be effective to exclude warranties. They do not hold that capital letters as a matter of law will be effective in all cases.
In the circumstances of this case, the district court’s finding that the warranty disclaimer clauses were not conspicuous is not erroneous.
III. EFFECT OF THE LEASE
Sierra Diesel argues that the contract between Sierra Diesel and Burroughs is abrogated by the lease between Sierra Diesel and Lend-Lease, Inc., the named lessor in the transaction.
It is common for computer buyers to extend their payments over time. See Annotation, Computers — Buyer-Lessee Defenses, 37 ALR4th 110. Often they use writings that are denominated as leases but are in fact financing security arrangements. The name given to the instrument is less important in determining its true nature than is the intent of the parties and the economic reality of the transaction. R. White & J. Summers, Uniform Commercial Code, § 22-3 (2d ed. 1980).
In Burroughs v. Century Steel, 99 Nev. 464, 664 P.2d 354 (1983) the Nevada Supreme Court examined the question of what constitutes a true lease and what constitutes a financing agreement and listed several factors. Applying the factors noted in Century Steel, Sierra Diesel’s lease was in fact a financing arrangement because Sierra Diesel was responsible for maintenance, for all taxes, and for loss due to damage to the computer. Furthermore, Sierra Diesel was required to indemnify the leasing company against loss that resulted from the computer’s malfunction. Sierra Diesel selected the computer without assistance from Lend-Lease. Lend-Lease did not manufacture the computer. Burroughs shipped the computer directly to Sierra Diesel and not to Lend-Lease, which never had possession of the computer. Finally, the “lease” nowhere explains the relation of the “lease” to the documents of sale between Sierra Diesel and Burroughs (a factor which supports the trial court’s finding that the contracts were not integrated).
Sierra Diesel argues that notwithstanding all of the factors listed above, the arrangement with Lend-Lease should be regarded as a true lease because by its terms it requires Sierra Diesel to return the computer equipment to Lend-Lease at the end of the 60 month term. Mr. Cathey’s deposition testimony reveals his understanding that Sierra Diesel was to own the B-80 at the end of the 60 month term. Furthermore, Sierra Diesel’s whole law suit is premised on the existence of a sales contract with Burroughs supplemented by a financing agreement with Lend-Lease.
The agreement between Sierra Diesel and Lend-Lease is in reality a financing arrangement and does not abrogate the contract between Sierra Diesel and Burroughs.
CONCLUSION
The trial court’s judgment is affirmed.
. The relevant portions of the letter are as follows:
I wish to thank you for your interest and attendance at our demonstration of the new B80 computer last week. I hope you have a better understanding of what the B80 is and what it can do to help Sierra Diesel Injection Service. We firmly believe that it can put your inventory, receivables, and invoicing under complete control, which will mean to your firm a big monetary savings, as well as a more cost efficient operation. Plus, it will free Caroline from much of her routine and time consuming duties and will allow her to use her time on more valuable undertakings. After the initial survey that myself and Tim Tift conducted, plus through our discussions with you here at the branch, we believe we have a good understanding of your problems and needs. As we see it, you need to get better control of your inventory, improve invoicing and take better charge of your receivables. The system we recommend will allow you to do all this plus provide you with additional management reports, which will help you manage your operations even better.
The preliminary information and expression of confidence set forth in this recommendation of Burroughs products and/or services are submitted for your consideration and guidance only in the hope that we may be favored with your order. Since this proposal is preliminary only, the order when issued shall constitute the only legally binding commitment of the parties.
. NRS § 104.2202 reads as follows:
Terms with respect to which the confirmatory memoranda of the parties agree or which are otherwise set forth in writing intended by the parties as a final expression of their agreement with respect to such terms as are included therein may not be contradicted by evidence of any prior agreement or of a contemporary oral agreement but may be explained or supplemented:
1. By course of dealing or usage of trade (NRS 104.1205) or by course of performance (NRS 104.2208); and
2. By evidence of consistent additional terms unless the court finds the writing to have been intended also as a complete and exclusive statement of the terms of the agreement.
. The trial court’s judgment speaks of "representations” and a "breach of contract,” but such language describes a cause of action for breach of express warranty. Furthermore, Sierra Diesel’s trial court pleadings amply state a cause of action for breach of express warranty under the federal court’s liberal pleading requirements. Finally, a holding on a breach of express warranty, although not explicitly argued by Sierra Diesel, should come as no surprise to Burroughs since Burroughs in its opening appellate brief describes Sierra Diesel's cause of action as one for breach of express warranty.
. NRS § 104.2316 reads in relevant part:
2. Subject to subsection (3), to exclude or modify the implied warranty of merchantability or any part of it the language must mention merchantability and in case of a writing must be conspicuous, and to exclude or modify any implied warranty of fitness the exclusion must be in writing and conspicuous. Language to exclude all implied warranties of fitness is sufficient if it states, for example, that "There tire no warranties which extend beyond the description on the face hereof."
Question: What party initiated the appeal?
A. Original plaintiff
B. Original defendant
C. Federal agency representing plaintiff
D. Federal agency representing defendant
E. Intervenor
F. Not applicable
G. Not ascertained
Answer:
|
sc_petitioner
|
028
|
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.
HUNTER et al. v. UNDERWOOD et al.
No. 84-76.
Argued February 26, 1985
Decided April 16, 1985
Rehnquist, J., delivered the opinion of the Court, in which all other Members joined, except Powell, J., who took no part in the consideration or decision of the case.
James S. Ward, Special Assistant Attorney of Alabama, argued the cause and filed a brief for appellants.
Edward Still argued the cause for appellees. With him on the brief were Neil Bradley, Laughlin McDonald, and Christopher Coates.
Briefs of amici curiae urging affirmance were filed for the National Association for the Advancement of Colored People et al. by Samuel Rabinove and Richard T. Foltin; and for NAACP Legal Defense and Educational Fund, Inc. by Julius Chambers and Lani Guinier.
Justice Rehnquist
delivered the opinion of the Court.
We are required in this case to decide the constitutionality of Art. VIII, §182, of the Alabama Constitution of 1901, which provides for. the disenfranchisement of persons convicted of, among other offenses, “any crime . . . involving moral turpitude.” Appellees Carmen Edwards, a black, and Victor Underwood, a white, have been blocked from the voter rolls pursuant to § 182 by the Boards of Registrars for Montgomery and Jefferson Counties, respectively, because they each have been convicted of presenting a worthless check. In determining that the misdemeanor of presenting a worthless check is a crime involving moral turpitude, the Registrars relied on opinions of the Alabama Attorney General.
Edwards and Underwood sued the Montgomery and Jefferson Boards of Registrars under 42 U. S. C. §§ 1981 and 1983 for a declaration invalidating § 182 as applied to persons convicted of crimes not punishable by imprisonment in the state penitentiary (misdemeanors) and an injunction against its future application to such persons. After extensive proceedings not relevant here, the District Court certified a plaintiff class of persons who have been purged from the voting rolls or barred from registering to vote in Alabama solely because of a misdemeanor conviction and a defendant class of all members of the 67 Alabama County Boards of Registrars. The case proceeded to trial on two causes of action, including a claim that the misdemeanors encompassed within § 182 were intentionally adopted to disenfranchise blacks on account of their race and that their inclusion in § 182 has had the intended effect. For the purposes of this claim, the District Court treated appellee Edwards as the representative of a subclass of black members of the plaintiff class.
In a memorandum opinion, the District Court found that disenfranchisement of blacks was a major purpose for the convention at which the Alabama Constitution of 1901 was adopted, but that there had not been a showing that “the provisions disenfranchising those convicted of crimes [were] based upon the racism present at the constitutional convention.” The court also reasoned that under this Court’s decision in Palmer v. Thompson, 403 U. S. 217 (1971), proof of an impermissible motive for the provision would not warrant its invalidation in face of the permissible motive of “governing exercise of the franchise by those convicted of crimes,” which the court apparently found evident on the face of § 182. App. E to Juris. Statement E-5 — E-7.
On appeal, the Court of Appeals for the Eleventh Circuit reversed. 730 F. 2d 614 (1984). It held that the proper approach to the Fourteenth Amendment discrimination claim was established in Arlington Heights v. Metropolitan Housing Development Corp., 429 U. S. 252, 270, and n. 21 (1977), and Mt. Healthy City Board of Education v. Doyle, 429 U. S. 274, 287 (1977):
“To establish a violation of the fourteenth amendment in the face of mixed motives, plaintiffs must prove by a preponderance of the evidence that racial discrimination was a substantial or motivating factor in the adoption of section 182. They shall then prevail unless the registrars prove by a preponderance of the evidence that the same decision would have resulted had the impermissible purpose not been considered.” 730 F. 2d, at 617.
Following this approach, the court first determined that the District Court’s finding of a lack of discriminatory intent in the adoption of §182 was clearly erroneous. After thoroughly reviewing the evidence, the court found that discriminatory intent was a motivating factor. It next determined from the evidence that there could be no finding that there was a competing permissible intent for the enactment of § 182. Accordingly, it concluded that § 182 would not have been enacted in absence of the racially discriminatory motivation, and it held that the section as applied to misdemeanants violated the Fourteenth Amendment, it directed the District Court to issue an injunction ordering appellants to register on the voter rolls members of the plaintiff class who so request and who otherwise qualify. We noted probable jurisdiction, 469 U. S. 878 (1984), and we affirm.
The predecessor to § 182 was Art. VIII, § 3, of the Alabama Constitution of 1875, which denied persons “convicted of treason, embezzlement of public funds, malfeasance in office, larceny, bribery, or other crime punishable by imprisonment in the penitentiary” the right to register, vote or hold public office. These offenses were largely, if not entirely, felonies. The drafters of § 182, which was adopted by the 1901 convention, expanded the list of enumerated crimes substantially to include the following:
“treason, murder, arson, embezzlement, malfeasance in office, larceny, receiving stolen property, obtaining property or money under false pretenses, perjury, subornation of perjury, robbery, assault with intent to rob, burglary, forgery, bribery, assault and battery on the wife, bigamy, living in adultery, sodomy, incest, rape, miscegenation, [and] crime against nature.”
The drafters retained the general felony provision — “any crime punishable by imprisonment in the penitentiary” — but also added a new catchall provision covering “any . . . crime involving moral turpitude.” This latter phrase is not defined, but it was subsequently interpreted by the Alabama Supreme Court to mean an act that is “‘immoral in itself, regardless of the fact whether it is punishable by law. The doing of the act itself, and not its prohibition by statute fixes, the moral turpitude.’” Pippin v. State, 197 Ala. 613, 616, 73 So. 340, 342 (1916) (quoting Fort v. Brinkley, 87 Ark. 400, 112 S. W. 1084 (1908)).
The enumerated crimes contain within them many misdemeanors. If a specific crime does not fall within one of the enumerated offenses, the Alabama Boards of Registrars consult Alabama case law or, in absence of a court precedent, opinions of the Alabama Attorney General to determine whether it is covered by § 182. 730 F. 2d, at 616, n. 2. Various minor nonfelony offenses such as presenting a worthless check and petty larceny fall within the sweep of § 182, while more serious nonfelony offenses such as second-degree manslaughter, assault on a police officer, mailing pornography, and aiding the escape of a misdemeanant do not because they are neither enumerated in § 182 nor considered crimes involving moral turpitude. Id., at 620, n. 13. It is alleged, and the Court of Appeals found, that the crimes selected for inclusion in § 182 were believed by the delegates to be more frequently committed by blacks.
Section 182 on its face is racially neutral, applying equally to anyone convicted of one of the enumerated crimes or a crime falling within one of the catchall provisions. Appellee Edwards nonetheless claims that the provision has had a racially discriminatory impact. The District Court made no finding on this claim, but the Court of Appeals implicitly found the evidence of discriminatory impact indisputable:
“The registrars’ expert estimated that by January 1903 section 182 had disfranchised approximately ten times as many blacks as whites. This disparate effect persists today. In Jefferson and Montgomery Counties blacks are by even the most modest estimates at least 1.7 times as likely as whites to suffer disfranchisement under section 182 for the commission of nonprison offenses.” 730 F. 2d, at 620.
So far as we can tell the impact of the provision has not been contested, and we can find no evidence in the record below or in the briefs and oral argument in this Court that would undermine this finding by the Court of Appeals.
Presented with a neutral state law that produces disproportionate effects along racial lines, the Court of Appeals was correct in applying the approach of Arlington Heights to determine whether the law violates the Equal Protection Clause of the Fourteenth Amendment:
“[0]fficial action will not be held unconstitutional solely because it results in a racially disproportionate impact. . . . Proof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause.” 429 U. S., at 264-265.
See Washington v. Davis, 426 U. S. 229, 239 (1976). Once racial discrimination is shown to have been a “substantial” or “motivating” factor behind enactment of the law, the burden shifts to the law’s defenders to demonstrate that the law would have been enacted without this factor. See Mt. Healthy, 429 U. S., at 287.
Proving the motivation behind official action is often a problematic undertaking. See Rogers v. Lodge, 458 U. S. 613 (1982). When we move from an examination of a board of county commissioners such as was involved in Rogers to a body the size of the Alabama Constitutional Convention of 1901, the difficulties in determining the actual motivations of the various legislators that produced a given decision increase. With respect to Congress, the Court said in United States v. O’Brien, 391 U. S. 367, 383-384 (1968) (footnote omitted):
“Inquiries into congressional motives or purposes are a hazardous matter. When the issue is simply the interpretation of legislation, the Court will look to statements by legislators for guidance as to the purpose of the legislature, because the benefit to sound decision-making in this circumstance is thought sufficient to risk the possibility of misreading Congress’ purpose. It is entirely a different matter when we are asked to void a statute that is, under well-settled criteria, constitutional on its face, on the basis of what fewer than a handful of Congressmen said about it. What motivates one legislator to make a speech about a statute is not necessarily what motivates scores of others to enact it, and the stakes are sufficiently high for us to eschew guesswork.”
But the sort of difficulties of which the Court spoke in O’Brien do not obtain in this case. Although understandably no “eyewitnesses” to the 1901 proceedings testified, testimony and opinions of historians were offered and received without objection. These showed that the Alabama Constitutional Convention of 1901 was part of a movement that swept the post-Reconstruction South to disenfranchise blacks. See S. Hackney, Populism to Progressivism in Alabama 147 (1969); C. Vann Woodward, Origins of the New South, 1877-1913, pp. 321-322 (1971). The delegates to the all-white convention were not secretive about their purpose. John B. Knox, president of the convention, stated in his opening address:
“And what is it that we want to do? Why it is within the limits imposed by the Federal Constitution, to establish white supremacy in this State.” 1 Official Proceedings of the Constitutional Convention of the State of Alabama, May 21st, 1901 to September 3rd, 1901, p. 8 (1940).
Indeed, neither the District Court nor appellants seriously dispute the claim that this zeal for white supremacy ran rampant at the convention.
As already noted, the District Court nonetheless found that the crimes provision in §182 was not enacted out of racial animus, only to have the Court of Appeals set aside this finding. In doing so, the Court of Appeals applied the clearly-erroneous standard of review required by Federal Rule of Civil Procedure 52(a), see Pullman-Standard, v. Swint, 456 U. S. 273, 287 (1982), but was “left with a firm and definite impression of error . . . with respect to the issue of intent.” 730 F. 2d, at 620. The evidence of legislative intent available to the courts below consisted of the proceedings of the convention, several historical studies, and the testimony of two expert historians. Having reviewed this evidence, we are persuaded that the Court of Appeals was correct in its assessment. That court’s opinion presents a thorough analysis of the evidence and demonstrates conclusively that § 182 was enacted with the intent of disenfranchising blacks. We see little purpose in repeating that factual analysis here. At oral argument in this Court appellants’ counsel essentially conceded this point, stating: “I would be very blind and naive [to] try to come up and stand before this Court and say that race was not a factor in the enactment of Section 182; that race did not play a part in the decisions of those people who were at the constitutional convention of 1901 and I won’t do that.” Tr. of Oral Arg. 6.
In their brief to this Court, appellants maintain on the basis of their expert’s testimony that the real purpose behind §182 was to disenfranchise poor whites as well as blacks. The Southern Democrats, in their view, sought in this way to stem the resurgence of Populism which threatened their power:
“Q. The aim of the 1901 Constitution Convention was to prevent the resurgence of Populism by disenfranchising practically all of the blacks and a large number of whites; is that not correct?
“A. Yes, sir.
“Q. The idea was to prevent blacks from becoming a swing vote and thereby powerful and useful to some group of whites such as Republicans?
“A. Yes, sir, that’s correct.
“Q. The phrase that is quite often used in the Convention is to, on the one hand limit the franchise to [the] intelligent and virtuous, and on the other hand to disenfranchise those [referred] to as ‘corrupt and ignorant,’ or sometimes referred to as the ignorant and vicious?
“A. That’s right.
“Q. Was that not interpreted by the people at that Constitutional Convention to mean that they wanted to disenfranchise practically all of the blacks and disenfranchise those people who were lower class whites?
“A. That’s correct.”
“Q. Near the end of the Convention, John Knox did make a speech to the Convention in which he summarized the work of the Convention, and in that speech is it not correct that he said that the provisions of the Suffrage Article would have a disproportionate impact on blacks, but he disputed that that would be [a] violation of the Fifteenth Amendment?
“A. Yes, sir, that is true. Repeatedly through the debates, the delegates say that they are interested in disfranchising blacks and not interested in disfranchising whites. And in fact, they go out of their way to make that point. . . . But the point that I am trying to make is that this is really speaking to the galleries, that it is attempting to say to the white electorate that must ratify this constitution what it is necessary for that white electorate to be convinced of in order to get them to vote for it, and not merely echoing what a great many delegates say. . . . [I]n general, the delegates aggressively say that they are not interested in disfranchising any whites. I think falsely, but that’s what they say.
“Q. So they were simply trying to overplay the extent to which they wanted to disenfranchise blacks, but that they did desire to disenfranchise practically all of the blacks?
“A. Oh, absolutely, certainly.” Cross-examination of Dr. J. Mills Thornton, 4 Record 73-74, 80-81.
Even were we to accept this explanation as correct, it hardly saves § 182 from invalidity. The explanation concedes both that discrimination against blacks, as well as against poor whites, was a motivating factor for the provision and that § 182 certainly would not have been adopted by the convention or ratified by the electorate in the absence of the racially discriminatory motivation.
Citing Palmer v. Thompson, 403 U. S., at 224, and Michael M. v. Superior Court of Sonoma County, 450 U. S. 464, 472, n. 7 (1981) (plurality opinion), appellants make the further argument that the existence of a permissible motive for § 182, namely, the .disenfranchisement of poor whites, trumps any proof of a parallel impermissible motive. Whether or not intentional disenfranchisement of poor whites would qualify as a “permissible motive” within the meaning of Palmer and Michael M., it is clear that where both impermissible racial motivation and racially discriminatory impact are demonstrated, Arlington Heights and Mt. Healthy supply the proper analysis. Under the view that the Court of Appeals could properly take of the evidence, an additional purpose to discriminate against poor whites would not render nugatory the purpose to discriminate against all blacks, and it is beyond peradventure that the latter was a “but-for” motivation for the enactment of § 182.
Appellants contend that the State has a legitimate interest in denying the franchise to those convicted of crimes involving moral turpitude, and that § 182 should be sustained on that ground. The Court of Appeals convincingly demonstrated that such a purpose simply was not a motivating factor of the 1901 convention. In addition to the general catchall phrase “crimes involving moral turpitude” the suffrage committee selected such crimes as vagrancy, living in adultery, and wife beating that were thought to be more commonly committed by blacks:
“Most of the proposals disqualified persons committing any one of a long list of petty as well as serious crimes which the Negro, and to a lesser extent the poor whites, most often committed. . . . Most of the crimes contained in the report of the suffrage committee came from an ordinance by John Fielding Burns, a Black Belt planter. The crimes he listed were those he had taken cognizance of for years in his justice of the peace court in the Burns-ville district, where nearly all his cases involved Negroes.” M. McMillan, Constitutional Development in Alabama, 1798-1901, p. 275, and n. 76 (1955) (quoted in testimony by appellees’ expert).
At oral argument in this Court, appellants’ counsel suggested that, regardless of the original purpose of §182, events occurring in the succeeding 80 years had legitimated the provision. Some of the more blatantly discriminatory selections, such as assault and battery on the wife and miscegenation, have been struck down by the courts, and appellants contend that the remaining crimes — felonies and moral turpitude misdemeanors — are acceptable bases for denying the franchise. Without deciding whether §182 would be valid if enacted today without any impermissible motivation, we simply observe that its original enactment was motivated by a
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_appel1_1_2
|
C
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to classify the scope of this business into one of the following categories: "local" (individual or family owned business, scope limited to single community; generally proprietors, who are not incorporated); "neither local nor national" (e.g., an electrical power company whose operations cover one-third of the state); "national or multi-national" (assume that insurance companies and railroads are national in scope); and "not ascertained".
NORFOLK AND WESTERN RAILWAY COMPANY, Appellant, v. ANDERSON’S-BLACK ROCK, INC., Appellee.
No. 9869.
United States Court of Appeals Fourth Circuit.
Argued May 5, 1965.
Decided Sept. 17, 1965.
Zane Grey Staker, Williamson, W. Va. (W. Graham Smith, Jr., and Slaven & Staker, Williamson, W. Va., on brief), for appellant.
Edwin W. Conley, Huntington, W. Va. (Huddleston & Bolen, Huntington, W. Va., on brief), for appellee.
Before BRYAN and BELL, Circuit Judges, and LEWIS, District Judge.
OREN R. LEWIS, District Judge:
The original plaintiff, Franklin D. R. Halstead, an employee of Anderson’s-Black Rock, Inc., received $20,000.00 from the Norfolk and Western Railway Company after instituting a tort action in which he alleged that he lost an arm by reason of Norfolk and Western’s simple negligence in that: one, Norfolk and Western altered a gondola by welding some braces or angle irons on the inside walls; two, Norfolk and Western allowed that car to be loaded with limestone to a height concealing the angle iron; and three, Norfolk and Western did not warn him of the presence of the hidden angle irons; so that as he was assisting in unloading that car, his accident occurred. Norfolk and Western’s answer admitted the allegations but denied negligence. A co-defendant, John W. Lowe, was dismissed from the case on motion of the plaintiff.
By third-party action against Black Rock Norfolk and Western seeks reimbursement of the $20,000.00 paid Hal-stead via indemnity.
The contract relied upon by Norfolk and Western consisted of a standard form of bill of lading and certain tariff rules and regulations applicable thereto, all on file and approved by the Interstate Commerce Commission and contained in Uniform Freight Classification 5 — specifically, Rule Number 27, Section 1 — which reads as follows:
“Owners are required to load into or on cars, freight for forwarding by rail carriers, and to unload from cars freight received by rail carriers, carried at CL ratings or rates, except where tariff of carrier at point of origin or destination or stopover station (as the case may be) provides for loading or unloading of CL freight by carrier.”
Black Rock in its answer admitted its employees, including Halstead, unloaded the car and that Halstead was injured while so doing, but denied liability to Norfolk and Western by reason of any matter concerned with the accident, and further, pleaded as affirmative defenses that: (one) the third-party complaint failed to state a claim upon which relief could be granted, and (two) that it was shielded from liability to the Railway Company by virtue of the exclusive liability provisions of the West Virginia Workmen’s Compensation Act.
Black Rock in its motion for summary judgment admitted that its negligence in unloading the car was a proximate cause of Halstead’s injury. There being no factual differences, the District Court granted the defendant’s motion and dismissed the third-party complaint.
Norfolk and Western seeks reversal upon the ground it was deprived of a trial on the merits. Had it been granted a trial, the Railway says, it would have adduced evidence that Black Rock negligently unloaded the limestone with their clamshell shovel and would have put in evidence the bill of lading under which the shipment moved.
This argument is without merit. Black Rock in its motion for summary judgment admitted that its negligence in unloading the car was a proximate cause of Halstead’s injuries, and the introduction of the bill of lading would not have added anything to the record. It could only have shown that the shipment of limestone was moved subject to the tariffs in effect and regulations applicable thereto, namely, Rule Number 27, Section 1. This was disclosed by the Railway in its answer to interrogatories.
There being no genuine issue as to any material fact, summary judgment was the proper vehicle for the determinaton of this case. Rule 56, Federal Rules of Civil Procedure.
The legal question before the District Court for determination was whether Black Rock had a contract of indemnity with Norfolk and Western which would allow Norfolk and Western to recover from or be indemnified by Black Rock for the $20,000.00 paid Hal-stead. The District Court found adversely to the Railway, and we agree.
Norfolk and Western claims Black Rock breached its implied contractual duty to the Railway to unload the car of limestone in a safe and non-negligent manner. To establish such a duty the Railway relies upon the terms of the bill of lading and the Interstate Commerce Commission tariff regulations applicable thereto, specifically including Uniform Freight Classification 5, Rule Number 27, Section 1. We do not so read the tariff. Black Rock was in no sense performing a service for Norfolk and Western when it unloaded its limestone from the defective car. It was merely unloading its own property uninhibited in manner or means by any conditions imposed by Norfolk and Western. There was no duty on the part of the Railway, by custom or tariff, to unload carload freight from its cars when they arrived at the point of destination. To the contrary, the tariff here relied upon expressly requires the owners to both load and unload carload shipments.
The facts in the Moretz case, relied upon by Norfolk and Western to support its theory of an implied contract of indemnity, are sufficiently different from the facts in this case to readily distinguish that case from this one. There the applicable tariff imposed specific duties in re loading on the carrier of the cargo. Here no such duties were imposed. There the shipper was seeking indemnity from the carrier for losses incurred from the improper loading of the truck. Here the carrier is seeking indemnity from the shipper for losses sustained by reason of its admitted negligence. There the carrier was contractually engaged in the performance of a service for the shipper when the injury occurred, under the terms of which engagement the carrier was required to observe certain safety measures which it clearly violated, resulting in the loss to the shipper, while here Black Rock was not engaged to perform any service for Norfolk and Western and was performing none at the time of the injury.
As was pointed out by this Court in the Moretz case, if in the process of performing its contract of service a carrier causes the shipper to incur a loss then the essence of the contract is an indemnity obligation of the carrier to make the shipper whole.
There being no contract of indemnity in the instant case, discussion of the other asserted defenses is not required.
The judgment of the District Court is affirmed.
Affirmed.
. In settlement without prejudice to the rights of Norfolk and Western in the third-party action.
. Halstead received benefits from the West Virginia workmen’s compensation funds for injuries sustained while unloading the car.
. The Railway, for reasons best known to itself, did not undertake to have the bill of lading made a part of the' record in the District Court.
. See 13 Am.Jur.2d, Carriers, Section 319, p. 814.
. General Electric Company v. Moretz, 270 F.2d 780 (4th Cir. 1959).
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_constit
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the constitutionality of a law or administrative action, and if so, whether the resolution of the issue by the court favored the appellant.
Gregory OSKOIAN et al., etc., Defendants, Appellants, v. Theobald J. CANUEL et al., etc., Plaintiffs, Appellees.
No. 5464.
United States Court of Appeals First Circuit.
Aug. 3, 1959.
William J. Sheehan, Providence, R. I., with whom Jacob S. Temkin and Isadore Kirshenbaum, Providence, R. I., were on brief, for appellants.
Milton Stanzler, Providence, R. I., with whom Julius C. Michaelson, Providence, R. I., was on brief, for appellees.
Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.
MAGRUDER, Circuit Judge
(Retired).
This appeal was prosecuted by leave of this court granted in order to resolve a basic and difficult problem of practice. 264 F.2d 591. The case was begun by a complaint filed in the United States District Court for the District of Rhode Island, containing five counts sounding in tort. It alleges that in 1956 the Independent Bakery Workers Union won an election conducted by the National Labor Relations Board among the employees of a certain bakery of The Great Atlantic & Pacific Tea Company, that Local 184 of the Bakery and Confectionery Workers International Union of' America was rejected by the employees at that election, and that the Independent Union was then duly certified by the-NLRB as the collective bargaining agent for the employees at that bakery. Thereafter the International Union “maliciously and unlawfully interfered with the employment contract and rights” of' the members of the Independent Union (Count 1), conspired with the A. & P. so to interfere (Count 2), “intentionally and maliciously induced and persuaded” the A. & P. to sever such employment (Count 3), conspired with the A. & P. to commit such inducement (Count 4), and conspired with the A. & P. to deprive the members of the Independent, Union of their rights under the National. Labor Relations Act, 29 U.S.C.A. § 151, et seq. (Count 5).
The plaintiffs are three individuals alleged to have been members of the Independent Union (which is now defunct) and to be Massachusetts citizens. They purport to sue on behalf of themselves and others similarly situated, but the district court ruled that they constituted a so-called “spurious” class under Rule 23(a) (3) of the Federal Rules of Civil Procedure, 28 U.S.C.A., and that the rights of absent members of the plaintiff class would not be adjudicated. The thirteen named defendants, said to be Rhode Island citizens and members of the International Union, are sued as members and representatives of that Union, an unincorporated labor organization having in excess of 50,000 members. Plaintiffs claim that defendant Oskoian is an “international representative” of the International Union and that defendants Kavanaugh and Boudreau are officers of Local 184; assuming these allegations to be true, the district court found that the named defendants adequately represent the defendant class.
The defendants filed timely motions to dismiss for sundry reasons and various motions for other relief, all of which were denied. One ground of the motions to dismiss was in essence that the named defendants lacked the capacity to be sued as representatives of the International Union; the motions affirmatively stated that no named defendant was an officer of the International Union and that the officers of that Union were known to the plaintiffs. The court below held that the propriety of an action against the defendant class was a question of procedural law governed only by F.R.Civ.P. 23(a), and that neither the rule of Erie R. Co. v. Tompkins, 1938, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, nor F.R.Civ.P. 17(b) required compliance with state law; the court also certified that its order denying the motion to dismiss involved a controlling question of law as to which there was substantial ground for difference of opinion and that immediate appeal therefrom might materially advance the ultimate termination of the litigation. On the defendants’ motion we then granted leave to appeal under 28 U.S.C. § 1292(b) because we thought the question of capacity of the defendant class to be sued presented the “exceptional case” that justified invocation of the new interlocutory appeal procedure. 1 Cir., 1959, 264 F.2d 591. Our permission to appeal was limited to this one issue; although the district court’s decisions on other related matters are accepted as premises for our decision of this question, nothing in this opinion should be construed as a review of those matters.
As our opinion granting leave to appeal intimated, our inquiry must start with Rule 17(b) F.R.Civ.P., which provides in pertinent part:
“[Cjapaeity to sue or be sued shall be determined by the law of the state in which the district court is held, except (1) that a partnership or other unincorporated association, which has no such capacity by the law of such state, may sue or be sued in its common name for the purpose of enforcing for or against it a substantive right existing under the Constitution or laws of the United States * *
We went on to say that, “It is apparent that the present case is not one for enforcing against an unincorporated association a substantive right ‘existing under the Constitution or laws of the United States’. Therefore, since the exception has no application, the general rule becomes operative, that capacity to be sued must be governed by the law of the state in which the district court is held, in this case by the law of Rhode Island.” 264 F.2d at page 593. The inapplicability of the exception, as we said, distinguishes the case relied on by the district court, Tunstall v. Brotherhood of Locomotive Firemen and Enginemen, 4 Cir., 1945, 148 F.2d 403, where the court was considering a suit on a federal right of action. We doubt that anything said there was intended to apply to cases like the present one, but if so it must have been obiter dictum. Weeks v. Bareco Oil Co., 7 Cir., 1941, 125 F.2d 84, is similarly inapposite.
One method of suit against an unincorporated labor union under the law of the state is defined by §§ 9-2-10 through 9-2-15 of the General Laws of Rhode Island. In particular, § 9-2-12 provides:
“Actions against unincorporated associations. — Any action or other proceeding at law may be maintained to recover any property, or upon any cause of action for or upon which the plaintiff may maintain such an action or proceeding at law against all the associates, by reason of their interest or ownership, or claim of ownership therein, against the president and secretary of such association, or the officers or members exercising substantially the duties, respectively, of president and secretary, or if there be no such officer, or officers or members exercising such duties, or either of them, then against any other two (2) officers of such association, or if there be but one (1) officer, then against such single officer, or if there be no officer known to the plaintiff, then against any member of such association, describing such officer or officers, member or members, as the representative or representatives of such association.”
Section 9-2-14 prohibits execution of the judgment in such an action against the person or property of members or officers of the association, and authorizes execution out of property of the association instead.
If the plaintiffs had complied with this procedure, the suit would have been properly brought under Rule 17(b) against the Union as an entity. Compare Van Sant v. American Express Co., 3 Cir., 1948, 169 F.2d 355, 372. It is clear, however, that plaintiffs have failed either to join the president and secretary of the International Union or more than one alleged officer thereof, or to allege that such other officers do not exist or are unknown to them. On the contrary, they apparently admit that they know the identity of the statutorily designated officers, and they claim that, since those officers are located outside Rhode Island, failure to join them is justified. 'This excuse is completely without support in the statutory language, which is unambiguous. Furthermore, it seems quite reasonable that the Rhode Island legislature might demand the presence of the principal officers of a union within the state as a prerequisite to the assertion of jurisdiction over that union as an> entity. We must construe the plain words of § 9-2-12 to require that the Union be sued through service on the specified officers. Cf. Hagan v. Bricklayers’ etc. Union No. 28, 1932, 143 Misc. 591, 256 N.Y.S. 898. Such a special procedure for obtaining jurisdiction must be complied with strictly. Cf. Hanke v. Cigar Makers’ International Union, 1899, 27 Misc. 529, 58 N.Y.S. 412; A. J. Siris Products Corp. v. Price, 1956, 3 Misc.2d 144, 148 N.Y.S.2d 180; League of Mutual Taxi Owners, Inc. v. United Construction Workers, Sup.Ct.1949, 90 N.Y.S.2d 288; Mason v. Holmes, 1900, 30 Misc. 719, 64 N.Y.S. 596. It is obvious that the plaintiffs have not nroperly sued the International Union as an entityTmder Rule 17(b) F.R.Civ.P. and § 9-2-12 of the state statute. International Union United Automobile Aircraft & Agr. Implement Workers of America v. Delta Air Lines, Inc., D.C.N.D.Ga. 1949, 83 F.Supp. 63; see Worthington Pump & Machinery Corp. v. Local No. 259 of United Electrical etc. Workers, D.C.D.Mass.1945, 63 F.Supp. 411; Gerut v. Poe, D.C.N.D.Ill.1951, 11 F.R.D. 281.
Still, it does not follow that the action should have been dismissed. Although the substantive allegations of the complaint plead tortious conduct of the International Union, the individual defendants may have been named as representatives not of the Union but rather of a class comprising its members. Compare Lowry v. International Brotherhood of Boilermakers, etc., 5 Cir., 1958, 259 F.2d 568; Fennell v. Bache, 1941, 74 App.D.C. 247, 123 F.2d 905, certiorari denied 1941, 314 U.S. 689, 62 S.Ct. 359, 86 L.Ed. 551. It appears that the law of Rhode Island recognizes one other remedy for the torts of an unincorporated association, that is, a suit against all the members of the union. This was the established method at common law, United Mine Workers v. Coronado Coal Co., 1922, 259 U.S. 344, 42 S.Ct. 570, 66 L.Ed. 975; Local Union No. 1, Textile Workers v. Barrett, 1896, 19 R.I. 663, 36 A. 5, and there is no reason to believe that it was abolished by the statute. That a suit against all the members may be maintained despite the statute is indicated by the permissive phraseology of § 9-2-12, and by the express terms of § 9-2-15 barring suits against the members while an action under the statute is pending. The defendants concede in their brief that an action against all the members may yet be brought. To have complied with Rule 17(b), as plaintiffs were clearly obliged to do, they must have brought suit by one of these two jtate-ereated methods — against the International Union as an entity or against all of its members. Conversely, such compliance fully satisfies Rule 17(b).
Whereas Rhode Island law recognizes two procedures, the Pennsylvania statute, to which reference was required by Rule 17(b) in the cases the defendants rely upon, is exclusive and mandatory in its terms, eliminating all other methods of enforcing the liability of an unincorporated association. See Underwood v. Maloney, 3 Cir., 1958, 256 F.2d 334, 337 note 3, 342; Lloyd A. Fry Roofing Co. v. Textile Workers Union of America, AFL-CIO, D.C.E.D.Pa.1957, 149 F.Supp. 695; D.C.E.D.Pa.1957, 152 F.Supp. 19. These cases are therefore no authority for our decision. The present litigation may be maintained, consistently with both Rule 17(b) and the law of Rhode Island pertaining to capacity to be sued, if, and only if, by the terms of Rule 23(a) (1) a class action such as the present one may be used as a procedural device in the federal court to effect a suit against all the members of the International Union, and to obtain a binding judgment against all of them.
Rule 23(a) F.R.Civ.P., in so far as here relevant, reads:
“(a) Representation. If persons constituting a class are so numerous as to make it impracticable to bring them all before the court, such of them, one or more, as will fairly insure the adequate representation of all may, on behalf of all, sue or be sued, when the character of the right sought to be enforced for or against the class is
“(1) joint, or common, or secondary in the sense that the owner of a primary right refuses to enforce that right and a member of the class thereby becomes entitled to enforce it;
* * * * * *
“(3) several, and there is a common question of law or fact affecting the several rights and a common relief is sought.”
As a matter of federal law, then, all the members of a union may be sued and bound by a “true” class action under Rule 23(a) (1). See 3 Moore’s Federal Practice, par. 23.08 (2d ed. 1948).
The state courts in Rhode Island will entertain a nonbinding class suit of a “spurious” nature (cf. Rule 23(a) (3)), e. g., Vernon v. Reynolds, 1898, 20 R.I. 552, 40 A. 419, but a binding class suit, such as this one would have to be (under Rule 23(a) (1)), is forbidden in those state courts by Equity Rule 67, which has the force of a statute, see Letendre v. Rhode Island Hospital Trust Co., 1948, 74 R.I. 276, 60 A.2d 471. The defendants contend that by the rule of Erie R. Co. v. Tompkins, supra, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, and Guaranty Trust Co. of New York v. York, 1945, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079, this prohibition and/or the specific definition of representatives in a virtual representation suit found in § 9-2-12, are binding on the federal court.
We find little to aid us in the decided cases under Rule 23 (a) which have been cited. See Montgomery Ward & Co., Inc. v. Langer, 8 Cir., 1948, 168 F.2d 182; White v. Quisenberry, D.C.W.D.Mo. 1953, 14 F.R.D. 348; Sanders v. International Ass’n, of Bridge, etc., Workers, D. C.W.D.Ky.1954, 120 F.Supp. 390. The state law relevant in the three cases just cited did not allow a suit against the entity and affirmatively permitted a class action in the- state courts. Both types of suits were allowed by the state law relevant in Lowry v. International Brotherhood of Boilermakers, etc., supra, 5 Cir., 259 F.2d 568; Cross v. Oneida Paper Products Co., D.C.D.N.J.1954, 117 F.Supp. 919; and International Allied Printing Trades Ass’n v. Master Printers Union, D.C.D.N.J.1940, 34 F.Supp. 178. There are only some implications in point. Pascale v. Emery, D.C.D.Mass. 1951, 95 F.Supp. 147, arose in a state where class actions were permitted against unions, see Donahue v. Kenney, 1951, 327 Mass. 409, 99 N.E.2d 155, but it is apparent that the district court did not rely on that fact in deciding that an action could be maintained under Rule 23(a). A similar opinion might be inferred from two cases which, without adverting to the law of the state, held that a Rule 23(a) class action might be brought. Tisa v. Potofsky, D.C.S.D.N.Y. 1950, 90 F.Supp. 175; Ketcher v. Sheet Metal Workers’ International Ass’n, D.C. E.D.Ark.1953, 115 F.Supp. 802. On the other hand, the reasoning in Robertson v. Limestone Mfg. Co., D.C.W.D.S.C. 1957, 20 F.R.D. 365, implies that state authority for a class suit would be prerequisite to the allowance of such an action. It cannot be said that the holding of the court below was in conflict with that of any prior case.
I Of course, the rule of Guaranty Trust Co. of New York v. York, supra, 326 U.S. at page 109, 65 S.Ct. at page 1470, that “the outcome of the litigation in the federal court should be substantially the same, so far as legal rules determine the outcome of a litigation, as it would be if tried in a State court”, cannot be read so literally as to mean that (no recovery may be had from a federal court that might not have been obtained from a state court. <) The same opinion recognizes (326 U.S. at page 105, 65 S.Ct. at page 1468) that “[t]his does not mean that whatever equitable remedy is available in a State court must be available in a diversity suit in a federal court, or conversely, that a federal court may not afford an equitable remedy not available in a State court.” ©he fact that a federal court can offer a procedure different, from that available in the state court does not preclude the application of the state substantive law so that the result will be the same as it would be in such an action brought in the state court. See Griffin v. McCoach, 1941, 313 U.S. 498, 61 S.Ct. 1023, 85 L.Ed. 1481 (inter-pleader) ; D’Onpfrio Construction Co., Inc. v. Recon Co., Inc., 1 Cir., 1958, 255 F.2d 904 (third-party claim). In the ¿resent case the result in the federal court — binding all the International (Union’s members — will be the same as (that in a state court common law action (against the membership, and the plaintiffs must make out a good cause of action under Rhode Island law against all members of the defendant class — Only in the manner of conducting this litigation does, any dOTiatTon occur.
Undeniably a class action involving members of an unincorporated association is a venerable device of equity. See Mr. Justice Story in West v. Randall, C. C.D.R.I.1820, 29 Fed.Cas. at page 722, No. 17,424. It is equally certain that there are many procedural problems raised by a suit such as this one, for example, determining the liability of the individual members of the class because of their participation in, ratification of, or authorization of the tortious conduct, cf. Martin v. Curran, 1951, 303 N.Y. 276, 101 N.E.2d 683; Browne v. Hibbets, 1943, 290 N.Y. 459, 49 N.E.2d 713; Torres v. Lacey, 1957, 5 Misc.2d 11, 159 N.Y.S.2d 411, ascertaining the share of the plaintiffs’ recovery, if any, to be borne by each member of the defendant class, and assuring that the absent members are afforded due process, cf. Hansberry v. Lee, 1940, 311 U.S. 32, 61 S.Ct. 115, 85 L.Ed. 22. But these are merely procedural problems of the federal court in applying the controlling state substantive law, and their resolution must be judged by the guaranties of the Federal Bill of Rights. Such difficulties alone cannot justify a rule elevating the state procedural law to a supreme position. The district court would be faced with many other (probably insurmountable) procedural problems if there had to be over 50,000 parties defendant.
Thus we are clear that Rule 23(a) (1) is a valid “procedural’’ device, as applied to avoid the necessity of having more than 50,000 parties defendant in the United States District Court for the District of Rhode Island. The present class action under that rule is a proper exercisejfftheJJhodeJ^ law allowing "an action for the tort of a labor union to be brought against all the members thereof, which will require the same result as would be reached if all the International Union’s members were sued in the state court. The fact, if it is a fact, that as a practical matter only under Rule 23(a) in the federal court might an action be brought against the members of the International Union is certainly not to be condemned as unseemly, mischievous, discriminatory, or unconstitutional, any more than the jurisdictional advantages of the Federal Interpleader Act, 28 U.S.C.A. §§ 1335, 1397, 2361, invalidate that Act. It follows that the adequacy of representation assured the defendant class by the presence of the named parties defendant, as found by the district court, is a corollary federal question and is not prejudged by R.I.Gen.L. § 9-2-12. The decision of the district court on the issue which is the subject of this appeal was correct.
A judgment will be entered affirming the order of the District Court in the respect in which this appeal was allowed.
. Plaintiffs-appellees’ contention that the issue was not raised is wholly without merit.
. If the defendants were only a “spurious” class under Rule 23(a) (3) F.R. Civ.P., we would be constrained to agree with their contentions on appeal, since the only Rhode Island alternative to the statutory procedure is a suit against all the members and an action against only thirteen of them is not authorized by the state substantive law. This distinction is crucial.
. We view § 9-2-12 as creating an “entity”, not a “virtual representation”, suit, cf. 37 Harv.L.Rev. 793, 809-10 (1924), but we will assume arguendo that the statute specifies class representatives.
Question: Did the court's conclusion about the constitutionality of a law or administrative action favor the appellant?
A. Issue not discussed
B. The issue was discussed in the opinion and the resolution of the issue by the court favored the respondent
C. The issue was discussed in the opinion and the resolution of the issue by the court favored the appellant
D. The resolution of the issue had mixed results for the appellant and respondent
Answer:
|
sc_decisiontype
|
A
|
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.
CAPLIN & DRYSDALE, CHARTERED v. UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 87-1729.
Argued March 21, 1989
Decided June 22, 1989
Peter Van N. Lockwood argued the'cause for petitioner. With him on the briefs were Graeme W. Bush, Albert G. Lauber, Jr., Julia L. Porter, and Robert L. Cohen.
Acting Solicitor General Bryson argued the cause for the United States. With him on the briefs were Assistant Attorney General Dennis, Edwin S. Kneedler, and Sara Criscitelli.
Joseph Beeler and Bruce J. Winick filed a brief for the National Association of Criminal Defense Lawyers et al. as amici curiae urging reversal.
Briefs of amici curiae urging affirmance were filed for the State of California by John K. Van de Kamp, Attorney General, Steve White, Chief Assistant Attorney General, John A. Gordnier, Senior Assistant Attorney General, and Gary W. Schons, Deputy Attorney General; and for Eugene R. Anderson, pro se.
Briefs of amici curiae were filed for the American Bar Association by Robert D. Raven, Charles G. Cole, Antonia B. Ianniello, and Terrance G. Reed; and for the Appellate Committee of the California District Attorneys Association by Ira Reiner, Harry B. Sondheim, and Arnold T. Guminski.
Justice White
delivered the opinion of the Court.
We are called on to determine whether the federal drug forfeiture statute includes an exemption for assets that a defendant wishes to use to pay an attorney who conducted his defense in the criminal case where forfeiture was sought. Because we determine that no such exemption exists, we must decide whether that statute, so interpreted, is consistent with the Fifth and Sixth Amendments. We hold that it is.
I
In January 1985, Christopher Reckmeyer was charged in a multicount indictment with running a massive drug importation and distribution scheme. The scheme was alleged to be a continuing criminal enterprise (CCE), in violation of 84 Stat. 1265, as amended, 21 U. S. C. §848 (1982 ed., Supp. V). Relying on a portion of the CCE statute that authorizes forfeiture to the Government of “property constituting, or derived from . . . proceeds . . . obtained” from drug-law violations, § 853(a), the indictment sought forfeiture of specified assets in Reckmeyer’s possession. App. 33-40. At this time, the District Court, acting pursuant to § 853(e)(1) (A), entered a restraining order forbidding Reckmeyer to transfer any of the listed assets that were potentially forfeitable.
Sometime earlier, Reckmeyer had retained petitioner, a law firm, to represent him in the ongoing grand jury investigation which resulted in the January 1985 indictments. Notwithstanding the restraining order, Reckmeyer paid the firm $25,000 for preindictment legal services a few days after the indictment was handed down; this sum was placed by petitioner in an escrow account. Petitioner continued to represent Reckmeyer following the indictment.
On March 7, 1985, Reckmeyer moved to modify the District Court’s earlier restraining order to permit him to use some of the restrained assets to pay petitioner’s fees; Reckmeyer also sought to exempt from any postconviction forfeiture order the assets that he intended to use to pay petitioner. However, one week later, before the District Court could conduct a hearing on this motion, Reckmeyer entered a plea agreement with the Government. Under the agreement, Reckmeyer pleaded guilty to the drug-related CCE charge, and agreed to forfeit all of the specified assets listed in the indictment. The day after the Reckmeyer’s plea was entered, the District Court denied his earlier motion to modify the restraining order, concluding that the plea and forfeiture agreement rendered irrelevant any further consideration of the propriety of the court’s pretrial restraints. App. 54-55. Subsequently, an order forfeiting virtually all of the assets in Reckmeyer’s possession was entered by the District Court in conjunction with his sentencing. Id., at 57-65.
After this order was entered, petitioner filed a petition under § 853(n), which permits third parties with an interest in forfeited property to ask the sentencing court for an adjudication of their rights to that property; specifically, §853(n) (6)(B) gives a third party who entered into a bona fide transaction with a defendant a right to make claims against forfeited property, if that third party was “at the time of [the transaction] reasonably without cause to believe that the [defendant’s assets were] subject to forfeiture.” See also §853 (c). Petitioner claimed an interest in $170,000 of Reckme-yer’s assets, for services it had provided Reckmeyer in conducting his defense; petitioner also sought the $25,000 being held in the escrow account, as payment for preindictment legal services. Petitioner argued alternatively that assets used to pay an attorney were exempt from forfeiture under § 853, and if not, the failure of the statute to provide such an exemption rendered it unconstitutional. The District Court granted petitioner’s claim for a share of the forfeited assets.
A panel of the Fourth Circuit affirmed, finding that—while §853 contained no statutory provision authorizing the payment of attorney’s fees out of forfeited assets—the statute’s failure to do so impermissibly infringed a defendant’s Sixth Amendment right to the counsel of his choice. United States v. Harvey, 814 F. 2d 905 (1987). The Court of Appeals agreed to hear the case en banc and reversed. Sub nom. In re Forfeiture Hearing as to Caplin & Drysdale, Chartered, 837 F. 2d 637 (1988). All the judges of the Fourth Circuit agreed that the language of the CCE statute acknowledged no exception to its forfeiture requirement that would recognize petitioner’s claim to the forfeited assets. A majority found this statutory scheme constitutional, id., at 642-648; four dissenting judges, however, agreed with the panel’s view that the statute so construed violated the Sixth Amendment, id., at 651-653 (Phillips, J., dissenting).
Petitioner sought review of the statutory and constitutional issues raised by the Court of Appeals’ holding. We granted certiorari, 488 U. S. 940 (1988), and now affirm.
II
Petitioner’s first submission is that the statutory provision that authorizes pretrial restraining orders on potentially for-feitable assets in a defendant’s possession, 21 U. S. C. § 853 (e) (1982 ed., Supp. V), grants district courts equitable discretion to determine when such orders should be imposed. This discretion should be exercised under “traditional equitable standards,” petitioner urges, including a “weighting] of the equities and competing hardships on the parties”; under this approach, a court “must invariably strike the balance so as to allow a defendant [to pay] ... for bona fide attorneys fees,” petitioner argues. Brief for Petitioner 8. Petitioner further submits that once a district court so exercises its discretion, and fails to freeze assets that a defendant then uses to pay an attorney, the statute’s provision for recapture of forfeitable assets transferred to third parties, § 853(c), may not operate on such sums.
Petitioner’s argument, as it acknowledges, is based on the view of the statute expounded by Judge Winter of the Second Circuit in his concurring opinion in that Court of Appeals’ en banc decision, United States v. Monsanto, 852 F. 2d 1400, 1405-1411 (1988). We reject this interpretation of the statute today in our decision in United States v. Monsanto, ante, p. 600, which reverses the Second Circuit’s holding in that case. As we explain in our Monsanto decision, ante, at 611-614, whatever discretion § 853(e) provides district court judges to refuse to enter pretrial restraining orders, it does not extend as far as petitioner urges — nor does the exercise of that discretion “immunize” nonrestrained assets from subsequent forfeiture under § 853(c), if they are transferred to an attorney to pay legal fees. Thus, for the reasons provided in our opinion in Monsanto, we reject petitioner’s statutory claim.
Ill
We therefore address petitioner’s constitutional challenges to the forfeiture law. Petitioner contends that the statute infringes on criminal defendants’ Sixth Amendment right to counsel of choice, and upsets the “balance of power” between the Government and the accused in a manner contrary to the Due Process Clause of the Fifth Amendment. We consider these contentions in turn.
A
Petitioner’s first claim is that the forfeiture law makes impossible, or at least impermissibly burdens, a defendant’s right “to select and be represented by one’s preferred attorney.” Wheat v. United States, 486 U. S. 153, 159 (1988). Petitioner does not, nor could it defensibly do so, assert that impecunious defendants have a Sixth Amendment right to choose their counsel. The Amendment guarantees defendants in criminal cases the right to adequate representation, but those who do not have the means to hire their own lawyers have no cognizable complaint so .long as they are adequately represented by attorneys appointed by the courts. “[A] defendant may not insist on representation by an attorney he cannot afford.” Wheat, supra, at 159. Petitioner does not dispute these propositions. Nor does the Government deny that the Sixth Amendment guarantees a defendant the right to be represented by an otherwise qualified attorney whom that defendant can afford to hire, or who is willing to represent the defendant even though he is without funds. Applying these principles to the statute in question here, we observe that nothing in § 853 prevents a defendant from hiring the attorney of his choice, or disqualifies any attorney from serving as a defendant’s counsel. Thus, unlike Wheat, this case does not involve a situation where the Government has asked a court to prevent a defendant’s chosen counsel from representing the accused. Instead, petitioner urges that a violation of the Sixth Amendment arises here because of the forfeiture, at the instance of the Government, of assets that defendants intend to use to pay their attorneys.
Even in this sense, of course, the burden the forfeiture law imposes on a criminal defendant is limited. The forfeiture statute does not prevent a defendant who has nonforfeitable assets from retaining any attorney of his choosing. Nor is it necessarily the case that a defendant who possesses nothing but assets the Government seeks to have forfeited will be prevented from retaining counsel of choice. Defendants like Reckmeyer may be able to find lawyers willing to represent them, hoping that their fees will be paid in the event of acquittal, or via some other means that a defendant might come by in the future. The burden placed on defendants by the forfeiture law is therefore a limited one.
Nonetheless, there will be cases where a defendant will be unable to retain the attorney of his choice, when that defendant would have been able to hire that lawyer if he had access to forfeitable assets, and if there was no risk that fees paid by the defendant to his counsel would later be recouped under § 853(c). It is in these cases, petitioner argues, that the Sixth Amendment puts limits on the forfeiture statute.
This submission is untenable. Whatever the full extent of the Sixth Amendment’s protection of one’s right to retain counsel of his choosing, that protection does not go beyond “the individual’s right to spend his own money to obtain the advice and assistance of . . . counsel.” Walters v. National Assn. of Radiation Survivors, 473 U. S. 305, 370 (1985) (Stevens, J., dissenting). A defendant has no Sixth Amendment right to spend another person’s money for services rendered by an attorney, even if those funds are the only way that that defendant will be able to retain the attorney of his choice. A robbery suspect, for example, has no Sixth Amendment right to use funds he has stolen from a bank to retain an attorney to defend him if he is apprehended. The money, though in his possession, is not rightfully his; the Government does not violate the Sixth Amendment if it seizes the robbery proceeds and refuses to permit the defendant to use them to pay for his defense. “[N]o lawyer, in any case, . . . has the right to . . . accept stolen property, or. . . ransom money, in payment of a fee.. . . The privilege to practice law is not a license to steal.” Laska v. United States, 82 F. 2d 672, 677 (CA10 1936). Petitioner appears to concede as much, see Brief for Petitioner 40, n. 25, as respondent in Monsanto clearly does, see Brief for Respondent in No. 88-454, pp. 36-37.
Petitioner seeks to distinguish such cases for Sixth Amendment purposes by arguing that the bank’s claim to robbery proceeds rests on “pre-existing property rights,” while the Government’s claim to forfeitable assets rests on a “penal statute” which embodies the “Active property-law concept of . . . relation-back” and is merely “a mechanism for preventing fraudulent conveyances of the defendant’s assets, not. . . a device for determining true title to property.” Brief for Petitioner 40-41. In light of this, petitioner contends, the burden placed on defendant’s Sixth Amendment rights by the forfeiture statute outweighs the Government’s interest in forfeiture. Ibid.
The premises of petitioner’s constitutional analysis are unsound in several respects. First, the property rights given the Government by virtue of the forfeiture statute are more substantial than petitioner acknowledges. In § 853(c), the so-called “relation-back” provision, Congress dictated that “[a]ll right, title and interest in property” obtained by criminals via the illicit means described in the statute “vests in the United States upon the commission of the act giving rise to forfeiture.” 21 U. S. C. § 853(c) (1982 ed., Supp. V). As Congress observed when the provision was adopted, this approach, known as the “taint theory,” is one that “has long been recognized in forfeiture cases,” including the decision in United States v. Stowell, 133 U. S. 1 (1890). See S. Rep. No. 98-225, p. 200, and n. 27 (1983). In Stowell, the Court explained the operation of a similar forfeiture provision (for violations of the Internal Revenue Code) as follows:
“As soon as [the possessor of the forfeitable asset committed the violation] of the internal revenue laws, the forfeiture under those laws took effect, and (though needing judicial condemnation to perfect it) operated from that time as a statutory conveyance to the United States of all the right, title and interest then remaining in the [possessor]; and was as valid and effectual, against all the world, as a recorded deed. The right so vested in the United States could not be defeated or impaired by any subsequent dealings of the . . . [possessor].” Stowell, supra, at 19.
In sum, § 853(c) reflects the application of the long-recognized and lawful practice of vesting title to any forfeitable assets, in the United States, at the time of the criminal act giving rise to forfeiture. Concluding that Reckmeyer cannot give good title to such property to petitioner because he did not hold good title is neither extraordinary or novel. Nor does petitioner claim, as a general proposition that the relation-back provision is unconstitutional, or that Congress cannot, as a general matter, vest title to assets derived from the crime in the Government, as of the date of the criminal act in question. Petitioner’s claim is that whatever part of the assets that is necessary to pay attorney’s fees cannot be subjected to forfeiture. But given the Government’s title to Reckme-yer’s assets upon conviction, to hold that the Sixth Amendment creates some right in Reckmeyer to alienate such assets, or creates a right on petitioner’s part to receive these assets, would be peculiar.
There is no constitutional principle that gives one person the right to give another’s property to a third party, even where the person seeking to complete the exchange wishes to do so in order to exercise a constitutionally protected right. While petitioner and its supporting amici attempt to distinguish between the expenditure of forfeitable assets to exercise one’s Sixth Amendment rights, and expenditures in the pursuit of other constitutionally protected freedoms, see, e. g., Brief for American Bar Association as Amicus Curiae 6, there is no such distinction between, or hierarchy among, constitutional rights. If defendants have a right to spend forfeitable assets on attorney’s fees, why not on exercises of the right to speak, practice one’s religion, or travel? The full exercise of these rights, too, depends in part on one’s financial wherewithal; and forfeiture, or even the threat of forfeiture, may similarly prevent a defendant from enjoying these rights as fully as he might otherwise. Nonetheless, we are not about to recognize an antiforfeiture exception for the exercise of each such right; nor does one exist for the exercise of Sixth Amendment rights.
Petitioner's “balancing analysis” to the contrary rests substantially on the view that the Government has only a modest interest in forfeitable assets that may be used to retain an attorney. Petitioner takes the position that, in large part, once assets have been paid over from client to attorney, the principal ends of forfeiture have been achieved: dispossessing a drug dealer or racketeer of the proceeds of his wrongdoing. See Brief for Petitioner 39; see also 814 F. 2d, at 924-925. We think that this view misses the mark for three reasons.
First, the Government has a pecuniary interest in forfeiture that goes beyond merely separating a criminal from his ill-gotten gains; that legitimate interest extends to recovering all forfeitable assets, for such assets are deposited in a Fund that supports law-enforcement efforts in a variety of important and useful ways. See 28 U. S. C. § 524(c), which establishes the Department of Justice Assets Forfeiture Fund. The sums of money that can be raised for law-enforcement activities this way are substantial, and the Government’s interest in using the profits of crime to fund these activities should not be discounted.
Second, the statute permits “rightful owners” of forfeited assets to make claims for forfeited assets before they are retained by the Government. See 21 U. S. C. § 853(n)(6)(A). The Government’s interest in winning undiminished forfeiture thus includes the objective of returning property, in full, to those wrongfully deprived or defrauded of it. Where the Government pursues this restitutionary end, the Government’s interest in forfeiture is virtually indistinguishable from its interest in returning to a bank the proceeds of a bank robbery; and a forfeiture-defendant’s claim of right to use such assets to hire an attorney, instead of having them returned to their rightful owners, is no more persuasive than a bank robber’s similar claim.
Finally, as we have recognized previously, a major purpose motivating congressional adoption and continued refinement of the racketeer influenced and corrupt organizations (RICO) and CCE forfeiture provisions has been the desire to lessen the economic power of organized crime and drug enterprises. See Russello v. United States, 464 U. S. 16, 27-28 (1983). This includes the use of such economic power to retain private counsel. As the Court of Appeals put it: “Congress has already underscored the compelling public interest in stripping criminals such as Reckmeyer of their undeserved economic power, and part of that undeserved power may be the ability to command high-priced legal talent.” 837 F. 2d, at 649. The notion that the Government has a legitimate interest in depriving criminals of economic power, even insofar as that power is used to retain counsel of choice, may be somewhat unsettling. See, e. g., Tr. of Oral Arg. 50-52. But when a defendant claims that he has suffered some substantial impairment of his Sixth Amendment rights by virtue of the seizure or forfeiture of assets in his possession, such a complaint is no more than the reflection of “the harsh reality that the quality of a criminal defendant’s representation frequently may turn on his ability to retain the best counsel money can buy.” Morris v. Slappy, 461 U. S. 1, 23 (1983) (Brennan, J., concurring in result). Again, the Court of Appeals put it aptly: “The modern day Jean Valjean must be satisfied with appointed counsel. Yet the drug merchant claims that his possession of huge sums of money . . . entitles him to something more. We reject this contention, and any notion of a constitutional right to use the proceeds of crime to finance an expensive defense.” 837 F. 2d, at 649.
It is our view that there is a strong governmental interest in obtaining full recovery of all forfeitable assets, an interest that overrides any Sixth Amendment interest in permitting criminals to use assets adjudged forfeitable to pay for their defense. Otherwise, there would be an interference with a defendant’s Sixth Amendment rights whenever the Government freezes or takes some property in a defendant’s possession before, during, or after a criminal trial. So-called “jeopardy assessments” — Internal Revenue Service (IRS) seizures of assets to secure potential tax liabilities, see 26 U. S. C. § 6861 — may impair a defendant’s ability to retain counsel in a way similar to that complained of here. Yet these assessments have been upheld against constitutional attack, and we note that the respondent in Monsanto concedes their constitutionality, see Brief for Respondent in No. 88-454, p. 37, n. 20. Moreover, petitioner’s claim to a share of the forfeited assets postconviction would suggest that the Government could never impose a burden on assets within a defendant’s control that could be used to pay a lawyer. Criminal defendants, however, are not exempted from federal, state, and local taxation simply because these financial levies may deprive them of resources that could be used to hire an attorney.
We therefore reject petitioner’s claim of a Sixth Amendment right of criminal defendants to use assets that are the Government’s — assets adjudged forfeitable, as Reckmeyer’s were — to pay attorney’s fees, merely because those assets are in their possession. See also Monsanto, ante, at 613, which rejects a similar claim with respect to pretrial orders and assets not yet judged forfeitable.
B
Petitioner’s second constitutional claim is that the forfeiture statute is invalid under the Due Process Clause of the Fifth Amendment because it permits the Government to upset the “balance of forces between the accused and his accuser.” Wardius v. Oregon, 412 U. S. 470, 474 (1973). We are not sure that this contention adds anything to petitioner’s Sixth Amendment claim, because, while “[t]he Constitution guarantees a fair trial through the Due Process Clauses . . . it defines the basic elements of a fair trial largely through the several provisions of the Sixth Amendment,” Strickland v. Washington, 466 U. S. 668, 684-685 (1984). We have concluded above that the Sixth Amendment is not offended by the forfeiture provisions at issue here. Even if, however, the Fifth Amendment provides some added protection not encompassed in the Sixth Amendment’s more specific provisions, we find petitioner’s claim based on the Fifth Amendment unavailing.
Forfeiture provisions are powerful weapons in the war on crime; like any such weapons, their impact can be devastating when used unjustly. But due process claims alleging such abuses are cognizable only in specific cases of prosecuto-rial misconduct (and petitioner has made no such allegation here) or when directed to a rule that is inherently unconstitutional. “The fact that the . . . Act might operate unconstitutionally under some conceivable set of circumstances is insufficient to render it. . . invalid,” United States v. Salerno, 481 U. S. 739, 745 (1987). Petitioner’s claim — that the power available to prosecutors under the statute could be abused— proves too much, for many tools available to prosecutors can be misused in a way that violates the rights of innocent persons. As the Court of Appeals put it, in rejecting this claim when advanced below: “Every criminal law carries with it the potential for abuse, but a potential for abuse does not require a finding of facial invalidity.” 837 F. 2d, at 648.
We rejected a claim similar to petitioner’s last Term, in Wheat v. United States, 486 U. S. 153 (1988). In Wheat, the petitioner argued that permitting a court to disqualify a defendant’s chosen counsel because of conflicts of interest — over that defendant’s objection to the disqualification — would encourage the Government to “manufacture” such conflicts to deprive a defendant of his chosen attorney. Id., at 163. While acknowledging that this was possible, we declined to fashion the per se constitutional rule petitioner sought in Wheat, instead observing that “trial courts are undoubtedly aware of [the] possibility” of abuse, and would have to “take it into consideration,” when dealing with disqualification motions.
A similar approach should be taken here. The Constitution does not forbid the imposition of an otherwise permissible criminal sanction, such as forfeiture, merely because in some cases prosecutors may abuse the processes available to them, e. g., by attempting to impose them on persons who should not be subjected to that punishment. Cf. Brady v. United States, 397 U. S. 742, 751, and n. 8 (1970). Cases involving particular abuses can be dealt with individually by the lower courts, when (and if) any such cases arise.
<1
For the reasons given above, we find that petitioner’s statutory and constitutional challenges to the forfeiture imposed here are without merit. The judgment of the Court of Appeals is therefore
Affirmed.
The forfeiture statute provides, in relevant part, that any person convicted of a particular class of criminal offenses
“shall forfeit to the United States, irrespective of any provision of State law—
“(1) any property constituting, or derived from, any proceeds the person obtained, directly or indirectly, as the result of such violation;
“The court, in imposing sentence on such person, shall order, in addition to any other sentence imposed . . . , that the person forfeit to the United States all property described in this subsection.” 21 U. S. C. § 853(a) (1982 ed., Supp. V).
There is no question here that the offenses Reckmeyer was accused of in the indictment fell within the class of crimes triggering this forfeiture provision.
- The pretrial restraining order provision states that
“[u]pon application of the United States, the court may enter a restraining order or injunction ... or take any other action to preserve the availability of property described in subsection (a) of [§ 853] for forfeiture under this section—
“(A) upon the filing of an indictment or information charging a violation ... for which criminal forfeiture may be ordered under [§ 853] and alleging that the property with respect to which the order is sought would, in the event of conviction, be subject to forfeiture under this section.” § 853(e)(1).
The United States argues that petitioner lacks jus tertii standing to advance Reckmeyer’s Sixth Amendment rights. See Brief for United States 35, and n. 17. Though the argument is not without force, we conclude that petitioner has the requisite standing.
When a person or entity seeks standing to advance the constitutional rights of others, we ask two questions: first, has the litigant suffered some injury-in-fact, adequate to satisfy Article Ill’s case-or-controversy requirement; and second, do prudential considerations which we have identified in our prior cases point to permitting the litigant to advance the claim? See Singleton v. Wulff, 428 U. S. 106, 112 (1976). As to the first inquiry, there can be little doubt that petitioner’s stake in $170,000 of the forfeited assets — which it would almost certainly receive if the Sixth Amendment claim it advances here were vindicated — is adequate injury-in-fact to meet the constitutional minimum of Article III standing.
The second inquiry — the prudential one — is more difficult. To answer this question, our cases have looked at three factors: the relationship of the litigant to the person whose rights are being asserted; the ability of the person to advance his own rights; and the impact of the litigation on third-party interests. See, e. g., Craig v. Boren, 429 U. S. 190, 196 (1976); Singleton v. Wulff, supra, at 113-118; Eisenstadt v. Baird, 405 U. S. 438, 443-446 (1972). The second of these three factors counsels against review here: as Monsanto, ante, p. 600, illustrates, a criminal defendant suffers none of the obstacles discussed in Wulff, supra, at 116-117, to advancing his own constitutional claim. We think that the-first and third factors, however, clearly weigh in petitioner’s favor. The attorney-client relationship between petitioner and Reckmeyer, like the doctor-patient relationship in Baird, is one of special consequence; and like Baird, it is credibly alleged that the statute at issue here may “materially impair the ability of” third persons in Reckmeyer’s position to exercise their constitutional rights. See Baird, supra, at 445. Petitioner therefore satisfies our requirements for jus tertii standing.
That section of the statute, which includes the so-called “relation back” provision, states:
“All right, title, and interest in property described in [§ 853] vests in the United States upon the commission of .the act giving rise to forfeiture under this section. Any such property that is subsequently transferred to a person other than the defendant may be the subject of a special verdict of forfeiture and thereafter shall be forfeited to the United States, unless the transferee establishes” his entitlement to such property pursuant to § 853(n), discussed supra. 21 U. S. C. § 853(c) (1982 ed., Supp. V).
It would be particularly odd to recognize the Sixth Amendment as a defense to forfeiture, because forfeiture is a substantive charge in the indictment against a defendant. Thus, petitioner asks us to take the Sixth Amendment’s guarantee of counsel “for his defense” and make that guarantee petitioner’s defense to the indictment. We doubt that the Amendment’s guarantees, which are procedural in nature, cf. Faretta v. California, 422 U. S. 806, 818 (1975), provide such a substantive defense to charges against an accused.
For example, just one of the assets which Reckmeyer agreed to forfeit, a parcel of land known as “Shelburne Glebe,” see App. 57 (forfeiture order), was recently sold by federal authorities for $5.3 million. Washington Post, May 10, 1989, p. Dl, cols. 1-4. The proceeds of the sale will fund federal, state, and local law-enforcement activities. Ibid.
We also reject the contention, advanced by amici, see, e. g., Brief for American Bar Association as Amicus Curiae 20-22, and accepted by some courts considering claims like petitioner’s, see, e. g., United States v. Rogers, 602 F. Supp. 1332, 1349-1350 (Colo. 1985), that a type of “per se” ineffective assistance of counsel results — due to the particular complexity of RICO or drug-enterprise cases — when a defendant is not permitted to use assets in his possession to retain counsel of choice, and instead must rely on appointed counsel. If such an argument were accepted, it would bar the trial of indigents charged with such offenses, because those persons would have to rely on appointed counsel — which this view considers per se ineffective.
If appointed counsel is ineffective in a particular case, a defendant has resort to the remedies discussed in Strickland v. Washington, 466 U. S. 668 (1984). But we cannot say that the Sixth Amendment’s guarantee of effective assistance of counsel is a guarantee of a privately retained counsel in every complex case, irrespective of a defendant’s ability to pay.
See, e. g., Avco Delta Corporation Canada Ltd. v. United States, 484 F. 2d 692 (CA7 1973); Summers v. United States, 250 F. 2d 132, 133-135 (CA9 1957); United States v. Brodson, 241 F. 2d 107, 109-111 (CA7 1957) (en bane).
A myriad of other law-enforcement mechanisms operate in a manner similar to IRS jeopardy assessments, and might also be subjected to Sixth Amendment invalidation if petitioner’s claim were accepted. See Briekey, Attorneys’ Fee Forfeitures, 36 Emory L. J. 761, 770-772 (1987).
Petitioner advances three additional reasons for invalidating the forfeiture statute, all of which concern possible ethical conflicts created for lawyers defending persons facing forfeiture of assets in their possession. See Brief for Petitioner 35-37; see also Brief for American Bar Association as Amicus Curiae 17-22.
Petitioner first notes the statute’s exemption from forfeiture of property transferred to a bona fide purchaser who was “reasonably without cause to believe that the property was subject to forfeiture.” 21 U. S. C. § 853(n)(6)(B). This provision, it is said, might give an attorney an incentive not to investigate a defendant’s case as fully as possible, so that the lawyer can invoke it to protect from forfeiture any fees he has received. Yet given the requirement that any assets which the Government wishes to have forfeited must be specified in the indictment, see Fed. Rule Crim. Proc. 7(c)(2), the only way a lawyer could be a beneficiary of § 853(n)(6)(B) would be to fail to read the indictment of his client. In this light, the prospect that a lawyer might find himself in conflict with his client, by seeking to take advantage of § 853(n)(6)(B), amounts to very little. Petitioner itself concedes that such a conflict will, as a practical matter, never arise: a defendant’s “lawyer . . . could not demonstrate that he was ‘reasonably without cause to believe that the property was subject to forfeiture,’ ” petitioner concludes at one point. Brief for Petitioner 31.
The second possible conflict arises in plea bargaining
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_state
|
22
|
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".
DAHLMER v. BAY STATE DREDGING & CONTRACTING CO. THE ORION.
Circuit Court of Appeals, First Circuit.
May 31, 1928.
No. 2219.
1. Navigable waters <@=23 — Statute making it unlawful to anchor in navigable channels held not to forbid anchoring, except where it necessarily prevents passage or creates dangerous obstruction (Act March 3, (899 [33 USCA § 409]).
Act March 3, 1899 (33 USCA § 409; Comp. St. ■§ 9920), making it unlawful to tie up or anchor vessels in navigable channels, so as to prevent or obstruct passage of other vessels, is merely declaratory of the general maritime law, and does not absolutely forbid anchoring in navigable waters, except at such places as necessarily prevents passage of other vessels, or obstructs them in passing to such an extent as to make an effort to do so a dangerous maneuver.
2. Collision <@=69 — Mooring scows, so as to project 59 feet into canal 300 feet wide, held not improper (Act March 3, 1899 [33 USCA § 409]).
Mooring scows two abreast near entrance of canal, so that outer scow projected '59 feet into the channel, leaving 241 feet of navigable water, 7ield not improper, under Act March 3, 1899 (33 USCA § 409; Comp. St. § 9920), as respects liability for collision therewith by passing vessel having 17-foot beam.
3. Collision <@=123 — Vessel colliding with properly moored scow had burden of exonerating herself from blame, by showing she could not have prevented collision by reasonable precautions (Act March 3, 1899 [33 USCA § 409]).
Vessel, which collided with scow properly moored in canal, under Act March 3, 1899 (33 USCA § 409; Comp. St. § 9920), was presumed to have been in fault, and duty was on her to exonerate herself from blame by showing that it was not within her power to have prevented collision by taking reasonable and practicable precautions.
4. Collision <@=7I(2) — That scows were improperly moored would not bar recovery, if collision could have been averted by reasonable diligence of colliding vessel (Act March 3, 1899 [33 USCA § 409]).
Even if scows were improperly moored in canal, under Act March 3, 1899 (33 USCA § 409; Comp. St. § 9920), such fact alone would not bar recovery by their owner for collision, which could have been averted by exercise of reasonable diligence on part of those in charge of passing vessel.
5. Collision <S=75(6) — Rule relating to lights required on anchored vessels held inapplicable to moored vessels (Pilot Rules for Inland Waters, art. II [33 USCA § 180]).
Pilot Rules for Inland Waters, art. 11 (33 USCA § 180; Comp. St. § 7884), providing that vessels lying at anchor shall carry forward one white light in a lantern so constructed as to show clear, uniform, and unbroken light visible at least for one mile, Tield inapplicable to moored vessels, and therefore did not apply to moored scows at side of canal.
6. Collision <@=75(6) — It was better seamanship to have one light at each end of outer of two scows moored abreast than to have one light on each scow.
On question whether two scows moored abreast near entrance of canal were lighted in a reasonably safe, prudent, and proper manner, as respects liability for collision therewith by passing vessel, it was better seamanship to have one light at each end of the outer scow than to place one light on each scow.
7. Collision <@=79 — Evidence held to warrant finding that lights on moored scow were bright and properly burning, as respects liability for collision.
On libel for damages to scow moored near canal entrance, sustained in collision therewith by passing vessel, evidence Tield to warrant finding that lights on scow were bright and were properly burning.
8. Collision <@=77 — Moving vessels must maintain careful and efficient lookout, properly stationed and maintaining high degree of vigilance (Inland Rules, art. 29 [33 USCA § 221]).
It is a primary rule of navigation that all moving vessels shall maintain a careful lookout, who is both eyes and ears of the ship, and he must be properly stationed on the forward end of the vessel and held to a high degree of vigilance, under Inland Rules art. 29 (33 USCA § 221; Comp. St. § 7903).
9. Collision <@=77 — Neither captain nor helmsman are “lookouts," within maritime law (Inland Rules, art. 29 [33 USCA § 221]).
Neither the captain nor the helmsman in the' pilot house can be considered “lookouts,” within the meaning of the maritime law (Inland Rules, art. 29 [33 USCA § 221; Comp. St. § 7903]).
[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Lookout.]
10. Collision <@=79 — Evidence held to warrant finding collision with moored scow occurred through negligence of passing vessel in not having proper lookout.
On libel for collision damages to scow moored at entrance of canal, evidence held to warrant finding that collision occurred through negligence of passing vessel in-not having proper lookout.
11. Appeal and error <@=I008(I) — On appeal, great weight is to be attached to trial court’s findings of fact.
On appeal, great weight is to be attached to findings of trial judge, who had opportunity of seeing and examining witnesses in the ease.
Appeal from the. District Court of the United States for the District of Massachusetts; James Arnold Lowell, Judge.
Libel by the Bay State Dredging & Contracting Company against John A. Dahlmer, claimant of tbe steamer Orion, in which claimant filed cross-libel. Decree for libelant, and claimant appeals.
Affirmed.
R. Chandler Davis, of Gloucester, Mass., for appellant.
Blodgett, Jones, Burnham & Bingham, of Boston, Mass. (Charles S. Bolster and V. B. Kneeland, both of Boston, Mass., of counsel), for appellee.
Before BINGHAM and JOHNSON, Circuit Judges, and HALE, District Judge.
HALE, District Judge.
On May 29,1927, at about half past 10 o’clock in the evening, the claimant’s auxiliary schooner Orion, proceeding westerly, came into collision with libelant’s scow No. 37, near the easterly entrance of the Cape Cod Canal. The scow was made fast, outside the libelant’s scow No. 40, to two dolphins at the westerly end of the line of dolphins near the entrance, and on the northerly side of the canal. The night was dark and clear. A tide of 4 or 5 knots per hour was running westerly. The Orion is 97.7 feet in length, 17 feet beam, and at the time of the collision was running under power at a speed of about 7 miles per hour. Scow No. 37 is a square-ended wooden scow, 115 feet long, 32 feet wide, and 12 feet side. Scow No. 40 is of a similar shape to scow No. 37, and is 100 feet long, 35.5 feet wide, and 11 feet 8 inches side. Scow No. 37, when light, has her side out of water 8 feet, and scow No. 40, 7 feet 4 inches. Certain iron lanterns, manufactured by Dietz of New York and marked “No. 2 Blizzard,” were placed on each end of scow No. 37 at approximately the middle of the ends of the scow, 6 feet 9 inches above the deck of the scow, and the light was about 14 feet 9 inches above the level of the canal. The dolphins to whieh the scows were moored were approximately 8 feet outside of the northerly edge of the channel. As the scows were moored at the time of the collision, scow No. 40 was partly in the channel, Scow No. 37, moored alongside No. 40, was in the channel; the outer side of scow No. 37 being about 59 feet from the northerly edge of the channel. The canal at that point is 300 feet wide. No one was on board either of the scows at the time of the collision. About 4 p. m. an employee of the libelant posted the lanterns referred to, and no person in libelant’s employ was on board either scow from the time this man left until the time of the collision. The libelant’s dredge No. 4 was moored on the opposite side of the canal, about 388 feet, running lengthwise of the canal, westerly of the ’ western-most dolphin, to which scows No. 37 and No. 40 were moored, and outside the libelant’s dredge a waterboat 23.3 feet in width was moored.
On July 25, 1927, a libel was filed by the libelant in the District Court of Massachusetts to recover damages caused by the collision. On July 26, 1927, a cross-libel was filed by the claimant against the scow. The ease was duly heard by the District Court. On November 14, 1927, the court entered a decree holding the Orion solely at fault. The case is now before us on the claimant’s appeal from that decree.
The claimant contends that the collision occurred through the fault of the libelant in mooring scow 37 in the channel of the cañal, and in improperly lighting the scow.
1. Was the libelant at fault for improperly mooring the scows 1
The Act of March 3, 1899 (U. S. Comp. Stat. § 9920; 33 TJSCA § 409), provides:
“It shall not be lawful to tie up or anchor vessels or other craft in navigable channels in sueh a manner as to prevent or obstruct the passage of other vessels or craft.”
This act is declaratory of the general maritime law upon the subject. In The Caldy, 153 F. 837, 840, in speaking for the Circuit Court of Appeals for the Fourth Circuit, Judge Goff said:
“We do not think the Congress intended by Act March 3, 1899, c. 425, § 15, 30 Stat. 1152 (33 USCA § 409; U. S. Comp. Stat. 1901, p. 3543), to absolutely forbid anchoring in navigable waters, except only at sueh places as the location of the vessel would necessarily prevent the passage of other vessels, or obstruct them in passing to such an extent as to' make the effort to do so a dangerous maneuver. If a vessel anchors at a point in a channel where, notwithstanding sueh anchorage, other vessels, navigated with the care the situation requires, can safely pass, then she has neither violated the statute, nor rendered herself liable under the general rules applicable to navigation, even though to a certain extent she has obstructed the channel.”
In; the instant case, the proofs show that the outboard side of scow 37 extended 59 feet into the channel from the northerly bank, leaving 241 feet of open navigable water. The beam of the Orion was 17 feet. The general manager of the canal testified that the purpose of having dolphins at the eastern end of the canal is to provide a mooring place for vessels awaiting orders and otherwise delayed in transit; that vessels tie up two abreast frequently, and sometimes three abreast; that by tying up two abreast it leaves a wider channel than is available in the inner section of the canal where the channel is only 100 feet wide; that the tying of barges abreast is done to conserve space and leave mooring space for other vessels expected to arrive.
The proofs further show that the steamer from Boston to New York passed the spot without any trouble two and a half hours before the collision, and that there is a local custom in the canal, having the sanction of the canal authorities, of mooring vessels two abreast at these dolphins.
We are of the opinion that the District Court was right in holding “that the scows were properly moored.”
2. It must he found, then, that the Orion collided with a vessel properly moored; that she must be presumed to have been in fault, and to have the duty upon her to exonerate herself from blame by showing that it was not within her power to have prevented the collision by taking reasonable and practicable precautions. The Granite State, 3 Wall. 310, 314,18 L. Ed. 179; The Oregon, 158 U. S. 186, 15 S. Ct. 804, 39 L. Ed. 943; Virginia Ehrman, 97 U. S. 309, 315, 24 L. Ed. 890; The Grand Manan (D. C.) 208 F. 583, 587.
But, even if it were held that the scows were improperly moored, such fact alone would not bar a recovery, if the collision could have been avei*ted by the exercise of reasonable diligence on the part of those in charge of the Orion. The Yucatan (C. C. A.) 226 F. 437, 439.
The claimant contends that scow No. 37 was not properly lighted, and that this fault contributed to the collision.
The claimant invokes article 11 of the Pilot Rules for Inland Waters (33 DSC A § 180; Comp. St. § 7884), which provides that vessels lying at anchor shall carry, forward, one white light in a lantern so constructed as to show a clear, uniform and unbroken light, visible all around the horizon for a distance of at least one mile, and urges that, although in terms the rule refers to vessels lying at anchor, it should also apply to moored vessels, as well as to other vessels not in motion.
We cannot sustain the contention that a moored vessel is subject to the same rules, relating to lights, as those applying to an anchored vessel. It is ,the doctrine of the courts that no analogy can be drawn between anchored vessels and moored vessels in this connection. The Granite State, 3 Wall. 310, 313, 18 L. Ed. 179.
In the instant ease the rule of lighting relating to anchored vessels cannot be held to apply to scows moored on the side of a canal. The question before us is whether or not scow No. 37 was lighted in a reasonably safe, prudent and proper manner.
It seems obvious that it was better seamanship to have one light at each end of the outer scow No. 37 than it would have been to place one light on the outer scow and one on the inner scow.
There is testimony that the lights were, in fact, visible to Boatman Harrison of the Canal Company at his dock more than 1,000 feet from the scows. Harrison and the Coast-guardsman Brady testified that the lights were burning brightly. It appears from further testimony that the lights were visible to those on the tug John Cashman at the dock, the easterly comer of which was about 825 feet from the scows.
The claimant presented testimony from those on board the Orion that the lights upon the scow were dim and were not discernible for a distance of a mile, and that their lookout did not see the lights until just before hitting the barge. The proofs offered by the claimant upon this subject were generally of a vague character and were not persuasive. From the preponderance of the testimony in the ease we think the proofs sustain the District Court in finding “that the lights on the scow were bright and were properly burning.”
3. The libelant charges fault on the part of the Orion for failure to maintain a proper lookout, and that such fault caused the collision.
It is a primary rule of navigation that all moving vessels shall maintain a careful and efficient lookout. The lookout is “both eyes and ears of the ship”; he must be properly stationed on the forward part of the vessel and must be held to a high degree of vigilance in that position. Neither the captain nor the helmsman in the pilot house can be considered to be “lookouts” within the meaning of the maritime law. Inland Rules, art. 29 (33 USCA § 221; Comp. St. § 7903) ; The Sagamore (C. C. A.) 247 F. 743; Ariadne, 13 Wall. 475, 478, 20 L. Ed. 205; The Oregon, 158 U. S. 186, 193, 194, 15 S. Ct. 804, 39 L. Ed. 943; Delaware, L. & W. R. Co. v. Central R. Co. of N. J. (C. C. A.) 238 F. 560, 562; The Genessee Chief, 12 How. 443, 463,13 L. Ed. 1058.
It appears from the proofs offered by the claimant that the master, helmsman, and engineer of the schooner observed the lights at about the same instant that they were observed by tbe lookout and just before tbe collision. Tbe only lookout posted on tbe Orion testified:
“Q. 3. Now, will you please tell tbe court wbat you noticed when coming into the Cape Cod Canal? A. I never saw nothing, but just before we hit the barge I had at chance to say ‘Oh P and we were right up to it.”
“Q. 6. What did you first notice? A. Well, I noticed a light, the first thing I saw, but we were right up against it when I seen it.”
“Q. 9. What did you do after you saw the light? A. I turned around like that and cried ‘Oh P and she struek.”
“Q. 13. What sort of eyesight have you? A. Fair.”
From a preponderance of evidence in the ease we are of the opinion that the lookout was not actually and vigilantly employed in the performance of his duty, and that his failure to perform his duty was the primary cause of the collision. We think the District Court was right in finding that the collision occurred “through the negligence of the Orion in not having a proper lookout.”
The trial judge in the District Court had the opportunity of seeing and examining all the witnesses in the ease. Great weight is to be attached to his findings.
The decree of the District Court is affirmed; the appellee recovers costs in this court.
Question: In what state or territory was the case first heard?
01. not
02. Alabama
03. Alaska
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. Florida
11. Georgia
12. Hawaii
13. Idaho
14. Illinois
15. Indiana
16. Iowa
17. Kansas
18. Kentucky
19. Louisiana
20. Maine
21. Maryland
22. Massachussets
23. Michigan
24. Minnesota
25. Mississippi
26. Missouri
27. Montana
28. Nebraska
29. Nevada
30. New
31. New
32. New
33. New
34. North
35. North
36. Ohio
37. Oklahoma
38. Oregon
39. Pennsylvania
40. Rhode
41. South
42. South
43. Tennessee
44. Texas
45. Utah
46. Vermont
47. Virginia
48. Washington
49. West
50. Wisconsin
51. Wyoming
52. Virgin
53. Puerto
54. District
55. Guam
56. not
57. Panama
Answer:
|
songer_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.
NATIONAL LABOR RELATIONS BOARD v. NATIONAL GARMENT CO. et al.
No. 13570.
Circuit Court of Appeals, Eighth Circuit.
Jan. 7, 1948.
Rehearing Denied Feb. 5, 1948.
Charles K. Hackler, Atty., National Labor Relations Board, of St. Louis, Mo. (David P. Findling, Associate Gen. Counsel, Ruth Weyand, Acting Asst. Gen. Counsel, Fannie M. Boyls and Frederick D. Vincent, Jr., Attys., National Labor Relations Board, all of Washington, D. C., on the brief), for petitioner.
Victor Packman, of St. Louis, Mo., for respondent.
Before SANBORN, WOODROUGH, and COLLET, Circuit Judges.
WOODROUGH, Circuit Judge.
This case is before the court on petition of the National Labor Relations Board pursuant to Section 10(e) of the National Labor Relations Act, 49 Stat. 449, 29 U.S.C.A. § 151 et seq., for enforcement of its order issued against respondents on August 6, 1946 (69 N.L.R.B. 1208). The petition was filed in this court in'May 1947, some three months prior to August 22, 1947, the effective date of the Act to amend the National Labor Relations Act. The answers of respondents to the petition were filed here in June 1947 and the brief of the Board was filed in October, 1947.
The proceedings before the Board culminating in the issuance of the order now before the court were initiated by the filing of charges on March 3, 1945, by the International Ladies Garment Workers Union, AFL, herein called the union, alleging that respondent National Garment Company, herein called National, at its Wellsville, Missouri, plant had engaged in certain acts violative of Section 8(1) and (3) of the Act. On July 12, 1945, National leasedi this entire plant and equipment to Wells-Wear Company, herein called Wells-Wear, which continued operation of the plant without change in personnel or in manner of doing business. Thereafter, on August 17, 1945, the union filed a first amended charge with the Board alleging that National and Wells-Wear had engaged in unfair labor practices within the meaning of Section 8(1), (3) and (5) of the Act. After the usual proceedings under Section 10 of the Act, in which both National and Wells-Wear fully participated, the Board issued its decision and order, which may be summarized briefly as follows:
1. The applicability of the Act to respondents’ operations. — The respondent National is a Missouri corporation engaged in the manufacture of wearing apparel, chiefly boys’ shirts. At the time of the occurrences hereinafter discussed, it operated plants in St. Louis and Chaffee, as well as in Wellsville, Missouri, where the unfair labor practices occurred. Material cut at National’s St. Louis plant was sent to the Wellsville plant for assembly and thence returned to the St. Louis plant where it was commingled with other merchandise for sale and distribution. During 1944, National purchased raw materials of a value greater than $80,000, more than 90 percent of which was received from points outside the State of Missouri. During the same period, National manufactured finished products of a value greater than $100,000, more than 50 per cent of which was shipped through intermediary Missouri wholesale companies to points outside the state. During 1945 up to the date of the hearing in September about 50 per cent of the raw materials purchased by National came from outside the state and a substantial amount of its total sales of about $750,-000 was shipped outside the state. As in 1944, the sales were made to Missouri wholesale firms which distributed the merchandise, commingled with merchandise from other sources, to customers both inside and outside the state.
On July 5, 1945, respondent Wells-Wear, also a Missouri corporation, commenced operating National’s Wellsville plant. The plant’s function in the integrated scheme of production by National did not change. Wells-Wear continued to operate as a processing plant for material received from National’s St. Louis plant. At the time of the hearing Wells-Wear had not engaged in production for any concern except National. Upon these facts, which were undisputed, the Board concluded that the operations of both National and Wells-Wear affected commerce within the meaning of the Act.
2. The unfair labor practices. — The Board found that National, by threatening and coercive speeches to its employees, by inquiries into their organizational activities and the procuring of affidavits from them in regard to such activities, and by the lay-off of its Wellsville employees, interfered with, restrained, and coerced its employees and discriminated against them within the meaning of Section 8(1) and (3) of the Act. It found also that by refusing to bargain with the union as the representative of the employees at Wellsville within an appropriate bargaining unit, National violated Section 8(5) and (1) of the Act.
The Board further found that Wells-Wear, which succeeded to and continued to operate the Wellsville plant with the same management and personnel and as a branch or adjunct to National, must necessarily be regarded as identical and inseparable from National for the purpose of safeguarding the statutory rights of the Wellsville employees; and that by refusing to bargain with the union, and by otherwise failing to remedy the unfair labor practices commenced by National, Wells-Wear engaged in unfair labor practices within the meaning of Section 8(1) (3) and (5) of the Act.
3. The Board’s order. — The Board ordered National and its officers, agents, successors, and assigns to make whole the employees whom it had discriminatorily laid off for any loss in pay suffered by them as a result of the lay-off; and ordered both National and Wells-Wear and their officers, agents, successors, and assigns to cease and desist from the unfair labor practices found; upon demand, to bargain collectively with the union; upon application of employee Abbie Ruth Cobb, to reinstate her, and if they refuse to reinstate her, to make her whole for loss of wages which she may suffer as the result of such refusal; and to post appropriate notices.
After the Board filed its petition in this court for the enforcement of its order against respondents, respondents petitioned this court for leave to adduce additional evidence for the purpose of showing that the operation of National’s Wellsville plant had again changed hands, that this time the plant was leased by National to and was being operated by persons unconnected with respondents and that consequently parts of the Board’s order were unenforceable. The Board opposed respondents’ motion to adduce such additional evidence and this court, on June 23, 1947, after oral argument of the parties, denied the motion.
The respondents resist the enforcement of the Board’s order on the grounds: (1) That the 1947 amendments to the National Labor Relations Act have voided all those orders of the Board, including the order here in question, which were rendered but not enforced prior to the effective date of the amending Act; (2) that the changes in ownership which have occurred in respect to the plant at Wellsville since the occurrence there of unfair labor practices found by the Board render the order moot and compliance impossible; (3) that the finding of violation of Section 8(3) is not supported by evidence; (4) because the order for back pay to be made to the employees (with one exception) was not coupled with an order for the reinstatement of the employees (as to the one exception, Abbie Ruth Cobb, it is contended that there was no evidence to support the Board’s order) ; (5) because the order does not contain findings that it is to effectuate the policies of the Act; (6) because the order is void for vagueness, uncertainty and lack of specificity.
1'. Effect of 1947 Amendments.
Section 3(a) of the Act, effective August 22, 1947, 29 U.S.C.A. § 153(a), provides that “the National Labor Relations Board (hereinafter called the ‘Board’) created by this Act prior to its amendment by the Labor Management Relations Act, 1947, is continued as an agency of the United States, except that the Board shall consist of five instead of three members, * * * ” and on October 24th of this year the Board, constituted as required by the amending Act, was confronted in the case of Marshall and Bruce Company, etc., No. 10-C-1792, with the question as to the effect if any of the amendatory legislation on the Board’s power to adjudicate unfair labor practice controversies which arose prior thereto. The Board stated:
“In our opinion, this question is authoritatively answered in the general savings statute enacted by Congress in 1871, which sets forth ‘Rules for the Construction’ of amendatory and repealing legislation. This statute provides as follows:
“ ‘The repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the repealing Act shall so expressly provide, and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action .or prosecution for the enforcement of such penalty, forfeiture or liability.’
“The general savings statute is now Section 29 of Title I of the United States Code [1 U.S.C.A. § 29], a title promulgating rules applicable to all federal statutes, and is therefore generally applicable to the legislation here under consideration.
“The term ‘liability’ as used in the general savings statute has been broadly construed by the courts to comprehend all obligations arising out of any breach of a statutory duty. The obligations of employers arising out of violations of the National Labor Relations Act are clearly ‘liabilities’ within the meaning of the general savings statute, as it has been consistently interpreted. Under that statute such liabilities continue to have binding effect, notwithstanding the passage of the amendment, unless Congress manifested therein an intention to extinguish such liability. But clearly Congress made no provision in the amendment for absolving employers of liability for unfair labor practices committed prior to such amendment. Indeed, the legislative history indicates a contrary intent, for Congress expressly considered and rejected a proposal which would have had the effect of prohibiting entry by the Board or enforcement by the courts of any order based on prior unfair labor practices unless the conduct involved continued to be an unfair labor practice under the amending statute. To this extent therefore, the new law does not operate retroactively.
“In view of the foregoing, we are of the opinion that the general savings statute must be held to preserve ‘all liabilities’ arising under the National Labor Relations Act prior to amendment. Accordingly, the Board unanimously concludes and finds as a matter of law that the enactment of the recent amendments does not impair our power to adjudicate the present case, or any other case which may have arisen prior to such amendments, and to issue an appropriate order therein.”
We do not disagree with the quoted conclusions of the Board.
Comparison of the provisions of the old Act with those of the 1947 Amendments has convinced that nothing in the Labor Management Relations Act has deprived this court of its jurisdiction in this case over “the proceeding and of the question determined therein” or of its “power * * * to grant relief * * * and enter decree enforcing in whole or in part * * * the order of the Board.”
The Board has heard and made its determination upon charges of breaches of statutory duty by respondents, prescribed the resultant obligations of respondents and fixed the liability incurred by respondents under the old Act to the extent of its powers. The obligations imposed upon respondents by the Board’s order are “liabilities” within the meaning of the general saving statute, 1 U.S.C.A. § 29, and Congress manifested no intention in the amendments to release or extinguish any such obligations. They continue therefore to have binding effect upon respondents subject to the jurisdiction of this court to grant or deny enforcement of the Board’s order. Insofar as Congress amended certain procedural provisions of the Act it reflected no intention to reach back and nullify procedural steps already taken. Those steps already taken, pleadings, and all things done under the old law must stand. Procedural changes operate in the future.
2. The Changes in Ownership.
Although the charges of unfair labor practices in this case were first made against respondent National Garment Company alone, respondent Wells-Wear was included by amended charges before the case was brought on for hearing and the evidence supports the Board’s finding that:
“Under all the circumstances, particularly the unified and integrated nature of the operations conducted by National and Wells-Wear and the common control of Rothbarth over the labor policies of both respondents, we are convinced and find that National is in a position to, and does virtually control, Wells-Wear; that Wells-Wear functions in effect'merely as a branch or adjunct to National; that National, Wells-Wear and Rothbarth are joint employers at the Wellsville plant, within the meaning of Section 2(2) of the Act; and that both corporate entities (National and Wells-Wear) must necessarily be regarded as identical and inseparable for the purpose of safeguarding the statutory rights of the employees at the Wellsville plant. We further find that Wells-Wear, as well as National, is responsible for the unfair labor practices committed at the Wellsville plant and that to effectuate the policies of the Act it is necessary for both respondents to remedy such unfair labor practices.”
The Board’s direction of its order to both respondents is in accord with this court’s decision in N. L. R. B. v. Adel Clay Products Co., 8 Cir., 134 F.2d 342. The contentions of respondents that further changes in the ownership of the Wellsville plant occurring since the issuance of the Board’s order have rendered this case moot and their compliance with the order impossible are not considered in this opinion. The duty of this court to rule and act upon applications of the Board for enforcement orders must be discharged, notwithstanding the rights which plant owning employers have to divest themselves of their relationship to the properties. Our refusal to remand the case to the Board to take additional evidence was in the exercise of discretion and the Board’s petition for enforcement is ruled on in this opinion as of the date of issuance of the order.
3. The Sufficiency of the Evidence.
The findings of the Board that respondents engaged in unfair labor practices within the meaning of Section 8(1) (3) and (5) of the Act are supported by substantial evidence in that there was such evidence that they laid off the employees and coerced, threatened and intimidated them to hinder and prevent them from acting collectively in labor union organization. The contention of respondents that they did not discriminate against the employees because they laid off all employees, both union and non-union, may not be sustained. They discriminated against all employees by treating them differently than they would have treated them had some of them not joined the union within the plain intendment of Sections 7 and 8(1) (3), “It shall be an unfair labor practice for an employer * * * to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7 [of self organization in labor unions] (3) by discrimination in regard to * * * tenure of employment.” N. L. R. B. v. Cape County Milling Co., 8 Cir., 140 F.2d 543, 152 A.L.R. 144; N. L. R. B. v. Somerset Shoe Co., 1 Cir., 111 F.2d 681; N. L. R. B. v. National Motor Bearing Co., 9 Cir., 105 F.2d 652, 657, 658.
4. Back Pay Without Reinstatement.
The respondents contend that the back pay ordered by the Board may not be enforced because the workers resumed their employment before the case came to the Board and therefore no order for their reinstatement was coupled with the back pay order. They cite N. L. R. B. v. Carlisle Lumber Co., 9 Cir., 99 F.2d 533. This court ruled contrary to the contention long after the decision in the Carlisle Lumber Co. case, in N. L. R. B. v. Skinner & Kennedy Stationery Co., 8 Cir., 113 F.2d 667, 669, and we think our ruling is in accord with Phelps Dodge Corp. v. N. L. R. B., 313 U.S. 177, 197-200, 61 S.Ct. 845, 85 L.Ed. 1271, 133 A.L.R. 1217, and N. L. R. B. v. Link-Belt Co., 311 U.S. 584, 61 S.Ct. 358, 85 L.Ed. 368, The contention is not sustained. As to the employee Abbie Ruth Cobb, we find the order of the Board is sustained by the evidence.
5. Findings as to Effectuating the Policies of the Act.
On this point respondents cite and rely on Phelps Dodge Corp. v. N. L. R. B., 313 U.S. 177, 196, 200, 61 S.Ct. 845, 853, 85 L.Ed. 1271, 133 A.L.R. 1217, where it appeared to the court that the Board has “determined only the dry legal question of its power, which we sustain; it did not consider whether in employing that power the policies of the Act would be enforced,” but examination of the Board’s decision and order here disclose no analogous situation. Here the Board declared that: “we are convinced that the policies of the Act can only be effectuated by requiring Wells-Wear as well as National to remedy the unfair labor practices found to exist at the Wellsville plant”; “Upon the entire record in the case, and pursuant to Section 10(c) of the National Labor Relations Act, the National Labor Relations Board hereby orders”; “the respondents * * * their officers, agents, successors and assigns, shall take the following affirmative action which the Board finds will effectuate the policies of the Act”; and from the context considered with the declarations it is clear that the Board’s order was based on its determination that the order would effectuate the policies of the Act.
6. The Certainty of the Order.
The record before us does not show on its face that any of the things ordered or forbidden are insufficiently defined or incapable of performance and the order is in the form sanctioned by long usage. It is sustained as to form. Examination of the whole record has convinced that the evidence presented to the Board an unusual clear instance of infringement on the part of the employer of the requirements of the Act in respect to the right of his employees to self organization and refusal to bargain and that enforcement should be ordered as prayed.
Enforcement ordered.
On Petition for Rehearing and Objections of Respondents to Proposed Decree.
PER CURIAM.
This court has determined that the order of the National Labor Relations Board, under review, was a valid order and that the Board is entitled to have it enforced. A proposed decree has been submitted. The respondents assert that much of the Board’s order, because of changed conditions, is unenforceable, and apparently believe that this court, before entering a decree, must ascertain to what extent the respondents will be able to comply with the order. Obviously, the respondents cannot be compelled to do the impossible. It is our opinion, however, that it will be for the Board initially to determine how far compliance reasonably can be exacted under present conditions.
The petition for rehearing is denied, and the objections to the proposed decree are overruled.
“ Act of February 25, 1871, 16 Stat. 431, 1 U.S.C.A. § 29. This statute changed the then existing federal common law rule that the repeal of a prior statute had the effect of extinguishing all liabilities thereunder. See United States v. Tynen, 11 Wall. 88, 95, 20 L.Ed. 153.
“ On March 22, 1944, Congress amended this statute to add the following sentence, c.123, 58 Stat. 118, 1 U.S.C.A. § 29: ‘The expiration of a temporary statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the temporary statute shall so expressly provide, and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture or liability.’
The term has been interpreted to include ‘liability to be imprisoned’ arising out of a violation of a criminal statute (United States v. Reisinger, 128 U. S. 398, 403, 9 S.Ct. 99, 32 L.Ed. 480); liability to pay inheritance taxes resulting from the death of the testator prior to repeal of the tax law (Hertz v. Woodman, 218 U.S. 205, 218, 30 S.Ct. 621, 54 L.Ed. 1001); liability after repeal of the Eighteenth Amendment to pay tax on alcohol diverted to beverage purposes imposed in the Revenue Act of 1926 (United States v. United States Industrial Alcohol Co., D.C.Md., 8 F.Supp. 179); ‘liability’ of a creditor who had received property from his debtor under circumstances constituting an unlawful preference under the Bankruptcy Act, to refund it to the Assignee of the debtor in bankruptcy (Tinker v. Van Dyke, C.C.Mich., 1876, Fed.Cas.No.14,058; and ‘liability’ to forfeiture of imported goods knowingly entered by means of a false invoice (United States v. Four Cases of Lastings, D.C.N.Y., 1879, Fed.Cas.No. 15,145. See also Warren v. Garber, C.C.Va., 1877, Fed.Cas.No.17,196; Bradbury v. Galloway, D.C.Cal., 1877, Fed. Cas.No.1,764; De Four v. United States, 9 Cir., 260 F. 596, 599, certiorari denied, 253 U.S. 487, 40 S.Ct. 485, 64 L. Ed. 1026; Goublin v. United States, 9 Cir., 261 F. 5; Lang v. United States, 7 Cir., 133 F. 201; United States v. Krupnick, D.C.N.J., 51 F.Supp. 982, 989; United States v. Auerbach, D.C.Cal., 68 F.Supp. 776-778-780; Peters v. Felber, 66 Cal.App.2d Supp. 1011, 1012, 1013, 152 P.2d 42.
“ See Great Northern Ry. Co. v. United States, 208 U.S. 452, 465, 28 S.Ct. 313, 52 L.Ed. 567; United States v. Chicago, St. P., M. & O. Ry. Co., D.C., 151 F. 84, 93, 94, affirmed 8 Cir., 162 F. 835, certiorari denied, 212 U.S. 579, 29 S.Ct. 689, 53 L.Ed. 659; Lang v. United States, 7 Cir., 133 F. 201, 206, 207; Ex parte Lamar, 2 Cir., 274 F. 160, 172, affirmed per curiam 260 U.S. 711, 43 S.Ct. 251, 67 L.Ed. 476; Maceo v. United States, 5 Cir., 46 F.2d 788, 789.
“ See Section 102(e) of the H. R. 3020, 80th Congress 1st Sess.; Conf. Report p. 61, House Report No. 510, 80th Congress 1st Session.”
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_genresp2
|
I
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the second listed respondent. If there are more than two respondents and at least one of the additional respondents has a different general category from the first respondent, then consider the first respondent with a different general category to be the second respondent.
In re ESTATE of Marshal L. NOEL, Deceased. William H. FRANTZ and Ruth M. Noel, Executors, Petitioners, v. COMMISSIONER OF INTERNAL REVENUE, Respondent.
No. 14441.
United States Court of Appeals Third Circuit.
Argued Dec. 2, 1963.
Decided June 17, 1964.
Edward F. Merrey, Jr., Paterson, N. J. (Harry Norman Ball, Philadelphia, Pa., John P. Goceljak, Paterson, N. J., on the brief), for petitioners.
Arthur E. Strout, Dept, of Justice, Washington, D. C. (Richard M. Roberts, Acting Asst. Atty. Gen., Lee A. Jackson, L. W. Post, Attorneys, Department of Justice, Washington, D. C., on the brief), for respondent.
Before STALEY, GANEY and .SMITH, Circuit Judges.
. The policies provided for the payment of a specified amount for each of several enumerated injuries and for the payment of the principal sum in the event of accidental death.
WILLIAM F. SMITH, Circuit Judge.
This case is here on a petition to review a decision of the Tax Court. The principal question for decision is whether the proceeds of an air flight insurance policy paid to the designated beneficiary are includible in the gross estate of the •decedent under § 2042(2) of the 1954 Internal Revenue Code, 26 U.S.C.A. § 2042(2). The question is admittedly one of novel impression not wholly free of difficulty.
The pertinent provisions of the cited statute read as follows:
“The value of the gross estate shall include the value of all property—
* * * * * *
“(2) * * * To the extent of the amount receivable by * * * beneficiaries as Insurance Under Policies on the Life of the Decedent with respect to which the decedent possessed at his death any of the incidents of ownership, exercisable either alone or in conjunction with any other person.” (Emphasis supplied).
The answer to the question here raised depends on the construction to be given the term “insurance under policies on the life of the decedent,” which is not defined by the Code. The term “insurance” is defined by regulation as “life insurance of every description, including death benefits paid by fraternal benefit societies operating under the .'lodge system.” 26 C.F.R. § 20.2042-1. We find this definition of little assistance in the instant case.
The decedent, immediately prior to enplaning on a round trip to Venezuela, made written application for two flight insurance policies, each in the amount of $62,500. The premiums, in the total amount of $5, were paid by his wife, the named beneficiary, to whom the policies were delivered upon issuance. The policies, dissimilar in some minor respects but otherwise in the usual form, insured against loss of life or specified bodily injury suffered by the insured as the result of an aircraft accident occurring during any part of the flight. In the event of the insured’s death the benefits were payable to the designated beneficiary, and in the event of bodily injury the benefits were payable to the insured. Each policy reserved to the insured the right to assign it or to change the beneficiary thereof without the consent of the beneficiary originally designated. These were exercisable incidents of ownership within the meaning of the statute.
While en route to Venezuela, and within a few hours after departure from the airport, the plane on which the decedent was a passenger crashed into the Atlantic Ocean, killing all on board. The widow of the decedent, asserting a right to the proceeds of the policies as the designated beneficiary thereunder, filed the required proofs of claim on the basis of which she received the benefits. The petitioners, executors of the decedent’s estate, filed the required estate tax return but failed to include in the gross estate of the decedent the amounts received by the beneficiary under the said policies. The respondent, having found that the proceeds of the policies were includible in the gross estate of the decedent, determined that there was a deficiency in respect to the taxes due and gave written notice thereof to the petitioners.
The determination of the deficiency was sustained by the Tax Court in the decision here on review. The decision rests solely on the case of Leopold Ackerman v. Commissioner, 15 B.T.A. 635, decided in 1929: Therein the Board of Tax Appeals held that the term “policies taken out by the decedent upon his own life,” as used in § 302(g) of the Revenue Act of 1924, referred not only to ordinary life insurance policies but also to accident policies which covered the risk of accidental death as well as bodily injury. We are of the view that this construction was erroneous, as is the decision of the Tax Court in the instant case.
It is a settled rule of construction that where a term employed in a statute is not therein defined, the term must be given its ordinary, plain and generally accepted meaning. Crane v. Commissioner, 331 U.S. 1, 6, 67 S.Ct. 1047, 91 L.Ed. 1301 (1947); Old Colony R. Co. v. Commissioner, 284 U.S. 552, 560, 52 S.Ct. 211, 76 L.Ed. 484 (1932); United States v. Merchants National Bank of Mobile, 261 F.2d 570, 575 (5th Cir. 1958); Torti v. United States, 249 F.2d 623, 625 (7th Cir. 1957). This conventional rule is particularly applicable where, as here, we are called upon to interpret a provision of the Internal Revenue Code, Ibid., and the application of the rule will not lead “to an unreasonable result plainly at variance with the policy of the legislation as a whole.” See Ozawa v. United States, 260 U.S. 178, 194, 43 S.Ct. 65, 67, 67 L.Ed. 199 (1922); Acheson v. Fujiko Furusho, 212 F.2d 284, 295 (9th Cir. 1954).
While life insurance and accident insurance possess certain features common to both, there is a commonly understood and well defined distinction between them. The dominant purpose of the policy as reflected by the risk or contingency insured against is usually determinative of the nature of the insurance. Bowles v. Mutual Ben. Health & Accident Ass’n, 99 F.2d 44, 48, 49, 119 A.L.R. 756 (4th Cir. 1938) ; Baumann v. Preferred Accident Ins. Co. of New York, 225 N.Y. 480, 122 N.E. 628, 629 (1919); see also Couch, Cyclopedia of Insurance Law, § 34; Appleman, Insurance Law and Practice, § 392. The policies here in question must be judged by this determinant.
A life insurance policy is a contract by the terms of which the insurer, in return for the payment of the prescribed premiums, agrees to pay a specified sum upon the occurrence of an inevitable event. The contingency insured against is the death of the insured regardless of its cause unless, of course, the cause is one excepted under the policy. Oglesby-Barnitz Bank and Trust Co. v. Clark, 112 Ohio App. 31, 175 N.E. 2d 98, 103, 83 A.L.R.2d 1337 (1959); Orr v. Prudential Ins. Co. of America, 274 Mass. 212, 174 N.E. 204, 72 A.L.R. 872 (1931); Couch and Appleman, supra. Life insurance has several economic and investment features not common to accident insurance. Upon issuance of the policy the insurer assumes an absolute risk of loss and the insured acquires an immediate estate which by the terms of the policy is transferrable on his death. See Chase Nat. Bank v. United States, 278 U.S. 327, 49 S.Ct. 126, 73 L.Ed. 405 (1929). The purpose of § 2042(2), supra, as well as its earliest counterpart, infra, was to bring such estates within the reach of the revenue laws for reasons hereinafter discussed.
An accident policy, particularly of the type here in question, is a contract by the terms of which the insurer agrees to indemnify the insured in case of bodily injury, or the designated beneficiary in case of the death of the insured, for any loss sustained by reason of an event which is evitable and not likely to occur. The contingency insured against is the accident, death being only one of several liability creating consequences. See the authorities cited in the preceding paragraph. Upon issuance of the policy the insurer assumes a condi-tional risk of loss and the insured, as well as the beneficiary, acquire nothing more than an inchoate and defeasible right. An accident policy which provides for the payment of the principal sum in the event of the insured’s accidental death is not thereby converted into a life policy; such a feature does not alter the essential nature of the insurance.
A further aid to construction is the history of the enactment which clearly indicates the intent of Congress and 4he purpose of the legislation, preponderating guides to the interpretation of statutory phrases of doubtful meaning. Harrison v. Northern Trust Co., 317 U.S. 476, 479, 480, 63 S.Ct. 361, 87 L.Ed. 407 (1943); United States v. Amer. Trucking Ass’ns, 310 U.S. 534, 543, 544, 60 S.Ct. 1059, 84 L.Ed. 1345 (1940); Holy 'Trinity Church v. United States, 143 U. S. 457, 12 S.Ct. 511, 36 L.Ed. 226 (1892); J. C. Penney Company v. C. I. R., 312 F. 2d 65, 68 (2nd Cir. 1962); City of Newark v. United States, 254 F.2d 93, 97, 98 (3rd Cir. 1958). The statutory provision here in question emerged from -a comparable provision contained in the Revenue Act of 1918, infra, which we consider in the light of the mischief sought to be corrected and the end sought to be attained.
The estate tax as a permanent source of revenue was adopted by the Revenue Act of 1916, and particularly §§ 201 and 202 thereof, 39 Stat. 777 and 778. Section 202 defined the items of real and personal property includible in the gross estate of the decedent for tax purposes but made no specific reference to the proceeds of life insurance policies. Such proceeds were includible in the estate only to the extent of the amount receivable by the executor in his fiduciary capacity. As a result of this deficiency the impact of the estate tax on the proceeds of life insurance policies could be avoided by the simple expedient of making such proceeds payable to a specific beneficiary other than the executor.
The deficiency, soon recognized by Congress, was corrected by the enactment of § 402(f) of the Revenue Act of 1918, 40 Stat. 1097, 1098, which read in pertinent part as follows:
“That the value of the gross estate of the decedent shall be determined by including the value at the time of his death of all property, real or personal, tangible or intangible, wherever situated—
*•»***•»
“(f) To the extent of the amount receivable by the executor as insurance under policies taken out by the decedent upon his own life; and to the extent of the excess of $40,000 of the amount receivable by all other beneficiaries as insurance under policies taken out by the decedent upon his own life.”
The obvious intent of Congress and the purpose of the enactment was to foreclose the possibility of tax avoidance under the existing law.
The Committee on Ways and Means of the 65th Congress submitted a report in which it stated:
“The provision with respect to specific beneficiaries has been included for the reason that insurance payable to such beneficiaries usually passes under a contract to which the insurance company and the individual beneficiary are the parties in interest and Over Which the Executor Exercises No Control. Amounts passing in this way are not liable for expenses of administration or debts of the decedent and therefore Do Not Fall Within the Existing Provisions Defining the Gross Estate. It has been brought to the attention of the Committee That Wealthy Persons Have and Now Anticipate Resorting to this Method of Defeating the Estate Tax. Agents of insurance companies have openly urged persons of wealth to take out additional insuranee payable to specific beneficiaries f or the reason that SUCH INSURANCE Would Not be Included in the Gross Estate. A liberal exemption of $40,000 has been included and^ it seems not unreasonable to require the inclusion of amounts in excess of this sum.” (Emphasis supplied).
Section 402(f), supra was retained without change as a part of the federal estate tax law until it was amended by 404 (g) of the Revenue Act of 1942, 56 Stat 944 which became § 811(g) of the Internal Revenue Act of 1939, 26 U.S.C.A. The amendment changed the test of includibility and m effect placed the proceeds of life insurance policies payable to designated beneficiaríes on a par with other property transferrable on the death of the decedent. i A Section 2042(2) supra, follows substantially the 1942 Act except that it eliminates as a test of includibility _ die payment of premiums directly or indirectly by the decedent.’ The purpose of this last provision, like that of its earliest predecessor, is to foreclose resort to the purchase of life insurance as a means o ax avoidanee.
We are of the opinion, and so hold, that the term “insurance under policies on the life of the decedent” does not comprehend insurance under accident policies of the kind here in question. We are of the further opinion that any other construction, particularly the one here urged by the respondent, would lead to an unreasonable result at variance with the intent of Congress and the manifest purpose of the statute as a ^ ^ whole‘
The decision of the Tax Court will be reversed.
. Tliis assumes that the policy remains in force and there is compliance with its terms and conditions.
. The estate tax as a source of revenue was resorted to earlier only in critical periods of emergency.
. Revenue Act of 1918, 65th Congress, 2d Session, House Report 767, p. 22.
. The new tests of includibility were: (a) the payment of premiums “directly or indirectly by the decedent,” and (b) the “incidents of ownership” possessed by the in-sured at his death,
Question: What is the nature of the second listed respondent whose detailed code is not identical to the code for the first listed respondent?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_respond1_1_3
|
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)". Your task is to determine what category of business best describes the area of activity of this litigant which is involved in this case.
COMMISSIONER OF INTERNAL REVENUE, Petitioner, v. The MAMMOTH COAL COMPANY, Respondent.
No. 11589.
United States Court oí Appeals Third Circuit.
Argued Oct. 17, 1955.
Decided Nov. 30, 1955.
Rehearing Denied Feb. 6, 1956.
Robert B. Ross, Washington, D. C. (H. Brian Holland, Asst. Atty. Gen., Ellis N. Slack, Lee A. Jackson, Sp. Assts. to Atty. Gen., on the brief), for petitioner.
Richard L. Levy, Philadelphia, Pa. (William T. Coleman, Jr., Philadelphia, Pa., Edgar J. Goodrich, Lipman Redman, Washington, D. C., for J. Robert Bazley, Inc. and John Schumacher, respectively, amici curiae, Dilworth, Paxson, Kalish & Green, Philadelphia, Pa., Guggenheimer, Untermyer, Goodrich & Amran, Washington, D. C., on the brief).
Fred L. Rosenbloom, Philadelphia, Pa. (Thomas P. Glassmoyer, on the brief), Schnader, Harrison, Segal & Lewis, Philadelphia, Pa., of counsel, for respondent.
John W. Bodine, Philadelphia, Pa. (Frederick E. S. Morrison, Philadelphia, Pa., for Jeddo-Highland Coal Company and the Anthracite Institute, amici curiae on the brief), Drinker Biddle & Reath, Philadelphia, Pa., of counsel.
Before McLAUGHLIN, KALODNER, and STALEY, Circuit Judges.
STALEY, Circuit Judge.
The Commissioner of Internal Revenue appeals from a decision of the Tax Court entered after a determination that for the fiscal years ended August 31, 1947, and August 31, 1948,-the taxpayer, Mammoth Coal Company, in determining its percentage depletion deduction, did not have to eliminate from gross income amounts paid to the Capparell Stripping . & Construction Company, Inc., (the stripper) for strip-mining coal on the taxpayer's property.
Since the operative facts in the two fiscal years involved are the same, the 1947 facts will be used in discussion.
In December, 1946, the taxpayer and the stripper entered into a written agreement whereby the stripper acquired an exclusive, indefinite right to strip-mine coal on certain property which the taxpayer owned. During the fiscal year ended in 1947, the taxpayer received §1,-369,719.10 from the sale of coal mined under the agreement. Of this total the stripper received §655,929.03.
The taxpayer’s position, which was upheld by the Tax Court, is that it should be permitted to use the §1,369,719.10 as its gross income figure in computing its percentage depletion deduction. On the other hand, the government contends that the stripper is entitled to percentage depletion deduction computed on the basis of the §655,929.03 which the stripper received from the mining operation, and, accordingly, the taxpayer must eliminate this same §655,929.03 from its gross income before computing the percentage depletion deduction, under Sections 23 (m) and 114(b) of the Internal Revenue Code of 1939.
All parties agree that either the stripper or the taxpayer, but not both, is entitled to a percentage depletion deduction in regard to the §655,929.03. Thus, if the stripper is entitled to the deduction, the taxpayer is not.
Under the applicable Treasury Regulation, an “* * * owner of an economic interest in mineral deposits or standing timber is allowed annual depletion deductions. * * * An economic interest is possessed in every case in which the taxpayer has acquired, by investment, any interest in mineral in place ir standing timber and secures, by any form of legal relationship, income derived from the severance and sale of the mineral or timber, to which he must look for a return of his capital. * * *”
The question of what constitutes an economic interest has been presented to the various courts in numerous instances. There is no general rule that a strip miner is or is not entitled to percentage depletion. The facts in each case determine the result.
In the Supreme Court’s most recent decision involving percentage depletion, Burton-Sutton Oil Co. v. Commissioner of Internal Revenue, 1946, 328 U.S. 25, 66 S.Ct. 861, 90 L.Ed. 1062, it was pointed out that what one’s interest in depletable property is called under state law and the nature of the instrument creating such interest is unimportant for federal purposes. The Court noted that the cost of the capital investment to the beneficiary of the depletion is unimportant. “It is the lessor’s, lessee’s or transferee’s ‘possibility of profit’ from the use of his rights over production, ‘dependent solely upon the extraction and sale of the oil,’ which marks an economic interest * * 328 U.S. at pages 34-35, 66 S.Ct. at page 867.
We think the interest which the stripper acquired in the case at bar was sufficiently significant to entitle it to percentage depletion.
Under the agreement the stripper was to excavate, remove, and dispose of all earth and rock, or overburden, overlying the coal veins in the three tracts, to recover all salvageable coal so exposed, and to deliver all material extracted from the veins to petitioner at a specified price per ton, which would vary according to whether the materials were weighed before or after processing through a cleaning plant which the taxpayer was going to erect. Adjustments in the amount of per ton payments were to be made in the event of a general increase or decrease in the wages of employees in the Southern Field anthracite mines of Pennsylvania.
The land had been previously deep-mined and strip-mined, and the agreement stated that the taxpayer would not be liable in any way for removal of more overburden than was anticipated or for failure of the stripper to recover any coal. The record is silent as to what the expectations were concerning the anticipated amount of available coal.
The stripper had the exclusive right to mine coal in the areas embraced by the agreement. This exclusive right was not limited in time but was to continue indefinitely. The taxpayer did have the right to call for a suspension of mining operations, and in such event under certain conditions regarding time and notice the stripper was free to give up the mining operation, but this was his own choice and unless he voluntarily did so, the taxpayer, though calling for a suspension of operations, could not permit anyone else to mine the area. Thus, for all practical purposes, the stripper had the exclusive right to mine the area to exhaustion.
The stripper provided the necessary buildings, equipment, and machinery for the stripping operations. $4,842.72 was expended in erecting buildings and almost a million dollars worth of equipment and machinery was used. (Almost $800,000 worth was new, provided especially for performance of the work contemplated by the contract.)
Although all extracted material was to be delivered to the taxpayer, the taxpayer specifically reserved the right to reject any and all coal or coal material delivered to it, and thereupon the stripper would be free to sell the rejected coal to anyone it pleased for its own account.
The taxpayer was obligated to pay the agreed price per ton only if it accepted the coal. If it did not accept the coal, there was no personal liability to the stripper for the work and operations in extracting the coal.
The stripper was not being paid as a “hired hand” would have been for labor performed. Its situation was entirely different. When the stripper removed coal and other materials from the ground, the taxpayer was entitled to receive it. But the taxpayer was not obligated to take it. If it chose not to, it owed the stripper nothing, and the stripper would be free to sell the coal to anyone at whatever price it could get. To put it another way, the taxpayer gave the stripper the exclusive right to mine coal and sell coal at the stripper’s own expense and for the stripper’s own account, reserving, however, to itself the right to buy any or all of the coal produced by the stripper.
Had the agreement provided that the stripper could mine the coal and keep for itself a certain minimum quantity while turning over the rest to the taxpayer, we think it would be clear under the decisions that both the stripper and the taxpayer would have an economic interest in the coal. See Helvering v. Twin Bell Oil Syndicate, 1934, 293 U.S. 312, 321, 55 S.Ct. 174, 79 L.Ed. 383.
The fact that, instead of retaining coal, the stripper received so much per ton for that coal which first had to be offered to and accepted by the taxpayer should make no difference, for in any event the stripper had to look to the coal which it mined for return of its investment and profit.
On quite similar facts, the Fourth Circuit, in Commissioner of Internal Revenue v. Gregory Run Coal Co., 4 Cir., 1954, 212 F.2d 52, certiorari denied, 1954, 348 U.S. 828, 75 S.Ct. 47, reached the same result, and, we think, correctly.
Accordingly, the decision of the Tax Court will be reversed.
. 1954, 22 T.C. 571.
. The original agreement, amended several times to reflect price changes, continued in effect until April 15, 1949, when the parties executed a mutual release.-
. Ҥ 23. Deductions from gross income. In computing net income there shall be allowed as deductions:
*****
“(m) Depletion. In the case of mines, oil and gas wells, other natural deposits, and timber, a reasonable allowance for depletion and for depreciation of improvements, according to the peculiar conditions in each case; such reasonable allowance in all cases to be made under rules and regulations to be prescribed by the Commissioner, with the approval of the Secretary. * * * ” Int.Rev.Code of 1939, § 23(m), 26 U.S.C.A. § 23(m).
Ҥ 114. Basis for depreciation and depletion
* * * * * *
<((b) Basis for depletion ****'♦
“(4) Percentage Depletion for coal ft * *
“(A) In General. The allowance for depletion under section 23 (m) shall be, in the case of coal mines, 5 per centum, * * * of the gross income from the property during the taxable year, excluding from such gross income an amount equal to any rents or royalties paid or incurred by the taxpayer in respect of the property. Such allowance shall not exceed 50 per centum of the net income of the taxpayer (computed without allowance for depletion) from the property * * Int.Rev.Oode of 1939, § 114 (b) (4), 26 TJ.S.O.A. § 114(b) (4).
. “§ 29.23(m)-l. Depletion of Mines, Oil and Gas Wells, Other Natural Deposits, and Timber; Depreciation of Improvements. — Section 23 (m) provides that there shall be allowed as a deduction in computing net income in the case of mines, oil and gas wells, other natural deposits, and timber, a reasonable allowance for depletion and for depreciation of improvements. Section 114 prescribes the bases upon which depreciation and depletion are to be allowed.
“Under such provisions, the owner of an economic interest in mineral deposits or standing timber is allowed annual depletion deductions. * * * An economic interest is possessed in every case in which the taxpayer has acquired, by investment, any interest in mineral in place or standing timber and secures, by any form of legal relationship, income derived from the severance and sale of the mineral or timber, to which he must look for a return of his capital. But a person who has no capital investment in the mineral deposit or standing timber does not possess an economic interest merely because, through a contractual relation to the owner, he possesses a mere economic advantage derived from production. Thus, an agreement between the owner of an economic interest and another entitling the latter to purchase the product upon production or to share in the net income derived from the interest of such owner does not convey a depletable economic interest.” Troas.Reg. Ill, § 29.23 (m)-l, 26 Code Fed.Regs. § 29.23(m)-l (1949 ed.).
. The Regulation distinguishes between “economic interest” and “economic advantage.” One who acquires the latter through an agreement with one who possesses the former is not entitled to the depletion deduction.
. Some of these decisions are: Burton-Sutton Oil Co. v. Commissioner of Internal Revenue, 1946, 328 U.S. 25, 66 S. Ct. 861, 90 L.Ed. 1062; Kirby Petroleum Co. v. Commissioner of Internal Revenue, 1946, 326 U.S. 599, 66 S.Ct. 409, 90 L.Ed. 343; Anderson v. Helvering, 1940, 310 U.S. 404, 60 S.Ct. 952, 84 L.Ed. 1277; Palmer v. Bender, 1933, 287 U.S. 551, 53 S.Ct. 225, 77 L.Ed. 489; Commissioner of Internal Revenue v. Gregory Run Coal Co., 4 Cir., 1954, 212 F.2d 52; M-B-K Drilling Co. v. Commissioner of Internal Revenue, 10 Cir., 1952, 194 F.2d 221; Dearing v. Commissioner of Internal Revenue, 5 Cir., 1939, 102 F.2d 91; Weirton Ice & Coal Supply Co. v. Commissioner of Internal Revenue, 1955, 24 T.C. -; Brown v. Commissioner of Internal Revenue, 1954, 22 T.C. 58; Morrisdale Coal Mining Co. v. Commissioner of Internal Revenue, 1952, 19 T.C. 208; Ruston v. Commissioner of Internal Revenue, 1952, 19 T.C. 284; C. A. Hughes & Co., 1955, 14 T.C.M. 172; Hamill Coal Corp. v. Commissioner of Internal Revenue, 1955, 14 T.C.M. 218; Paul E. Barry, Inc. v. Commissioner of Internal Revenue, 1955, 14 T.C.M. 37; Winfield Mining & Contracting Co., 1954, 13 T.C.M. 591.
. The agreement also contained provisions for termination in the event of bankruptcy or default by the stripper and for arbitration under certain circumstances. During the taxable years involved, the taxpayer paid all real estate taxes, employed watchmen to guard the property, and paid for power including that used by the stripper.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case?
A. agriculture
B. mining
C. construction
D. manufacturing
E. transportation
F. trade
G. financial institution
H. utilities
I. other
J. unclear
Answer:
|
songer_applfrom
|
C
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court).
Ilya V. TALEV, et al., Appellants, v. John E. REINHARDT, et al.
No. 79-1132.
United States Court of Appeals, District of Columbia Circuit.
Argued Jan. 16, 1980.
Decided Aug. 31, 1981.
Alexander G. Park, Bethesda, Md., for appellants.
Alfred Mollin, Atty., Dept, of Justice, Washington, D. C., with whom Carl S. Rauh, U. S. Atty., Washington, D. C., at the time the brief was filed, and Robert Kopp, Atty., Dept, of Justice, Washington, D. C., were on the brief, for appellee. Susan M. Chalker and Leonard Schaitman, Attys., Dept, of Justice, Washington, D. C., also entered appearances for appellee.
Before ROBINSON, Chief Judge, MIKVA, Circuit Judge, and JUNE L. GREEN, District Judge.
Of the United States District Court for the District of Columbia, sitting by designation pursuant to 28 U.S.C. § 292(a) (1976).
Opinion for the Court filed by Chief Judge SPOTTSWOOD W. ROBINSON, III.
SPOTTSWOOD W. ROBINSON, III, Chief Judge:
This appeal features a claim that the Voice of America (VOA), the broadcasting arm of the International Communication Agency, discriminates against an employee because of his national origin. Perceiving no. issue of fact material to the litigation, the District Court held that the evidence proffered by the employee did not make out a prima facie case, and entered summary judgment for VOA. We conclude that even if a prima facie case was established, it was effectively rebutted by an uncontested evidentiary tender by appellees demonstrating that the differentials protested are job-related, and thus no predicate for litigation.
I. BACKGROUND
Title VII of the Civil Rights Act of 1964, as extended by the Equal Employment Opportunity Act of 1972, prohibits federal employment practices having the purpose or effect of discriminating on the basis of race, color, religion, sex or national origin. In 1974, Ilya V. Talev, a Bulgarian-born American citizen, was hired by the Bulgarian Section of VOA’s European Division to prepare and broadcast radio programs in his native tongue. Talev initially had indicated that he was amenable to a foreign service position at the grade equivalent of GS-7, and a minimum salary of $12,000. Eventually, however, he was offered, and accepted, employment at a grade equal to GS — 9 and salaried at $13,193. Nevertheless, Talev quickly grew dissatisfied with his grade level and remuneration. After unsuccessfully seeking gratification administratively, he sued in District Court on behalf of himself and others purportedly similarly situated, alleging discrimination on account of national origin.
In essence, Talev’s complaint charged that employees in VOA’s Worldwide English Division, who primarily are American-born, are given preferential treatment in comparison with employees in VOA’s European Division, who largely are foreign-born. In an attempted support of this, claim, Talev pointed to various facially neutral VOA employment policies and practices assertedly operating to the disadvantage of foreign-born employees. Talev lost on a bid for class certification, but prevailed substantially on his motion to compel discovery of statistical data on VOA employees. With these data, Talev proffered extensive statistical evidence, and both sides moved for summary judgment. The District Court, concluding that Talev had not met his burden of establishing a prima facie case of employment discrimination, entered judgment in favor of appellees, and sua sponte taxed costs against Talev.
In the main, Talev assails the District Court’s ruling that his evidentiary tender did not make out a prima facie case. In addition, he asserts that the court erred in denying his motion for class certification, in restricting discovery, and in assessing costs against him. Appellees, in turn, argue that Talev did not present sufficient evidence to generate a claim under Title VII or, if he did, that higher grades and salaries existent in the Worldwide English Division are explained by heavier responsibilities shouldered by employees therein, as well as by superior qualifications they bring to their tasks. Appellees resist all of Ta-lev’s other contentions except the last, which they say is moot in light of their decision not to seek costs. In view of that position, we vacate the award of costs, and proceed to consider the remainder of Ta-lev’s challenges.
II. THE GOVERNING PRINCIPLES
The shifting burdens of proof in Title VII “disparate impact” litigation are well entrenched. The complainant has the initial burden of constructing a prima facie case by showing that facially neutral employment standards operate in a proscribed discriminatory fashion. The burden then falls upon the employer to demonstrate that these standards have “a manifest relationship to the employment in question.” The complainant may then show that other policies or practices would “serve the employer’s legitimate interest in ‘efficient and trustworthy workmanship’ ” without a discriminatory impact.
This analytical approach is to be taken whether the adjudicative context is summary judgment or trial. But since summary judgment is appropriate only where “there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law,” the court must ascertain at each successive stage whether any fact essential to the claim or defense is disputed and, if not, whether on the basis of the proffered evidence a summary disposition is legally demandable. Our task on this appeal is to ascertain whether the District Court was obedient to these tenets.
III. TALEV’S SHOWING
Talev asserts that he presented a prima facie case of national-origin discrimination when he submitted statistical evidence disclosing that employees in VOA’s Worldwide English Division fare better in terms of grade, salary and promotion than employees in the European Division. This contention rests on a combination of several items. More journeyman positions were authorized for the Worldwide English Division than for the European Division. European Division employees were primarily foreign-born, and Worldwide English Division employees mainly were American-born. Foreign-born employees had lower personal grades and salaries on the average than American-born employees. More foreign-born than American-born employees had personal grades below the grade of the position to which they were assigned, and more American-born than foreign-born employees had personal grades above the grade of their assigned position. More American-born than foreign-born employees had personal grades established on the basis of their grasp of American foreign policy and of the cultural situation in one or more foreign countries, rather than on the basis of their journalistic training and experience.
Talev appears to attribute these disparities mainly to four alleged practices at VO A: (1) appointing employees to positions without regard to their personal grades; (2) maintaining separate promotional categories for English-language and foreign-language broadcasters; (3) setting the grades of new employees on the basis of positions available rather than the employees’ qualifications; and (4) hiring at junior levels and promoting from within.
We need not ponder the question whether the District Court was correct in its holding that this evidentiary tender was insufficient to attest a prima facie case of employment discrimination under Title VII. VO A offered evidence tending strongly to show that all of the variances to which Talev points are the result of substantial differences in the qualifications and job responsibilities of employees in the two divisions. Not only was VOA’s submission overwhelming, but it also was undisputed by countervailing evidence. That sealed Talev’s fate on the cross-motions for summary judgment.
IV. APPELLEES’ SHOWING
A. The General Rebuttal
The Worldwide English Division, as its title implies, broadcasts to countries around the globe. It does so for many more hours each day than foreign-language programs of the European Division are aired. Moreover, the Worldwide English staff must be able to perform a variety of tasks not required of foreign-language broadcasters, among which are the development of original broadcast material including features, roundtable discussions and documentaries. Worldwide English employees must also be able to function day-to-day as correspondents on special assignments throughout the Nation and the world. On the other hand, broadcasters in the European Division, limited as they are by the amount of air time available, usually present relatively brief news programs. Even when time permits, they generally broadcast only translated adaptations of material developed by the Worldwide English Division. Resultantly, employees in the European Division are called upon to handle far fewer and less demanding assignments than those in the Worldwide English Division.
Employees in the two divisions also vary substantially in the qualifications they bring to the job. Professional broadcasters and graduates of journalism schools provide a diverse and talented pool from which Worldwide English broadcasters are hired, but practical and political realities severely curtail VOA’s ability to lure equally qualified foreign-language broadcasters. Not only are there few foreign-language radio stations in the United States from which experienced foreign-language broadcasters can be sought, but also most professional broadcasters in Eastern European countries are unavailable for VOA recruitment. As a consequence, foreign-language broadcasters at VOA normally have had substantially less professional journalistic experience than VOA’s Worldwide English broadcasters.
Comparisons of grades, salaries and promotional opportunities within the two divisions that do not take these differences in qualifications and responsibilities into account are plainly incapable of carrying the day for Talev, absent additional evidence that other means are available to insure satisfaction of VOA’s legitimate interest in “efficient and trustworthy workmanship” without occasioning such differentials. Talev’s failure to proffer such evidence compels the conclusion that appel-lees have met their burden of demonstrating that even if the variances complained of sufficed to make out a prima facie case of national-origin employment discrimination, they were job-related and thus not violative of Title VII.
B. The Challenged Practices
In supplementation of their general rebuttal, appellees proffered further evidence — likewise uncontested — portending a showing that the practices which Talev assails either are justified by business necessity or were not a cause of any of the differentials at issue. We consider, in turn, each of Talev’s contentions in light of this evi-dentiary material.
1. Appointment Without Regard to Personal Grade
Talev argues that VOA’s facially neutral policy of appointing employees to positions without regard to their personal grades accords those in the Worldwide English Division greater compensation than those in the European Division doing the same work. This so-called “rank in person” system— which statutorily governs the appointment and assignment of all Foreign Service employees, and thus those at VOA — permits the agency to assign and transfer employees from post to post as its organizational interests may require. The rank in person system differs from the “rank in position” system of the civil service, under which the employee and his position are assigned the same grade. Under the rank in person system, grades are assigned to positions and employees separately, with the grade of the position assessed at its maximum performance level, and the grade of the employee established on the basis of his or her personal qualifications. The result is that Foreign Service employees frequently occupy positions having higher grades than their personal grades. Similarly, it often happens that two employees having substantially different qualifications or experience may be assigned to positions bearing the same rank. That they receive incommensurate salaries, though assigned to positions of equivalent grades, is amply explained by the differences in qualifications and responsibilities of employees in the two divisions.
2. Promotional Disparities
Talev next urges that VGA’s maintenance of separate promotional categories for English-language and foreign-language broadcasters renders the advancement opportunities for foreign-born employees inferior. He insists that the sole distinction underlying these groupings is national origin, and cites the greater number of journeyman positions and journeyman-level employees in the Worldwide English Division than in the European Division as proof of discriminatory effect.
This contention, too, however, founders when examined in light of appellees’ proffered evidence. First, as we have said, variation in number of journeyman employees and authorized journeyman positions is adequately explained by both the “rank in person” system and the differences in professional training of, and types of work performed by, employees in the two divisions. Additionally, while as a general rule VOA separates the two divisions for purposes of employee advancement, it avowedly does so to enable foreign-language broadcasters to vie for available positions in the European Division without having to compete with the generally more journalistically experienced English-language broadcasters. And, while language barriers make transfers from one division to the other difficult, such transfers do occur, and more frequently from the European Division to the Worldwide English Division than vice versa.
3. Grade Establishment
Talev’s last contention is that VOA sets the grade of new employees in terms of the position available, rather than on the basis of the employee’s age, qualifications and experience as required by the Foreign Service Act, and that this practice operates to discriminate against foreign-born employees. In support of this claim, Talev submitted statistical evidence showing that while half of the English-language broadcasters were graded congruently with positions requiring knowledge of economic, cultural and political conditions in foreign areas, less than 20 percent of the foreign-language broadcasters were so treated. Grading of foreign-language broadcasters, Talev urges, emphasizes qualifications and characteristics more common among American-born than foreign-born applicants, with the result that the latter suffer in the process. To fully grasp Talev’s thesis, we must review briefly the job-classification and the employee-qualification policies in operation at VOA at the time he was hired.
Prior to 1971, the post for which Talev was engaged — that of Writer (Radio) — was considered a civil service job, and thus was ranked according to civil service classification standards. The criteria applicable to Talev’s job were those of the GS — 1082 occupational classification series, which governed writing and editing appointments generally. These standards were drawn broadly and referred to positions, not the qualifications of employees filling them Under the civil service system, applicants for vacant positions were selected for their ability to perform the duties thereof, a determination abiding by the civil service employee qualification standards applicable to GS — 1082 jobs. Because those jobs were classified as writing and editing functions, the pertinent standards stressed journalistic training at the expense of academic credentials.
In 1971, all VOA positions came within the purview of the Foreign Service personnel system set forth in the Foreign Service Act. Consequently, when in 1974 Talev came aboard, his entrance grade had to be set in accordance with his “age, qualifications and experience.” The changeover, however, from the civil service to the foreign service system was still fairly recent, and no foreign service employee-qualification standards for Talev’s post had been established. VOA therefore relied upon the old civil service employee-qualification standards in establishing Talev’s grade, and weighed his relative lack of journalistic experience more heavily than his relatively extensive academic training.
Talev complains that this methodology was inappropriate, and that VOA should have fixed his grade by reference to standards applicable to the GS-1085, rather than the GS-1082, occupational classification series, which arguably would have placed more emphasis on his academic background. But there never were any civil service employee-qualification standards for the GS-1085 series and, moreover, the GS-1085 job-classification series was reserved for policymaking and supervisory positions above the journeyman level. Talev thus not only confuses- job-classification standards with employee-qualification standards, but also insists that his grade should have been fixed by resort to nonexistent standards for a position he never held. The evidence he relies upon shows nothing more than that a larger number of policy-making and- supervisory positions are authorized for the Worldwide English Division than for the European Division, a fact we already have accepted as job-related.
V. CONCLUSION
Talev’s statistical tender, if unexplained, may have sufficed to raise an inference — as the greater likelihood — that the VOA policies complained of affect foreign-born broadcasters more harshly than American-born broadcasters, and do so on account of national origin. But VOA’s uncontested proffer of proof revealed that its practices are designed to serve its governmental mission, or that they did not contribute to the results Talev challenges. Talev did not come forward with any evidence indicating that those effects could be avoided by adoption of alternative methods that would meet VOA’s operational requirements.
We affirm, then, the District Court’s grant of summary judgment in favor of appellees without reaching the issue of class certification. As earlier stated, however, we vacate the District Court’s order taxing costs to Talev.
So ordered.
. The International Communication Agency is the successor to the United States Information Agency, the parent agency of VOA when suit was filed.
. Talev v. Reinhardt, Civ. No. 76-1301 (D.D.C. Dec. 13, 1978) (order).
. The appellees are John E. Reinhardt, Director of the International Communication Agency, and Kenneth R. Giddens, Assistant Director of VOA. Originally named as defendants were Giddens and James Keogh, Reinhardt’s predecessor. In due course, pursuant to Fed.R.Civ.P. 25(d), the District Court substituted Reinhardt for Keogh. Id. (Jan. 19, 1978) (order).
. Pub.L.No.88-352, tit. VII, 78 Stat. 253 (1964), as amended, 42 U.S.C. §§ 2000e to 2000e-17 (1976) [hereinafter cited as codified].
. Pub.L.No.92-261, 86 Stat. 103 (1972), codified, as amended, variously at 42 U.S.C. §§ 2000e to 2000e-17 (1976) [hereinafter cited as codified],
. 42 U.S.C. § 2000e-16 (1976).
. VOA has seven language divisions: Worldwide English, European, Latin American, U.S. S.R., African, East Asian and Pacific, and Near Eastern and South Asian. The European Division, which broadcasts primarily to Eastern Europe, has 13 separate language services, including the Bulgarian Service to which Talev is assigned. See VOA Organizational Chart, Certified Index to Record (C.I.R.) Doc. 36 (Exhibit (Ex.) F).
. Transcript of Administrative Hearing, vol. 3, at 16, C.I.R. Doc. 36 (Ex. A-3) [hereinafter cited as Tr.].
. For a decade, all VOA personnel have been within the foreign service personnel system, now set forth in the Foreign Service Act of 1980, Pub.L.No.96 — 465, 94 Stat. 2071 (1980), 22 U.S.C.A. §§ 3901 et seq. (West Supp.1981). The 1980 Act supersedes the Foreign Service Act of 1946, Pub.L.No.79-724, 60 Stat. 999 (1946), as amended, 22 U.S.C. §§ 801 et seq. (1976), which was in vogue when Talev came to VOA in 1974. See American Fed’n of Gov’t Employees v. Rogers, Civ. No. 71-3141 (D.D.C. June 12, 1973) at 3 n.2 (memorandum opinion). We need not concern ourselves with differences between the 1946 and 1980 statutory schemes. Talev grounds his complaint exclusively on Title VII and the Fifth Amendment, see note 65 infra, and in any event the 1980 Act provides that ‘‘[a]ny grievances, claims, or appeals which were filed or made under [authority of the Foreign Service Act of 1946] and are pending resolution on the effective date of this Act shall continue to be governed by the provisions repealed, modified, or affected by this Act.” 22 U.S.C.A. § 4172 (West Supp.1981). References herein will be made, then, to the repealed rather than the current legislation.
. United States Information Agency, Report of Investigation, Equal Employment Opportunity Complaint of Ilya V. Talev, C.I.R. Doc. 36 (Ex. A-l, 37) [hereinafter cited as EEO Report].
. Tr., vol. 1, at 27; EEO Report, supra note 10, at 34.
. EEO Report, supra note 10, at 130. Talev said that his initial decision to accept a $12,000 salary was based on false information; that the grade he eventually received was that of secretaries, not persons of his education and teaching experience; and that personnel editing his work were reducing the language he used “to the substandard level of their own.” Id. at 132.
. Talev’s administrative complaint originally alleged discrimination both on religious and national-origin grounds, but subsequently was amended to omit the charge of religious bias. See id. at 2. Following an investigation and a hearing before an equal employment opportunity complaints examiner, see Findings and Recommended Decision In the Discrimination Complaint of Ilya v. Talev, C.I.R. Doc. 36 (Ex. A-4) [hereinafter cited as Administrative Decision], the Civil Service Commission concluded that the record failed to support Talev’s discrimination claim. Id. at 5.
. Talev’s motion for class certification subsequently was denied by the District Court. See text infra at note 19.
. Complaint 2, Appendix (App.) 6-36. Also named as plaintiffs in the action were three others. Because none of them had been parties to the administrative proceedings, the District Court dismissed two, U Kyaw Aye and U Kyin Oo. Talev v. Keogh, No. 76-1301 (D.D.C. Nov. 11, 1976) (order). The court later dismissed the third, Josephina Martinez, on the ground that she stated only a claim of sex discrimination. Id. (Feb. 15, 1977) (order).
. See note 7 supra.
. Fluency in the language utilized in a VOA division’s broadcast is a condition to employment as a broadcaster therein. It thus is not surprising that foreign-language broadcasters likely are natives of the countries to which they broadcast, and that most Worldwide English broadcasters are native-born Americans. Tr., vol. 4, at 37.
. See Complaint 15(b), (e), (f), (g), (i), App. 26-29.
. Talev v. Keogh, supra note 15, (Nov. 11, 1976), (order), App. 89.
. Id. (Apr. 20, 1977) (order), App. 128. A protective provision barred discovery of information revealing the race or sex of VOA employees or the identities of those foreign-bom. Id.
. Talev apparently used the data to supplement a statistical presentation he had made at the administrative level. See Administrative Decision, supra note 13, App. 260.
. See Statement of Points and Authorities in Opposition to Defendant’s (sic) Motion for Summary Judgment and in Support of Plaintiffs Motion for Summary Judgment 7-10, App. 170-173.
. Talev v. Reinhardt, supra note 2, (Dec. 13, 1978) (order), App. 253.
. Id.
. Brief for Appellant at 44-56.
. Id. at 26-44.
. Id. at 56-60.
. Id. at 60-62.
. Brief for Appellees at 29 — 48.
. Id. at 53 n.28.
. See Griggs v. Duke Power Co., 401 U.S. 424, 432, 91 S.Ct. 849, 854, 28 L.Ed.2d 158, 165 (1971).
. E. g., Dothard v. Rawlinson, 433 U.S. 321, 329, 97 S.Ct. 2720, 2726-2727, 53 L.Ed.2d 786, 797 (1977); Griggs v. Duke Power Co., supra note 31, 401 U.S. at 432, 91 S.Ct. at 854, 28 L.Ed.2d at 165. See also Furnco Constr. Corp. v. Waters, 438 U.S. 567, 575-576, 98 S.Ct. 2943, 2949, 57 L.Ed.2d 957, 966 (1978) (disparate treatment); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668, 677 (1973) (same).
. Dothard v. Rawlinson, supra note 32, 433 U.S. at 329, 97 S.Ct. at 2726-2727, 53 L.Ed.2d at 797; Griggs v. Duke Power Co., supra note 31, 401 U.S. at 432, 91 S.Ct. at 854, 28 L.Ed.2d at 165. See also McDonnell Douglas Corp. v. Green, supra note 32, 411 U.S. at 802, 93 S.Ct. at 1824, 36 L.Ed.2d at 677.
. Dothard v. Rawlinson, supra note 32, 433 U.S. at 329, 97 S.Ct. at 2726-2727, 53 L.Ed.2d at 979, quoting Albemarle Paper Co. v. Moody, 422 U.S. 405, 425, 95 S.Ct. 2362, 2375, 45 L.Ed.2d 280, 301 (1975), in turn quoting McDonnell Douglas Corp. v. Green, supra note 32, 411 U.S. at 801, 93 S.Ct. at 1823, 36 L.Ed.2d at 677. Rebuttal in a disparate impact case by a showing of alternative nondiscriminatory practices is equivalent to demonstration in a disparate-treatment case that the employer’s purported explanation is merely a pretext, and thus not actually a justification for the discrimination charged. Compare McDonnell Douglas Corp. v. Green, supra note 32, 411 U.S. at 804, 93 S.Ct. at 1825, 36 L.Ed.2d at 679.
. See the discussion in Abraham v. Graphic Arts Int’l Union, 212 U.S.App.D.C. 412, 415, 416 & n.29, 660 F.2d 811, 814-815 & n.29 (1981).
. Fed.R.Civ.P. 56(c).
. See text supra at notes 32-34.
. See Abraham v. Graphic Arts Int’l Union, supra note 35, 212 U.S.App.D.C. at 416 & n.29, 660 F.2d at 814-815 & n.29.
. These data reflect conditions at VOA as of March, 1975. Brief for Appellant at 49.
. Id.
. The Worldwide English Division had five times the number of positions above the journeyman level, and almost three times the number of employees in grades above the journeyman level, existing in the European Division; more than twice as many employees in the European Division had grades below the journeyman level. Id. at 54.
. Specifically, Talev’s statistics revealed that the average grade of employees in the European Division was .8 lower than that for employees in the Worldwide English Division, and that the average salary of European Division employees was $4,123 lower than that of Worldwide English Division employees. Id. at 54.
. Twice as many Worldwide English broadcasters had grades higher than those of the positions to which they were assigned; twice as many foreign-language broadcasters had grades below those of their assigned positions. Id. at 52.
. Twice as many Worldwide English broadcasters were filling such positions. Id. at 49.
. Despite Talev’s apparent attempt to show a causal relationship between the four employment practices complained of and the four discriminatory effects alleged, no precise conclusion emerges. See Part IV infra.
. Brief for Appellant at 51-53.
. Id. at 53-56.
. Id. at 47-49.
. Id. at 49-50.
. Appellees argue that Talev actually complains of discrimination on the basis of alienage rather than national origin, and for that reason he thus fails to state a claim under Title VII. Brief for Appellees at 44-47. We do not reach this contention, for we find that even if Talev established a prima facie case, appellees effectively rebutted it. See Parts IV and V infra.
. That evidence is summarized in Part IV infra.
. See text supra at notes 32-34.
. Tr., vol. 2, at 99.
. Worldwide English Division broadcasts extend over more than 22 hours each day. See Tr., vol. 4, at 4. None of the language services in the European Division exceed 17.5 hours of broadcast time per week; the Bulgarian Service broadcasts only 10.5 hours weekly, an average of only 1.5 hours per day. Tr., vol. 2, at 101; Brief for Appellees at 16.
. Tr., vol. 2, at 100-102.
. Tr., vol. 4, at 16. The Worldwide English Division thus operates much like our nationwide commercial radio networks, providing comparable coverage of such major news events as space flights, elections and national conventions. Tr., vol. 4, at 18.
. Tr., vol. 2, at 102-104. See note 54 supra.
. See Tr., vol. 2, at 102.
. Tr., vol. 2, at 102; vol. 4, at 14-15.»
. Tr., vol. 1, at 32; vol. 2, at 94. Many applicants for broadcast positions in the Worldwide English Division have 20 or more years of professional broadcasting experience. Tr., vol. 4, at 12. Five or six years of hard experience is considered a minimum qualification. Tr., vol. 4, at 11-12.
. See Tr., vol. 2, at 95-96.
. One VOA official explained the situation this way:
For some languages VOA can hire directly from overseas. We will hire people who are broadcasters in their own country who have experience. But where we are talking about Eastern Europe and the Soviet Union, there is no way we can hire directly. Say from Bulgaria, there is no way the Bulgarian government is going to allow someone out to broadcast for VOA. And obviously, if they were going to let somebody out directly, we would be very leary of security problems.
Tr., vol. 2, at 96.
. Tr., vol. 2, at 96. The European Division does, however, employ several highly qualified broadcasters whose professional experience is comparable to that of the most experienced Worldwide English Division broadcasters. See Tr., vol. 4, at 32-33.
. Talev’s statistical expert conceded as much, acknowledging that the lack of parity in training and duties between employees in the two groups might well explain the disparities of which Talev complains. Tr., vol. 2, at 17-18, 20.
. Talev asserts that this practice additionally violates the equal-pay provisions of the Federal Pay Comparability Act of 1970, Pub.L.No.89-554, 80 Stat. 458 (1966), as amended, 5 U.S.C. § 5301 (1976 & Supp. IV). We do not consider this claim, for his presentation to the District Court was grounded exclusively on Title VII and the Fifth Amendment. Complaint ¶¶ 1, 3, App. 6-8. See, e. g., Miller v. Avirom, 127 U.S.App.D.C. 367, 369-370, 384 F.2d 319, 321-322 (1967). Although Talev did advert to the Pay Comparability Act in his complaint, see Complaint U 15, App. 24, we do not read this reference as a separate claim for relief.
. See note 9 supra.
. 22 U.S.C. § 923 (1976) (repealed 1980). See note 9 supra. We note that the rank in person system is retained in § 923’s successor provision. See 22 U.S.C.A. § 3982 (West Supp. 1981).
. Tr., vol. 3, at 85-88.
. Tr., vol. 3, at 85-88.
. Tr., vol. 3, at 86. Assignments to positions with higher grades apparently are much sought after, for successful performance in these positions can enhance an employee’s chances for promotion. See Brief for Appellees at 7.
. See Tr., vol. 3, at 86.
. See text supra at notes 53-64.
. Brief for Appellant at 53-56.
. Id. at 53.
. Id. at 54.
. See text supra at note 69.
. See text supra at notes 53-64.
. Tr., vol. 3, at 96.
. Talev himself is a good example of this. By the time he brought this litigation, he already had received two promotions in the Bulgarian Section even though his broadcasting qualifications were measurably lower than those of most Worldwide English Division broadcasters. See Tr., vol. 3, at 96-97; Brief for Appellees at 13.
. Tr., vol. 1, at 80-81; vol. 2, at 58.
. Tr., vol.
Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)?
A. Trial (either jury or bench trial)
B. Injunction or denial of injunction or stay of injunction
C. Summary judgment or denial of summary judgment
D. Guilty plea or denial of motion to withdraw plea
E. Dismissal (include dismissal of petition for habeas corpus)
F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict)
G. Appeal of post settlement orders
H. Not a final judgment: interlocutory appeal
I. Not a final judgment: mandamus
J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment
K. Does not fit any of the above categories, but opinion mentions a "trial judge"
L. Not applicable (e.g., decision below was by a federal administrative agency, tax court)
Answer:
|
songer_usc1
|
15
|
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.
Thomas A. SARTAIN, Petitioner, v. SECURITIES AND EXCHANGE COMMISSION, Respondent.
No. 76-2935.
United States Court of Appeals, Ninth Circuit.
May 8, 1979.
Robert D. Carrow (argued), Carrow & Forest, Novato, Cal., for petitioner.
Irving H. Picard (argued), Securities & Exchange Com’n, Washington, D. C., for respondent.
Before DUNIWAY, CHOY and KENNEDY, Circuit Judges.
DUNIWAY, Circuit Judge:
Thomas A. Sartain petitions this court, pursuant to Section 25(a)(1) of the Securities Exchange Act of 1934, 15 U.S.C. § 78y(a)(l), to review an order of the Securities and Exchange Commission.
We affirm.
I. The Facts.
Sartain was involved with three entities: a holding company, Capital Planning Associates, Inc. (Planning Associates), a real estate investment trust, National Real Estate Fund (Real Estate), which was founded by Planning Associates, and a broker-dealer, Capital Planning Securities Co., Inc. (Securities), a wholly owned subsidiary of Planning Associates, formed to underwrite the sale of Real Estate’s securities. Sartain served as President of Planning Associates, as one of its three directors, and, along with two other men, owned 90% of its stock. He was one of Real Estate's three managing trustees, and in that capacity he took charge of Real Estate’s day to day operations. He sold Real Estate’s securities as a registered representative of Securities.
The Commission found Sartain responsible for three abuses in connection with Real Estate’s securities, each of which violates a rule of the National Association of Securities Dealers (NASD). NASD is a registered association under § 15A(a) of the Securities Exchange Act, 15 U.S.C. § 78o-3(a). Its rules have been determined by the Commission to be “designed to prevent fraudulent and manipulative acts and practices, to promote just and equitable principles of trade, . and, in general, to protect investors and the public interest . . . .” § 15A(b)6, 15 U.S.C. § 78o-3(b)(6). The Act also requires NASD to adopt rules which “ . . . provide that its members and persons associated with its members shall be appropriately disciplined, by expulsion, suspension, fine, censure, or being suspended or barred from being associated with all members, or any other fitting penalty, for any violation of its rules.” § 15A(b)(9), 15 U.S.C. § 78o-3(b)(9), now § 15A(b)(7), 15 U.S.C. § 78o-3(b)(7). The Commission has supervisory authority over disciplinary actions of NASD. § 19(e), 15 U.S.C. § 78s(e). The violations found are these:
First, when an issuer of a security and the broker selling that security are under common control, Section 13 of the NASD Rules of Fair Practice requires the broker to disclose the common control to its customers. Here, investors buying Real Estate shares through Securities were not told that Real Estate and Securities were under the common control of Planning Associates. Armstrong, Jones & Co. v. Securities and Exchange Commission, 6 Cir., 1970, 421 F.2d 359, 363.
Second, in talking with the public, Sar-tain emphasized that Real Estate shares were not a liquid investment, that Real Estate could not redeem its shares for cash, and that there was no organized market trading in its shares. Thus, when investors purchased Real Estate shares through Securities they would naturally assume that they were buying newly issued shares and that the money they were investing would go to Real Estate, in turn increasing the amount of its capital. In fact, Securities sold many of its customers shares belonging to earlier investors in Real Estate who had decided to get their money out. While such “cross trading” provided a service to the earlier investors, it became improper when Sartain and other of Securities’ representatives failed to tell the later investors that Securities was selling them cross traded shares.
Still worse, a significant proportion of the cross traded shares belonged to Sartain himself and to other Planning Associates and Real Estate insiders. Prudent investors would certainly have been interested to learn that these insiders were liquidating significant portions of their own holdings. The Commission found that the failure to disclose these material facts with regard to the cross trading violated Section 1 of the NASD Rules of Fair Practice which provides that “A member, in the conduct of his business, shall observe high standards of commercial honor and just and equitable principles of trade.” See CCH NASD Manual ¶2151.
Third, Section 12 of NASD’s Rules of Fair Practice provides that a broker-dealer member such as Securities,
at or before the completion of each transaction with a customer shall give or send to such customer written notification disclosing (1) whether such member is acting as a broker for such customer, as a dealer for his own account, as a broker for some other person, or as a broker for both such customer and some other person. . CCH NASD Manual ¶2162.
In other words, investors are entitled to know when their broker is' dealing with them rather than for them. Here, Sartain and Securities failed to provide the Section 12 confirmations.
II. The Administrative Proceedings.
On May 16,1974, an NASD District Business Conduct Committee filed a complaint against Sartain and others involved in Securities’ sales of Real Estate securities. It alleged the three violations sustained by the Commission. It also charged that Sartain’s three violations were manipulative, deceptive or otherwise fraudulent devices or contrivance in violation of the NASD’s intentional fraud provision, Section 18 (CCH NASD Manual ¶2168), and that Sartain had improperly arranged a short-term purchase and sale in order to secure a dividend for a favored customer.
After a hearing, NASD’s Committee found that Sartain had violated the Rules of Fair Practice as charged. It censured Sartain and barred him from ever again having an association with an NASD member. The Committee explained that in fixing the penalty, it had “taken note of the dominant role of Thomas A. Sartain with regard to the activities” which it described as having “had the effect of perpetrating a fraud and deceit on the purchasers of this issue of securities.” (R. 351.)
Sartain appealed to the Board of Governors of the NASD which gave him an opportunity to present new evidence at a second hearing. On April 14, 1975, the Board of Governors upheld all of the Conduct Committee’s findings except its finding of intentional fraud. “Because of the serious nature of the remaining violations,” the Board of Governors affirmed the penalties. (R. 514.)
Sartain then appealed to the Commission pursuant to what was then Section 15A(g) of the Securities Exchange Act, 15 U.S.C. § 78o -3(g), now § 19(d), 15 U.S.C. § 78s(d). After briefs, oral argument, and what it characterized as “a careful review of the record,” the Commission issued its decision on July 7, 1976. It upheld all of the Board of Governors’ findings except its finding of a violation with respect to securing a dividend for a favored customer, and also upheld the NASD’s sanctions.
III. Substantial Evidence Supports the Commission’s Findings.
The Commission held Sartain personally responsible for the violations on two grounds, that he either (1) directed Securities’ activities giving rise to violations or (2) in light of his actual knowledge, access to information, and authority over Securities, he failed to direct it to stop engaging in the improper practices.
On appeal, Sartain raises three objections to the Commission’s findings. He asserts that the evidence does not support the Commission’s finding that Real Estate and Securities were in fact under common control. He asserts that the evidence does not support the Commission’s finding that he directed or could have directed Securities so that it is fair to hold him personally responsible for the three violations. He asserts that in making the just challenged findings, the Commission erred by applying a preponderance of the evidence standard instead of requiring clear and convincing proof.
A. The Burden of Proof.
In arguing that the Commission should have required clear and convincing proof, Sartain relies upon Collins Securities Corporation v. Securities and Exchange Commission, 1977, 183 U.S.App.D.C. 301, 562 F.2d 820. Collins held that in a fraud case in which the Commission permanently barred a broker-dealer from the industry almost exclusively on the basis of inferences drawn from the evidence, rather than on direct evidence, the Commission should have used the clear and convincing standard. 562 F.2d at 822-26.
Here, too, the Commission has effectively barred Sartain from the industry. But even if we assume (we do not decide) that the severity of Sartain’s penalty by itself required the Commission to demand clear and convincing proof, we cannot grant Sartain relief because he failed to raise the issue in a timely fashion. Section 25(c)(1) of the Act, 15 U.S.C. § 78y(c)(1), provides that
no objection to an order or rule of the Commission for which review is sought under this section, may be considered by the court unless it was urged before the Commission or there was reasonable ground for failure to do so.
Here, Sartain did not object to the Commission’s use of the preponderance of the evidence standard while the case was before the Commission.
There is some merit in Sartain’s contention that there was reasonable ground for his failure to raise the issue in that he could not have known for sure which burden the Commission would impose before reading the Commission’s decision. However, under the Commission’s Rules of Practice, a party in Sartain’s position can urge his objection before the Commission by filing a timely petition for rehearing. See 17 CFR § 201.-21(e). We need not decide whether 15 U.S.C. § 78y(c)(1) requires one in Sartain’s position to demonstrate a reasonable ground for failing to petition the Commission for rehearing, because in this case Sar-tain did petition the Commission for a rehearing but did not raise the issue of the burden of proof. He provides no explanation for his failure to raise the issue in his petition for rehearing, and so the contention is not properly before us. Pennaluna & Company v. Securities and Exchange Commission, 9 Cir., 1969, 410 F.2d 861, 870; Gearhart & Otis, Inc. v. Securities and Exchange Commission, 1965, 121 U.S.App.D.C. 186, 348 F.2d 798, 801; Lile v. Securities and Exchange Commission, 9 Cir., 1963, 324 F.2d 772, 773.
B. The Scope of Review.
Under 15 U.S.C. § 78y(a)(4) we cannot overturn the Commission’s findings of fact unless convinced that they are not supported by substantial evidence. Pierce v. Securities and Exchange Commission, 9 Cir,, 1956, 239 F.2d 160, 162.
C. Common Control.
Substantial evidence supports the Commission’s finding that Securities and Real Estate were under the common control of Planning Associates within the meaning of NASD Section 13. That Section does not itself define control. In light of its prophylactic purposes, we approve the Commission’s adoption of the broad definitions of “control” set forth in Armstrong, Jones & Co. v. Securities and Exchange Commission, 6 Cir., 1970, 421 F.2d 359, 362.
Armstrong involved an expulsion from the NASD based in part upon violations of Securities and Exchange Act Rule 15cl-5 (see 17 CFR § 240.15cl-5) promulgated pursuant to Section 15(c)(1) of the Securities Exchange Act, 15 U.S.C. § 78o (c)(1), a disclosure provision almost identical to NASD Section 13. Armstrong adopted two definitions developed by the Commission for use in analogous situations. It first cited Secu-. rities and Exchange Act Rule 12(b)-2(f), 17 CFR § 240.12b-2(f) concerning registration statement disclosures which states that
The term “control” (including the terms “controlling,” “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a person, whether through the ownership of voting securities, by contract, or otherwise.
It then cited J. P. Morgan & Co., 1941, 10 S.E.C. 119, 136, for the proposition that “common control exists whenever both corporations are controlled by individuals united by several factors tending to create and maintain community of interest among them.” 421 F.2d at 362.
In Pennaluna & Company v. Securities and Exchange Commission, supra, we employed a similarly practical approach in determining whether one Magnuson was in control of a corporation. Eschewing “artificial tests” we held that “it is not necessary that one be an officer, director, manager, or even shareholder to be a controlling person. Further, control may exist although not continuously and actively exercised.” 410 F.2d at 866.
Under these practical definitions of control, overwhelming evidence supports the Commission’s finding of common control. As we have seen, Sartain had important roles in the activities of each of the three entities. In addition, because Planning Associates owned all of the shares of Securities, Planning Associates by any definition had control of Securities. Planning Associates had organized both Securities and Real Estate. Planning Associates’ attorney and its accountant joined Sartain as the other two trustees of Real Estate. Like Sartain, the President of Securities was a director and principal shareholder of Planning Associates. Planning Associates acted as Real Estate’s real estate broker and, along with wholly owned subsidiaries provided Real Estate with financial support, investment advice, and property management services. While some evidence supports Sartain’s contention that the relationships among the entities were purely contractual, under the statutory scheme it is not our role to reweigh that evidence.
D. Sartain’s Personal Responsibility.
The NASD complaint charged that Securities, “acting in its capacity as underwriter for [Real Estate] and directed in such capacity by respondents James D. Lang, Jr., Michael G. Tanzer, and Thomas A. Sartain engaged in a course of conduct” which included the three violations ultimately sustained by the Commission. Sartain correctly argues that under those pleadings the Commission had to show that Sartain shared in the responsibility for the overall pattern of Securities abuses, and not just that some of the transactions that Sartain himself executed as a registered representative violated the NASD rules. Sartain argues that the Commission failed to make any express finding that Sartain did have any kind of directional control over Securities, and that even if the Commission had made such a finding, it would not be supported by substantial evidence.
The Commission’s own Rules of Practice provide that initial decisions “shall include: Findings and conclusions, with the reasons or bases therefor, upon all the material issues of fact, law or discretion presented on the record. . . .”17 CFR § 201.-16(a). While that provision may not be technically applicable to this proceeding in that the Commission here directly reviewed a decision of the NASD Board of Governors rather than an initial decision by a Commission hearing examiner, it is important that the Commission make its necessary findings explicit. Such written findings help the Commission by assuring that it in fact considers all of the subsidiary questions necessary to a decision, and help the appellate courts by providing insights into the Commission’s bases for its decisions. •
We are concerned that the Commission’s decision in this case did not explicitly state that Sartain shared responsibility for the overall "pattern of Securities misconduct. Nevertheless, we decline to reverse on this ground because we find this premise implicit in the written decisions of the Commission and the NASD Board of Governors. Both rely upon the District Conduct Committee’s statement that in its assessment of penalty that Committee had “taken note of the dominant role of Thomas A. Sartain with regard to the activities [of Securities] described in this cause of action.” (R. 351.) The Commission’s otherwise thorough discussion of Sartain’s contentions helps convince us that the failure to make the finding explicit does not suggest that the Commission might have failed to focus specifically upon the gravamen of the complaint.
Reaching the merits, we note that Sartain concedes that Securities did not disclose the interrelationships we have held amounted to common control, did not disclose the cross trading, and failed to comply with the Section 12 notification requirement. We conclude that substantial evidence supports the Commission’s finding that Sartain played a sufficiently important role in the affairs of Planning Associates, Securities, and Real Estate to warrant holding him personally responsible for the Securities pattern of NASD rule violations. Sartain emphasizes that his only formal connection with Securities was as one of Securities’ 52 registered representatives working below 15 registered principals. This argument overlooks the fact that, as a principal shareholder, director, and president of Securities’ parent company, Sartain had influence quite different from that of a registered representative hired off the street.
In addition, as a registered representative for Securities, Sartain himself handled numerous transactions in which, following the Securities practice, he did not disclose common control, did not disclose cross trading, and did not comply with the Section 12 confirmation requirements. Sartain’s personal involvement proves his actual knowledge of the factual basis of the violations.
Direct evidence also suggests that Sar-tain had a role in the development of Securities' procedures. In late 1972, a California Department of Corporations inspection of those procedures turned up deficiencies which included failures to confirm transactions and a failure to provide adequate guidelines for the activities of the staff. When attorneys for Securities sent a letter to the Corporations Department’s examiners proposing to adopt certain changes in response to the inspection, the attorneys sent Sartain a copy of that letter. (R. 73.) This correspondence suggests that Sartain actually involved himself in the establishment of Securities procedures or at least that he could have put an end to the failures to disclose, had he wished to.
IV. The Sanctions.
The Commission concedes that the sanction imposed amounts to a lifetime expulsion of Sartain from the industry. He contends his penalty amounts to an arbitrary and capricious abuse of Commission discretion. He points out that the District Conduct Committee which originally imposed that penalty had found him responsible not only for the three violations ultimately sustained by the Commission but also responsible for willful fraud under NASD Section 18 and for an allegedly improper short term transaction designed to secure a dividend for a favored customer. He argues that, because the NASD Board of Governors set aside the willful fraud finding and the Commission set aside the findings of violation in connection with the favored customer transaction, the NASD Board of Governors and the Commission were each obliged to reduce the original penalty. This does not follow.
We uphold the sanctions because, in light of the seriousness of the violations ultimately sustained, neither the NASD Board of Governors nor the Commission abused the discretion inherent in their respective standards of review. Within the NASD disciplinary process, Section 16(b) of the NASD’s Code of Procedures for Handling Trade Practice Complaints provides that
if the Board of Governors finds that any disciplinary action taken by such District Conduct Committee against any member is inadequate, excessive, or oppressive, the Board of Governors shall, in writing, increase, reduce, modify or cancel such disciplinary action. CCH NASD Manual ¶ 3015.
Because the Board has the power to increase the sanctions imposed for a given violation, it certainly has the power to leave a sanction undisputed when it sets aside only one of several findings of violation. Here, the NASD Board of Governors specifically answered Sartain’s argument when it stated:
We believe that a sufficient basis exists to affirm the penalties previously imposed upon the respondents because of the serious nature of the remaining violations of the Association’s rules.
In reviewing the penalty imposed by the NASD Board of Governors the Commission’s role was to decide whether the penalty was “excessive or oppressive, having due regard to the public interest.” Section 15A(h) of the Securities Exchange Act of 1934, 15 U.S.C. § 78o-3(h)(2), now § 19(e), 15 U.S.C. 78s(e). The Commission specifically answered Sartain’s argument when it stated:
We are unable to conclude that the sanctions imposed by the NASD are excessive or oppressive. It is true that we have set aside certain of the NASD’s findings of violation. But, in light of applicants’ remaining misconduct, we do not consider that any reduction in penalties is warranted. Here the disclosure made by applicants to purchasers of NREF securities was seriously deficient. Customers were not told that the selling broker-dealer and the issuer were under common control, that customers were not getting original issue shares with proceeds going to the issuer, and that, in some cases, they were buying the stock of insiders, including applicants who were disposing of their shares. Under the circumstances, we are not inclined to be lenient.
On this record we can hardly say that the Commission abused its discretion in that its remedy is “unwarranted in law or is without justification in fact [so that] a court [should] attempt to intervene in the matter.” American Power & Light Co. v. Securities and Exchange Commission, 1946, 329 U.S. 90, 112-13, 67 S.Ct. 133, 146, 91 L.Ed. 103. Accord, Butz v. Glover Livestock Commission Co., Inc., 1973, 411 U.S. 182, 185-86, 187, 188, 93 S.Ct. 1455, 36 L.Ed.2d 142. See also, General Securities Corp. v. Securities and Exchange Commission, 9 Cir., 1978, 583 F.2d 1108, 1110.
Sartain also, argues that his penalty is invalid because the Commission imposed more severe sanctions on him than on his business associates and/or because the Commission failed to make specific findings to justify the disparity. This contention is without merit. The Commission’s opinion fully describes how Sartain was deeply involved in the affairs of all three companies. His associates were not. In any event, absent discrimination based upon an invidious classification or in retaliation for a petitioner’s assertion of his federal rights,
The employment of a sanction within the authority of an administrative agency is . not rendered invalid in a particular case because it is more severe than sanctions imposed in other cases.
Butz v. Glover Livestock, supra, 411 U.S. at 187, 188, 93 S.Ct. at 1459, and cases cited therein. Accord, General Securities Corp. v. Securities and Exchange Commission, 9 Cir., 1978, 583 F.2d 1108, 1110.
V. Due Process.
Sartain, Securities and two of Sartain’s business associates shared the same counsel before the District Conduct Committee and the NASD Board of Governors. Only Sar-tain and Lang, the president of Securities, appealed to the Commission. They together retained a second attorney to bring that appeal. As discussed above, Sartain received a more severe penalty than his two business associates. Represented by independent counsel for the first time on this appeal, Sartain contends that the joint representation denied him effective assistance of counsel and his due process rights to a fair hearing because joint counsel was not in a position to try to shift the blame from Sartain to his business associates in hopes of reducing the severity of the sanctions against him.
As discussed in Section III, supra, 15 U.S.C. § 78y(c)(1) bars a petitioner from raising new claims on appeal, unless the petitioner can demonstrate a reasonable ground for his failure to raise the claims below. Sartain claims that his joint counsel improperly continued to represent him after allegedly critical conflicts had developed. It is not surprising that counsel below did not raise this claim, for to do so would have involved challenging the propriety of their own conduct. Therefore Sartain’s failure to raise the claim below is excusable.
Nonetheless, the claim has no merit. We emphasize that this is a civil, not a criminal proceeding. Since Sartain stood to lose the valuable “privilege of being employed in the securities industry,” Hanly v. Securities and Exchange Commission, 2 Cir., 1969, 415 F.2d 589, 595, due process unquestionably did entitle him to a fair hearing. See, e.g., Goldberg v. Kelly, 1970 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287; Hannah v. Larche, 1960, 363 U.S. 420, 442, 80 S.Ct. 1502, 4 L.Ed.2d 1307. Section 555(b) of the Administrative Procedure Act, 5 U.S.C. § 555(b), and due process assured Sartain the right to retain independent counsel and to have that counsel represent him before the Commission. United States v. Weiner, 9 Cir., 1978, 578 F.2d 757, 773.
However, just as the Commission was not obliged to provide him with counsel, Nees v. Securities and Exchange Commission, 9 Cir., 1969, 414 F.2d 211, 221, the Commission was not obligated to assure that the counsel he retained provided him with “reasonably competent and effective representation” within the meaning of criminal cases such as Cooper v. Fitzharris, 9 Cir., (in banc), 1978, 586 F.2d 1325, 1327.
While we do not hold that there could never be a case in which irreconcilable conflicts within a joint representation would be so prejudicial as to effectively deny a broker his right to a fair hearing, this is not such a case. Sartain has failed to convince us that his joint representation with Lang actually prejudiced the presentation of his appeal to the Commission. Since the Commission relied primarily upon Sar-tain’s failure to correct improper procedures of Securities rather than upon his alleged involvement in their establishment, to establish more clearly that Lang created the procedures would not have relieved Sartain of his overall responsibility for the direction of Securities. Moreover, some evidence in the record suggests that the decision to rely upon joint counsel may well have been a deliberate, strategic choice designed to minimize finger pointing among the respondents. This makes us even less inclined to enable Sartain to have it both ways, since the “right to have an independent counsel can ... be waived.” United States v. Weiner, 9 Cir., 1978, 578 F.2d 757, 774. See also, United States v. Kutas, 9 Cir., 1976, 542 F.2d 527, 530; United States v. Frame, 9 Cir., 1972, 454 F.2d 1136, 1138; Kaplan v. United States, 9 Cir., 1967, 375 F,2d 895, 897-98.
The order of the Commission is affirmed. The petition for review is denied. The motion for judicial notice of adjudicative facts is denied.
. Section 13 of the NASD’s Rules of Fair Practice require that:
A member controlled by, controlling, or under common control with the issuer of any security, shall, before entering into any contract with or for a customer for the purchase or sale of such security, disclose to such customer the existence of such control, and if such disclosure is not made in writing, it shall be supplemented by the giving or sending of written disclosure at or before the completion of the transaction.
See CCH NASD Manual ¶2163.
. Under what is now Section 19(e) of the Securities. Exchange Act, 15 U.S.C. § 78s(e), the Commission reviews the facts de novo.
. James D. Lang, Jr., President of Securities, was censured, fined $5,000, and suspended from association with any NASD member for six months. Michael G. Tanzer, Executive Vice President of Securities was censured and fined $500.
. This court has long held that in a criminal case, the defendant has the burden of establishing that the joint representation in fact created an actual conflict of interest and prejudiced his or her defense. See, e.g., United States v. Kutas, 9 Cir., 1976, 542 F.2d 527, 529; United States v. Frame, 9 Cir., 1972, 454 F.2d 1136, 1138; United States v. Nystrom, 9 Cir., 1971, 447 F.2d 1350, 1351; Davidson v. Cupp, 9 Cir., 1971, 446 F.2d 642, 643. A fortiori this would be the rule for any claim recognized in a civil case.
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_typeiss
|
D
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups.
DAVIS v. JACOBS.
Circuit Court of Appeals, First Circuit.
November 22, 1929.
No. 2350.
Albert Hurwitz, of Boston, Mass. (Hurwitz & Hurwitz, of Boston, Mass., on the brief), for appellant.
Joseph B. Jacobs, of Boston, Mass., for appellee.
Before BINGHAM, ANDERSON, and WILSON, Circuit Judges.
WILSON, Circuit Judge.
The bankrupt is the wife of Nathan Davis. A business was being carried on in her name under a married woman’s certificate required under the laws of Massachusetts. The entire charge and conduct of the business, however, was left to her husband, who contracted obligations in her name as her agent.
On or about March 12,1927, Mary I. Davis and her husband, Nathan Davis, each filed separate petitions in bankruptcy, and each was in due course adjudged a bankrupt.
Several years before the filing of his petition, her husband transferred to her three policies of life insurance, which, so far as this ease is concerned, must be regarded as a valid transfer, nothing appearing in the record to the contrary. The policies of insurance thus become the property of the wife, and any cash surrender value an asset for the benefit of her creditors in case of bankruptcy. In re Simmons et al. (D. C.) 253 F. 466.
About a month before the filing of her petition in bankruptcy, Mrs. Davis surrendered the policies for their cash value of approximately $1,000, receiving checks for the same payable to her order, which she indorsed over to her husband, who used a considerable portion thereof in the support of the family, and transferred to a brother, Phillip Davis, at least $350 of the sum so received, and which later found its way in a manner not disclosed by the record into a new company organized by the husband after his bankruptcy for the purpose of conducting a business of his own.
Neither of the policies nor the cash received therefor were included in the schedule of assets of either Mary I. Davis or her husband, Nathan Davis.
Upon Mrs. Davis petitioning for her discharge,, the trustee objected on two grounds: (1) That the bankrupt had transferred certain accounts receivable of the business to one Forman to hinder, delay, and defraud creditors; and (2) that she had concealed the moneys received from the insurance policies with the same purpose in view.
The referee in bankruptcy, who was appointed a special master to hear those charges, found that both were true, and recommended that the bankrupt’s discharge be withheld. The District Court, however, in considering the master’s report, did not pass on the first objection, as the matter was then in litigation between the trustee and Forman to recover the accounts receivable, but refused the discharge on the second ground, viz. that the husband had clearly transferred a part of the sum obtained from the insurance policies to his brother for the purpose of hindering, delaying, and defrauding his wife’s creditors, and, as the wife had intrusted the entire and absolute management of the business to her husband without any supervision on her part, she was responsible for the fraud on her creditors committed by him.
We think it is unnecessary to decide what the effect would have been on the wife’s right to a discharge if the proceeds of the insurance policies had been a part of the assets of the business then being conducted by the husband in the wife’s name; as it does not appear that the insurance policies or the proceeds thereof were ever a part of the assets of the business, nor does it affirmatively appear that the proceeds were turned over to him with any understanding or intent on her part that they were to be used in the business. The transfer to her husband of these funds for a purpose not specifically disclosed by the record, except so far as it may be inferred from the fact that a considerable portion was spent for household and family expenses, was, so far as the record shows, only an instance of a wife intrusting to her husband funds for personal and family use; and at most would not carry with it any authority beyond its use in discharging valid obligations.
The mere placing of funds by a wife in the hands of her husband, in whom she has confidence, for disbursement for their mutual benefit, involves no obligation as to supervision and Control over the use of such funds in order to avoid liability in case of fraudulent use, of which use she has no knowledge, and in which she did not participate.
There is nothing in the record to show that Mrs. Davis knew or had any reason to suspect that her business creditors might be adversely affected by the disposition of these funds or that her husband intended fraudulently to divert any part of them from her creditors to his own personal advantage; or that she was guilty of such neglect as a wife as would render her liable for the fraudulent acts of her husband, of which she had no knowledge. On the contrary, the master found, and the court below accepted his findings, that there was nothing to indicate that she was at any time conscious of any wrongdoing ; and that in each instance she merely passively assented to suggestions by her husband in all these matters.
So far, therefore, as the objection based on the transfer of the proceeds of the insurance policies is concerned, her discharge should be granted. Hardie v. Swafford Bros. Dry Goods Co. (C. C. A.) 165 F. 588, 20 L. R. A. (N. S.) 785; Gilpin v. Merchants’ Nat. Bank (C. C. A.) 165 F. 607, 20 L. R. A. (N. S.) 1023; In re W. S. Peck Co. v. Lowenbein (C. C. A.) 178 F. 178; Ragan, Malone & Co. v. Cotton & Preston et al. (C. C. A.) 200 F. 546; In re Kerner (C. C. A.) 250 F. 993; In re Rosenfeld (C. C. A.) 262 F. 876; In re William Tirschler & Co. (D. C.) 18 F.(2d) 365.
The decree of the District Court is reversed, and the case is remanded to that court for further proceedings not inconsistent with this opinion; the appellant recovers costs of appeal.
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_numappel
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Your specific task is to determine the total number of appellants in the case. If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Thomas A. BEARDSHALL and Annamae Beardshall, his wife v. MINUTEMAN PRESS INTERNATIONAL, INC., Appellant.
No. 81-1387.
United States Court of Appeals, Third Circuit.
Argued Oct. 14, 1981.
Decided Nov. 17, 1981.
Rehearing and Rehearing In Banc Denied Dec. 22, 1981.
Robert L. Potter (argued), Titus Marcus & Shapira, Pittsburgh, Pa., for appellant; Andre Weitzman, Braiterman & Johnson, P. A., Baltimore, Md., of counsel.
Maurice A. Nernberg, Jr. (argued), Nernberg & Laffey, Pittsburgh, Pa., for appellees.
Before HUNTER, ROSENN, and WEIS, Circuit Judges.
OPINION OF THE COURT
ROSENN, Circuit Judge.
The twin issues on appeal in this diversity case stem from the instructions of the trial court to the jury. The plaintiffs, Thomas A. Beardshall. and his wife Annamae, brought suit in the United States District Court for the Western District of Pennsylvania charging the defendant, Minuteman Press International, Inc. (Minuteman), a nationwide franchisor, with having committed common law fraud under Pennsylvania law when it entered into a franchise agreement with the Beardshalls. The jury returned a verdict for plaintiffs in the sum of $70,000. The defendant filed a motion for a new trial and the plaintiffs filed a motion for a new trial on damages. The district court denied both motions and Minuteman has appealed. We reverse.
I.
In March 1978 Thomas Beardshall attended a start-your-own-business trade show in Pittsburgh where he spoke to a Minuteman representative. Beardshall, a college graduate, testified at trial that the representative gave him promotional literature, told him of the opportunities in the printing business, and showed him a financial statement of a company operated store which the representative described as a “typical mid-range operation.” The company representative further informed Beardshall that a Minuteman franchise would carry its own operating expenses from the start, and should turn a profit in three to six months and provide a reasonable income within six to twelve months. Subsequently, Beards-hall communicated with Minuteman’s offices in Pittsburgh and visited a recently opened franchise in the area with another Minuteman representative who reviewed Beardshall’s projected calculations on volume and profit.
The Beardshalls indicated their interest in obtaining a franchise in Pittsburgh, signed a preliminary agreement and made a deposit. Later, they decided to move to Savannah, Georgia. Minuteman officials tried to discourage them because they thought a Pittsburgh location had better potential. The Beardshalls, however, pressed for a location in Savannah and ultimately executed a franchise agreement with Minuteman for a Savannah location. After a two week training period they opened for business on July 31, 1978.
Dissatisfied with their first month’s business and their projections as to future earnings, the Beardshalls wrote to Minuteman on September 5,1978, and sought rescission of the agreement. Minuteman refused. The Beardshalls closed the shop on November 23, 1978, and returned to Pittsburgh. They thereupon instituted this lawsuit against Minuteman.
H.
In his instructions to the jury, the trial judge charged, inter alia, that the plaintiffs bore the burden of proving their case “by a fair preponderance of the evidence.” He defined at length what was meant by this burden of proof and also instructed the jury fully on the common law of fraud. Defense counsel at the time, replaced on this appeal, took no exceptions and stated that he had no objections to the charge. After a full day of deliberation, the jury informed the court that it was “hung.” The court released the jurors for the day with instructions to resume their deliberations the next morning. The following morning the jury sent this message to the court: “Could you repeat the six points of fraud we are supposed to go by? In writing? ” The trial judge thereupon had a statement typed containing the jury’s question and the six elements of fraud, displayed it to counsel for the parties, and advised them that he intended to submit the document to the jury. Defense counsel objected to the submission on the ground that repetition of a section of the charge might emphasize an aspect which could be prejudicial to the defendant, especially if in writing. Despite the objection, the court had the writing delivered to the jury. Shortly thereafter, it returned its verdict for the plaintiffs.
On appeal, Minuteman contends that the district court reversibly erred in two aspects of its instructions. First, the court committed plain and fundamental error in instructing the jury that the plaintiffs must prove their case by a preponderance of the evidence when, under the applicable Pennsylvania common law, they were obligated to meet the much higher standard of proving fraud “by clear and convincing evidence.” Second, it erred when, having given entirely oral instructions to the jury, it submitted to them over defendant’s objection a typewritten, highly condensed statement of the substantive law of fraud which necessarily emphasized plaintiffs’ theory of the case.
III.
In determining whether the instructions on the burden of proof warrant reversal, we must first decide what burden Pennsylvania law places on those attempting to prove fraud. Then, if the charge was erroneous, we must determine whether the defendant can on this record raise the error on appeal and whether the error is so grave as to justify reversal.
In a recent decision the Supreme Court of Pennsylvania held that fraud or intent to defraud must be proved by “ ‘evidence that is clear, precise and convincing.’ ” Snell v. Pennsylvania, 490 Pa. 277, 281, 416 A.2d 468, 470 (1980) (citations omitted). In earlier cases the terminology varied. For example, in Gerfin v. Colonial Smelting & Refining Co., 374 Pa. 66, 73, 97 A.2d 71, 74 (1953), two formulations for the burden of proof were used, “clear and convincing or ... clear, precise and indubitable.” Whatever the formulation, it is evident that under Pennsylvania law fraud must be proved by a higher standard than the preponderance of the evidence standard charged by the trial judge.
The plaintiffs contend that the “clear, precise, and convincing” standard enunciated by the cases is one only to be applied by the trial judge in deciding whether the case should be submitted to the jury. Once it is submitted to the jury, argue the plaintiffs, the jury’s sole function is to determine which evidence is true. Therefore, the trial court having submitted this case to the jury, the plaintiffs conclude it committed no error when it instructed the jury that the plaintiffs had to prove their case by a fair preponderance of the evidence. This argument is implausible and must be rejected. Plaintiffs misread the cases they cite. Those cases stand only for the proposition that the trial judge must decide as a matter of law before he submits a case to the jury whether plaintiffs’ evidence attempting to prove fraud is sufficiently clear, precise and convincing to make out a prima facie case; they do not hold that once that burden is met, the jury may apply a lesser standard of proof in determining which evidence is true. Thus, if the trial judge determines there is sufficient evidence from which the jury could reasonably find that the plaintiffs have proven fraud according to this standard of proof, the judge may then submit the case to the jury. “ ‘Whether the evidence is true is a question of fact ... but whether it meets the required standard which justifies its submission to the jury ... is always a question of law ....’” Aliquippa National Bank ex rel. Woodlawn Trust Co. v. Harvey, 340 Pa. 223, 231, 16 A.2d 409, 414 (1940), quoted in Gerfin v. Colonial Smelting & Refining Co., 374 Pa. 66, 68, 97 A.2d 71, 72 (1953); M. H. Davis Estate Oil Co. v. Sure Way Oil Co., 266 Pa.Super. 64, 68, 403 A.2d 95, 97 (1979). The trial judge still has the duty to instruct the jury as to the proper burden of proof which plaintiffs must meet under the applicable law.
The elements of fraud were central to this case and the proper standard of proof to be applied was critical. Thus, the district court’s erroneous jury instructions would normally require reversal. The troublesome question posed by the plaintiffs, however, is that counsel for Minuteman did not raise the issue of the erroneous charge during the trial; he took no exceptions and in fact acquiesced in the charge. The plaintiffs, therefore, assert that the defendant is precluded by Federal Rule of Civil Procedure 51 from raising it now. Rule 51 reads in part, “No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection.”
There is, however, a judicially created exception to Rule 51, the “plain error” doctrine, which this circuit recognizes. For example, in McNello v. John B. Kelly, Inc., 283 F.2d 96 (3d Cir.1960), this court found that the trial court in its jury instructions had failed to explain the application of the principles of law to the various possible factual conclusions. The court determined that Rule 51 did not preclude the raising of this issue on appeal, though no objection had been made to the trial court’s instructions, because the error was fundamental. This court’s application of the plain error doctrine was explicated in United States v. 564.54 Acres of Land, 576 F.2d 983, 987 (3d Cir. 1978) (footnote omitted), rev’d on other grounds, 441 U.S. 506, 99 S.Ct. 1854, 60 L.Ed.2d 435 (1979):
[W]e have the discretion to review instructions sua sponte if the error is fundamental and highly prejudicial or if the instructions are such that the jury is without adequate guidance on a fundamental question and our failure to consider the error would result in a miscarriage of justice.
Plaintiffs’ argument that the error in the charge is not plain or fundamental error is refuted by this court’s ruling in Ratay v. Lincoln National Life Insurance Co., 378 F.2d 209 (3d Cir.), cert. denied, 389 U.S. 973, 88 S.Ct. 472, 19 L.Ed.2d 465 (1967). In Ratay, we unequivocally held the trial judge’s charge that under Pennsylvania law the elements of fraud must be proved by a preponderance of the evidence was fundamental error. Although counsel at trial had taken a general exception to the charge, we observed that his failure to object specifically to the erroneous burden of proof would under Rule 51 ordinarily have barred consideration of that error on appeal. But because the error related to a critical issue, as it does here, and because it did not affirmatively appear from the record that the error was not prejudicial, this court determined that a new trial was necessary. Applying this reasoning to the instant case compels us to reach the same result.
Plaintiffs, however, assert that because the Pennsylvania Supreme Court in Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1976), abandoned the plain error doctrine, this court may no longer apply the doctrine in cases governed by Pennsylvania substantive law. But at least three circuits have indicated that the failure to object to jury instructions and the consequences thereof are procedural and are to be governed by federal law. In Stewart v. Ford Motor Co., 553 F.2d 130, 139-40 n.9 (D.C.Cir.1977), Judge Skelly Wright, in writing for the court, noted:
It is well established that, in federal courts, allegations of failure to object to jury instructions and the consequences of such failures are procedural and not substantive issues and, accordingly, are to be governed by federal law. Batesole v. Stratford, 505 F.2d 804, 807 (6th Cir. 1974); Lester v. John R. Jurgensen Co., 400 F.2d 393 (6th Cir. 1968); McNamara v. Dionne, 298 F.2d 352, 355 (2d Cir. 1962).
We agree with the characterization of the failure to object to the instruction as procedural and hold that a new trial is necessary because of fundamental error committed in the charge on the burden of proving fraud.
IV.
Because this case must be remanded to the district court for a new trial, we believe that we should offer some guidelines on the second issue raised by the defendant, the supplemental condensed written instruction. In the oral charge on the elements of common law fraud, the court laid down the six elements and- then carefully explained them. His explanation set forth qualifications to the elements of fraud and these embodied the defendant’s theory of its case. For example, the oral charge carefully explained the distinction between factual misrepresentation, which may be actionable, and statements of opinion or mere “puffery” or salesmanship. The written submission merely set forth a skeletal, abstract outline of the elements of fraud; it made no allusion to qualifications or the defendant’s theory of the case. Minuteman complains that inclusion of the explanatory material would have been necessary to avoid misleading the jury. The defendant further hypothesizes that the written instruction tended to mute the oral instruction in the memory of the jury and thus effectively displaced the explanation of terms of art and the defendant’s theory found in the oral instructions, thereby prejudicing the defendant’s case.
Giving supplemental instructions to the jury is usually a delicate and sensitive task requiring the exercise of judgment and skill. The task becomes even more delicate when the principal charge is oral and the supplemental instructions are in writing because of the risk of accentuating a segment of the charge by reducing it to writing. But as the plaintiffs argue, the court has a duty to respond to a jury’s request for specific instructions and the form and extent of supplemental instructions are within the sound discretion of the court. In Price v. Glosson Motor Lines, Inc., 509 F.2d 1033, 1037 (4th Cir. 1975), cited by the plaintiffs, the court noted that supplemental instruction, when requested by the jury in whole or in part, “seems to be almost universally upheld in the Courts of Appeals.” The court further held that the failure of the district court to respond to the jury’s question as to the effect of plaintiff’s contributory negligence on defendant’s liability in a personal injury action was reversible error. But in so holding, the court explained some of the precautions to be observed which are of relevance here.
An aspect of an overall charge can be amplified and explained, in response to a jury’s inquiry, without prejudicially emphasizing any one aspect of the case. Ordinarily the district judge need not repeat the entire charge. He can remind the jury of the other aspects of the case covered by his charge and he should caution them that the aspect of the charge which he amplifies and explains should not be given undue weight and should be considered in the light of his other instructions.
Id. at 1037 (emphasis supplied).
In First Virginia Bankshares v. Benson, 559 F.2d 1307, 1315 (5th Cir. 1977), cert. denied, 435 U.S. 952, 98 S.Ct. 1580, 55 L.Ed.2d 802 (1978), the court found no error in a written supplemental outline to the jury of the elements which the plaintiff had to prove in his case. The court, however, noted that it found no reversible error because the district court had “specifically and repeatedly instructed the jury ... that the elements written down were contested and constituted only an outline of those items on which [the plaintiff] bore the burden of proof.” Id. The court thus implied that had the district court failed to qualify and explain the skeletal nature of the instructions, the resulting prejudice to the defendant could have constituted reversible error.
In the case at bar, the written statement to the jury listing seriatim the “bare bones” elements of fraud contained no qualifying instructions and lacked the amplification of the original oral charge. As submitted, the writing listed the elements of the Beardshalls’ case and, therefore, emphasized their theory of the case. Furthermore, there is the risk that the jury might have used the writing as a checklist, relying solely on its language for content and ignoring the more elaborate and explanatory oral instructions. Although we do not disapprove a limited supplemental instruction to the jury in writing, especially when the jury requests that it be in writing, the practice has risks. If it is used, trial courts should avoid prejudicial emphasis on part of the case by carefully reminding the jury of other aspects of the original charge and cautioning them that the segment of the charge which is amplified or explained should be considered in the light of the other instructions and is not to be given undue weight.
The judgment of the district court will be reversed and the case remanded to the district court with directions to award the defendant a new trial.
. The plaintiffs are Pennsylvania citizens residing in Pittsburgh. The defendant is a corporation chartered under the laws of New York which has its principal offices in Farmingdale, New York.
. The trial court applied Pennsylvania law. On appeal, the parties agree that Pennsylvania law governs.
. The pertinent portion of defense counsel’s objection to the written supplementary instruction was:
I’m objecting to the submission of a written answer to the plaintiffs’ questions. I, also, object to a portion of the Court’s charge being singled out and repeated, and repeated in writing. I think it’s possibly prejudicial. It may highlight some particular point or section of the charge that I don’t think is proper to highlight, and I’m objecting to the submission of this written answer by the Court.
. The cases cited by plaintiffs are Highmont Music Corp. v. J. M. Hoffmann Co., 397 Pa. 345, 155 A.2d 363, 366 (1959); Gerfin v. Colonial Smelting & Refining Co., 374 Pa. 66, 97 A.2d 71, 72 (1953); Greenwood v. Kadoich, 239 Pa. Super. 372, 357 A.2d 604, 606 (1976); Edelstein v. Carole House Apartments, Inc., 220 Pa.Super. 298, 286 A.2d 658, 661 (1971).
. On remand the district court, relying on an intervening state court opinion, again applied the “fair preponderance of the evidence” rule. On subsequent appeal, this court held that the district court had misread the intervening decision of the Supreme Court of Pennsylvania and reaffirmed the principle that fraud in the making of a contract must be established by proof which is “clear, precise and indubitable.” We noted that the Supreme Court of Pennsylvania recognized the basic difference between the two standards of proof and indicated, as we had held, that “in Pennsylvania the difference between the two standards of proof is a matter of substantial significance and not a mere verbal variation.” Ratay v. Lincoln Nat’l Life Ins. Co., 405 F.2d 286, 290 (3d Cir. 1968).
. The Fifth Circuit disapproves of the practice of furnishing the jury with a written copy of the court’s instructions. United States v. Perez, 648 F.2d 219 (5th Cir. 1981); United States v. Hooper, 575 F.2d 496 (5th Cir.), cert. denied, 439 U.S. 895, 99 S.Ct. 256, 58 L.Ed.2d 242 (1978). The Seventh Circuit apparently approves of the practice. United States v. Brighton Bldg. & Maintenance Co., 598 F.2d 1101 (7th Cir.), cert. denied, 444 U.S. 840, 100 S.Ct. 79, 62 L.Ed.2d 52 (1979).
Question: What is the total number of appellants in the case? Answer with a number.
Answer:
|
songer_typeiss
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups.
CAROLINAS FARM & POWER EQUIPMENT DEALERS ASSOCIATION, INC., Appellee, v. UNITED STATES of America, Appellant.
No. 82-1230.
United States Court of Appeals, Fourth Circuit.
Argued Oct. 7, 1982.
Decided Jan. 24, 1983.
David L Pincus, Tax Div., Dept, of Justice, Washington, D.C. (Samuel T. Currin, U.S. Atty., Raleigh, N.C., Glenn L. Archer, Jr., Asst. Atty. Gen., Michael L. Paup, David English Carmack, Tax Div., Dept, of Justice, Washington, D.C., on brief), for appellant.
Curtis A. Twiddy, Raleigh, N.C. (Thomas L. Norris, Jr., Maria M. Lynch, Poyner, Geraghty, Hartsfield & Townsend, Raleigh, N.C., on brief), for appellee.
Before WINTER, Chief Judge, ERVIN, Circuit Judge, and HAYNSWORTH, Senior Circuit Judge.
HARRISON L. WINTER, Chief Judge:
The issue presented here is whether a tax-exempt trade association receives unrelated business taxable income when it assists its members in procuring economical group insurance and receives a percentage rebate of the premiums paid by them from the insurance provider. The district court held that the rebates do not constitute unrelated business taxable income. We reverse.
I.
The facts are established by stipulation of the parties:
Carolinas Farm & Power Equipment Dealers Association, Inc. (Association) is a trade association exempt from federal income tax under Section 501(a) and (c)(6) of the Internal Revenue Code of 1954. Its purpose is to promote the general welfare of independent retail distributors of farm and power equipment in North Carolina and South Carolina by monitoring state and federal legislation, conducting workshops, publishing a newsletter, and offering its members an opportunity to obtain group insurance. During the years 1973-1977, it had approximately 421 members, including corporations, partnerships, and sole proprietorships involved in that trade.
In 1955 the Association created an insurance trust fund to operate and fund a group insurance program for its members. The present trustees are members of the Association’s Board of Directors. The trust acquired a master group insurance policy issued by the Federated Mutual Implement and Hardware Insurance Company of Owatonna Minnesota (Federated), providing life insurance, accident and health insurance, and hospital and surgical insurance coverage. Enrollment in the program is limited to members of the Association, of which approximately 41 percent chose to participate during the years in question.
The Association distributes information pamphlets prepared by Federated to its members or prospective members, answers questions its members have about the program, forwards to Federated changes in coverage requested by its members, and transmits monthly premium notices to participating members. The members pay their premiums to the trust, which remits the premiums, in full, to Federated.
The Association has four employees, all of whom handle the operation of the group insurance program to some extent. One devotes full time, one two-thirds time, one one-third time, and one one-fourth time to such activities. The trust pays the Association an administrative fee for these services. During the years at issue here, 1973 through 1977, Federated rebated seven percent of gross accident and health insurance premiums to the Association or the trust as an administrative allowance. From 1973 to 1976 it paid approximately two-thirds of this amount to the Association and one-third to the trust. In 1977 it paid the entire rebate to the trust. The trust used its receipts to pay operating expenses and maintain a reserve fund. The Association used its receipts to pay operating and other general expenses. The rebates were quite large in relation to the Association’s other income from membership fees and assessments. For example, in 1973 it received $41,604.34 as an administrative allowance, on which it earned a tax profit of $15,542.75 and an accounting profit of $27,592.16, as compared to only $24,425.74 it received from membership fees and assessments. During the years 1973-77, the Association’s total gross receipts was $569,005 and its total insurance rebates was $246,572.
In addition to the administrative allowance or rebate, the Association also receives an experience refund from Federated when the claims of its members are less than the premiums paid for a year. The Association distributes these experience refunds to its members in proportionate shares. The Internal Revenue Service makes no claim that the rebated experience refunds constitute unrelated business taxable income.
After the Internal Revenue Service determined that the administrative allowance was taxable income, the Association paid the contested amounts and filed claims for refund. When these were not honored, the Association filed suit for refund of the tax paid, asserting: first, that the rebates are not unrelated business taxable income; second, even if they are, that any funds received by it from Federated are held in trust for its members and therefore are not income to it. A magistrate to whom the case was originally referred recommended that both contentions be rejected but the district court held that the rebates are not unrelated business taxable income, and so did not reach the second issue.
II.
Section 511 of the Internal Revenue Code of 1954, as amended, 26 U.S.C. § 511 imposes a tax on “unrelated business taxable income,” and §§ 512 and 513, 26 U.S.C. §§ 512 and 513, define “unrelated trade or business income” as gross income, less deductions, if the income: (1) arises from a trade or business, (2) which is regularly carried on, and (3) which is not substantially related to the organization’s exempt purpose. 26 C.F.R. § 1.513 — 1. It is undisputed that the Association’s insurance activities are regularly carried on, so the only issues here are whether those activities constitute a trade or business which is not substantially related to the purpose for which the-Association’s exemption was granted.
A.
Section 513(c) states that “[f]or purposes of this section, the term ‘trade or business’ includes any activity which is carried on for the production of income from the sale of goods or the performance of services.” Thus, one might easily conclude that the proper inquiry is whether an organization conducts an activity to earn a profit. If so, the activity is a trade or business. Accord, Louisiana Credit Union League v. United States, 693 F.2d 525 (5 Cir.1982), affirming 501 F.Supp. 934 (E.D.La.1980); Clarence LaBelle Post No. 217 v. United States, 580 F.2d 270 (8 Cir.1978); Professional Insurance Agents v. Comm’n, 78 T.C. 246 (1982). Kaplan, Intercollegiate Athletics and the Unrelated Business Income Tax, 80 Colum. L.Rev. 1430, 1438 (1980). Certainly there can be no dispute given the consistently profitable result of the operations, the proportion of insurance income to total income and the use of the income for its own purposes that the Association carried on its insurance activities to earn a profit.
However, several courts, reasoning that the intent of Congress in enacting the unrelated business tax provisions and subsequent amendments was to prevent charitable organizations operating essentially commercial operations from having a competitive advantage over taxpaying enterprises, have adopted more restrictive tests. One has held that the proper inquiry is whether the activity might be unfairly competitive with taxpaying enterprises. Hope School v. United States, 612 F.2d 298 (7 Cir.1980). Accord, Clarence LaBelle Post No. 217, VFW v. United States, 580 F.2d 270, 275 (8 Cir.1978) (Schatz, J., dissenting). Another has stated the test to be whether the activity is one traditionally engaged in by a charity or whether it is an “abusive" step into traditional commercial areas. Mass. Medical Soc. v. United States, 514 F.2d 153 (1 Cir.1975). While still another concludes that while unfair competition need not be established, the proper inquiry is whether the activity is conducted in a competitive and commercial manner. That is, whether a good or service is offered in a competitive manner for a competitive price. Disabled American Veterans v. United States, 650 F.2d 1178 (Ct.Cl.1980).
The legislative history of the unrelated business income tax provisions and their amendments is thoroughly explored in the majority and dissenting opinions in Clarence LaBelle Post, supra. That history strongly suggests that Congress’s primary intent in enacting these provisions was to avoid endowing tax-exempt organizations with an unfair competitive advantage. Nonetheless, we think that the plain language of Section 513(c) should control and that an activity is a “trade or business” if an exempt organization conducts it for the production of income from the performance of services. While there is no need to look to legislative history where, as here, the language of a statute is quite clear, see, e.g., Ernst & Ernst v. Hochfelder, 425 U.S. 185, 201, 96 S.Ct. 1375, 1384, 47 L.Ed.2d 668 (1976), defining an activity as a trade or business on the basis of the taxpayer’s motive for conducting it arguably effectuates Congress’s intent since an activity conducted with a profit motive and not substantially related to a charitable end “presents sufficient likelihood of unfair competition to be within the policy of the tax.” 26 C.F.R. 1.513-l(b).
In the light of inaction on the part of Congress over a period of thirty-two years to create a requirement of actual competition with taxable entities as a prerequisite for taxation of unrelated business income, see Louisiana Credit Union League v. United States, 501 F.Supp. 934, 939 (E.D.La.1980), it is difficult to conclude that the activities must compete with for-profit enterprises as a prerequisite to taxation. On the basis of the record before us we must infer the Association undertook this activity with a profit motive. The district court held it did not, reasoning that the Association’s explicit purpose was to provide low-cost group insurance to benefit the industry. By contrast, the Fifth Circuit has found a trade association had a profit motive in endorsing and aiding its members to acquire insurance, debt collection and data processing services when it consistently earned significant profits from rebates or fees paid by the providers of those services. Louisiana Credit Union League, supra. Similarly, the Tax Court in Professional Insurance Agents v. Comm’n, supra, on facts somewhat similar to these here, found a profit motive in large part because the contested activity was highly profitable. We follow the Fifth Circuit and the Tax Court, because we think that there is no better objective measure of an organization’s motive for conducting an activity than the ends it achieves. Accord, Kaplan, supra, 80 Colum.L.Rev. at 1438-40. This factor weighs heavily against the Association since it consistently received far more in rebates than it expended in providing insurance services.
Second, other strong evidence of profit motive can be found by implication when the taxpayer does not meet the third part of the test for unrelated business income: whether the activity is substantially related to an organization’s charitable purpose. If an activity which is not substantially related to a charitable purpose is conducted in a competitive profit-seeking manner and regularly earns significant profits, a heavy burden must be placed on the organization to prove profit is not its motive. Certainly where, as here, an organization could easily rebate any profits to its members and thus better fulfill its nonprofit, ostensible charitable purpose by providing them with even lower cost group insurance, that burden must be held unmet.
B.
The regulations state that for an activity to be substantially related to an organization’s exempt purposes it must bear a substantial causal relationship or contribute importantly to the achievement of those purposes other than through the production of income. 26 C.F.R. § 1.513-l(dX2). Indeed, the statute is specific that an activity is not substantially related merely because it obtains funds which are then applied to achieve a charitable purpose. 26 U.S.C. § 513(a).
The Association is tax exempt under § 501(c)(6) of the Code as a “business league,” defined in 26 C.F.R. 1.501(c)(6)-l as “an association of persons having a common business interest, the purpose of which is to promote such common interest and not to engage in a regular business of a kind ordinarily carried on for profit.” This regulation further admonishes that the activities of such an association “should be directed to the improvement of business conditions of one or more lines of business as distinguished from the performance of particular services for individual persons.”
We think that the Association’s insurance activities constituted the performance of a service for its individual members and not activities substantially related to its corporate objectives. As Justice Reed (Ret.) noted in Evanston-North Shore Board of Realtors v. United States, 320 F.2d 375, 378, 162 Ct.Cl. 682, (7 Cir.1963), it is often difficult to determine whether a trade association’s activities primarily benefit individual members or the trade generally since the interests of both are inevitably intertwined. In this case, for example, the provision of low-cost life insurance most directly benefits those members of the Association who choose to participate in the program, but it can also be said to benefit the entire industry — at least that operating in North and South Carolina — since it makes available to all the option to join such a program.
Several factors are present here, however, which are strong evidence that the program operates primarily to benefit individual members and not the industry as a whole. First, and most important, is the fact that the fees charged members for participation in the insurance program are in direct proportion to the benefits received. See, e.g., Contracting Plumbers Cooperative Restoration Corp. v. United States, 488 F.2d 684, 687 (2 Cir.), cert. denied, 419 U.S. 827, 95 S.Ct. 47, 42 L.Ed.2d 52 (1974); Evanston-North Shore Board of Realtors, 320 F.2d at 378-379. Second, participation in the insurance program is limited to members of the Association, so unlike such activities as lobbying services, it is of no benefit to those in the industry who are not members. See, e.g., Contracting Plumbers Coop., 488 F.2d at 687; Evanston-North Shore Board of Realtors, 320 F.2d at 379. Finally, the service provided by the Association is one commonly provided by for-profit entities. This is significant because the regulation requires a substantial causal relationship between the activity and accomplishment of an exempt purpose. Where a service is available in the marketplace, a trade association need not provide it to accomplish an exempt purpose. Cf. Associated Master Barbers & Beauticians of America, Inc. v. Commissioner, 69 T.C. 53, 64 (1977) (trade organization that primarily provides insurance and supplies to members is not exempt because such goods are traditionally supplied by for-profit entities). For these reasons, we must conclude that the Association’s insurance service primarily advances the interests of participating members, and so it is not related to its charitable purpose.
Because we conclude that Association’s income satisfied each factor of the tripartite test to render it taxable as unrelated business taxable income, we reverse the judgment of the district court.
REVERSED.
. Both amounts are derived by deducting the Association’s cost of providing the various services. The difference between the two figures exists because certain deductions are allowed for tax purposes which are irrelevant for accounting purposes.
. In this appeal the Association has abandoned its contention that the funds received by it from Federated are nontaxable because they are trust funds held for the benefit of its members. It has failed to assert this contention as a ground of affirmance of the judgment of the district court even though the government’s brief called attention to the fact that the argument was asserted in the district court and stated its willingness to litigate the issue if it was renewed by the Association. We therefore will not consider it.
. Section 513(c) was added to the Code by the Tax Reform Act of 1969, Pub.L. No. 91-172, § 121(c), 83 Stat. 487 (1969), and while its primary purpose was merely to render taxable the advertising revenues earned by professional journals, its language was not so restricted. See H.Rep. No. 91-413, reprinted in 1969 U.S. Code Cong. & Admin.News, pp. 1645, 1695-6.
. When an activity presents sufficient possibility of profit to induce a tax-exempt organization to undertake it for the purpose of earning a profit, it seems logical to assume that engaging in the same activity would be attractive to a nontax-exempt organization, so that there exists a substantial likelihood of unfair competition. Cf. Clarence LaBelle Post, 580 F.2d at 275 (Lay, J., concurring) (Treasury’s determination that profit motive presents danger of unfair competition warrants judicial deference).
. We intimate no view as to whether an activity conducted to earn income, but in a noncommercial manner, can be a trade or business. Cf. Louisiana Credit Union League v. United States, 693 F.2d 525, 541 n. 32 (5 Cir.1982); Disabled American Veterans v. United States, supra. An example of such an activity is mailing small items to potential donors and requesting a contribution in return. See Hope School v. United States, supra. We need not resolve this issue here, since the Association’s insurance activities are conducted in a sufficiently commercial manner to come within the definition of a trade or business even if such a limitation is assumed, for the Association affirmatively advertised the program to its members, and it was guaranteed remuneration, albeit by a third party, the insurance provider, if they elected to participate.
. There was additional evidence of profit motive in Professional Insurance Agents not present here. First, an executive of the trade association testified that it would have found a new insurance provider but for the rebate. Second, the Association’s insurance activities had earlier been conducted in a taxpaying subsidiary.
. The full text of the pertinent portion of the regulation follows:
(2) Type of relationship required. Trade or business is “related” to exempt purposes in the relevant sense, only where the conduct of the business activities has causal relationship to the achievement of exempt purposes (other than through the production of income); and it is “substantially related,” for purposes of section 513, only if the causal relationship is a substantial one. Thus, for the conduct of trade or business from which a particular amount of gross income is derived to be substantially related to purposes for which exemption is granted, the production or distribution of the goods or the performance of the services from which the gross income is derived must contribute importantly to the accomplishment of those purposes....
. The Fifth Circuit has held that in order to be substantially related to its exempt function, the activities must be “unique” to the organization’s tax-exempt purpose and they must redound to the benefit of its members as members. Louisiana Credit Union League, supra. By this test, we think that the Association’s insurance service is not substantially related to its exempt function. The service is not unique; it is readily available in the marketplace. The service does not benefit members as members. It benefits only members who employ the service and it benefits them in their individual capacities. As a group, members gain no benefit from the fact that some avail themselves of the insurance service.
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_respond1_7_2
|
B
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine the gender of this litigant. Use names to classify the party's sex only if there is little ambiguity (e.g., the sex of "Chris" should be coded as "not ascertained").
COMMISSIONER OF INTERNAL REVENUE v. HOGLE.
No. 3514.
Circuit Court of Appeals, Tenth Circuit.
Dec. 26, 1947.
Harry Marselli, Sp. Asst, to Atty. Gen., of Washington, D. C. (Theron L. Caudle, Asst. Atty. Gen., and Sewall Key, Helen R. Carloss, and Helen Goodner, Sp. Assts. to Atty. Gen., on the brief), for petitioner.
G. A. Marr, of Salt Lake City, Utah (Cheney, Jensen, Marr & Wilkins, of Salt Lake City, Utah, on the brief), for respondent.
Before PHILLIPS, BRATTON, and HUXMAN, Circuit Judges.
PHILLIPS, Circuit Judge.
The Commissioner assessed gift taxes against Hogle for the years 1936 to 1941, inclusive. On review, the Tax Court held there were no deficiencies in gift taxes for those years.
The question presented is whether or not annual earnings of two trusts, one known as the Copley Trust, and one known as the Three Trust, during the years in question, from trading in securities and commodities carried on by the trusts finder Hogle’s direction, amounted to gifts by Hogle to the trusts. These trusts were before this court in Hogle v. Commissioner, 10 Cir., 132 F.2d 66, and the facts with respect to such trusts are there fully set out.
The Copley Trust was created in 1922 by Hogle and his wife for the benefit of their three children. It consisted of a securities trading account to be managed and operated under Hogle’s direction, the property accruing to the trust to be divided among the children on April 15, 1945. The trust was irrevocable and Hogle retained no right to alter or amend the trust instrument, or to change the beneficial interests. None of the principal or income could revest in Hogle. It provided that any losses resulting from trading in excess of the “profits and various income returns thereof” should be made good by Hogle, and that any such losses should not become an indebtedness of the trustee or the beneficiaries, but that any such losses made good by Hogle should be returned to him out of the first profits that accrued from further transactions.
On October 7, 1922, a margin account was opened for the trust with J. A. Hogle & Company, a brokerage partnership, consisting of Hogle and his wife, and in which the three children subsequently became partners. The trading resulted in profits in every year, except 1928 and 1929. In those years, certain securities were given to the trust by Hogle and his wife. The profits and benefits in the trust were divided on April 15, 1945, among the three children, and the trust was terminated.
In 1932, Hogle opened a trading account with the partnership in the name of the Three Trust account and a few days thereafter, Hogle and his wife ci'eated the Three Trust, consisting of a securities trading account for the benefit of the three children. The trust was irrevocable and was in all respects like the Copley Trust, with the exception it was to terminate on April 15, 1950, and income could be distributed in the meantime in the discretion of Hogle and any two of the three trustees. Although the trading was conducted in the name of the tx-ust, receipts and disbursements were credited and debited to the individual beneficiaries according to the specified share of each during the term of the trust. Gains and profits were realized in every year, including the taxable years.
The net worth of each trust in each of the years for which the gift taxes were assessed was more than sufficient to provide the margins required to cover the trading carried on for it.
In Hogle v. Commissioner, supra, we held, under the doctrine of Helvering v. Clifford, 309 U.S. 331, 60 S.Ct. 554, 84 L.Ed. 788, that the net income resulting from trading on margin was taxable to Hogle. We do not think it follows, however, that the net income in each of the taxable years derived from trading constituted a gift thereof by Hogle to the trusts.
Section 501 of the Revenue Act of 1932, 47 Stat. 169, as amended by § 511 of the Revenue Act of 1934, 48 Stat. 680, imposed a tax upon the transfer, during the calendar year, of property by gift. Section 1000 of the Internal Revenue Code, 26 U.S. C.A. Int.Rev.Code, § 1000, contains a substantially identical provision and it applies to the calendar year 1940 and subsequent calendar years. And Article 2, Treasury Regulations 79, provides among other things that a gift tax is imposed whether the transfer is in trust or otherwise, whether the gift is direct or indirect, and whether the property is real or personal, tangible or intangible; and further, that the tax applies to .all transactions whereby property or property rights or interests are donatively passed or conferred upon another. The purpose of the statute is to reach and lay a tax upon every type and kind of transfer of property by gift. With that legislative purpose in mind, the terms “property,” “transfer,” “gift,” and “indirectly,” as used in the statute, should be interpreted in their broadest and most comprehensive sense. But the tax cannot be sustained unless there was a transferor, a transferee, and an effective transfer of title or other economic interest or benefit in property having the quality of a gift.
The net income derived from trading carried on in behalf of the trusts accrued immediately and directly to the trusts, and did not consist of income accruing to Hogle which he transferred by anticipatory gift to the trusts. Hogle never owned or held an economic interest in such income. Likewise, since the funds in the trusts were sufficient to provide the mai-gins required to cover the trading carried on in the taxable years, any losses resulting from trading would have been suffered immediately and directly by the trusts. What, in fact and in reality, Hogle gave to the trusts in the taxable years was his expert services in carrying on the trading, personal services in the management of the trusts. Hogle could give or withhold his personal services in carrying on trading on margin for the trusts. He could not withhold from the trusts any of the income accruing from trading on margin. How could he give what he could not withhold? There was no transfer directly or indirectly from Hogle to the trusts of title to, or other economic interest in, the income from trading on margin, having the quality of a gift. In short, there was no transfer directly or indirectly by Hogle to the trusts of property or property rights.
The Commissioner places strong reliance upon Hogle v. Commissioner, supra, to sustain the contention that the income arising from the trading on margin represented personal earnings of Hogle; and that Hogle in substance gave to the trusts the profits derived from part of his individual efforts. Certain excerpts from the opinion are emphasized in support of the argument that the net income arising from the trading on margin for the benefit of the trusts represented earnings of Hogle, and that, upon the accrual of such income to the trusts, a transfer having the quality of a gift was effectuated within the meaning of §§ SOI and 1000, supra. But, we think a critical reading of the opinion in that case in its entirety will indicate that it does not support the Commissioner’s contention. While the court drew a distinction between the income tax liability of Hogle on profits accruing to the trusts from trading on margin and gains accruing to the trusts from other sources, and held that he was liable for the tax on net income derived from such trading but not on gains accruing from other sources, his liability for tax on the net income derived from trading on margin was predicated upon his power to control indirectly the extent of the profit derived from such trading by determining the extent and amount of such trading. Despite certain statements contained in, the opinion on which the Commissioner relies, the basis of the holding that Hogle was liable for income tax on the net income resulting from trading on margin was his power to control the extent of such trading and therefore the extent of the income therefrom. It was predicated on his power to dominate the amount of income that would accrue from trading. That was the essence of our holding. We did not hold that such income accrued first to Hogle and was by him transferred by anticipatory gift to the trusts.
Our holding in Hogle v. Commissioner, supra, was an extreme application of the doctrine of the Clifford case, supra. To hold that the profits accruing from trading in margins constitute gifts from Hogle to the trusts, we think, would be an unjustified extension of the doctrine of the Clifford case.
Affirmed.
HUXMAN, Circuit Judge, concurs in the result.
Robinette v. Helvering, 318 U.S. 184, 187, 63 S.Ct. 540, 87 L.Ed. 700.
Smith v. Shaughnessy, 318 U.S. 176, 180, 63 S.Ct. 545, 87 L.Ed. 690; Commissioner v. Wemyss, 324 U.S. 303, 306, 65 S.Ct. 652, 89 L.Ed. 958, 156 A.L.R. 1022.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". 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_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.
PARELMAN v. PARELMAN.
No. 11732.
United States Court of Appeals District of Columbia Circuit.
Argued Nov. 18, 1953.
Decided Feb. 4, 1954.
Mr. J. E. Bindeman, Washington, D. C. , for appellant. Mr. Theodore Klig-man, Washington, D. C., entered an appearance for appellant.
Mr. Albert E. Brault, Washington, D. C., with whom Mr. Denver H. Graham, Washington, D. C., was on the brief, for appellee.
Before WILBUR K. MILLER, BAZE-LON and WASHINGTON, Circuit Judges.
PER CURIAM.
In this suit a mother charged her son with negligence which she alleged was the proximate cause of personal injuries sustained by her, for which she sought damages in the sum of $25,000. The mother complains on appeal that the trial judge erred in directing a verdict for the defendant at the close of her counsel’s opening statement to the jury.
We think the judge correctly concluded, from what the plaintiff’s counsel said he expected to prove, that a cause of action had not been stated.
Affirmed.
Question: What is the total number of respondents in the case that fall into the category "private business and its executives"? Answer with a number.
Answer:
|
songer_appel2_7_3
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine the race or ethnic identity of this litigant as identified in the opinion. Names may be used to classify a person as hispanic if there is little ambiguity. All aliens are coded as "not ascertained".
Roy A. JOHNSON and John J. Sheller, Plaintiffs-Appellants, v. Verne ORR, Secretary of the Air Force, Francis Erard, Major General, Wilfred C. Menard, Jr., Major General, Colonel John Murphy, Brigadier General Charles Young, Air Commander Lt. Colonel Billy McDaniels, Defendants-Appellees.
No. 89-5315.
United States Court of Appeals, Third Circuit.
Argued Oct. 20, 1989.
Decided March 1, 1990.
Martin R. Cohen (argued), American Federation of Government Employees, Philadelphia, Pa., Mark D. Roth, American Federation of Government Employees, AFL-CIO, Washington, D.C., for plaintiffs-appellants.
Bette E. Uhrmacher (argued), Asst. U.S. Atty., Trenton, N.J., for defendants-appel-lees.
Before BECKER, COWEN, and SEITZ, Circuit Judges.
SEITZ, Circuit Judge.
This is the decision on defendants' motion to dismiss plaintiffs’ appeal from a district court order granting plaintiffs allegedly inadequate attorneys’ fees on the ground that the notice of appeal is untimely. The extensive history of this case is recounted in two earlier opinions of this court. Johnson v. Orr, 780 F.2d 386 (3d Cir.), cert. denied, 479 U.S. 828, 107 S.Ct. 107, 93 L.Ed.2d 56 (1986); Johnson v. Orr, 716 F.2d 75 (3d Cir.1985). We will repeat only those facts necessary to an understanding of the issues raised by defendants’ motion.
Plaintiffs Roy A. Johnson and John J. Sheller (“plaintiffs”) were civilian technicians employed by the New Jersey Air National Guard. They were discharged from their positions for labor activities alleged to be in violation of federal law. In an administrative hearing, the dismissals were upheld by an Air National Guard hearing examiner, whose findings were in turn adopted by the New Jersey Adjutant General.
Thereafter, plaintiffs filed a complaint in the district court containing three claims: 1) improper discharge in violation of the first and fifth amendments to the United States Constitution, the Bivens claims 2) improper discharge in violation of the provisions of the Administrative Procedure Act (APA) and 3) other constitutional violations remediable under 42 U.S.C. § 1983 (1982).
The district court dismissed the first of these claims, the Bivens claims, in December of 1983. On July 2, 1984, the district court granted summary judgment for plaintiffs on their APA claim. The so-called § 1983 claim remained undecided. Defendants moved to have the order granting summary judgment on the APA claim made final pursuant to Federal Rule of Civil Procedure 54(b). This the district court did by order dated October 24, 1985. The defendants then appealed the summary judgment on the APA claim and that judgment was affirmed by this court. Johnson v. Orr, 776 F.2d 75 (3d Cir.1985).
After the judgment on the APA claim became final in December 1986, plaintiffs renewed their motion in the district court for costs and attorneys’ fees on that judgment. Upon receipt of the Report and Recommendation of the United States Magistrate, the district court entered an order awarding plaintiffs certain fees and costs, pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412 (1982 & Supp.1987). The order was docketed on April 11, 1988. At this point in time, April 11, 1988, plaintiffs’ § 1983 claim remained viable in the district court.
We come next to the critical events relevant to the disposition of the pending motion to dismiss. The plaintiffs did not file a notice of appeal within sixty days after the April 11, 1988, fee order was docketed. See Fed.R.Civ.P. 4 (where government is a party notice of appeal must be filed within sixty days). Rather, after negotiation, the parties settled the § 1983 claim and the court entered an order dated April 3, 1989, dismissing the amended complaint with prejudice. On April 10, 1989, plaintiffs filed a notice of appeal from the district court’s fee order that had been docketed April 11, 1988. It is the timeliness of this notice of appeal that we must determine.
The issue is more simply stated than resolved. The district court’s judgment for plaintiffs on the APA claim had been appealed and had become final in December 1986. The order fixing the fees and costs with respect to that judgment was docketed on April 11, 1988. Since the fees and costs were based solely on a final judgment, we must decide whether the order fixing such fees and costs likewise became final and thus triggered the running of the time for appeal.
Defendants contend quite simply that the fee order was a final judgment for appeal purposes. Plaintiffs counter that the fact that a final judgment existed with respect to the APA claim, did not render the subsequent fee order final because the § 1983 claim remained outstanding.
Generally speaking, an order unconditionally fixing fees, docketed after the docketing of the final merits judgment, is a separate final judgment, at least where the merits judgment resolved all of the claims before the district court. Such a conclusion is implicit in some of the Supreme Court’s analysis in White v. New Hampshire Dep’t of Employment Security, 455 U.S. 445, 102 S.Ct. 1162, 71 L.Ed.2d 325 (1982). Indeed, this proposition seems not to be challenged here. Plaintiffs say the rule is otherwise, however, where other claims remain unresolved and there is no 54(b) certification of the fee order.
An analysis of our problem must begin with a recital of certain federal law relating to 54(b) final judgments. Generally speaking, a judgment entered pursuant to Rule 54(b) has the same finality as any other judgment. See, e.g., Hayes v. Sealtest Foods Div. of Nat’l Dairy Prods. Corp., 396 F.2d 448 (3d Cir.1968) (recognizing that after a Rule 54(b) certification and the entry of a final judgment, the time for appeal begins to run); Government of Virgin Islands v. 2.6912 Acres of Land, 396 F.2d 3 (3d Cir.1968) (finding that failure to certify judgment under Rule 54(b) precludes res judicata effect); Hooks v. Washington Sheraton Corp., 642 F.2d 614 (D.C. Cir.1980) (stating that after Rule 54(b) order, judgment begins to accumulate interest); Redding & Co. v. Russwine Constr. Corp., 417 F.2d 721 (D.C.Cir.1969) (stating that Rule 54(b) has implications as to a judgment’s finality for purposes of execution).
Thus, certification of a judgment under Rule 54(b) triggers, subject to review, all of the direct consequences of any final judgment. While plaintiffs would, of course, agree that the district court was authorized to fix attorneys’ fees, they insist that the fee order, unlike the merits judgment, was not a final judgment when entered because of the existence of the § 1983 claim. Such a result would follow in the absence of a certification of the merits judgment where claims remained undecided. But does plaintiffs’ position clash with the basic purpose behind the adoption of the Rule 54(b) provision permitting a district court to render a judgment final while other claims remain pending?
The factors that motivated the adoption of the certification provision in Rule 54(b) are clear:
Rule 54(b) is designed to facilitate the entry of judgments upon one or more but fewer than all the claims or as to one or more but fewer than all the parties in an action involving more than one claim or party. It was adopted because of the potential scope and complexity of civil actions under the federal rules, given their extensive provisions for the liberal joinder of claims and parties. The basic purpose of Rule 54(b) is to avoid the possible injustice of a delay in entering judgment on a distinctly separate claim or as to fewer than all of the parties until the final adjudication of the entire case by making an immediate appeal available. [footnote omitted]
10 C. Wright, A. Miller & M. Kane, Federal Practice and Procedure, § 2654 (2d ed. 1983).
Attorneys’ fees are, of course, collateral to the main cause of action. White, 455 U.S. 445 at p. 451, 102 S.Ct. 1162 at p. 1166. However, when the judgment on the fees is rendered after the entry of final judgment on the merits pursuant to Rule 54(b), is there any policy reason why the court’s decision to render the merits judgment final should not carry over to the fee determination thereon solely because of the existence of another claim?
If plaintiffs are correct, the fee order of the district court docketed on April 11, 1988, lacked finality and thus could not have been appealed at that time by either side without a certification. Such a result could materially delay the finality of a frequently not unimportant aspect of a favorable judgment on the merits — attorneys’ fees. Moreover, since a 54(b) certification indicates that the district court believes the merits judgment should become final immediately, we can think of no policy consideration that would suggest that a separate fee award on that judgment should not also be final. This is even more true when, as here, the certified merits judgment has already been affirmed on appeal. Assuredly, the very purpose served by a certification of finality suggests the importance of making final all of its collateral consequences.
Plaintiffs contend that the legal fees award was not appealable because there was no express Rule 54(b) determination as to the fees and costs claims. The contention implies that such an express determination of finality was necessary. Of course, the certification would only be necessary if the attorneys’ fee order were to be viewed as not being a final judgment. Our determination to the contrary negates this argument.
Plaintiffs assert that this court’s decision in Yakowicz v. Commonwealth of Pennsylvania, 683 F.2d 778 (3d Cir.1982), requires us to find this fee order unappeala-ble until the entire complaint was dismissed. However, that case is not controlling. Yakowicz ruled that an order denying interim attorneys’ fees was not final and appealable. Here, in contrast, the final assessment of fees was based on a final judgment.
Finally, plaintiffs rely on certain actions of the parties to suggest that they understood the fee order of April 11, 1988, not to be a final judgment. Finality of a judgment for appeal purposes presents a jurisdictional issue for our determination. As a consequence, plaintiffs’ understanding as to the finality of the order is irrelevant.
We conclude that the fee order of April 11, 1988, was itself a final judgment under the circumstances. We will therefore grant defendants’ motion to dismiss plaintiffs’ appeal as untimely.
. The earlier motion was not acted on at the time of the certification of the judgment on the APA claim.
Question: This question concerns the second listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". What is the race or ethnic identity of this litigant as identified in the opinion?
A. not ascertained
B. caucasian - specific indication in opinion
C. black - specific indication in opinion
D. native american - specific indication in opinion
E. native american - assumed from name
F. asian - specific indication in opinion
G. asian - assumed from name
H. hispanic - specific indication in opinion
I. hispanic - assumed from name
J. other
Answer:
|
sc_issue_1
|
04
|
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.
Gregory WELCH, Petitioner
v.
UNITED STATES.
No. 15-6418.
Supreme Court of the United States
Argued March 30, 2016.
Decided April 18, 2016.
Amir H. Ali, Washington, DC, for Petitioner.
Michael R. Dreeben, Washington, DC, for the respondent in support of vacatur and remand.
Lindsay C. Harrison, Matthew E. Price, Amir H. Ali, R. Trent McCotter, Joshua M. Parker, Benjamin M. Eidelson, Jenner & Block LLP, Washington, DC, for Petitioner.
Helgi C. Walker, Washington, DC, as amicus curiae, appointed by this Court, in support of the judgment below.
Donald B. Verrilli, Jr., Solicitor General, Leslie R. Caldwell, Assistant Attorney General, Michael R. Dreeben, Deputy Solicitor General, Ann O'Connell, Assistant to the Solicitor General, Michael A. Rotker, Gwendolyn A. Stamper, Attorneys, Department of Justice, Washington, DC, for the United States.
Justice KENNEDY delivered the opinion of the Court.
Last Term, this Court decided Johnson v. United States, 576 U.S. ----, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). Johnson considered the residual clause of the Armed Career Criminal Act of 1984, 18 U.S.C. § 924(e)(2)(B)(ii). The Court held that provision void for vagueness. The present case asks whether Johnson is a substantive decision that is retroactive in cases on collateral review.
I
Federal law prohibits any felon-meaning a person who has been convicted of a crime punishable by more than a year in prison-from possessing a firearm. 18 U.S.C. § 922(g). A person who violates that restriction can be sentenced to prison for up to 10 years. § 924(a)(2). For some felons, however, the Armed Career Criminal Act imposes a much more severe penalty. Under the Act, a person who possesses a firearm after three or more convictions for a "serious drug offense" or a "violent felony" is subject to a minimum sentence of 15 years and a maximum sentence of life in prison. § 924(e)(1). Because the ordinary maximum sentence for a felon in possession of a firearm is 10 years, while the minimum sentence under the Armed Career Criminal Act is 15 years, a person sentenced under the Act will receive a prison term at least five years longer than the law otherwise would allow.
The Act defines "violent felony" as
"any crime punishable by imprisonment for a term exceeding one year ... that-
"(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
"(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another." § 924(e)(2)(B).
Subsection (i) of this definition is known as the elements clause. The end of subsection (ii)-"or otherwise involves conduct that presents a serious potential risk of physical injury to another"-is known as the residual clause. See Johnson, supra, at ----, 135 S.Ct., at 2555-2556. It is the residual clause that Johnson held to be vague and invalid.
The text of the residual clause provides little guidance on how to determine whether a given offense "involves conduct that presents a serious potential risk of physical injury." This Court sought for a number of years to develop the boundaries of the residual clause in a more precise fashion by applying the statute to particular cases. See James v. United States, 550 U.S. 192, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007) (residual clause covers Florida offense of attempted burglary); Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008) (residual clause does not cover New Mexico offense of driving under the influence of alcohol); Chambers v. United States, 555 U.S. 122, 129 S.Ct. 687, 172 L.Ed.2d 484 (2009) (residual clause does not cover Illinois offense of failure to report to a penal institution); Sykes v. United States, 564 U.S. 1, 131 S.Ct. 2267, 180 L.Ed.2d 60 (2011) (residual clause covers Indiana offense of vehicular flight from a law-enforcement officer). In Johnson, a majority of this Court concluded that those decisions did not bring sufficient clarity to the scope of the residual clause, noting that the federal courts remained mired in "pervasive disagreement" over how the clause should be interpreted. Johnson, 576 U.S., at ----, 135 S.Ct., at 2560.
The Johnson Court held the residual clause unconstitutional under the void-for-vagueness doctrine, a doctrine that is mandated by the Due Process Clauses of the Fifth Amendment (with respect to the Federal Government) and the Fourteenth Amendment (with respect to the States). The void-for-vagueness doctrine prohibits the government from imposing sanctions "under a criminal law so vague that it fails to give ordinary people fair notice of the conduct it punishes, or so standardless that it invites arbitrary enforcement." Id., at ----, 135 S.Ct., at 2556. Johnson determined that the residual clause could not be reconciled with that prohibition.
The vagueness of the residual clause rests in large part on its operation under the categorical approach. The categorical approach is the framework the Court has applied in deciding whether an offense qualifies as a violent felony under the Armed Career Criminal Act. See id., at ----, 135 S.Ct., at 2556-2557. Under the categorical approach, "a court assesses whether a crime qualifies as a violent felony 'in terms of how the law defines the offense and not in terms of how an individual offender might have committed it on a particular occasion.' " Ibid. (quoting Begay, supra, at 141, 128 S.Ct. 1581 ). For purposes of the residual clause, then, courts were to determine whether a crime involved a "serious potential risk of physical injury" by considering not the defendant's actual conduct but an "idealized ordinary case of the crime." 576 U.S., at ----, 135 S.Ct., at 2561.
The Court's analysis in Johnson thus cast no doubt on the many laws that "require gauging the riskiness of conduct in which an individual defendant engages on a particular occasion ." Ibid. The residual clause failed not because it adopted a "serious potential risk" standard but because applying that standard under the categorical approach required courts to assess the hypothetical risk posed by an abstract generic version of the offense. In the Johnson Court's view, the "indeterminacy of the wide-ranging inquiry" made the residual clause more unpredictable and arbitrary in its application than the Constitution allows. Id., at ----, 135 S.Ct., at 2557. "Invoking so shapeless a provision to condemn someone to prison for 15 years to life," the Court held, "does not comport with the Constitution's guarantee of due process." Id., at ----, 135 S.Ct., at 2560.
II
Petitioner Gregory Welch is one of the many offenders sentenced under the Armed Career Criminal Act before Johnson was decided. Welch pleaded guilty in 2010 to one count of being a felon in possession of a firearm. The Probation Office prepared a presentence report finding that Welch had three prior violent felony convictions, including a Florida conviction for a February 1996 "strong-arm robbery." The relevant Florida statute prohibits taking property from the person or custody of another with "the use of force, violence, assault, or putting in fear." Fla. Stat. § 812.13(1) (1994). The charging document from the 1996 Florida case tracked that statutory language. App. 187a. The 2010 federal presentence report provides more detail. It states that, according to the robbery victim, Welch punched the victim in the mouth and grabbed a gold bracelet from his wrist while another attacker grabbed a gold chain from his neck.
Welch objected to the presentence report, arguing (as relevant here) that this conviction was not a violent felony conviction under the Armed Career Criminal Act. The District Court overruled the objection. It concluded that the Florida offense of strong-arm robbery qualified as a violent felony both under the elements clause, 18 U.S.C. § 924(e)(2)(B)(i), and the residual clause, § 924(e)(2)(B)(ii). The District Court proceeded to sentence Welch to the Act's mandatory minimum sentence of 15 years in prison.
The Court of Appeals for the Eleventh Circuit affirmed. That court did not decide whether the conviction at issue could qualify as a violent felony under the elements clause. Instead, it held only that the conviction qualified under the residual clause. This Court denied certiorari, see Welch v. United States, 568 U.S. ----, 133 S.Ct. 913, 184 L.Ed.2d 702 (2013), and Welch's conviction became final.
In December 2013, Welch appeared pro se before the District Court and filed a collateral challenge to his conviction and sentence through a motion under 28 U.S.C. § 2255. He argued, among other points, that his strong-arm robbery conviction itself was "vague" and that his counsel was ineffective for allowing him to be sentenced as an armed career criminal. The District Court denied the motion and denied a certificate of appealability.
Still proceeding pro se, Welch applied to the Court of Appeals for a certificate of appealability. His application noted that Johnson was pending before this Court. Welch argued, in part, that his "armed career offender status is unconstitutional and violate[s] [his] Fifth Amendment right to notice of the state priors." App. 20a. Two months later, Welch filed a motion asking the Court of Appeals to hold his case in abeyance until Johnson could be decided, "based on the fact he was sentenced under the [residual clause]." App. 15a.
In June 2015, the Court of Appeals entered a brief single-judge order denying the motion for a certificate of appealability. Less than three weeks later, this Court issued its decision in Johnson holding, as already noted, that the residual clause is void for vagueness. Welch filed a motion asking the Court of Appeals for additional time to seek reconsideration of its decision in light of Johnson, but the court returned that motion unfiled because Welch's time to seek reconsideration already had expired.
Welch then filed a pro se petition for certiorari. His petition presented two questions: whether the District Court erred in denying his § 2255 motion because his Florida robbery conviction does not qualify as a violent felony conviction under the Armed Career Criminal Act; and whether Johnson announced a substantive rule that has retroactive effect in cases on collateral review. Pet. for Cert. i. This Court granted the petition. 577 U.S. ----, 136 S.Ct. 790, 193 L.Ed.2d 534 (2016). Because the United States, as respondent, agrees with Welch that Johnson is retroactive, the Court appointed Helgi C. Walker as amicus curiae in support of the judgment of the Court of Appeals. She has ably discharged her responsibilities.
III
A
This case comes to the Court in a somewhat unusual procedural posture. Under the Antiterrorism and Effective Death Penalty Act of 1996, there can be no appeal from a final order in a § 2255 proceeding unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1). A certificate of appealability may issue "only if the applicant has made a substantial showing of the denial of a constitutional right." § 2253(c)(2). That standard is met when "reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner." Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Obtaining a certificate of appealability "does not require a showing that the appeal will succeed," and "a court of appeals should not decline the application ...
merely because it believes the applicant will not demonstrate an entitlement to relief." Miller-El v. Cockrell, 537 U.S. 322, 337, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003).
The decision under review here is the single-judge order in which the Court of Appeals denied Welch a certificate of appealability. Under the standard described above, that order determined not only that Welch had failed to show any entitlement to relief but also that reasonable jurists would consider that conclusion to be beyond all debate. See Slack, supra, at 484, 120 S.Ct. 1595. The narrow question here is whether the Court of Appeals erred in making that determination. That narrow question, however, implicates a broader legal issue: whether Johnson is a substantive decision with retroactive effect in cases (like Welch's) on collateral review. If so, then on the present record reasonable jurists could at least debate whether Welch should obtain relief in his collateral challenge to his sentence. On these premises, the Court now proceeds to decide whether Johnson is retroactive.
B
The normal framework for determining whether a new rule applies to cases on collateral review stems from the plurality opinion in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). That opinion in turn drew on the approach outlined by the second Justice Harlan in his separate opinions in Mackey v. United States, 401 U.S. 667, 91 S.Ct. 1160, 28 L.Ed.2d 404 (1971), and Desist v. United States, 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969). The parties here assume that the Teague framework applies in a federal collateral challenge to a federal conviction as it does in a federal collateral challenge to a state conviction, and we proceed on that assumption. See Chaidez v. United States, 568 U.S. ----, ----, n. 16, 133 S.Ct. 1103, 1113, n. 16, 185 L.Ed.2d 149 (2013) ; Danforth v. Minnesota, 552 U.S. 264, 269, n. 4, 128 S.Ct. 1029, 169 L.Ed.2d 859 (2008).
Under Teague, as a general matter, "new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced." 489 U.S., at 310, 109 S.Ct. 1060. Teague and its progeny recognize two categories of decisions that fall outside this general bar on retroactivity for procedural rules. First, "[n]ew substantive rules generally apply retroactively." Schriro v. Summerlin, 542 U.S. 348, 351, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004) ; see Montgomery v. Louisiana, 577 U.S. ----, ----, 136 S.Ct. 718, 728, 193 L.Ed.2d 599 (2016) ; Teague, supra, at 307, 311, 109 S.Ct. 1060. Second, new " 'watershed rules of criminal procedure,' " which are procedural rules "implicating the fundamental fairness and accuracy of the criminal proceeding," will also have retroactive effect. Saffle v. Parks, 494 U.S. 484, 495, 110 S.Ct. 1257, 108 L.Ed.2d 415 (1990) ; see Teague, supra, at 311-313, 109 S.Ct. 1060.
It is undisputed that Johnson announced a new rule. See Teague, supra, at 301, 109 S.Ct. 1060 ("[A] case announces a new rule if the result was not dictated by precedent existing at the time the defendant's conviction became final"). The question here is whether that new rule falls within one of the two categories that have retroactive effect under Teague . The parties agree that Johnson does not fall into the limited second category for watershed procedural rules. Welch and the United States contend instead that Johnson falls into the first category because it announced a substantive rule.
"A rule is substantive rather than procedural if it alters the range of conduct or the class of persons that the law punishes." Schriro, 542 U.S., at 353, 124 S.Ct. 2519. "This includes decisions that narrow the scope of a criminal statute by interpreting its terms, as well as constitutional determinations that place particular conduct or persons covered by the statute beyond the State's power to punish." Id., at 351-352, 124 S.Ct. 2519 (citation omitted); see Montgomery, supra, at ----, 136 S.Ct., at 728. Procedural rules, by contrast, "regulate only the manner of determining the defendant's culpability." Schriro, 542 U.S., at 353, 124 S.Ct. 2519. Such rules alter "the range of permissible methods for determining whether a defendant's conduct is punishable." Ibid . "They do not produce a class of persons convicted of conduct the law does not make criminal, but merely raise the possibility that someone convicted with use of the invalidated procedure might have been acquitted otherwise." Id., at 352, 124 S.Ct. 2519.
Under this framework, the rule announced in Johnson is substantive. By striking down the residual clause as void for vagueness, Johnson changed the substantive reach of the Armed Career Criminal Act, altering "the range of conduct or the class of persons that the [Act] punishes." Schriro, supra, at 353, 124 S.Ct. 2519. Before Johnson, the Act applied to any person who possessed a firearm after three violent felony convictions, even if one or more of those convictions fell under only the residual clause. An offender in that situation faced 15 years to life in prison. After Johnson, the same person engaging in the same conduct is no longer subject to the Act and faces at most 10 years in prison. The residual clause is invalid under Johnson, so it can no longer mandate or authorize any sentence. Johnson establishes, in other words, that "even the use of impeccable factfinding procedures could not legitimate" a sentence based on that clause. United States v. United States Coin & Currency, 401 U.S. 715, 724, 91 S.Ct. 1041, 28 L.Ed.2d 434 (1971). It follows that Johnson is a substantive decision.
By the same logic, Johnson is not a procedural decision. Johnson had nothing to do with the range of permissible methods a court might use to determine whether a defendant should be sentenced under the Armed Career Criminal Act. See Schriro, 542 U.S., at 353, 124 S.Ct. 2519. It did not, for example, "allocate decisionmaking authority" between judge and jury, ibid., or regulate the evidence that the court could consider in making its decision, see Whorton v. Bockting, 549 U.S. 406, 413-414, 417, 127 S.Ct. 1173, 167 L.Ed.2d 1 (2007) ; Mackey, supra, at 700-701, 91 S.Ct. 1160 (opinion of Harlan, J.). Unlike those cases, Johnson affected the reach of the underlying statute rather than the judicial procedures by which the statute is applied. Johnson is thus a substantive decision and so has retroactive effect under Teague in cases on collateral review.
C
Amicus urges the Court to adopt a different understanding of the Teague framework. She contends courts should apply that framework by asking whether the constitutional right underlying the new rule is substantive or procedural. Under that approach, amicus concludes that Johnson is a procedural decision because the void-for-vagueness doctrine that Johnson applied is based, she asserts, on procedural due process.
Neither Teague nor its progeny support that approach. As described above, this Court has determined whether a new rule is substantive or procedural by considering the function of the rule, not its underlying constitutional source. See, e.g., Schriro, supra, at 351-353, 124 S.Ct. 2519.
That is for good reason. The Teague framework creates a balance between, first, the need for finality in criminal cases, and second, the countervailing imperative to ensure that criminal punishment is imposed only when authorized by law. That balance turns on the function of the rule at issue, not the constitutional guarantee from which the rule derives. If a new rule regulates only the procedures for determining culpability, the Teague balance generally tips in favor of finality. The chance of a more accurate outcome under the new procedure normally does not justify the cost of vacating a conviction whose only flaw is that its procedures "conformed to then-existing constitutional standards." Teague, supra, at 310, 109 S.Ct. 1060. On the other hand, if a new rule changes the scope of the underlying criminal proscription, the balance is different. A change of that character will "necessarily carry a significant risk that a defendant stands convicted of 'an act that the law does not make criminal.' " Bousley v. United States, 523 U.S. 614, 620, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998) (quoting Davis v. United States, 417 U.S. 333, 346, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974) ). By extension, where the conviction or sentence in fact is not authorized by substantive law, then finality interests are at their weakest. As Justice Harlan wrote, "[t]here is little societal interest in permitting the criminal process to rest at a point where it ought properly never to repose." Mackey, 401 U.S., at 693, 91 S.Ct. 1160 (opinion of Harlan, J.).
The Teague balance thus does not depend on whether the underlying constitutional guarantee is characterized as procedural or substantive. It depends instead on whether the new rule itself has a procedural function or a substantive function-that is, whether it alters only the procedures used to obtain the conviction, or alters instead the range of conduct or class of persons that the law punishes. See Schriro, supra, at 353, 124 S.Ct. 2519 ; Montgomery, 577 U.S., at ----, 136 S.Ct., at 732-733. The emphasis by amicus on the constitutional guarantee behind the new rule, then, would untether the Teague framework from its basic purpose.
The approach amicus suggests also would lead to results that cannot be squared with prior precedent. Decisions from this Court show that a rule that is procedural for Teague purposes still can be grounded in a substantive constitutional guarantee. For instance, the Court has adopted certain rules that regulate capital sentencing procedures in order to enforce the substantive guarantees of the Eighth Amendment. The consistent position has been that those rules are procedural, even though their ultimate source is substantive. See, e.g., Beard v. Banks, 542 U.S. 406, 408, 416-417, 124 S.Ct. 2504, 159 L.Ed.2d 494 (2004) ; Sawyer v. Smith, 497 U.S. 227, 233, 241-242, 110 S.Ct. 2822, 111 L.Ed.2d 193 (1990). From the converse perspective, there also can be substantive rules based on constitutional protections that, on the theory amicus advances, likely would be described as procedural. For instance, a decision that invalidates as void for vagueness a statute prohibiting "conduct annoying to persons passing by," cf. Coates v. Cincinnati, 402 U.S. 611, 612, 614, 91 S.Ct. 1686, 29 L.Ed.2d 214 (1971), would doubtless alter the range of conduct that the law prohibits. That would make it a substantive decision under our precedent, see Schriro, 542 U.S., at 353, 124 S.Ct. 2519 even if the reasons for holding that statute invalid could be characterized as procedural.
Amicus next relies on language from this Court's cases describing substantive decisions as those that "place particular conduct or persons ... beyond the State's power to punish," id., at 352, 124 S.Ct. 2519 or that "prohibi[t] a certain category of punishment for a class of defendants because of their status or offense," Saffle, 494 U.S., at 494, 110 S.Ct. 1257 (internal quotation marks omitted). Cases such as these, in which the Constitution deprives the Government of the power to impose the challenged punishment, "represen[t] the clearest instance" of substantive rules for which retroactive application is appropriate. Mackey, supra, at 693, 91 S.Ct. 1160 (opinion of Harlan, J.). Drawing on those decisions, amicus argues that Johnson is not substantive because it does not limit Congress' power: Congress is free to enact a new version of the residual clause that imposes the same punishment on the same persons for the same conduct, provided the new statute is precise enough to satisfy due process.
Although this Court has put great emphasis on substantive decisions that place certain conduct, classes of persons, or punishments beyond the legislative power of Congress, the Court has also recognized that some substantive decisions do not impose such restrictions. The clearest example comes from Bousley, supra . In Bousley, the Court was asked to determine what retroactive effect should be given to its decision in Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). Bailey considered the "use" prong of 18 U.S.C. § 924(c)(1), which imposes increased penalties on the use of a firearm in relation to certain crimes. The Court held as a matter of statutory interpretation that the "use" prong punishes only "active employment of the firearm" and not mere possession. 516 U.S., at 144, 116 S.Ct. 501. The Court in Bousley had no difficulty concluding that Bailey was substantive, as it was a decision "holding that a substantive federal criminal statute does not reach certain conduct." Bousley, supra, at 620, 118 S.Ct. 1604 ; see Schriro, supra, at 354, 124 S.Ct. 2519 ("A decision that modifies the elements of an offense is normally substantive rather than procedural"). The Court reached that conclusion even though Congress could (and later did) reverse Bailey by amending the statute to cover possession as well as use. See United States v. O'Brien, 560 U.S. 218, 232-233, 130 S.Ct. 2169, 176 L.Ed.2d 979 (2010) (discussing statutory amendment known as the "Bailey fix"). Bousley thus contradicts the contention that the Teague inquiry turns only on whether the decision at issue holds that Congress lacks some substantive power.
Amicus recognizes that Bousley does not fit the theory that, in her view, should control this case. She instead proposes an ad hoc exception, contending that Bousley "recognized a separate subcategory of substantive rules" for decisions that interpret statutes (but not those, like Johnson, that invalidate statutes). Brief for Court-Appointed Amicus Curiae in Support of Judgment Below 40. For support, amicus looks to the separation-of-powers doctrine. Her argument is that statutory construction cases are substantive because they define what Congress always intended the law to mean-unlike Johnson, which struck down the residual clause regardless of Congress' intent.
That argument is not persuasive. Neither Bousley nor any other case from this Court treats statutory interpretation cases as a special class of decisions that are substantive because they implement the intent of Congress. Instead, decisions that interpret a statute are substantive if and when they meet the normal criteria for a substantive rule: when they "alte[r] the range of conduct or the class of persons that the law punishes." Schriro, supra, at 353, 124 S.Ct. 2519.
The separation-of-powers argument that amicus raises is also misplaced. Bousley noted that the separation of powers prohibits a court from imposing criminal punishment beyond what Congress meant to enact. 523 U.S., at 620-621, 118 S.Ct. 1604 ("[I]t is only Congress, and not the courts, which can make conduct criminal"). But a court likewise is prohibited from imposing criminal punishment beyond what Congress in fact has enacted by a valid law. In either case a court lacks the power to exact a penalty that has not been authorized by any valid criminal statute.
Treating decisions as substantive if they involve statutory interpretation, but not if they involve statutory invalidation, would produce unusual outcomes. "It has long been our practice ... before striking a federal statute as impermissibly vague, to consider whether the prescription is amenable to a limiting construction." Skilling v. United States, 561 U.S. 358, 40
Question: What is the issue of the decision?
01. involuntary confession
02. habeas corpus
03. plea bargaining: the constitutionality of and/or the circumstances of its exercise
04. retroactivity (of newly announced or newly enacted constitutional or statutory rights)
05. search and seizure (other than as pertains to vehicles or Crime Control Act)
06. search and seizure, vehicles
07. search and seizure, Crime Control Act
08. contempt of court or congress
09. self-incrimination (other than as pertains to Miranda or immunity from prosecution)
10. Miranda warnings
11. self-incrimination, immunity from prosecution
12. right to counsel (cf. indigents appointment of counsel or inadequate representation)
13. cruel and unusual punishment, death penalty (cf. extra legal jury influence, death penalty)
14. cruel and unusual punishment, non-death penalty (cf. liability, civil rights acts)
15. line-up
16. discovery and inspection (in the context of criminal litigation only, otherwise Freedom of Information Act and related federal or state statutes or regulations)
17. double jeopardy
18. ex post facto (state)
19. extra-legal jury influences: miscellaneous
20. extra-legal jury influences: prejudicial statements or evidence
21. extra-legal jury influences: contact with jurors outside courtroom
22. extra-legal jury influences: jury instructions (not necessarily in criminal cases)
23. extra-legal jury influences: voir dire (not necessarily a criminal case)
24. extra-legal jury influences: prison garb or appearance
25. extra-legal jury influences: jurors and death penalty (cf. cruel and unusual punishment)
26. extra-legal jury influences: pretrial publicity
27. confrontation (right to confront accuser, call and cross-examine witnesses)
28. subconstitutional fair procedure: confession of error
29. subconstitutional fair procedure: conspiracy (cf. Federal Rules of Criminal Procedure: conspiracy)
30. subconstitutional fair procedure: entrapment
31. subconstitutional fair procedure: exhaustion of remedies
32. subconstitutional fair procedure: fugitive from justice
33. subconstitutional fair procedure: presentation, admissibility, or sufficiency of evidence (not necessarily a criminal case)
34. subconstitutional fair procedure: stay of execution
35. subconstitutional fair procedure: timeliness
36. subconstitutional fair procedure: miscellaneous
37. Federal Rules of Criminal Procedure
38. statutory construction of criminal laws: assault
39. statutory construction of criminal laws: bank robbery
40. statutory construction of criminal laws: conspiracy (cf. subconstitutional fair procedure: conspiracy)
41. statutory construction of criminal laws: escape from custody
42. statutory construction of criminal laws: false statements (cf. statutory construction of criminal laws: perjury)
43. statutory construction of criminal laws: financial (other than in fraud or internal revenue)
44. statutory construction of criminal laws: firearms
45. statutory construction of criminal laws: fraud
46. statutory construction of criminal laws: gambling
47. statutory construction of criminal laws: Hobbs Act; i.e., 18 USC 1951
48. statutory construction of criminal laws: immigration (cf. immigration and naturalization)
49. statutory construction of criminal laws: internal revenue (cf. Federal Taxation)
50. statutory construction of criminal laws: Mann Act and related statutes
51. statutory construction of criminal laws: narcotics includes regulation and prohibition of alcohol
52. statutory construction of criminal laws: obstruction of justice
53. statutory construction of criminal laws: perjury (other than as pertains to statutory construction of criminal laws: false statements)
54. statutory construction of criminal laws: Travel Act, 18 USC 1952
55. statutory construction of criminal laws: war crimes
56. statutory construction of criminal laws: sentencing guidelines
57. statutory construction of criminal laws: miscellaneous
58. jury trial (right to, as distinct from extra-legal jury influences)
59. speedy trial
60. miscellaneous criminal procedure (cf. due process, prisoners' rights, comity: criminal procedure)
Answer:
|
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.
Lawrence L. SHULTS, Petitioner-Appellant, v. Harol L. WHITLEY, et al., Respondents-Appellees.
No. 91-16900.
United States Court of Appeals, Ninth Circuit.
Submitted Dec. 15, 1992.
Decided Dec. 23, 1992.
Lawrence L. Shults, pro se.
Robert E. Wieland, Deputy Atty. Gen., Carson City, NV, for respondents-appellees.
Before: GOODWIN, O’SCANNLAIN and RYMER, Circuit Judges.
The panel unanimously finds this case suitable for decision without oral argument. Fed. R.App.P. 34(a); 9th Cir.R. 34-4.
PER CURIAM:
Lawrence L. Shults appeals the district court’s denial of his petition for a writ of habeas corpus. Shults was convicted in Nevada state court of first degree murder and sentenced to life imprisonment without possibility of parole. Shults argues that his habeas petition should be granted because the district court refused to give his requested instruction that no inference be drawn from his failure to testify.
A district court’s decision whether to grant a writ of habeas corpus is reviewed de novo. Thomas v. Brewer, 923 F.2d 1361, 1364 (9th Cir.1991). We have jurisdiction pursuant to 28 U.S.C. § 2253 and 28 U.S.C. § 1291, and we affirm.
Shults did not testify at trial. He proposed the following jury instruction:
The law does not compel a defendant in a criminal case to take the witness stand and testify, and no presumption of guilt may be raised, and no inference of any kind may be drawn, from the failure of a defendant to testify.
As stated before, the law never imposes upon a defendant in a criminal case the burden or duty of calling any witnesses or producing any evidence.
The trial court refused this instruction.
Shults argues that the Supreme Court’s decision in Carter v. Kentucky, 450 U.S. 288, 101 S.Ct. 1112, 67 L.Ed.2d 241 (1981), controls this case. In Carter, the Court held that a “no inference” instruction, when requested by a defendant, is required by the Fifth and Fourteenth Amendment right against self-incrimination. Id. at 305, 101 S.Ct. at 1121. However, the rule of Carter does not apply retroactively on collateral review under the Supreme Court’s decision in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989).
In Teague, the Supreme Court held that “new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced.” Id. at 310, 109 S.Ct. at 1075. In Butler v. McKellar, 494 U.S. 407, 110 S.Ct. 1212, 108 L.Ed.2d 347 (1990), the Court reiterated that “a decision announces a new rule if the result was not dictated by precedent existing at the time the defendant’s conviction became final.” Butler, 494 U.S. at 412, 110 S.Ct. at 1216 (internal quotation marks omitted). A rule is not “dictated by precedent” if “reasonable jurists [might have] disagree[d]” that such a rule followed necessarily from prior decisions. Sawyer v. Smith, 497 U.S. 227, 234, 110 S.Ct. 2822, 2827, 111 L.Ed.2d 193 (1990).
In Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), the Supreme Court held that the Constitution “forbids either comment by the prosecution on the accused’s silence or instructions by the court that such silence is evidence of guilt.” Id. at 615, 85 S.Ct. at 1233. The rationale for this holding was that “comment on the refusal to testify ... cuts down on the privilege [against self-incrimination] by making its assertion costly.” Id. at 614, 85 S.Ct. at 1232-33. Shults argues that the holding in Griffin dictated the rule announced in Carter.
We believe, however, that “reasonable jurists” could well have concluded that adverse comment by the prosecutor or judge regarding a defendant’s failure to testify makes the assertion of the Fifth Amendment privilege “costly” to a defendant in a manner and to a degree that refusal to give a requested instruction forbidding adverse inference by the jury from an accused’s silence does not. Thus we do not think the Court’s decision in Griffin “dictated” the result in Carter. The Court might without self-contradiction have held that, although the Constitution requires that judge and prosecutor alike refrain from affirmative comment on a defendant’s silence, a jury may properly be left free to draw whatever inferences it wishes from that silence.
Our conclusion is bolstered by the fact that the Court expressly reserved judgment in Griffin on the question it finally answered in Carter, suggesting that the Court did not view its holding in the latter case as in any sense foreordained by its holding in the former. See id. at 615 n. 6, 85 S.Ct. at 1233 n. 6; see also Lakeside v. Oregon, 435 U.S. 333, 337, 98 S.Ct. 1091, 1093-94, 55 L.Ed.2d 319 (1978) (same). We therefore hold that Carter announced a new rule.
Nor does the rule of Carter fall within either of the two exceptions set out in Teague. Carter does not “place[ ] ‘certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe,’ ” Teague, 489 U.S. at 311, 109 S.Ct. at 1075 (quoting Mackey v. United States, 401 U.S. 667, 692, 91 S.Ct. 1160, 1180, 28 L.Ed.2d 404 (1971) (Harlan, J., concurring in part and dissenting in part)), and does not mandate a procedure which is “ ‘implicit in the concept of ordered liberty,’” id. (citing Mackey, 401 U.S. at 692, 91 S.Ct. at 1180, quoting Palko v. Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 152, 82 L.Ed. 288 (1937)).
The Nevada Supreme Court affirmed Shults’s conviction on direct appeal on September 5, 1980, 96 Nev. 742, 616 P.2d 388. Because Shults’s conviction was thus final before Carter was decided, Carter does not apply to his habeas petition. Furthermore, Shults does not show that failure to give the requested instruction otherwise violated due process. See Townsend v. Sain, 372 U.S. 293, 312, 83 S.Ct. 745, 756, 9 L.Ed.2d 770 (1963) (“State prisoners are entitled to relief on federal habeas corpus only upon proving that their detention violates the fundamental liberties of the person, safeguarded against state action by the Federal Constitution.”) Therefore, the failure to give the requested instruction does not warrant habeas relief.
AFFIRMED.
. Shults's remaining claims are addressed in an unpublished memorandum disposition filed concurrently with this opinion.
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_jurisdiction
|
D
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to some threshold issue at the trial court level. These issues are only considered to be present if the court of appeals is reviewing whether or not the litigants should properly have been allowed to get a trial court decision on the merits. That is, the issue is whether or not the issue crossed properly the threshhold to get on the district court agenda. The issue is: "Did the court determine that it had jurisdiction to hear this case?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".If the opinion discusses challenges to the jurisdiction of the court to hear several different issues and the court ruled that it had jurisdiction to hear some of the issues but did not have jurisdiction to hear other issues, answer "Mixed answer".
Elmer Finley JEFFERS, Appellant, v. Clarence T. GLADDEN, Warden, Oregon State Penitentiary, Appellee.
No. 21537.
United States Court of Appeals Ninth Circuit.
May 22, 1967.
Charles O. Porter, Porter & Bach, Eugene, Or., for appellant.
Robert Y. Thornton, Atty. Gen., David H. Blunt, Asst. Atty. Gen., Salem, Or., for appellee.
Before BROWNING, DUNIWAY, and ELY, Circuit Judges.
PER CURIAM:
The findings of the district court (which followed similar findings of the state court) that Jeffers knowingly and intentionally waived counsel and knowingly and voluntarily entered a plea of guilty are not clearly erroneous. No other question being raised on this appeal, the judgment is affirmed.
Question: Did the court determine that it had jurisdiction to hear this case?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_typeiss
|
D
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups.
ALGOMA CENTRAL & HUDSON BAY RY. CO. v. GREAT LAKES TRANSIT CORPORATION et al.
No. 77.
Oireuit Court of Appeals, Second Circuit.
Dec. 14, 1936.
See, also, The Edward E. Loomis, 86 F. (2d) 705.
Duncan, Leckie, McCreary, Schlitz & Hinslea and Robert G. McCreary, all of Cleveland, Ohio, for appellant.
Brown, Ely & Richards, of Buffalo, N. Y. (John B. Richards, Laurence E. Coffey, and David S. Jackson, all of Buffalo, N. Y., of counsel), for appellee.
Stanley & Gidley, of Buffalo, N. Y. (Ray M. Stanley, of Buffalo, N. Y., of counsel), for certain claimants.
Before L. HAND, SWAN, and CHASE, Circuit Judges.
L. HAND, Circuit Judge.
This is an appeal from a decree in the admiralty, dismissing a shipowner’s petition to limit its liability, filed under the Fifty-first Admiralty Rule (28 U.S.C.A. following section 723). The petitioner is a Canadian railway company, the owner of the steamer, “W. C. Franz,” which on the night of November 14, 1934, collided with the steamer, “Edward E. Loomis,” of the Great Lakes Transit Company, on Lake Huron, and sank in twenty-five fathoms of water. The railway filed a libel in personam against the Great Lakes company in the Northern District of Ohio, which the Great Lakes Company countered with a petition in the Western District of New York to limit its liability as owner of the “Loomis.” The railwáy appeared in that suit, answered and made claim, as did certain other persons, members of the “Franz’s” crew, who were injured, or whose decedents had been killed. While that suit was pending, the railway filed this petition in the Western District of New York to limit its own liability as owner of the “Franz”; since that vessel was a total loss and there was no pending freight, if it succeeds it will escape all liability; in Canada, on the other hand, it is said to be liable, as in England, at a specified rate per ton. This is the issue here at stake. The judge concluded that the petition would not lie in the Western District of New York, and dismissed it. The railway appealed.
The Fifty-fourth Admiralty Rule (28 U.S.C.A. following section 723) enacts that a petition for limitation may be filed where the “ship * * * may be libeled to answer ; * * * or, if the said ship * * * be not libeled, then in * * * any district in which the said owner * * * may be sued; * * * when the said ship * * * has n'ot been libeled * * * and suit has not been commenced against the said owner * * *, or has been commenced in a district other than that in which the said ship * * * may be, the said proceedings may be had in * * * the district in which the said ship * * * may be, and where it may be subject to the control of such court.” Rule 57 of 1872 (13 Wall, xiii, xiv), allowed the suit to be brought when and where the ship had been arrested (“libelled”), or the owner sued; but Judge Benedict decided in The John Bramall, Fed.Cas.No.7,334, 10 Ben. 495, that it would also lie wherever the ship, its wreck, or its strippings were surrendered into court, provided neither ship nor owner had been sued; and this the Supreme Court confirmed in Re Slayton (1881) 105 U.S. 451, 26 L.Ed. 1066. The statute (section 184, title 46 U.S.Code [46 U.S.C.A. § 184]), uses the phrase, “in any court,” and for this reason Rule Fifty-seven was not thought to be exhaustive as it then stood. But it was amended in 1889 (130 U.S. 705), so as to include the case dealt with in Re Slayton, supra, and it seems to us that it must now be regarded as filling out the whole scope of the statute. It was indeed almost inevitable that the owner should be allowed to choose the forum where the ship or her salvage was which he must surrender; at times it might be impossible for him to move it elsewhere, and in any case that would be the place for its sale. On the other hand it would be extremely burdensome and unfair, when there was nothing to surrender, to allow him to choose any court he wished, regardless of the convenience of everybody else concerned.
The railway answers that, even though this be the right reading of the rule— which it denies — when the Great Lakes Company filed its petition under the Fifty-first Rule, it “sued” the railway within the meaning of the Fifty-fourth, and that that suit justified a counter petition of the same kind. Conceivably a proceeding under the Fifty-first Rule ' might be turned into a “suit.” Suppose the petitioner were to interpose a counterclaim to a claimant’s claim; that that counterclaim were for a greater amount; and that the petitioner wished to use it, not only as a set-off, but as the basis for an affirmative recovery against the claimant. If this were permissible in the limitation suit, it would pro tanto become an offensive suit. We can assume arguendo, that it would be permissible, because the Great Lakes Company has not filed such a counterclaim. It is true ■ that in its answer to the railway’s claim it has alleged that if both vessels are held at fault, it wishes to bring its loss together with any payments for which it will be liable to others, into hotchpot with the loss of the railway recoverable against itself. It gives notice that it will then ask to make the case one of “average or contribution”; but it is not clear that by this it means that, if its aggregate losses are greater than those of the railway, it will seek to recover half the difference. As matters stand, it is claiming nothing offensively ■ against the railway, and, that possibility aside, the suit is purely defensive; it is merely to establish a concourse to which all must resort who would recover from it. The initiative does indeed always ‘ rest with the owner in such cases, but that cannot conceal the substance of the matter. When there is only one claim the suit, though permissible, (Larsen v. Northland Transportation Co., 292 U.S. 20, 54 S.Ct. 584, 78 L.Ed. 1096), is merely an alternative to a plea in bar to the claimant’s action. The Scotland, 105 U.S. 24, 33, 34, 26 L.Ed. 1001. When there are more claims than one, a concourse is the only way to secure the owner’s immunity, except at the greatest inconvenience and expense, if even these would avail. At no time can the owner recover a dollar by means of it from anybody. It is quite true that a decree may have some of the effects of a decree in an offensive suit; it will be res judicata in our courts, and possibly also in Canada. If so, in the case at bar the Great Lakes Company can use it as an estoppel, if ever it sues the railway in that country. But the fact that matters decided in an action will be conclusively established elsewhere does not make the action offensive; that result always follows wherever the doctrine of res judicata obtains. It would just as little have determined the character of this limitation suit, though the railway could not have extricated itgelf. In fact, however, it could have done so; it could have discontinued the libel in Ohio; it could have withdrawn its claim in the Great Lakes limitation suit. The Titanic, 225 F. 747 (C.C.A.2). This would have freed its hands effectually, and it can scarcely complain that, having pressed its own claim, it must abide the consequences which follow any adjudication.
Decree 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_const1
|
106
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited provision of the U.S. Constitution in the headnotes to this case. Answer "0" if no constitutional provisions are cited. If one or more are cited, code the article or amendment to the constitution which is mentioned in the greatest number of headnotes. In case of a tie, code the first mentioned provision of those that are tied. If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment.
Mack DEAN, Appellant, v. UNITED STATES of America, Appellee. Pearl RICKS, Appellant, v. UNITED STATES of America, Appellee.
Nos. 15642, 15643.
United States Court of Appeals Eighth Circuit.
July 11, 1957.
Otto Schmid, Kansas City, Mo., for appellants.
Kenneth C. West, Asst. United States Atty., Kansas City, Mo. (Edward L. Scheufler, United States Atty., Kansas City, Mo., was with him on the brief), for appellee.
Before GARDNER, Chief Judge, and VOGEL and VAN OOSTERHOUT, Circuit Judges.
GARDNER, Chief Judge.
Appellants were convicted under an indictment charging them with the sale, possession and concealment of quantities of heroin, a narcotic drug, in violation of Sections 4704(a) and 4705(a), Title 26, and Section 174, Title 21, United States Code Annotated.
The government’s testimony positively identified the defendants in connection with proof of sales of heroin as charged in the indictment and equally positive testimony identified each defendant in connection with the possession of heroin as charged in the indictment. Two of the government’s witnesses were addicts and another of the government’s witnesses had entered a plea of guilty to a narcotic violation and of these, two had been convicted of a felony. Their testimony, however, was corroborated by Federal Narcotic Agents or police officers. The defendants in defense offered testimony tending to prove an alibi for each of the defendants. At the close of all the testimony defendants interposed motions for judgments of acquittal in the following words:
“At the close of all the evidence, the defendants file this their motion for judgment of acquittal and state that the evidence offered both by the Government and by the defendants is insufficient to sustain a conviction on each of Counts I to Count XI, inclusive of the indictment.
“Wherefore, defendants pray that the Court render a judgment of acquittal and that they be discharged.”
The motions were denied and the case was submitted to the jury on instructions to which defendants here urge no objections.
It is contended that the evidence was insufficient to go to the jury and, hence, the court erred in denying their motions for judgments of acquittal interposed at the close of all the testimony.
In support of this contention it is argued that the witnesses as to the transactions involved were addicts or narcotic law violators, two of whom had records of convictions for felonies and, hence, their testimony was not credible. It must be observed in this connection, however, that while the witnesses used were addicts and confessedly not of the best reputations, their acts were evidenced by eye witnesses whose credibility stands unquestioned. The questions of the credibility of the witnesses and the weight to be given their testimony were, of course, questions for the jury and not questions for the court. It is not seriously argued that the proof of the commission of the crimes as charged was insufficient but that the witnesses were not worthy of belief. The jury having returned verdicts of guilty, we must assume that all conflicts in the evidence were resolved in favor of the government and, as we have often said, the prevailing party is entitled to the benefit of all such favorable inferences as may reasonably be drawn from the facts proven and if, when so considered, reasonable minds might reach different conclusions the issue is one of fact to be submitted to the jury and not one of law to be determined by the court.
It is not seriously urged that the evidence as to the commission of the alleged crimes is insufficient but it is argued that there was no proof that the crimes were committed within the Western District of Missouri. In their brief appellants state but one point to be argued, as follows: “There was no substantial evidence to sustain a verdict that the appellants sold, purchased, concealed or possessed the quantities of heroin as alleged in the Indictment, within the jurisdiction of the trial court.” In support of this point counsel in his brief says:
“Admitting, for the sake of this discussion, all the facts shown in the evidence, we submit that in the entire transcript of the testimony adduced at the trial, there is no proof that any of the violations of law charged in the Indictment occurred in the Western District of Missouri * * * >>
It is first to be noted that the motions for judgments of acquittal do not specify this as ground for granting their motions but the question is first specifically raised on this appeal. The indictment charges the offenses as having been committed in “Kansas City, Missouri, in the Western Division of the Western District of Missouri”. Government counsel in his opening statement prior to the introduction of any evidence recited that the various offenses were committed in Kansas City, Missouri. This, to be sure, was not testimony but it is part of the background. The case was tried in Kansas City and the witnesses who testified identified each transaction as having occurred at certain street corners or street numbers in Kansas City. As they were at the time of giving this testimony in Kansas City as were the jurors hearing the case we think, viewing the evidence in a light most favorable to the government, the jury may well have inferred that they were talking about Kansas City, Missouri. There was also introduced in evidence certain exhibits, notably Exhibit Nos. 1, 2, 3 and 4. All of these exhibits together with the notations thereon were admitted in evidence without objection. The notation on each exhibit showed that it had been obtained at a certain point in Kansas City, Missouri; for example, Exhibit No. 4 contained the following notations:
“Name: Willie James Carter et ah; Address: 1402 Highland, Kansas City, Mo.; Evidence: 20 capsules heroin weighing 29 grains; How Obtained: Purchased by Ted Shelton; Where Obtained: N. E. Corner 14th & Virginia Sts., Kansas City, Mo.; Date: May 2, 1956; Time: 6:30 p.m.; Amount Paid: $50.00; Witnesses: J. Flavin, J. Clifford, J. Hitchcock; R. Heinen— Detectives K. C., Mo., PD—G. F. Shattuck & Wm. M. Maguire, Narcotic Agents; Agent Reporting Case: Geo. F. Shattuck.”
These notations were a part of the exhibits. While it is essential to prove venue in a criminal prosecution it is a fact to be proven as any other fact and may be proven by either direct or circumstantial evidence. Blair v. United States, 8 Cir., 32 F.2d 130; United States v. Karavias, 7 Cir., 170 F.2d 968; United States v. Jones, 7 Cir., 174 F.2d 746; White v. United States, 83 U.S.App.D.C. 174, 167 F.2d 747; Tuckerman v. United States, 6 Cir., 291 F. 958; State v. Dale, 66 S.D. 418, 284 N.W. 770; 23 C.J.S. Criminal Law, § 914, p. 172. In Blair v. United States, supra, a case in which the testimony as to venue was somewhat vague, uncertain and indirect it is said [32 F.2d 132]:
“But venue may be proven like any other fact; therefore it may be found from circumstantial evidence.”
The same rule is announced by the Seventh Circuit in United States v. Karavias, supra [170 F.2d 970] as follows:
“The general rule governing proof of venue is that there need be no positive testimony that the violation occurred at a specific place, but that it is sufficient if it can be concluded from the evidence as a whole that the act was committed at the place alleged in the indictment. George v. United States, 1942, 75 U.S.App.D.C. 197, 125 F.2d 559; People v. Allegretto, 1920, 291 Ill. 364, 126 N.E. 158; People v. Reynolds, 1944, 322 Ill.App. 300, 54 N.E.2d 850, and cases cited. And, as stated by this Court in Wallace v. United States, 7 Cir., 1917, 243 F. 300, 306, ‘venue, like any other fact, may be shown by evidence, direct, indirect or circumstantial.’ ”
In United States v. Jones, supra [174 F.2d 749] it is said, inter alia:
“The evidence in this case refers to several streets where the transactions took place between the defendant and the Government agents, but not one of them is identified as being in the city of Chicago. If 'they had been so identified, we would judicially know that Chicago is within the Northern District of Illinois.”
In the instant case the testimony .showed that the streets mentioned were identified as being in Kansas City and the court could judicially know that Kansas City was in the Western Division of the Western District of Missouri. It is generally held that absence of direct proof of venue does not defeat conviction where it is properly inferable from all the evidence.
Venue is not an integral part of a criminal offense and, we have held, need not be proven beyond a reasonable doubt. Blair v. United States, supra. While it is not an integral part of a criminal offense and may not require proof beyond a reasonable doubt it must nevertheless be proved because the accused, under the Sixth Amendment to the Constitution, is guaranteed the right to a public triál by an impartial jury of the state and district wherein the crime shall have been committed. Morehouse v. United States, 8 Cir., 96 F.2d 468.
In the instant case there was before the jury not only the testimony of witnesses as to the names of the streets in Kansas City where the sales were consummated but this was supplemented by the notations on the exhibits introduced in evidence without objection, which showed that these places were in Kansas City, Missouri. The jurors were not required to close their eyes to this evidence. Manifestly, had any question been raised as to the sufficiency of the evidence to show venue it could readily have been supplied. On the whole record we think the jury in absence of any evidence to the contrary may well have found that the offenses were committed in Kansas City, Missouri, within the Western Division of the Western District of Missouri. The judgments appealed from are therefore affirmed.
Question: What is the most frequently cited provision of the U.S. Constitution in the headnotes to this case? If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment.
Answer:
|
sc_issue_1
|
56
|
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.
DEAN v. UNITED STATES
No. 08-5274.
Argued March 4, 2009
Decided April 29, 2009
Scott J. Forster, by appointment of the Court, 555 U. S. 1095, argued the cause for petitioner. With him on the briefs were Jeffrey T Green, Quin M. Sorenson, and Sarah O’Rourke Schrup.
Deanne E. Maynard argued the cause for the United States. With her on the brief were then -Acting Solicitor General Kneedler, Acting Assistant Attorney General Glavin, Deputy Solicitor General Dreeben, and Vijay Shanker
David Salmons, Robert V. Zener, Pamela Harris, Henry J. Bemporad, Mary Price, and Peter Goldberger filed a brief for the National Association of Criminal Defense Lawyers et al. as amici curiae urging reversal.
Chief Justice Roberts
delivered the opinion of the Court.
Accidents happen. Sometimes they happen to individuals committing crimes with loaded guns. The question here is whether extra punishment Congress imposed for the discharge of a gun during certain crimes applies when the gun goes off accidentally.
I
Title 18 U. S. C. § 924(c)(1)(A) criminalizes using or carrying a firearm during and in relation to any violent or drug trafficking crime, or possessing a firearm in furtherance of such a crime. An individual convicted of that offense receives a 5-year mandatory minimum sentence, in addition to the punishment for the underlying crime. § 924(c)(l)(A)(i). The mandatory minimum increases to 7 years “if the firearm is brandished” and to 10 years “if the firearm is discharged.” §§ 924(c)(l)(A)(ii), (iii).
In this case, a masked man entered a bank, waved a gun, and yelled at everyone to get down. He then walked behind the teller counter and started removing money from the teller stations. He grabbed bills with his left hand, holding the gun in his right. At one point, he reached over a teller to remove money from her drawer. As he was collecting the money, the gun discharged, leaving a bullet hole in the partition between two stations. The robber cursed and dashed out of the bank. Witnesses later testified that he seemed surprised that the gun had gone off. No one was hurt. App. 16-19, 24, 27, 47-48, 79.
Police arrested Christopher Michael Dean and Ricardo Curtis Lopez for the crime. Both defendants were charged with conspiracy to commit a robbery affecting interstate commerce, in violation of 18 U. S. C. § 1951(a), and aiding and abetting each other in using, carrying, possessing, and discharging a firearm during an armed robbery, in violation of § 924(c)(l)(A)(iii) and §2. App. 11-12. At trial, Dean admitted that he had committed the robbery, id., at 76-81, and a jury found him guilty on both the robbery and firearm counts. The District Court sentenced Dean to a mandatory minimum term of 10 years in prison on the firearm count, because the firearm “discharged” during the robbery. § 924(c)(1)(A)(iii); App. 136.
Dean appealed, contending that the discharge was accidental, and that the sentencing enhancement in § 924(c)(l)(A)(iii) requires proof that the defendant intended to discharge the firearm. The Court of Appeals affirmed, holding that separate proof of intent was not required. 517 F. 3d 1224, 1229 (CA11 2008). That decision created a conflict among the Circuits over whether the accidental discharge of a firearm during the specified crimes gives rise to the 10-year mandatory minimum. See United States v. Brown, 449 F. 3d 154 (CADC 2006) (holding that it does not). We granted certiorari to resolve that conflict. 555 U. S. 1028 (2008).
II
Section 924(e)(1)(A) provides:
“[A]ny person who, during and in relation to any crime of violence or drug trafficking crime . . . uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime—
“(i) be sentenced to a term of imprisonment of not less than 5 years;
“(ii) if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years; and
“(iii) if the firearm is discharged, be sentenced to a term of imprisonment of not less than 10 years.”
The principal paragraph defines a complete offense and the subsections “explain how defendants are to ‘be sentenced.’ ” Harris v. United States, 536 U. S. 545, 552 (2002). Subsection (i) “sets a catchall minimum” sentence of not less than five years. Id., at 552-553. Subsections (ii) and (iii) increase the minimum penalty if the firearm “is brandished” or “is discharged.” See id., at 553. The parties disagree over whether § 924(c)(l)(A)(iii) contains a requirement that the defendant intend to discharge the firearm. We hold that it does not.
A
“We start, as always, with the language of the statute.” Williams v. Taylor, 529 U. S. 420, 431 (2000). The text of subsection (iii) provides that a defendant shall be sentenced to a minimum of 10 years “if the firearm is discharged.” It does not require that the discharge be done knowingly or intentionally, or otherwise contain words of limitation. As we explained in Bates v. United States, 522 U. S. 23 (1997), in declining to infer an “Intent to defraud’” requirement into a statute, “we ordinarily resist reading words or elements into a statute that do not appear on its face.” Id., at 29.
Congress’s use of the passive voice further indicates that subsection (iii) does not require proof of intent. The passive voice focuses on an event that occurs without respect to a specific actor, and therefore without respect to any actor’s intent or culpability. Cf. Watson v. United States, 552 U. S. 74, 81 (2007) (use of passive voice in statutory phrase “to be used” in 18 U. S. C. § 924(d)(1) reflects “agnosticism ... about who does the using”). It is whether something happened— not how or why it happened — that matters.
The structure of the statute also suggests that subsection (iii) is not limited to the intentional discharge of a firearm. Subsection (ii) provides a 7-year mandatory minimum sentence if the firearm “is brandished.” Congress expressly included an intent requirement for that provision, by defining “brandish” to mean “to display all or part of the firearm, or otherwise make the presence of the firearm known to another person, in order to intimidate that person.” § 924(c)(4) (emphasis added). The defendant must have intended to brandish the firearm, because the brandishing must have been done for a specific purpose. Congress did not, however, separately define “discharge” to include an intent requirement. “[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.” Russello v. United States, 464 U. S. 16, 23 (1983) (internal quotation marks omitted).
Dean argues that the statute is not silent on the question presented. Congress, he contends, included an intent element in the opening paragraph of § 924(c)(1)(A), and that element extends to the sentencing enhancements. Section 924(c)(1)(A) criminalizes using or carrying a firearm “during and in relation to” any violent or drug trafficking crime. In Smith v. United States, 508 U. S. 223 (1993), we stated that the phrase “in relation to” means “that the firearm must have some purpose or effect with respect to the drug trafficking crime; its presence or involvement cannot be the result of accident or coincidence.” Id., at 238. Dean argues that the adverbial phrase thus necessarily embodies an intent requirement, and that the phrase modifies all the verbs in the statute — not only use, carry, and possess, but also brandish and discharge. Such a reading requires that a perpetrator knowingly discharge the firearm for the enhancement to apply. If the discharge is accidental, Dean argues, it is not “in relation to” the underlying crime.
The most natural reading of the statute, however, is that “in relation to” modifies only the nearby verbs “uses” and “carries.” The next verb — “possesses”—is modified by its own adverbial clause, “in furtherance of.” The last two verbs — “is brandished” and “is discharged” — appear in separate subsections and are in a different voice than the verbs in the principal paragraph. There is no basis for reading “in relation to” to extend all the way down to modify “is discharged.” The better reading of the statute is that the adverbial phrases in the opening paragraph — “in relation to” and “in fiirtherance of” — modify their respective nearby verbs, and that neither phrase extends to the sentencing factors.
But, Dean argues, such a reading will lead to absurd results. The discharge provision on its face contains no temporal or causal limitations. In the absence of an intent requirement, the enhancement would apply “regardless of when the actions occur, or by whom or for what reason they are taken.” Brief for Petitioner 11-12. It would, for example, apply if the gun used during the crime were discharged “weeks (or years) before or after the crime.” Reply Brief for Petitioner 11.
We do not agree that implying an intent requirement is necessary to address such concerns. As the Government recognizes, sentencing factors such as the one here “often involve . . . special features of the manner in which a basic crime was carried out.” Brief for United States 29 (quoting Harris, 536 U. S., at 553; internal quotation marks omitted). The basic crime here is using or carrying a firearm during and in relation to a violent or drug trafficking crime, or possessing a firearm in furtherance of any such crime. Fanciful hypotheticals testing whether the discharge was a “special featur[e]” of how the “basic crime was carried out,” id., at 553 (internal quotation marks omitted), are best addressed in those terms, not by contorting and stretching the statutory language to imply an intent requirement.
B
Dean further argues that even if the statute is viewed as silent on the intent question, that silence compels a ruling in his favor. There is, he notes, a presumption that criminal prohibitions include a requirement that the Government prove the defendant intended the conduct made criminal. In light of this presumption, we have “on a number of occasions read a state-of-mind component into an offense even when the statutory definition did not in terms so provide.” United States v. United States Gypsum Co., 438 U. S. 422, 437 (1978). “[S]ome indication of congressional intent, express or implied, is required to dispense with mens rea as an element of a crime.” Staples v. United States, 511 U. S. 600, 606 (1994).
Dean argues that the presumption is especially strong in this case, given the structure and purpose of the statute. In his view, the three subsections are intended to provide harsher penalties for increasingly culpable conduct: a 5-year minimum for using, carrying, or possessing a firearm; a 7-year minimum for brandishing a firearm; and a 10-year minimum for discharging a firearm. Incorporating an intent requirement into the discharge provision is necessary to give effect to that progression, because an accidental discharge is less culpable than intentional brandishment. See Brown, 449 F. 3d, at 156.
It is unusual to impose criminal punishment for the consequences of purely accidental conduct. But it is not unusual to punish individuals for the unintended consequences of their unlawful acts. See 2 W. LaFave, Substantive Criminal Law §14.4, pp. 436-437 (2d ed. 2003). The felony-murder rule is a familiar example: If a defendant commits an unintended homicide while committing another felony, the defendant can be convicted of murder. See 18 U. S. C. §1111. The Sentencing Guidelines reflect the same principle. See United States Sentencing Commission, Guidelines Manual §2A2.2(b)(3) (Nov. 2008) (USSG) (increasing offense level for aggravated assault according to the seriousness of the injury); § 2D2.3 (increasing offense level for operating or directing the operation of a common carrier under the influence of alcohol or drugs if death or serious bodily injury results).
Blackstone expressed the idea in the following terms:
“[I]f any accidental mischief happens to follow from the performance of a lawful act, the party stands excused from all guilt: but if a man be doing any thing unlawful, and a consequence ensues which he did not foresee or intend, as the death of a man or the like, his want of foresight shall be no excuse; for, being guilty of one of-fence, in doing antecedently what is in itself unlawful, he is criminally guilty of whatever consequence may follow the first misbehaviour.” 4 W. Blackstone, Commentaries on the Laws of England 26-27 (1769).
Here the defendant is already guilty of unlawful conduct twice over: a violent or drug trafficking offense and the use, carrying, or possession of a firearm in the course of that offense. That unlawful conduct was not an accident. See Smith, 508 U. S., at 238.
The fact that the actual discharge of a gun covered under §924(c)(l)(A)(iii) may be accidental does not mean that the defendant is blameless. The sentencing enhancement in subsection (iii) accounts for the risk of harm resulting from the manner in which the crime is carried out, for which the defendant is responsible. See Harris, supra, at 553. An individual who brings a loaded weapon to commit a crime runs the risk that the gun will discharge accidentally. A gunshot in such circumstances — whether accidental or intended — increases the risk that others will be injured, that people will panic, or that violence (with its own danger to those nearby) will be used in response. Those criminals wishing to avoid the penalty for an inadvertent discharge can lock or unload the firearm, handle it with care during the underlying violent or drug trafficking crime, leave the gun at home, or — best yet — avoid committing the felony in the first place.
Justice Stevens contends that the statute should be read to require a showing of intent because harm resulting from a discharge may be punishable under other provisions, such as the Sentencing Guidelines (but only if “bodily injury” results). Post, at 583 (dissenting opinion) (citing USSG §2B3.1(b)(3)). But Congress in § 924(c)(l)(A)(iii) elected to impose a mandatory term, without regard to more generally applicable sentencing provisions. Punishment available under such provisions therefore does not suggest that the statute at issue here is limited to intentional discharges.
And although the point is not relevant under the correct reading of the statute, it is wrong to assert that the gunshot here “caused no harm.” Post, at 578. By pure luck, no one was killed or wounded. But the gunshot plainly added to the trauma experienced by those held during the armed robbery. See, e. g., App. 22 (the gunshot “shook us all”); ibid. (“Melissa in the lobby popped up and said, ‘oh, my God, has he shot Nora?’ ”).
C
Dean finally argues that any doubts about the proper interpretation of the statute should be resolved in his favor under the rule of lenity. See Brief for Petitioner 6. “The simple existence of some statutory ambiguity, however, is not sufficient to warrant application of that rule, for most statutes are ambiguous to some degree.” Muscarello v. United States, 524 U. S. 125, 138 (1998); see also Smith, supra, at 239 (“The mere possibility of articulating a narrower construction, however, does not by itself make the rule of lenity applicable”). “To invoke the rule, we must conclude that there is a grievous ambiguity or uncertainty in the statute.” Muscarello, supra, at 138-139 (internal quotation marks omitted). In this case, the statutory text and structure convince us that the discharge provision does not contain an intent requirement. Dean’s contrary arguments are not enough to render the statute grievously ambiguous.
* * *
Section 924(c)(l)(A)(iii) requires no separate proof of intent. The 10-year mandatory minimum applies if a gun is discharged in the course of a violent or drug trafficking crime, whether on purpose or by accident. The judgment of the Court of Appeals for the Eleventh Circuit is affirmed.
It is so ordered.
Question: What is the issue of the decision?
01. involuntary confession
02. habeas corpus
03. plea bargaining: the constitutionality of and/or the circumstances of its exercise
04. retroactivity (of newly announced or newly enacted constitutional or statutory rights)
05. search and seizure (other than as pertains to vehicles or Crime Control Act)
06. search and seizure, vehicles
07. search and seizure, Crime Control Act
08. contempt of court or congress
09. self-incrimination (other than as pertains to Miranda or immunity from prosecution)
10. Miranda warnings
11. self-incrimination, immunity from prosecution
12. right to counsel (cf. indigents appointment of counsel or inadequate representation)
13. cruel and unusual punishment, death penalty (cf. extra legal jury influence, death penalty)
14. cruel and unusual punishment, non-death penalty (cf. liability, civil rights acts)
15. line-up
16. discovery and inspection (in the context of criminal litigation only, otherwise Freedom of Information Act and related federal or state statutes or regulations)
17. double jeopardy
18. ex post facto (state)
19. extra-legal jury influences: miscellaneous
20. extra-legal jury influences: prejudicial statements or evidence
21. extra-legal jury influences: contact with jurors outside courtroom
22. extra-legal jury influences: jury instructions (not necessarily in criminal cases)
23. extra-legal jury influences: voir dire (not necessarily a criminal case)
24. extra-legal jury influences: prison garb or appearance
25. extra-legal jury influences: jurors and death penalty (cf. cruel and unusual punishment)
26. extra-legal jury influences: pretrial publicity
27. confrontation (right to confront accuser, call and cross-examine witnesses)
28. subconstitutional fair procedure: confession of error
29. subconstitutional fair procedure: conspiracy (cf. Federal Rules of Criminal Procedure: conspiracy)
30. subconstitutional fair procedure: entrapment
31. subconstitutional fair procedure: exhaustion of remedies
32. subconstitutional fair procedure: fugitive from justice
33. subconstitutional fair procedure: presentation, admissibility, or sufficiency of evidence (not necessarily a criminal case)
34. subconstitutional fair procedure: stay of execution
35. subconstitutional fair procedure: timeliness
36. subconstitutional fair procedure: miscellaneous
37. Federal Rules of Criminal Procedure
38. statutory construction of criminal laws: assault
39. statutory construction of criminal laws: bank robbery
40. statutory construction of criminal laws: conspiracy (cf. subconstitutional fair procedure: conspiracy)
41. statutory construction of criminal laws: escape from custody
42. statutory construction of criminal laws: false statements (cf. statutory construction of criminal laws: perjury)
43. statutory construction of criminal laws: financial (other than in fraud or internal revenue)
44. statutory construction of criminal laws: firearms
45. statutory construction of criminal laws: fraud
46. statutory construction of criminal laws: gambling
47. statutory construction of criminal laws: Hobbs Act; i.e., 18 USC 1951
48. statutory construction of criminal laws: immigration (cf. immigration and naturalization)
49. statutory construction of criminal laws: internal revenue (cf. Federal Taxation)
50. statutory construction of criminal laws: Mann Act and related statutes
51. statutory construction of criminal laws: narcotics includes regulation and prohibition of alcohol
52. statutory construction of criminal laws: obstruction of justice
53. statutory construction of criminal laws: perjury (other than as pertains to statutory construction of criminal laws: false statements)
54. statutory construction of criminal laws: Travel Act, 18 USC 1952
55. statutory construction of criminal laws: war crimes
56. statutory construction of criminal laws: sentencing guidelines
57. statutory construction of criminal laws: miscellaneous
58. jury trial (right to, as distinct from extra-legal jury influences)
59. speedy trial
60. miscellaneous criminal procedure (cf. due process, prisoners' rights, comity: criminal procedure)
Answer:
|
sc_caseoriginstate
|
25
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state of the court in which the case originated. Consider the District of Columbia as a state.
SMITH v. MARYLAND
No. 78-5374.
Argued March 28, 1979 —
Decided June 20, 1979
BlackmuN, J., delivered the opinion of the Court, in which Burger, C. J., and White, RehNquist, and SteveNS, JJ., joined. Stewart, J., post, p. 746, and Marshall, J., post, p. 748, filed dissenting opinions, in which BrenNAN, J., joined. Powell, J., took no part in the consideration or decision of the case.
Howard L. Cardin argued the cause for petitioner. With him on the brief was James J. Gitomer.
Stephen H. Sachs, Attorney General of Maryland, argued the cause for respondent. With him on the brief were George A. Nilson, Deputy Attorney General, and Deborah K. Handel and Stephen B. Caplis, Assistant Attorneys General.
Mr. Justice Blackmun
delivered the opinion of the Court.
This case presents the question whether the installation and use of a pen register constitutes a “search” within the meaning of the Fourth Amendment, made applicable to the States through the Fourteenth Amendment. Mapp v. Ohio, 367 U. S. 643 (1961).
I
On March 5, 1976, in Baltimore, Md., Patricia McDonough was robbed. She gave the police a description of the robber and of a 1975 Monte Carlo automobile she had observed near the scene of the crime. Tr. 66-68. After the robbery, McDonough began receiving threatening and obscene phone calls from a man identifying himself as the robber. On one occasion, the caller asked that she step out on her front porch; she did so, and saw the 1975 Monte Carlo she had earlier described to police moving slowly past her home. Id., at 70. On March 16, police spotted a man who met McDonough’s description driving a 1975 Monte Carlo in her neighborhood. Id., at 71-72. By tracing the license plate number, police learned that the car was registered in the name of petitioner, Michael Lee Smith. Id., at 72.
The next day, the telephone company, at police request, installed a pen register at its central offices to record the numbers dialed from the telephone at petitioner’s home. Id., at 73, 75. The police did not get a warrant or court order before having the pen register installed. The register revealed that on March 17 a call was placed from petitioner’s home to McDonough’s phone. Id., at 74. On the basis of this and other evidence, the police obtained a warrant to search petitioner’s residence. Id., at 75. The search revealed that a page in petitioner’s phone book was turned down to the name and number of Patricia McDonough; the phone book was seized. Ibid. Petitioner was arrested, and a six-man lineup was held on March 19. McDonough identified petitioner as the man who had robbed her. Id., at 70-71.
Petitioner was indicted in the Criminal Court of Baltimore for robbery. By pretrial motion, he sought to suppress “all fruits derived from the pen register” on the ground that the police had failed to secure a warrant prior to its installation. Record 14; Tr. 54 — 56. The trial court denied the suppression motion, holding that the warrantless installation of the pen register did not violate the Fourth Amendment. Id., at 63. Petitioner then waived a jury, and the case was submitted to the court on an agreed statement of facts. Id., at 65-66. The pen register tape (evidencing the fact that a phone call had been made from petitioner’s phone to McDonough’s phone) and the phone book seized in the search of petitioner’s residence were admitted into evidence against him. Id., at 74-76. Petitioner was convicted, id., at 78, and was sentenced to six years. He appealed to the Maryland Court of Special Appeals, but the Court of Appeals of Maryland issued a writ of certiorari to the intermediate court in advance of its decision in order to consider whether the pen register evidence had been properly admitted at petitioner’s trial. 283 Md. 156, 160, 389 A. 2d 858, 860 (1978).
The Court of Appeals affirmed the judgment of conviction, holding that “there is no constitutionally protected reasonable expectation of privacy in the numbers dialed into a telephone system and hence no search within the fourth amendment is implicated by the use of a pen register installed at the central offices of the telephone company.” Id., at 173, 389 A. 2d, at 867. Because there was no “search,” the court concluded, no warrant was needed. Three judges dissented, expressing the view that individuals do have a legitimate expectation of privacy regarding the phone numbers they dial from their homes; that the installation of a pen register thus constitutes a “search”; and that, in the absence of exigent circumstances, the failure of police to secure a warrant mandated that the pen register evidence here be excluded. Id., at 174, 178, 389 A. 2d, at 868, 870. Certiorari was granted in order to resolve indications of conflict in the decided cases as to the restrictions imposed by the Fourth Amendment on the use of pen registers. 439 U. S. 1001 (1978).
II
A
The Fourth Amendment guarantees “'[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” In determining whether a particular form of government-initiated electronic surveillance is a “search” within the meaning of the Fourth Amendment, our lodestar is Katz v. United States, 389 U. S. 347 (1967). In Katz, Government agents had intercepted the contents of a telephone conversation by attaching an electronic listening device to the outside of a public phone booth. The Court rejected the argument that a “search” can occur only when there has been a “physical intrusion” into a “constitutionally protected area,” noting that the Fourth Amendment “protects people, not places.” Id., at 351-353. Because the Government’s monitoring of Katz’ conversation “violated the privacy upon which he justifiably relied while using the telephone booth,” the Court held that it “constituted a 'search and seizure’ within the meaning of the Fourth Amendment.” Id., at 353.
Consistently with Katz, this Court uniformly has held that the application of the Fourth Amendment depends on whether the person invoking its protection can claim a “justifiable,” a “reasonable,” or a “legitimate expectation of privacy” that has been invaded by government action. E. g., Rakas v. Illinois, 439 U. S. 128, 143, and n. 12 (1978); id., at 150, 151 (concurring opinion); id., at 164 (dissenting opinion) ; United States v. Chadwick, 433 U. S. 1, 7 (1977); United States v. Miller, 425 U. S. 435, 442 (1976); United States v. Dionisio, 410 U. S. 1, 14 (1973); Couch v. United States, 409 U. S. 322, 335-336 (1973); United States v. White, 401 U. S. 745, 752 (1971) (plurality opinion); Mancusi v. DeForte, 392 U. S. 364, 368 (1968); Terry v. Ohio, 392 U. S. 1, 9 (1968). This inquiry, as Mr. Justice Harlan aptly noted in his Katz concurrence, normally embraces two discrete questions. The first is whether the individual, by his conduct, has “exhibited an actual (subjective) expectation of privacy,” 389 U. S., at 361 — whether, in the words of the Katz majority, the individual has shown that “he seeks to preserve [something] as private.” Id., at 351. The second question is whether the individual’s subjective expectation of privacy is “one that society is prepared to recognize as 'reasonable,’ ” id., at 361— whether, in the words of the Katz majority, the individual’s expectation, viewed objectively, is “justifiable” under the circumstances. Id., at 353. See Rakas v. Illinois, 439 U. S., at 143-144, n. 12; id., at 151 (concurring opinion); United States v. White, 401 U. S., at 752 (plurality opinion).
B
In applying the Katz analysis to this case, it is important to begin by specifying precisely the nature of the state activity that is challenged. The activity here took the form of installing and using a pen register. Since the pen register was installed on telephone company property at the telephone company’s central offices, petitioner obviously cannot claim that his “property”’ was invaded or that police intruded into a “constitutionally protected area.” Petitioner’s claim, rather, is that, notwithstanding the absence of a trespass, the State, as did the Government in Katz, infringed a “legitimate expectation of privacy” that petitioner held. Yet a pen register differs significantly from the listening device employed in Katz, for pen registers do not acquire the contents of communications. This Court recently noted:
“Indeed, a law enforcement official could not even determine from the use of a pen register whether a communication existed. These devices do not hear sound. They disclose only the telephone numbers that have been dialed — a means of establishing communication. Neither the purport of any communication between the caller and the recipient of the call, their identities, nor whether the call was even completed is disclosed by pen registers.” United States v. New York Tel. Co., 434 U. S. 159, 167 (1977).
Given a pen register’s limited capabilities, therefore, petitioner’s argument that its installation and use constituted a “search” necessarily rests upon a claim that he had a “legitimate expectation of privacy” regarding the numbers he dialed on his phone.
This claim must be rejected. First, we doubt that people in general entertain any actual expectation of privacy in the numbers they dial. All telephone users realize that they must “convey” phone numbers to the telephone company, since it is through telephone company switching equipment that their calls are completed. All subscribers realize, moreover, that the phone company has facilities for making permanent records of the numbers they dial, for they see a list of their long-distance (toll) calls on their monthly bills. In fact, pen registers and similar devices are routinely used by telephone companies “for the purposes of checking billing operations, detecting fraud, and preventing violations of law.” United States v. New York Tel. Co., 434 U. S., at 174-175. Electronic equipment is used not only to keep billing records of toll calls, but also “to keep a record of all calls dialed from a telephone which is subject to a special rate structure.” Hodge v. Mountain States Tel. & Tel. Co., 555 F. 2d 254, 266 (CA9 1977) (concurring opinion). Pen registers are regularly employed “to determine whether a home phone is being used to conduct a business, to check for a defective dial, or to check for overbilling.” Note, The Legal Constraints upon the Use of the Pen Register as a Law Enforcement Tool, 60 Cornell L. Rev. 1028, 1029 (1975) (footnotes omitted). Although most people may be oblivious to a pen register’s esoteric functions, they presumably have some awareness of one common use: to aid in the identification of persons making annoying or obscene calls. See, e. g., Von Lusch v. C & P Telephone Co., 457 F. Supp. 814, 816 (Md. 1978); Note, 60 Cornell L. Rev., at 1029-1030, n. 11; Claerhout, The Pen Register, 20 Drake L. Rev. 108, 110-111 (1970). Most phone books tell subscribers, on a page entitled “Consumer Information/’ that the company “can frequently help in identifying to the authorities the origin of unwelcome and troublesome calls.” E. g., Baltimore Telephone Directory 21 (1978); District of Columbia Telephone Directory 13 (1978). Telephone users, in sum, typically know that they must convey numerical information to the phone company; that the phone company has facilities for recording this information; and that the phone company does in fact record this information for a variety of legitimate business purposes. Although subjective expectations cannot be scientifically gauged, it is too much to believe that telephone subscribers, under these circumstances, harbor any general expectation that the numbers they dial will remain secret.
Petitioner argues, however, that, whatever the expectations of telephone users in general, he demonstrated an expectation of privacy by his own conduct here, since he “us'[ed] the telephone in his house to the exclusion of all others.” Brief for Petitioner 6 (emphasis added). But the site of the call is immaterial for purposes of analysis in this case. Although petitioner’s conduct may have been calculated to keep the contents of his conversation private, his conduct was not and could not have been calculated to preserve the privacy of the number he dialed. Regardless of his location, petitioner had to convey that number to the telephone company in precisely the same way if he wished to complete his call. The fact that he dialed the number on his home phone rather than on some other phone could make no conceivable difference, nor could any subscriber rationally think that it would.
Second, even if petitioner did harbor some subjective expectation that the phone numbers he dialed would remain private, this expectation is not “one that society is prepared to recognize as 'reasonable.’ ” Katz v. United States, 389 U. S., at 361. This Court consistently has held that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties. E. g., United States v. Miller, 425 U. S., at 442-444; Couch v. United States, 409 U. S., at 335-336; United States v. White, 401 U. S., at 752 (plurality opinion); Hoffa v. United States, 385 U. S. 293, 302 (1966); Lopez v. United States, 373 U. S. 427 (1963). In Miller, for example, the Court held that a bank depositor has no “legitimate 'expectation of privacy’ ” in financial information “voluntarily conveyed to . . . banks and exposed to their employees in the ordinary course of business.” 425 U. S., at 442. The Court explained:
“The depositor takes the risk, in revealing his affairs to another, that the information will be conveyed by that person to the Government. . . . This Court has held repeatedly that the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed.” Id., at 443.
Because the depositor “assumed the risk” of disclosure, the Court held that it would be unreasonable for him to expect his financial records to remain private.
This analysis dictates that petitioner can claim no legitimate expectation of privacy here. When he used his phone, petitioner voluntarily conveyed numerical information to the telephone company and “exposed” that information to its equipment in the ordinary course of business. In so doing, petitioner assumed the risk that the company would reveal to police the numbers he dialed. The switching equipment that processed those numbers is merely the modern counterpart of the operator who, in an earlier day, personally completed calls for the subscriber. Petitioner concedes that if he had placed his calls through an operator, he could claim no legitimate expectation of privacy. Tr. of Oral Arg. 3-5, 11-12, 32. We are not inclined to hold that a different constitutional result is required because the telephone company has decided to automate.
Petitioner argues, however, that automatic switching equipment differs from a live operator in one pertinent respect. An operator, in theory at least, is capable of remembering every number that is conveyed to him by callers. Electronic equipment, by contrast, can “remember” only those numbers it is programmed to record, and telephone companies, in view of their present billing practices, usually do not record local calls. Since petitioner, in calling McDonough, was making a local call, his expectation of privacy as to her number, on this theory, would be “legitimate.”
This argument does not withstand scrutiny. The fortuity of whether or not the phone company in fact elects to make a quasi-permanent record of a particular number dialed does not, in our view, make any constitutional difference. Regardless of the phone company’s election, petitioner voluntarily conveyed to it information that it had facilities for recording and that it was free to record. In these circumstances, petitioner assumed the risk that the information would be divulged to police. Under petitioner’s theory, Fourth Amendment protection would exist, or not, depending on how the telephone company chose to define local-dialing zones, and depending on how it chose to bill its customers for local calls. Calls placed across town, or dialed directly, would be protected; calls placed across the river, or dialed with operator assistance, might not be. We are not inclined to make a crazy quilt of the Fourth Amendment, especially in circumstances where (as here) the pattern of protection would be dictated by billing practices of a private corporation.
We therefore conclude that petitioner in all probability entertained no actual expectation of privacy in the phone numbers he dialed, and that, even if he did, his expectation was not “legitimate.” The installation and use of a pen register, consequently, was not a “search,” and no warrant was required. The judgment of the Maryland Court of Appeals is affirmed.
It is so ordered.
Mr. Justice Powell took no part in the consideration or decision of this case.
“A pen register is a mechanical device that records the numbers dialed on a telephone by monitoring the electrical impulses caused when the dial on the telephone is released. It does not overhear oral communications and does not indicate whether calls are actually completed.” United States v. New York Tel. Co., 434 U. S. 159, 161 n. 1 (1977). A pen register is “usually installed at a central telephone facility [and] records on a paper tape all numbers dialed from [the] line” to which it is attached. United States v. Giordano, 416 U. S. 505, 549 n. 1 (1974) (opinion concurring in part and dissenting in part). See also United States v. New York Tel. Co., 434 U. S., at 162.
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U. S. Const., Arndt. 4.
See Application of United States for Order, 546 F. 2d 243, 245 (CA8 1976), cert. denied sub nom. Southwestern Bell Tel. Co. v. United States, 434 U. S. 1008 (1978); Application of United States in Matter of Order, 538 F. 2d 956, 959-960 (CA2 1976), rev’d on other grounds sub nom. United States v. New York Tel. Co., 434 U. S. 159 (1977); United States v. Falcone, 505 F. 2d 478, 482, and n. 21 (CA3 1974), cert. denied, 420 U. S. 955 (1975); Hodge v. Mountain States Tel. & Tel. Co., 555 F. 2d 254, 256 (CA9 1977); id., at 266 (concurring opinion); and United States v. Clegg, 509 F. 2d 605, 610 (CA5 1975). In previous decisions, this Court has not found it necessary to consider whether “pen register surveillance [is] subject to the requirements of the Fourth Amendment.” United States v. New York Tel. Co., 434 U. S., at 165 n. 7. See United States v. Giordano, 416 U. S., at 554 n. 4 (opinion concurring in part and dissenting in part).
In this case, the pen register was installed, and the numbers dialed were recorded, by the telephone company. Tr. 73-74. The telephone company, however, acted at police request. Id., at 73, 75. In view of this, respondent appears to concede that the company is to be deemed an “agent” of the police for purposes of this case, so as to render the installation and use of the pen register “state action” under the Fourth and Fourteenth Amendments. We may assume that “state action” was present here.
Situations can be imagined, of course, in which Katz’ two-pronged inquiry would provide an inadequate index of Fourth Amendment protection. For example, if the Government were suddenly to announce on nationwide television that all homes henceforth would be subject to war-rantless entry, individuals thereafter might not in fact entertain any actual expectation of privacy regarding their homes, papers, and effects. Similarly, if a refugee from a totalitarian country, unaware of this Nation’s traditions, erroneously assumed that police were continuously monitoring his telephone conversations, a subjective expectation of privacy regarding the contents of his calls might be lacking as well. In such circumstances, where an individual’s subjective expectations had been “conditioned” by influences alien to well-recognized Fourth Amendment freedoms, those subjective expectations obviously could play no meaningful role in ascertaining what the scope of Fourth Amendment protection was. In determining whether a “legitimate expectation of privacy” existed in such cases, a normative inquiry would be proper.
Question: What is the state of the court in which the case originated?
01. Alabama
02. Alaska
03. American Samoa
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. District of Columbia
11. Federated States of Micronesia
12. Florida
13. Georgia
14. Guam
15. Hawaii
16. Idaho
17. Illinois
18. Indiana
19. Iowa
20. Kansas
21. Kentucky
22. Louisiana
23. Maine
24. Marshall Islands
25. Maryland
26. Massachusetts
27. Michigan
28. Minnesota
29. Mississippi
30. Missouri
31. Montana
32. Nebraska
33. Nevada
34. New Hampshire
35. New Jersey
36. New Mexico
37. New York
38. North Carolina
39. North Dakota
40. Northern Mariana Islands
41. Ohio
42. Oklahoma
43. Oregon
44. Palau
45. Pennsylvania
46. Puerto Rico
47. Rhode Island
48. South Carolina
49. South Dakota
50. Tennessee
51. Texas
52. Utah
53. Vermont
54. Virgin Islands
55. Virginia
56. Washington
57. West Virginia
58. Wisconsin
59. Wyoming
60. United States
61. Interstate Compact
62. Philippines
63. Indian
64. Dakota
Answer:
|
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.
Murray GRAYSON and Southern Freightways, Inc., a corporation, Appellants, v. Harold E. WILLIAMS, Appellee.
No. 5746.
United States Court of Appeals Tenth Circuit.
May 21, 1958.
J. J. Hickey, Cheyenne, Wyo. (Norman B. Gray, of Ellery, Gray & Hickey, Cheyenne, Wyo., was with him on the brief)-, for appellants.
Carleton A. Lathrop, Cheyenne, Wyo. (Carl L. Lathrop and James A. Tilker, Cheyenne, Wyo., were with him on the brief), for appellee.
Before BRATTON, Chief Judge, and HUXMAN and MURRAH, United States Circuit Judges.
HUXMAN, Circuit Judge.
This was an action by Harold E. Williams against Murray Grayson and Southern Freightways, Inc., for damages arising out of the collision of a truck driven by Williams and one driven by Grayson, as an employee of Southern Freightways, Inc. Trial was had to a jury which returned a verdict for plaintiff upon which judgment was entered.
The collision occurred about 4:00 a. m. on April 5, 1956. At the time, Williams was driving a truck owned by the Union Pacific Railroad in an easterly direction toward Cheyenne, Wyoming. The truck operated by Grayson was traveling easterly along the same highway and was operated by him as an employee and agent of Southern Freightways and was being operated in the course of his employment at the time of the accident. Plaintiff’s cause of action was predicated upon the allegation that Grayson negligently drove his truck into the rear of plaintiff’s truck; that he operated his truck at a high, dangerous and excessive rate of speed; that he was negligent in not having his truck under control, and in failing to keep a proper lookout. The only negligence charged against Southern Freightways was that imputed by law from the negligent acts, if any, of its employee while engaged within the scope of his employment. Defendants denied negligence on their part and affirmatively pleaded contributory negligence on plaintiff’s part in that his truck was at least partially on the wrong side of the highway.
A number of assignments of error are urged for reversal which it will be necessary to consider. It is contended that prejudicial error was committed in admitting plaintiff’s exhibit 29. Exhibit 29 was a large diagram portraying in plat form the scene of the accident. There is also claimed prejudicial error on the court’s refusal to admit in evidence appellant’s exhibit A, as originally presented.
Exhibit 29 was prepared in large part from defendant’s exhibit A. Exhibit A was the official plat prepared by Sgt. Schwarting, a Wyoming highway patrolman, and was made pursuant to a statutory duty to diagram accidents on Wyoming highways. The objection to exhibit 29 was that no proper foundation of accuracy or verification had been laid for it and that it contained excerpts of the official plat favorable to appellee, and that such use of a public record was improper.
No attempt was made to draw exhibit 29 to exact scale nor was it intended to accurately reflect official exhibit A. It was intended as a fair representation of the road conditions and skid marks found at the scene of the accident. An examination of the record supports the conclusion that it did fairly represent conditions at the scene of the accident. The general rule is that an illustrative diagram intended to portray existing facts may be employed if it is a correct portrayal of existing facts. This is so no matter by whom the diagram is made, so long as the trial judge is satisfied that it is a correct portrayal of facts sought to be established. We think exhibit 29 met the test of the rule and was properly admitted.
It is urged that the court erred in refusing to admit appellants’ exhibit A, as originally offered. Exhibit A, as originally submitted, in addition to showing the highway, skid marks and the position of the trucks as they came to rest, contained the conclusions of the patrolman as to the point of impact of the vehicles at the time of the accident, and the assumed pathway of the vehicles subsequent to the accident. The deleted portions represented the patrolman’s conclusions as to what occurred from the facts as he saw and recorded them on the plat.
It is conceded that Sgt. Schwarting had many years of experience investigating accidents in his capacity as a highway patrolman and qualified as an expert witness relative to auto accidents. The general rule is that expert testimony or conclusions to be drawn from the facts are inadmissible in cases where the normal experience and qualification of laymen jurors enables them to draw proper conclusions from given facts. It is only in those cases where such experiences do not enable laymen to reach correct conclusions that experts-may be called upon to draw conclusions from technical experience or skill in a special field. This rule was decided by the Tenth Circuit in Nelson v. Brames, 241 F.2d 256, a Wyoming case. See also E. L. Farmer and Company v. Hooks, 10 Cir., 239 F.2d 547. This is also the rule-stated by the Wyoming Supreme Court in Macy v. Billings, 74 Wyo. 404, 289 P.2d 422, 424. The court, although the statement is somewhat in the nature of dictum, quoted with approval from the authorities as follows:
“ * * * ‘Normally, expert testimony is inadmissible to show how and where an accident took place, or the position of the automobiles.’ * 'X* »
All the physical facts were shown on appellants’ exhibit A. They were such as are within the experience of ordinary intelligent persons. The jurors were competent to draw their own conclusions-flowing therefrom unaided by the opinion of experts. The court did not abuse' its discretion in deleting the Sergeant’s conclusions as to what occurred from the-exhibit portraying the physical facts before admitting it into evidence.
It is urged that the court erred in refusing to give appellants’ instruction to the effect that if the jury found that appellee was driving his truck astride the center line of the highway at the time of the accident that such fact would constitute negligence per se. Wyoming has a statute which provides that “Upon all roadways of sufficient width a vehicle shall be driven upon the right half of the roadway, * * *”. It is a misdemeanor for any person to violate any of the provisions of the Act. The court instructed the jury,
“In connection with this statute, I charge you that said statute was applicable to the highway on which this accident occurred, and if you find from a preponderance of the evidence that the plaintiff, Harold E. Williams, at the time of the accident was operating the truck of his employer in such a manner that a portion of said truck was in the left half of the roadway and across the center line, you may consider this element as a circumstance in determining the question of contributory negligence. And you are instructed if you further find that such negligence, if any, contributed to plaintiff’s injury and damage, then the plaintiff cannot recover and your verdict must be for the defendant.”
Appellee’s position is that under Wyoming law violation of a traffic law only constitutes evidence of negligence. No Wyoming case squarely answering this question has been found. In Hester v. Coliseum Motor Company, 41 Wyo. 345, 285 P. 781, 784, the court quoted from the authorities holding that by the great weight of authority a violation of a traffic regulation was “negligence per se.” But with respect to the issue of negligence in the case the court instructed the jury that such violation “whether they be of the state or municipality, are at least evidence of negligence.”
In Blessing v. Pittman, 70 Wyo. 416, 251 P.2d 243, 250, the court stated that. “Failure to observe statutory requirements has been held to be negligence per se.” But the decision did not turn upon whether the statutory violation was negligence per se or only evidence of negligence. It was stated that a statutory violation made the offender liable for “ * * * damages proximately caused by reason thereof.”
Wallis v. Nauman, 61 Wyo. 231, 157 P.2d 285, 289, arose under a statute making it the duty of a driver of an automobile to remain on his side of the road when meeting a vehicle traveling in the opposite direction. The court held that driving on the left-hand side of a street or in the center thereof is not of itself negligence, since rules requiring operation of automobiles on the right side of a roadway do not contemplate strict compliance therewith except when an automobile passes another coming from the opposite direction. It was after this decision that the statute in question was passed. It is of interest to note that in the Wallis case the Wyoming Court quoted from a Maryland case construing the duty of a vehicle operator under a statute substantially identical with the present Wyoming statute in which the Maryland Court said [Kelly v. Huber Baking Co., 145 Md. 321, 125 A. 782], “ ‘It has been held that one who violates this statute does so at the risk of being held for negligence where collision and resulting injuries are directly and proximately caused by such violation.’ ” and that “ ‘the presence of defendants’ automobile on the left side of the road, * * * would constitute evidence of negligence.’ ”
It would seem that while the Wyoming Court has not drawn a clear distinction between the terms negligence per se and evidence of negligence, it is nonetheless committed to the doctrine that a violation of a traffic law or regulation will impose liability only when it is the proximate cause of the resulting injuries. The court did tell the jury that the statute was applicable, and in effect told that if it found plaintiff violated the statute the jury should consider it as a circumstance establishing contributory negligence. This is manifest from its statement that if the jury found “that such negligence, if any” — that is, if the plaintiff was in the wrong lane — -“contributed to plaintiff’s injury and damage, then the plaintiff cannot recover.” In our view, it is immaterial whether a violation of a traffic regulation constitutes negligence per se or only evidence of negligence. The decisive factor is whether such violation contributed to and was the proximate cause of the injury suffered. We think the court’s instructions fairly advised the jury to this effect.
Complaint is made of the court’s instruction telling the jury that if it found for the plaintiff he was entitled to recover the reasonable value of medical and hospital expenses including the charges of special nurses, even though the special nurses were paid for by the Union Pacific Railroad Hospital Association. It is well established that plaintiff at the time of the accident was a member of an employees’ hospital association and that he had contributed regularly to the association during his employment with the Union Pacific Railroad. The association fund received no contributions from the Railroad and was supervised by labor organizations of the railroad employees. Plaintiff’s hospital bills totalled $7,776.03. Of this, $3,960.03 for special nurses had been paid by the hospital association. The hospital and doctor expenses at the time of the trial had not been paid, but had been billed to plaintiff, and there was evidence to the effect that these were plaintiff’s obligations and not covered by the hospital association. Thus the issue narrows down to the question of whether it was proper to instruct the jury that plaintiff’s damages would include the nursing charges even though they were paid by the association.
Again no Wyoming decision has been found which has squarely passed apon this question. Appellants rely upon Templar v. Tongate, 71 Wyo. 148, 255 P.2d 223, and Hunt v. Thompson, 19 Wyo. 523, 120 P. 181, to sustain their contention. But neither of those cases is in point. In the Tongate case, the defendant himself had paid the special damages consisting of doctors’ bills and nursing bills and the court quite properly held that plaintiff was not entitled to recover from the defendant twice for one item of damages with which he was charged. In the Hunt case, the court merely made a general statement in an action for damages for wrongful taking under a writ of replevin, of the principle underlying the rules of compensatory damages. Nothing there stated lends support to appellants’ contention.
Where a part of a wrongdoer’s liability is discharged by payment from a collateral source, as here, the question arises who shall benefit therefrom, the wrongdoer or the injured person. No reason in law, equity or good conscience can be advanced why a wrongdoer should benefit from part payment from a collateral source of damages caused by his wrongful act. If there must be a windfall certainly it is more just that the injured person shall profit therefrom, rather than the wrongdoer shall be relieved of his full responsibility for his wrongdoing. We think we may judicially note that notwithstanding that the law contemplates full compensation, incidental losses and handicaps are suffered in a great number of personal injury cases which are not, and cannot be, fully compensated.
We think this conclusion is supported by the great weight of authority. Hudson v. Lazaras, 95 U.S.App.D.C. 16, 217 F.2d 344, held that an injured person may usually recover in full from a wrongdoer regardless of anything he may have received from a collateral source, and it is stated that the best interests of society as well as the purposes of the parties are likely to be better served if the injured person benefits rather than the wrongdoer benefitting.
The judgment is challenged on the further ground that the court erred in allowing admissions of appellant Grayson to be admitted in evidence against Southern Freightways, Inc. Three persons visited Grayson in the hospital several hours after the accident. They asked him if appellee’s truck was in its proper lane. Lockhead testified in substance that Grayson replied that it was and stated further that he didn’t see the Union Pacific truck until the last minute and couldn’t avoid striking it. Minardi testified that he said both trucks were in their proper lane and “I just didn’t see the truck in time enough to avoid striking it.” Sgt. Schwarting testified that Grayson said he didn’t see the other truck until it was right on him; that he cramped his wheels to the left but was too late and they hit. Objection was made by Southern Freightways to the admission of this testimony on the ground there was no showing “that it is within the res gestae” or “that it was within the scope of his authority.”
The court apparently admitted the evidence against Southern Freightways on the theory that Grayson was “acting within the scope of his authority or in line of duty” and, therefore, could bind his employer. Little attention will be given the res gestae rule in the resolution of this question, since it was not the basis of the court’s ruling. It may be said in passing it is doubtful whether statements made several hours after the happening of an event are admissible as part of the res gestae, in the absence of a strong showing of the state of mind of the declarant.
There is as much confusion in the law with respect to whether admissions by an agent are made within the scope of his employment as there is with respect to the res gestae rule. Of course, express authority to make admissions will rarely be found in a contract of employment. There is authority for holding that admissions made by an agent while acting in the scope of his employment and concerning the subject matter of his employment are binding on the principal. The reason for the rule is stated in Wig-more on Evidence, as follows: “ * * * and yet it is absurd to hold that the superintendent has power to make the employer heavily liable by mismanaging the whole factory, but not to make statements about his mismanagement which can be even listened to in court; * * 4 Wigmore on Evidence (3d Edition, 1940) § 1078, p. 121, n. 2.
This question was considered by Judge Morris in the United States District Court, District of Columbia, in Martin v. Savage Truck Line, 121 F.Supp. 417, upon facts indistinguishable from the facts in this case. It was there held that an employee truck driver who had been involved in a collision would be deemed within the scope of his employment in speaking of the accident shortly after its occurrence, and his statement that he had been driving at an excessive rate of speed would be admissible against the corporate employer’s interest, regardless of whether the statement fell within the res gestae rule. The court’s reasoning appeals to us as being sound.
But there is yet another reason why we think the judgment must be affirmed. This is not a case in which the corporation is charged with wrongful acts of commission or omission which would make it liable, such as putting defective equipment upon the highway. It is charged with no wrongdoing other than the wrongdoing of its agent, Grayson. It is liable only if Grayson, acting within the scope of his employment, was guilty of conduct which would impose liability upon him. Then by operation of law alone and without more, liability is imposed upon it. The liability of Gray-son depended upon facts; that of the company depended upon the applicable law when the facts were once established. The rule is well stated in 35 Am.Jur. § 543, page 973, as follows:
“ * * * By legal intendment, the act of the employee becomes the act of the employer, the individuality of the employee being identified with that of the employer. The latter is deemed to be constructively present; the act of the employee is his act, and he becomes accountable as for his own proper act or omission. The law imputes to the master the act of the servant, and if the act is negligent or wrongful, proximately resulting in injury to a third person, the negligence or wrongful conduct is the negligence or wrongful conduct of the master for which he is liable, * *
In order to find Southern Freightways, Inc. liable because of Gray-son’s acts, it was necessary to establish two facts; (1) that Grayson was acting within the scope of his employment; and (2) that he was guilty of actionable negligence. The first fact was admitted. Grayson’s admissions against his interest were properly admitted to establish his negligence. These admissions constituted evidence from which the jury could find together with other facts that he was liable for the accident. Any facts properly admitted to establish his liability were sufficient, without more, to impose liability upon his employer. Had the court sustained the motion and instructed the jury that the admissions were limited to a consideration of Gray-son’s liability and could not be considered in determining liability of Southern Freightways, the result would have been the same. The court might well have instructed the jury, in fact it did instruct the jury in substance, that no acts of negligent conduct were charged against Southern Freightways other than Grayson’s negligence; that it was sought to be held liable only for acts of its employee, Grayson, committed in the course of his employment; and that if the jury found that he was engaged in the course of his employment and was negligent, and that such negligence caused the collision, then the jury should return a verdict against Grayson because of his negligence and against Southern Freight-ways, even if there was no evidence of negligence other than Grayson’s negligence against it, because in law it would be liable for the actionable negligence of its employee committed in the course of his employment.
Let us assume that the court had instructed the jury that it could consider Grayson’s declarations only in determining his negligence and together with a general verdict had submitted these three special questions to the jury.
1. Was plaintiff guilty of contributory negligence?
2. Was Grayson guilty of negligence ?
3. Was his negligence the proximate cause of the accident?
If the jury had answered “no” to the first question and “yes” to questions 2 and 3, and then had returned a general verdict against Grayson and a general verdict in favor of Southern Freight-ways, Inc., would not the court have been required to sustain a motion for judgment against Southern Freightways, Inc., notwithstanding the general verdict in its favor? To hold otherwise would be to make a mockery of the law, because it would mean that the agent had been found guilty of actionable negligence, upon competent evidence, while acting within the scope of his employment, yet his principal had escaped.
Our conclusion is that the appeal presents no reversible error and the judgment is, therefore, affirmed.
. 9 A.L.R.2d 1060 § 9.
. Wyoming Compiled Statutes, 1945, 1957 Cum.Supp. § 60-643.
. Wyoming Compiled Statutes, 1945, 1957 Cum.Supp. § 60-747.
. This is the construction we have placed upon Wyoming law. See Nelson v. Brames, 10 Cir., 241 F.2d 256, and Nelson v. Brames, 10 Cir., 253 F.2d 381.
. To the same effect see Sainsbury v. Pennsylvania Greyhound Lines, Inc., 4 Cir., 183 F.2d 548, 21 A.L.R.2d 266; Standard Oil Co. of California v. United States, 9 Cir., 153 F.2d 958; 15 Am.Jur. Damages § 198.
. The court in its opinion, at page 419, said, “To say, in these circumstances, that the owner of a motor truck may constitute a person his agent for the purpose of the operation of such truck over public streets and highways, and to say at the same time that such operator is no longer the agent of such owner when an accident occurs, for the purpose of truthfully relating the facts concerning the occurrence to an investigating police officer on the scene shortly thereafter, seems to me to erect an untenable fiction, neither contemplated by the parties nor sanctioned by public policy. It is almost like saying that a statement against interest in the instant case could only have been made had the truck been operated by an officer or the board of directors of the Corporation owning the truck; and trucks are not operated that way. To exclude the statement of driver of the truck as to the speed of the truck at the time of the collision, which was not only clearly excessive in the circumstances, but even greater than the speed limit permitted on the highway between intersections, would be to deny an agency which I believe inherently exists regardless of whether the statement is made at the moment of the impact, or some minutes later to an investigating officer, or other authorized person. The motion will be denied.” See also Whitaker v. Keogh, 144 Neb. 790, 14 N.W.2d 596.
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_respond1_1_2
|
B
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to classify the scope of this business into one of the following categories: "local" (individual or family owned business, scope limited to single community; generally proprietors, who are not incorporated); "neither local nor national" (e.g., an electrical power company whose operations cover one-third of the state); "national or multi-national" (assume that insurance companies and railroads are national in scope); and "not ascertained".
NATIONAL LABOR RELATIONS BOARD et al., Petitioners, v. DAVID BUTTRICK COMPANY, Respondent.
No. 6636.
United States Court of Appeals First Circuit.
Heard April 5 and 6, 1966.
Decided May 26, 1966.
Warren M. Davison, Washington, D. C. , with whom Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Nancy M. Sherman and Linda R. Sher, Washington, D. C., were on brief, for petitioner.
Mark G. Kaplan, Boston, Mass., with whom Samuel E. Angoff and Angoff, Goldman, Manning & Pyle, Boston, Mass., were on brief, for Milk Wagon Drivers and Creamery Workers Union, Local No. 380, intervening petitioner.
John J. Delaney, Jr., Boston, Mass., with whom Murray S. Freeman, Gordon P. Ramsey, Duane R. Batista and Nutter, McClennen & Fish, Boston, Mass., were on brief, for respondent.
Before ALDRICH, Chief Judge, and McENTEE and COFFIN, Circuit Judges.
OPINION OF THE COURT.
COFFIN, Circuit Judge.
This petition of the National Relations Board seeks enforcement of a Board order that respondent company shall henceforth engage in collective bargaining in good faith with the exclusive representative of its employees, Milk Wagon Drivers and Creamery Workers Union, Local No. 380, affiliated with International Brotherhood of Teamsters, Chauffeurs, Ware-housemen and Helpers of America. Respondent’s position in this unfair labor practice proceeding and in an earlier representation proceeding has been that Local 380 is subject to a disqualifying conflict of interest by reason of its alleged subservience to International and the existence of a substantial loan by a pension fund, serving International’s members in another geographical area, to Whiting Milk Company, one of respondent’s competitors.
The conflict is asserted to lie in pressures that could be brought to bear on Local 380, through efforts of the Fund and International to protect the loan, to take action adverse to or refrain from taking action favorable to respondent and its employees. The Board and its subordinate officers have consistently ruled that there has been insufficient showing of such a connection between Local 380 and the Fund or such participation by the Local in the loan negotiations as to disqualify it from serving as the bargaining agent for respondent’s employees.
Factual Background
Respondent is a dairy products processor and distributor, with its principal place of business in Arlington, Massachusetts. Until September 1964, respondent had approximately thirty drivers servicing twenty-three retail milk delivery routes in some eighteen communities in the Greater Boston area. Eight routes were in Arlington where it was a major distributor. Competition in the entire area served involved several other companies and several hundred milk route drivers.
Local 380 has since 1910 represented milk company employees in the Boston area, and has about 1500 members who are employed by five or six milk companies and several other enterprises. Of these, 600 are employed by Whiting, which serves a much wider area than Greater Boston, and includes neighboring states. Local 380 .is an affiliate of International, and subject to its constitution. Since 1961 it has had its own by-laws, which deal with membership requirements, dues, meeting rules, duties and election of officers and barn stewards, and methods of approving compensation of officers, expenditures, and collective bargaining agreements.
After corporate reorganization in a federal district court, Whiting came under new management, in or around 1960. Financing was secured through short term bank loans. In 1962, Whiting was exploring sources of longer term financing. The chairman of the board of Whiting became interested in discussing the possibilities of a loan from the Fund and approached a business agent of Local 380 for an introduction to the General President of International. A meeting took place betweeen the two men in July 1962 and a meeting of the Fund’s trustees and Whiting’s chairman occurred in September 1962, followed by another meeting of the two men in the early spring of 1963. Local 380 played no part in any negotiations. Finally, in the spring of 1963, a loan in the total amount of $4 million was forthcoming, being secured by mortgages of real and personal property, including good will, a pledge of all stock, open end resignations of principal officers and directors, and the right to operate the debtor’s business in case of default of any obligation “without restrictions or limitations of any kind”. A year later, in July 1964, application was made for an additional loan of $700,000, for expansion into the distribution of refrigerated foods. This was granted in January 1965.
In September 1964, 29 of respondent’s retail driver employees went on strike, which strike is still continuing, no replacements having been hired. On October 7, 1964, the Board’s Regional Director ordered an election, which was held on October 29,1964, resulting in the ultimate certification of Local 380 as the collective bargaining agent for respondent’s employees.
A formal request to bargain was declined by respondent because of Local 380’s alleged disqualification, and the unfair labor practice proceeding followed. In this second procedural stage, respondent proffered the following additional evidence; (1) the actual granting of the additional $700,000 loan; (2) acquiescence by Local 380 in Whiting’s initiating discussions with employees about a possible reduction of the work week and elimination of some jobs, and some changes by Whiting in this direction without union protest; and (3) Whiting’s decision in 1965, for the first time, to engage in individual bargaining rather than to continue its participation in multi-employer bargaining. The Trial Examiner concluded that respondent’s affirmative defense, Local 380’s disqualification, had not been sufficiently established to rebut the prima facie case of refusal to bargain. The Board affirmed and subsequently denied respondent’s motion to reopen the record to receive allegedly new evidence of control by International’s General President over both the Fund and bargaining activities of local unions.
The Board’s Conclusions
Because we disagree with the approach taken by the Regional Director, Trial Examiner, and the Board, it is essential that the basis of their conclusions be understood. The first decision — in the representation proceeding — was made for the Board by its Regional Director. The issue occasioning this opinion was disposed of in a footnote, as follows:
“2. The Employer contended that, although the' Petitioner herein is a labor organization within the meaning of the Act, it is disqualified from participating in the instant proceeding, in view of the fact that Central States, Southeast and Southwest Areas’ Pension Fund, a joint labor-management administered fund, had recently loaned certain sums of money to a competitor of the Employer herein. The record in the instant case indicates that Petitioner is not affiliated with said Fund nor did it participate in the negotiations concerning said loan. Accordingly, it is determined that the Petitioner is a labor organization that may participate in the instant proceeding before this Board. Auburn Rubber Company, Inc., 140 N.L.R.B. 919, fn. 3.”
We do not take issue with the findings of non-affiliation and non-participation in loan negotiations, nor with the citation to Auburn Rubber Company, Inc., supra, which contains a similar footnote conclusion that another Teamsters local was not “affiliated” with the Funds. Our difficulty is that we do not think the issue of disqualification on the asserted ground of conflicts of interest can be so easily disposed of. The footnoted findings are correct answers to the wrong questions.
Similarly, when the Board affirmed the Trial Examiner’s findings and conclusions in the unfair labor practice hearing, it took substantially the same position on the conflicts of interest issue. The Trial Examiner considered that the basic arguments had already been rejected by the Board as not being supported by the evidence then before it. He concluded that the proffered new evidence of the additional loan, the talk and acts of Whiting relating to eliminating some jobs and shifting to unilateral bargaining did not add enough to overcome the General Counsel’s prima facie case. The Board, in affirming, said in a footnote:
“ * * * like the Trial Examiner, we find that the entire record, as supplemented by these additional facts, contains insufficient evidence of any definite or substantial connection between the Union and the loans by the Fund to Whiting which allegedly give rise to such a conflict of interest as would disqualify the Union from representing Respondent’s employees.”
Again, we accept the factual statement that there was insufficient evidence of a “definite or substantial connection” between the union and the loans to Whiting, if by this is meant either formal affiliation between Local 380 and the Fund or involvement by the local in the loan negotiations. But, again, this does not dispose of the issue, for it is the interrelationship of powers and temptations created by the Fund’s loans to a competitor of respondent which gives rise to the problem, without regard to the circumstances leading to the existence of the loans. The principles attaching to the concept of conflicts of interest in the fiduciary field generally, and also in the field of collective bargaining, look to the prevention and forestalling of conditions which are likely to divide loyalties. Were proof of union “betrayal” required to trigger the application of sanctions, this constructive operation of the law would be largely nullified. We therefore take issue, not with the interpretation of the testimony, nor, of course, with the facts as revealed by the documentary evidence, but rather with the test or standard applied and the application of the undisputed facts to such standard.
While we have often considered ourselves restrained by the teaching of Universal Camera Corp. v. N. L. R. B., 1951, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456, we consider that a fair and sensitive resolution of the basic issue in this case involves the kind of “judgment as to the proper balance to be struck between conflicting interests” where we would not be expected or required to feel bound by administrative conclusions. N. L. R. B. v. Brown et al., 1965, 380 U.S. 278, 85 S.Ct. 980, 13 L.Ed.2d 839.
Precedents and Principles
While the Board may have been correct in saying of the specific circumstances in Bausch & Lomb Optical Company, 1954, 108 N.L.R.B. 1555, 1562, that the case was “unique”, we suspect that as union pension funds continue to grow, particularly with multi-employer contributors, the question of possible conflict between investment protection and worker representation motives is likely to arise with increasing frequency.
We recognize the presence of a number of conflicting objectives which must somehow be kept in balance. There is the right of employees under Section 9(a) of the Labor Management Relations Act (29 U.S.C. 159(a)) to have bargaining representatives of their own choosing. But there is the correlative duty of complete loyalty of such representatives to their constituents, Ford Motor Co. v. Huffman et al., 1953, 345 U.S. 330, 338, 73 S.Ct. 681, 97 L.Ed. 1048. On such a loyalty depends in large measure the “reasoned discussion in a background of balanced bargaining relations upon which good faith bargaining must rest”. Phelps Dodge Copper Products Corp., 1952, 101 N.L.R.B. 360, 368. On the other hand, there is the obvious right of pension funds to put their funds to good use and not to be unduly circumscribed in their investment opportunities.
At the same time we are mindful of the increasing concern over the eroding effects of direct and even attenuated conflicts of interest, particularly on the part of public officials. In the labor field, similar concern has found its way into legislation, i. e., the Welfare and Pension Plans Disclosure Act of 1958, 29 U.S.C. Sec. 301 et seq., and the Labor-Management Reporting and Disclosure Act of 1959, 29 U.S.C. Sec. 401 et seq. Moreover, bargaining units have been said to have a quasi-legislative function, binding individuals whether consenting or not. See “Cox, Internal Affairs of Labor Unions Under the Labor Reform Act of 1959”, 58 Mich.L.Rev. 819 n. 4 (1960), citing Steele v. Louisville & N. R. Co. et al., 1944, 323 U.S. 192, 202, 65 S.Ct. 226, 89 L.Ed. 173. But we must also accept the cautionary advice that “Courts should take care, in borrowing fiduciary principles from other areas of the law, to avoid interfering with such union activities”. Note, 37 N.Y.U.L.Rev. 486, 504 (1962). This is particularly pertinent in a field where Congress has not seen fit to attempt specific legislation.
While there is widespread interest in union democracy, as evidenced by the “Bill of Rights” in the Labor Management Reporting and Disclosure Act, supra, Subchapter II, Sec. 411-415, there is good reason for the great national unions to retain considerable central authority to be able to root out subversion and corruption (See Cox, supra, 58 Mich.L.Rev. at 847) and to remain effective in large scale collective bargaining.
The pertinent cases in this field are few. Perhaps the leading case is Bausch & Lomb Optical Company, supra. In this case a local union sought to be recognized as the company’s bargaining agent, despite its ownership of a competing concern in the same city. There was no evidence that the union had taken any action to benefit its own company. The Trial Examiner, in ruling for the union, had observed that any abuses could be cured by invoking remedies available under laws prohibitive of acts in restraint of trade. The Board, however, reversed the ruling, pointing out the necessity for a bargaining agent to have “single-minded purpose” and “complete loyalty”, saying, 108 N.L.R.B. at 1559:
“While we agree with the Trial Examiner that no evidence of specific abuse by the Union in the bargaining relationship has been presented, we cannot ignore or disregard the innate danger involved were we to order this Respondent to bargain with a union which is also its business competitor.”
The Board referred to the mutuality of concern which sometimes leads to a wage compromise between union and management in the interest of business survival and said, “this retarding influence upon inordinate demands may well be eliminated * * *. Indeed, the success of one [company] could well mean the failure of the other.” 108 N.L.R.B. at 1560. It went on to say that it was not fair to put upon the company the burden of trying to disentangle employee from investment motivation, for the company “would be effectively deprived of its right to refuse even to discuss excessive demands designed to force it out of business.” 108 N.L.R.B. at 1561. It observed also that the union, representing 7 of 11 wholesale optical firms and the respondent, had considerable control over the labor market.
It concluded by saying:
“We do not believe it is incumbent upon the Board to hold, in a situation such as involved here, which possesses latent dangers, that merely because the hazards which can be anticipated have not yet been realized, the Respondent-employer is nonetheless under a statutory duty to bargain. We do not mean to imply that given the opportunity the Union would inevitably take advantage of its position in the manner before indicated. It is enough for us that it could and that the temptation is too great.” 108 N.L.R.B. at 1562.
To this must be added Chicago Typographical Union No. 16 et al, 1940, 86 N.L.R.B. 1041. Here the Board recognized almost twenty years ago that “the essential indicia of complete local autonomy” are “freedom in the Local to disregard the ‘advice’ of the International and to conclude negotiations independently.” The Board went on to point out the specific obligations of the local union to submit contract proposals and negotiated contracts to the International for approval, or risk the withholding of strike benefit funds. Although this procedure was not always followed, the Board said, “All we need decide and do decide here is what powers the membership contract vests in the organization.” 86 N.L.R.B. at 1047 n. 15.
Bausch & Lomb was admittedly a clear case of immediate, direct competition. This is a case of contingent competition. But we distill the following points from this and other cases: (1) it is the innate danger to be guarded against; (2) the existence of this danger does not require proof of abuse of trust, so long as there is sufficient power and temptation to commit such abuse; (3) such a danger, if proximate enough, without evidence of present abuse, can poison the collective bargaining process by subjecting every issue to the questioning of ulterior motives; (4) where such proximate danger exists, it is not exorcised by the mere existence of other legal remedies such as those created by anti-trust legislation; and (5) the keystone freedom required on the part of a local union seeking to become an exclusive collective bargaining agent is the freedom to conclude such bargaining negotiations free of the suspicion that it is motivated by any purpose other than its loyalty to the employees it represents.
In seeking to measure the proximateness of the hazard, we see little utility in asking the general question whether or not the local union is “autonomous”. Few locals would have complete autonomy. We can conceive of a local with a large area of autonomy which may nevertheless be required to subordinate or share its authority with its international as to a key function of the bargaining process. It is possible, on the other hand, to conceive of a local which is subordinate in many respects to its parent international union and yet free of any meaningful restriction in its power to set an independent course in its collective bargaining activities. The cases, therefore, which hold that service on a local does not constitute service on an international, e. g., Morgan Drive Away, Inc. v. International Brotherhood of Teamsters et al., 7 Cir., 1959, 268 F.2d 871, cert. denied, 361 U.S. 896, 80 S.Ct. 199, 4 L.Ed.2d 152 (but cf. International Brotherhood of Teamsters et al. v. United States, 4 Cir., 1960, 275 F.2d 610, 614 n. 4, cert. denied, 362 U.S. 975, 80 S.Ct. 1060, 4 L.Ed.2d 1011), or that an international is not responsible for wrongful acts of its locals, e. g., International Brotherhood of Electrical Workers, Local 5 (Franklin Electric Construction Co.), 1958, 121 N.L.R.B. 143, do not necessarily establish the Criteria for resolving a conflicts of interest case. What is required is a selective scrutiny of those key powers which a local bargaining agent must be able to exercise with undivided loyalty if it is to engender confidence at the bargaining table.
Coming to the facts of this case, and focussing on what we feel to be pertinent, Local 380 is subject to the following exercise of' authority by International: (1) to arbitrate a controversy if the General President submits the matter to the General Executive Board and the Board feels that the local should arbitrate (International Constitution, Art. VI, Sec. 3); (2) to submit its management to a trustee appointed by the General President, if the latter believes that the local union is acting to “jeopardize the interests of the International Union, or its subordinate bodies” or if he feels such action is necessary to assure the performance of “duties of a bargaining representative” (Art. VI, Sec. 5(a)); (3) to desist from strike if the General President disapproves (Art. XII, Sec. 1(c)); and (4) to submit proposed collective bargaining contracts to the Joint Council and Area Conference and, if such contract provides for a lower standard of working conditions and wages than those prevailing in the area, to await the approval of the General Executive Board of International (Art. XII, Sec. 11(a) and (d)).
Area Conferences, which have the power to approve proposed collective bargaining agreements and also to name the union trustees on the Fund’s Board are “at all times subject to the unqualified supervision, direction and control of the General President * * * ” (Art. XVI, Sec. 1).
Translating these powers into practical terms, if Local 380 were willing to accept less than the average wages in order to assist respondent to reenter the retail milk delivery market, its ability to so agree is conditioned on acceptance by the Area Conference, which is wholly under the “unqualified supervision, direction, and control of the General President”, and the General Executive Board. But the General President has a fiduciary responsibility to the Fund to see Whiting, a competitor, do as well as possible. On the other hand, if Local 380 wished to ask for substantially higher than average area wages, and were willing to strike for them, the General President faces the possible chain effect of wage escalation on Whiting and might well feel conscience-bound to cause the Area Conference to veto such strike and/or advise the General Executive Board to order arbitration. If Local 380 were zealously to pursue policies which began to hurt Whiting, the General President might even come to the conclusion that the interests of the International (i. e., nearly $5 million of the Fund’s money) were in jeopardy, and order a trusteeship. Alternatively, he or the General Executive Board might feel called upon to bring pressures short of these ultimate sanctions.
These possibilities, the extent to which they constitute “innate dangers”, their effect on the bargaining process, the feasibility of devising reasonable proscriptions and safeguards — these we think ought to have been the concern of the Board, not whether the local union was “affiliated” with the Fund or had participated in the negotiations leading to the Fund’s loan.
Were we to affirm the Board’s petition in this case, we would in effect be giving carte blanche to unthinking debt financing by unions in enterprises with which they had bargaining relationships. Some of these chickens would come home to roost in eases of default and operation of the debtor by the union or its fund. But the more difficult problem would be coping with the problems of collective bargaining while lender and borrower were bending every effort to avoid default.
But were we simply to remand this case to the Board with instructions to dismiss the underlying representation petition, as respondent urges, we would be setting the stage for a wholesale reshuffling of collective bargaining relationships in the milk industry in the Boston area and perhaps beyond, without giving the Board or the International opportunity to try to come to terms with a problem which was not foreseen when a loan was made in undoubtedly good faith to an enterprise in need.
While we have not hesitated to differ with the Board on what we believe to be an issue of judgment involving basic policy where the underlying facts are undisputed and largely documentary, we recognize that, given basic guidelines, the expertise of the Board is necessary to arrive at a workable solution. One thing is sure. What might have been a unique case twelve years ago will be a commonplace of tomorrow if suitable guidelines and safeguards are not devised.
We therefore remand this, matter to the Board for reconsideration in the light of what we have said, in order that it may assess the potential, not merely the actuality, of conflict of interest and frame an order which, hopefully, will balance the legitimate interests of the Fund, respondent, International, Local 380, and respondent’s employees.
. Intervenor in this proceeding and hereafter referred to as “Local 380”. The International union will be referred to as “International”.
. The fund, hereafter called “the Fund”, is the Central States, Southeast & Southwest Areas Pension Fund. This is one of several large pension funds, to which employers and employer associations contribute for the benefit of their employees who are members of International and affiliated union organizations, The Fund is administered by 16 trustees, 8 chosen by various employer groups, and 8 by the four subscribing Area Conferences of International, and their local unions. (These are the Central States Conference of Teamsters, the Central States Drivers Council, the Southern Conference of Teamsters, and the Southern States Drivers Council.) All trustees serve at the pleasure of their appointing authority. In the event of deadlock, provision is made for an agreed upon or court appointed “neutral party”. As of January 31, 1963 the Fund’s assets were $213,389,-484.68.
. The larger of these being Hood’s, Whiting, United Farmers, and Woodland, with a number of smaller dealers and independents.
. An extensive resume of International’s constitution, before 1961, is contained in International Brotherhood of Teamsters et al. v. United States, 4 Cir., 1960, 275 F.2d 610, 612-614, cert. denied, 1960, 362 U.S. 975, 80 S.Ct. 1060, 4 L.Ed.2d 1011. Significant changes were enacted at International’s 1961 convention. General Teamsters, Local 249, 1962, 139 N.L.R.B. 605, contains a further summary of key provisions.
Pertinent sections will be discussed later in the opinion.
. This evidence is in the form of transcripts of Fund meetings and other records which are referred to and drawn upon in a recently published book, James, “Hoffa and the Teamsters — A Study in Union Power”, 1965. The General Oounsel’s opposition to the motion was based on the fact that (1) the underlying records used in the book were not newly discovered, since they were as available to respondent as to the authors; (2) the documents refer to a period of time antedating the Whiting loans; and (3) they do not bear on “the sole issue in this case, i. e., whether Local 380 participated in the negotiations for the aforesaid loan or has any other connection with that transaction.” While, as will be obvious, we feel that “the sole issue” is quite a different one, we do not find reversible error in the Board’s denial of the motion as made. Our reading of the book does not add to our understanding of the basic powers, duties, and temptations, which, wholly apart from a past course of conduct, in our view create the conflict of interest problem. Moreover, the motion raised the specter of masses of documentation much of which would be remote in time and irrelevant to the issue. We add, however, that in reconsidering this matter the Board would do well to ascertain the magnitude of the problem described in the sections entitled “Truckers, Trustees, and Las Vegas Resorts”, and “The Union’s Conflict of Interest”, James, op. cit. supra at 271-273, 292-294.
. The Auburn case illuminates the potential conflict of interest between union investment and union representation. Here the Fund had bought municipal bonds issued by the city of Deming, New Mexico, to build a plant and attract an Indiana rubber company. The Teamsters sought to become the bargaining agent in lieu of the United Rubber Workers, AFL~ CIO, which had represented the company’s employees. The letter asserted that the reason lay in assuring a bargaining policy which would not jeopardize the Fund’s investment. This claim was deemed to have been asserted too late, i. e., after the representation election. The Regional Director, however, went on to say that there appeared to be no conflict. We are not impressed by the extent of analysis given the problem. See 46 Note, Minn.L.Rev. 573, at 582 n. 30 for a critical comment.
. Not cited in any brief submitted to us was the provocative Note, Union Investments in Business: A Source of Union Conflicts of Interest, 46 Minn.L.Rev. 573 (1962), which deals with the problems of conflict of interest in an era when mounting union reserves and pension funds present widespread opportunities for capital investment.
. The most concrete example of this concern is the recent comprehensive revision of laws relating to conflicts of interests affecting federal officials. Public Law 87-849, 76 Stat. 1119 (1962), 18 U.S.C. §§ 201-218 (1963). This was in part stimulated by a report “Conflict of Interest and Federal Service 3 (1960)” by the Special Committee on the Federal Conflict of Interest Laws, of the Association of the Bar of the City of New York. See Petrowitz, “Conflict of Interest in Federal Procurement”, 29 Law and Contemporary Problems 196 (1964).
. A 1959 study, for the Fund for the Republic, by Leo Bromwich, entitled “Union Constitutions”, observes, p. 18: “ * * * the uniformly vast powers granted to the chief executive in the American labor movement lead to the reflection that such crystallization of power is called forth by the union’s very existence — the natural response, perhaps, of a sprawling organization to the compelling pressures of industrial life.”
. Other Board cases bearing on this issue concern unions unsuccessfully seeking to be bargaining representatives of affiliated unions. In each case the Board prohibited the relationship because of the difficulty in maintaining a single-minded purpose. General Teamsters, Local 249, 1962, 139 N.L.R.B. 605; Seafarers International Union, 1962, 138 N.L.R.B. 1142; Oregon Teamsters Security Plan Office, 1957, 119 N.L.R.B. 207.
. At the opposite end of the spectrum from Bausch & Lomb are such cases as those where the union investment was in a cooperative store restricted to members and posed no threat to a store with 2300 employees as in Lord & Taylor, 1965, 150 N.L.R.B. 81, and where union members as individuals took on dual roles when they participated in stock purchase plans, as in Richfield Oil Corp. v. N. L. R. B., 1956, 97 U.S.App.D.C. 383, 231 F.2d 717, 58 A.L.R.2d 833, cert. denied, 351 U.S. 909, 76 S.Ct. 695, 100 L.Ed. 1444.
. Cf. United States v. Mississippi Valley Generating Co., 1960, 364 U.S. 520, 549, 550 n. 14, 81 S.Ct. 294, 5 L.Ed.2d 268.
. “The anti-trust laws * * * seem to provide protection only to competing employers; they provide no remedy to the employees who are represented by a union whieh bargains in bad faith because of conflicting interests.” Note, 46 Minn.L.Rev. at 598.
. See, for example, the discussion in Note, 46 Minn.L.Rev. at 583-586.
. We note that Canon V of the AFL-CIO Code of Ethical Practices 39 (1958) states: “Neither the AFL-CIO nor any national or international union affiliated with the AFL-CIO should invest in or make loans to any business enterprise with which it bargains collectively.” (We also note that there has apparently been no attempt to enforce this provision. Note, 46 Minn.L.Rev. 573, 589). In so noting we do not mean to imply that what has been undertaken voluntarily by one labor organization should by court or administrative fiat be imposed involuntarily on another, particularly where we are concerned with a union-management administered pension fund rather than an international union per se. Our purpose rather is to underscore the need for discriminating analysis in weighing hazards and devising fair and feasible means for dealing with them.
. For example, we note that Article XXV, Sec. 2 of International’s Constitution states:
“If any provision of this Constitution shall be declared invalid or inoperative, by any competent authority of the executive, judicial or administrative branch of the federal or state government, the General Executive Board shall have the authority to suspend the operation of such provision during the period of its invalidity and to substitute in its place and stead a provision which will meet the objections to its validity and which will be in accord with the intent and purpose of the invalid provisions * *
As for the Board’s powers, “It likewise has discretion to place appropriate limitations on the choice of bargaining representatives should it find that public or statutory policies so dictate.” N.L.R.B. v. Jones & Laughlin Steel Corp., 1947, 331 U.S. 416, 422, 67 S.Ct. 1274, 1278, 91 L.Ed. 1575.
. The language of Judge Washington in American Broadcasting Co. v. Federal Communications Commission, 1951, 89 U.S.App.D.C. 298, 191 F.2d 492, 501, may not be inappropriate here: “There would appear to be many possibilities for action in this case. The Commission has never made a determination based upon a thorough study of those possibilities. We think it is incumbent upon the Commission so to do.”
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business?
A. local
B. neither local nor national
C. national or multi-national
D. not ascertained
Answer:
|
songer_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.
UNITED STATES of America, Appellee, v. Vincent SCHWENOHA and Nathan Suess, Appellants.
No. 71, Docket 31240.
United States Court of Appeals Second Circuit.
Argued Sept. 25, 1967.
Decided Sept. 28, 1967.
Frederick F. Greenman, Jr., Asst. U. S. Atty. (Robert M. Morgenthau, U. S. Atty., Southern Dist. of New York, Robert G. Morvillo, Pierre N. Leval, Asst. U. S. Attys., of counsel), for appellee.
Samuel Rowe, New York City, for appellants.
Before MOORE, SMITH and KAUFMAN, Circuit Judges.
IRVING R. KAUFMAN, Circuit Judge:
This appeal reveals a typical stock fraud upon the public which the Securities Act of 1933, 15 U.S.C. § 77a et seq., was designed to prevent. Vincent Schwenoha purchased in 1956 all the outstanding stock of the Belmont Divide Mining Corporation, a paper corporation that had ceased doing business in 1924. He and others devised a plan to sell this worthless stock to the public without registering it with the Securities and Exchange Commission. The corporation’s name was changed to Belmont Oil Corporation, certain oil leases of unspecified value were given to the corporation to create the appearance of assets, the stock was split ten for one to create more shares to sell to the public and placed in the names of nominees to conceal the fact of control by a handful of conspirators. Nathan Suess then joined the conspiracy and assisted in finding brokers who would sell the worthless stock to the naive and trusting public. Calling himself the public relations man for Belmont Oil, Suess met with co-defendants Edward Cantor and Michael Canter at the office of their brokerage firm, Peerless-New York, Inc., and arranged for them to maintain a market for Belmont stock and also to sell the stock to the public. These and other brokers sold Belmont to the public for about one dollar per share by typical boiler-room methods. Eight co-defendants pleaded guilty; appellants were convicted by a jury of conspiracy and also found guilty of causing unregistered Belmont stock to be mailed on July 14, August 6, and October 2, 1959 for the purposes of sale and delivery after sale.
Appellants’ main contention is that the stock was exempt from the registration requirements of the Securities Act because it was issued originally in 1919, long before the passage of the Act in 1933. They rely on section 3(a) (1) of the Act, 15 U.S.C. § 77c(a) (1), which exempts from registration “any security which, prior to or within sixty days after May 27, 1933, has been sold or disposed of by the issuer or bona fide offered to the public, * * * ” But, their dependence on this argument ignores the language of the remaining portion of that sentence, which states, “but this exemption shall not apply to any new offering of any such security by an issuer or underwriter subsequent to such sixty days * * * ” It is undisputed that the sale of Belmont stock to the public was a new offering, and there is little question that appellants were issuers or underwriters. See 15 U.S.C. § 77b(ll); Securities and Exchange Commission v. Culpepper, 270 F.2d 241 (2d Cir. 1959). The evidence is overwhelming that they and others acted together to control Belmont Oil thoroughly and completely, and that they knew the stock they sold to various brokers would be resold to the public; in truth, that was their ultimate goal.
Moreover, appellants urge that Judge Palmieri committed reversible error by not charging the jury with respect to the applicable five-year statute of limitations. This claim is wholly without merit because it is undisputed that the mailings for which appellants were convicted occurred between July 14 and October 2, 1959. Accordingly, the acts occurred within five years of the filing of the indictment on July 14, 1964. Burnet v. Willingham Loan & Trust Co., 282 U.S. 437, 51 S.Ct. 185, 75 L.Ed. 448 (1931). Appellants call to our attention, however, that they individually did not commit acts within the statutory period. In this connection, Schwenoha urges that he testified that he withdrew from the conspiracy in March 1959. But as we noted in United States v. Borelli, 336 F.2d 376, 388 (2d Cir. 1964), cert. denied sub nom. Cinquegrano v. United States, 379 U.S. 960, 85 S.Ct. 647, 13 L.Ed.2d 555 (1965), “mere cessation of activity is not enough to start the running of the statute; there must be affirmative action, either the making of a clean breast to the authorities, * * * or communication of the abandonment in a manner reasonably calculated to reach co-conspirators.” The record is clear that the alleged withdrawal does not come close to meeting this test; in any event, no exception was taken to the failure to charge on the issue of withdrawal. See F.R.Crim.P. 30; United States v. Kahaner, 317 F.2d 459 (2d Cir.), cert. denied, 375 U.S. 836, 84 S. Ct. 74, 11 L.Ed.2d 65 (1963). The evidence of withdrawal being insufficient to raise a question for the jury, a fortiori appellants’ motion for acquittal on this ground was properly denied.
We have examined appellants’ other claims and find them to be without merit. The judgment is affirmed.
. A mistrial was declared as to one co-defendant; five corporate co-defendants were tried separately.
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_circuit
|
H
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case.
UNITED STATES of America, Appellee, v. MISSOURI PACIFIC RAILROAD COMPANY and the Texas and Pacific Railway Company, Appellants.
No. 76-1653.
United States Court of Appeals, Eighth Circuit.
Submitted Feb. 17, 1977.
Decided April 20, 1977.
R. W. Yost, St. Louis, Mo., for appellants; Mark M. Hennelly, St. Louis, Mo., on brief.
Paul M. Tschirhart, Atty., U. S. Dept, of Justice, Washington, D. C., for appellee; Rex E. Lee, Asst. Atty. Gen., Barry A. Short, U. S. Atty., John H. Broadley, Washington, D. C., on brief.
Before CLARK, Associate Justice, Retired, GIBSON, Chief Judge, and HEA-NEY, Circuit Judge.
TOM C. CLARK, Associate Justice, Retired, Supreme Court of the United States, sitting by designation.
HEANEY, Circuit Judge.
Congressional concern over the rapid increase in railroad accidents and the damage threatened by the release of volatile or explosive, substances during such incidents lead to the enactment of the Federal Railroad Safety Act of 1970. 1970 U.S.Code Cong, and Admin.News, pp. 4104, 4105. The authority of the Secretary of Transportation or his agents to inspect and evaluate railroad track and roadbeds is an integral feature of the legislative scheme. See 45 U.S.C. § 437(a). It enables the Secretary to detect accident-causing hazards and to use this information to issue appropriate maintenance orders or safety-related rules and regulations. To carry out its inspection authority, the Administrator of the Federal Railway Administration (FRA) developed a track measurement program which utilizes two test cars to measure track sections and records all detected imperfections. Since April, 1975, the FRA has inspected thousands of miles of track under the measurement program. All railroads previously inspected have supplied train crews to operate the two test cars and assumed liability for their negligence.
On March 19, 1976, Missouri Pacific Railroad Company (MoPac) was informed by letter that the FRA planned to inspect MoPac’s tracks under the measurement program. MoPac requested a meeting with FRA officials to discuss the nature and terms of the inspection. At this meeting, the parties were unable to resolve differences over the risk of liability for accidents arising out of the negligence of crew members. On April 15,1976, MoPac advised the FRA that the inspection could proceed if the FRA supplied its own crew or provided insurance coverage for crew members provided by MoPac. Upon receipt of this response, the government sought an injunction against MoPac and a declaratory judgment that the FRA need not comply with the stated conditions. The District Court concluded that the FRA could require MoPac to provide the crew to operate the test cars and to assume liability for accidents arising out of their negligence. United States v. Missouri Pac. R. Co., 417 F.Supp. 312 (E.D.Mo.1976).
MoPac’s appeal of the District Court’s decision poses two issues: (1) whether in the performance of its statutorily mandated inspection responsibilities, the FRA is authorized to compel regulated railroads to bear the risk stated above, and (2) whether in adopting this cost-sharing practice, the FRA was required to follow a formal hearing and rule-making procedure.
Section 431(a) of the Act empowers the Secretary of Transportation to prescribe appropriate rules, regulations and standards for all areas of railroad safety, 45 U.S.C. § 431(a)(1), and to conduct necessary research, testing and evaluation. 45 U.S.C. § 431(a)(2). The statute is explicit in requiring that hearings precede all rule-making or standard development authorized by § 431(a)(1), 45 U.S.C. § 431(b), but no similar requirement attends the exercise of investigatory powers. Section 432 dispenses with the hearing requirement and enables a more immediate response to emergency situations if inspection tests reveal an unsafe condition which threatens death or injury to persons. 45 U.S.C. § 432. The Secretary may prohibit further use of a particular facility based solely on the results of an inspection program. Affected parties may request subsequent review of the Secretary’s order in an adjudicatory proceeding. Id. Section 437(a) vests the Secretary with broad investigatory powers to perform the fact-finding needed for rule-making under § 431(a) and the detection of emergency hazards under § 432. 45 U.S.C. § 437(a). Under § 439(a), the Secretary is empowered to seek injunctive relief to restrain violations of the Act. 45 U.S.C. § 439(a).
It seems clear that the Act’s principal goals cannot be accomplished without an effective inspecting and fact-finding program. A House Report on the bill reveals Congress’s particular concern over the rash of recent accidents involving volatile and explosive substances. 1970 U.S.Code Cong, and Admin.News, pp. 4104, 4105, 4107. Prevention and cure of such accidents, however, is possible only through the implementation of an inspection program aimed at advance detection of potential hazards. In this way, the prevention of similar disasters is dependent on the Secretary’s inspection authority. Similarly, the Secretary’s plenary authority to promulgate rules and standards in all areas of railroad safety cannot be effectively performed without adequate information developed from testing and evaluation.
Section 437(c) provides:
To carry out the Secretary’s * * * responsibilities under this subchapter, * * * agents of the Secretary * * are authorized to enter upon, inspect, and examine rail facilities, equipment, rolling stock, operations, and pertinent records at reasonable times and in a reasonable manner. (Emphasis added.)
45 U.S.C. § 437(c).
Since the goals of the Act are remedial in nature, we must construe the statute liberally. 45 U.S.C. § 421. Lily v. Grand Trunk Western Railroad Co., 317 U.S. 481, 63 S.Ct. 347, 87 L.Ed. 411 (1943); United States v. California, 297 U.S. 175, 56 S.Ct. 421, 80 L.Ed. 567 (1936). In light of Congress’s clear intent to grant plenary authority in this area and in light of the critical role inspection programs play in the accomplishment of this goal, we hold that the underlined passage countenances reasonable cooperation by inspected railroads. Thus, we must determine whether it is reasonable for the FRA to require that MoPac provide crew members for the test cars and assume liability for their negligence during the inspection.
At the outset, we should note that both the public and the railroads benefit substantially from the FRA’s inspection program. As the District Court concluded, the anticipated results “include not only safety considerations but also ‘. . . railway maintenance, improv[ed] ride quality for passengers and freight * * * ’.” United States v. Missouri Pac. R. Co., supra at 417 F.Supp. 313-314. MoPac’s contentions regarding cost must, in our view, be considered in light of the substantial benefit they stand to gain from cooperating in the program.
Even though the inspected railroad derives considerable benefit from the program, the FRA assumes virtually every identifiable cost of operation including the following:
(1) Salary and wages for the train and engine crews. This cost includes directly related deadheading, lodging, and the proportional payroll additive expenses for retirement, insurance and vacation provisions relating to those wages.
(2) Supplies furnished to FRA such as fuel, water, electricity and other similar supplies.
(3) Costs arising from carrier actions to service or repair the equipment.
(4) Costs relating to security measures necessary to protect the equipment.
(5) Costs relating to the nonoperation movement of the inspection vehicles, including terminal usage, interchange fees, switching charges and deadheading movement at the published rates.
United States v. Missouri Pac. R. Co., supra at 417 F.Supp. 313-314.
For the most part, these are reimbursement-type costs; that is, they are paid to make the railroad “whole” for most expenses incurred while operating the inspection program. The only costs MoPac must bear are those caused by the negligence of its crew members. There are several reasons why we feel it is not unreasonable for MoPac to bear this expense. First, the likelihood of an accident payout is minimal. The test vehicle proceeds at a normal rate of speed, is only two cars in length, and requires few crew members. The testing procedure is not a hazardous one and involves no new risks for MoPac crew members. Second, MoPac’s past accident payout record suggests that their risk of liability is insubstantial. MoPac self-insures for liabilities under $5 million. Its accident payouts approximate 1.0% of its gross operating revenue. MoPac estimates that it would cost them $87,000 to provide the testing service as a common carrier. Of this $87,000 figure, less than $1,000 would be attributable to accident payouts. Finally, safe performance of the testing operation is probably best insured by imposing liability on MoPac for the negligence of its crew members. The risk of loss may help insure careful selection and proper supervision of the crew members.
MoPac argues that its insurance-related expenditures would be unnecessary if the FRA supplied its own crew to operate the test vehicle. This was an alternative that the FRA could have adopted, but its failure to do so was not unreasonable. Safety problems might arise if FRA crews operated the test cars over track unfamiliar to them. Moreover, it is conceded that if FRA supplied a crew, the railroad would have to provide an experienced engineer and conductor to give instructions; and if they gave negligent advice, MoPac might well incur liability for injuries proximately caused.
We next consider whether the practice of requiring crew members from inspected railroads should have been adopted through the promulgation of a rule after opportunity for hearing. In essence, MoPac contends that the term “reasonable” in § 437(c) is so broad that the Administrator ought to have better defined its scope through the rule-making process. We agree that the Administrator might have proceeded in this manner and believe he should have if he intended the railroads to bear a significant portion of the costs. However, the Administrator decided to give a very narrow meaning to the term “reasonable” and to have the government assume virtually all costs of the testing procedure. Also, legislative history reflects Congress’s concern that inspection commence as soon as possible. Under these circumstances, we do not believe formal rule-making was necessary. See K. Davis, Discretionary Justice 52 (1969).
For these reasons, we affirm the decision of the District Court.
. The Secretary has delegated to the Administrator of the Federal Railway Administration the authority to carry out the functions vested in him by the Federal Railroad Safety Act of 1970. 49 C.F.R. § 1.49(n). When we refer to the powers entrusted to the Secretary under the Act, it should be understood that the FRA is now performing them as the Secretary’s agent.
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_adminrev
|
N
|
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".
John W. HANEY, Petitioner, v. RAILROAD RETIREMENT BOARD, Respondent.
No. 11400.
United States Court ol Appeals Seventh Circuit.
Oct. 6, 1955.
Harvey W. Johnson, Spartanburg, S. C., for petitioner.
Myles F. Gibbons, Gen. Counsel, Chicago, 111., David B. Schreiber, Associate General Counsel, Railroad Retirement Board, Chicago, 111., Edward E. Reilly, William A. Eggert, Railroad Retirement Board, Chicago, 111., of counsel.
Before FINNEGAN, LINDLEY and SCHNACKENBERG, Circuit Judges.
FINNEGAN, Circuit Judge.
Haney, petitioner here, seeks reversal of the respondent Railroad Retirement Board’s decision denying him sickness benefits under the Railroad Unemployment Insurance Act. After a hearing, in which Haney testified, the Board’s referee rejected his claim in a decision containing findings of fact and various relevant recitations. Thereafter, on Haney’s appeal, the referee’s decision was affirmed by the administrative agency in a written statement embodying its findings of fact, discussion and decision. The Board found that: (i) no day in the period November 1, 1953 through to January 8, 1954, for which Haney made claim, constituted a day of sickness because Haney’s “statement of sickness” was tardily filed and, (ii) none of the days January 2, 5, 6, 7 and 8, 1954 could be a “day of sickness” since vacation pay received by Haney for those five days constituted “remuneration” under the Act.
Our review is authorized by § 5(f), of the Act which provides, inter alia:
“It [the court] shall have power to enter upon the pleadings and transcript of the record a decree affirming, modifying, or reversing the decision of the Board, with or without remanding the cause for rehearing. The findings of the Board as to the facts, if supported by evidence and in the absence of fraud, shall be conclusive. * * *” (Italics ours.)
We find that the Board’s findings of fact, here, meet that statutory test. Ellers v. Railroad Retirement Board, 2 Cir., 1943, 132 F.2d 636. However, Haney challenges the Board’s application of certain statutory terms to the facts found by that agency, and he questions its interpretation of some words appearing in the Act. His attack is launched from the platform of these two findings made by the Board:
“2. A statement of sickness dated January 14, 1954, received at the Board’s Atlantic regional office on January 18, 1954, was the first statement of sickness filed by, or in behalf of, appellant with respect to the period, November 1, 1953 to January 8, 1954, inclusive for which he claims sickness benefits. Accordingly, none of the days in the period, November 1, 1953 to January 8, 1954, inclusive, is a ‘day of sickness,’ within the meaning of the Act, with respect to appellant.
“3. Appellant is not entitled to benefits under the Act with respect to any of the days in the period, November 1, 1953 to January 8, 1954, inclusive.”
While we recognize our basic interpretive responsibility, it appears to us that the Board acted within the legislative framework, provided by Congress, and correctly ascertained if days of sickness, mentioned in the Act, were applicable to Haney’s claim. Gray v. Powell, 1941, 314 U.S. 402, 62 S.Ct. 326, 86 L.Ed. 301.
Regulations, 20 Code Fed.Regs. § 335.-104(a) and (b), promulgated by the Board under its statutory rule-making power made it encumbent upon Haney to file a statement of sickness at the agency’s office within 10 days. He did so only tardily. The Act, itself, requires filing a “statement of sickness”; the Board sets the time limit. On the facts before us we perceive no sound reason for striking dawn the Board’s interpretation and ascertainment of reasonableness as used in its own regulations concerning when the requisite claim form could be considered as filed despite expiration of the time limit. There is no claim that these regulations are ultra vires, only that the Board erroneously applied them. Indeed by disputing the Board’s interpretation of its regulation, Haney recognizes it.
The judgment appealed is affirmed.
Affirmed.
. 52 Stat. 1094 and 60 Stat. 722, 735 as amended; 45 U.S.C.A. §§ 351-367.
. 52 Stat. 1101, 45 U.S.C.A. § 355(f).
. 45 U.S.C.A. § 228j (b) (4) and § 362(2).
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:
|
sc_caseorigin
|
160
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court in which the case originated. Focus on the court in which the case originated, not the administrative agency. For this reason, if appropiate note the origin court to be a state or federal appellate court rather than a court of first instance (trial court). If the case originated in the United States Supreme Court (arose under its original jurisdiction or no other court was involved), note the origin as "United States Supreme Court". If the case originated in a state court, note the origin as "State Court". Do not code the name of the state. The courts in the District of Columbia present a special case in part because of their complex history. Treat local trial (including today's superior court) and appellate courts (including today's DC Court of Appeals) as state courts. Consider cases that arise on a petition of habeas corpus and those removed to the federal courts from a state court as originating in the federal, rather than a state, court system. A petition for a writ of habeas corpus begins in the federal district court, not the state trial court. Identify courts based on the naming conventions of the day. Do not differentiate among districts in a state. For example, use "New York U.S. Circuit for (all) District(s) of New York" for all the districts in New York.
AIKENS v. CALIFORNIA
No. 68-5027.
Argued January 17, 1972
Decided June 7, 1972
Anthony G. Amsterdam argued the cause for petitioner. With him on the brief were Jerome B. Falk, Jr., Paul N. Halvonik, Michael Meltsner, Jack Greenberg, James M. Nabrit III, Charles Stephen Ralston, Jack Himmelstein, and Elizabeth B. Dubois.
Ronald M. George, Deputy Attorney General of California, argued the cause for respondent. With him on the brief were Evelle J. Younger, Attorney General, and William E. James, Assistant Attorney General.
Briefs of amici curiae were filed by John E. Havelock, Attorney General, for the State of Alaska; by Willard J. Lassers and Elmer Gertz for the National Council of the Churches of Christ in the United States et al.; by Leo Pfeffer for the Synagogue Council of America and its Constituents et al.; by Paul Raymond Stone for the West Virginia Council of Churches et al.; by Donald M. Wessling for the Committee of Psychiatrists for Evaluation of the Death Penalty; by Gerald H. Gottlieb, Melvin L. Wulf, and Sanford Jay Rosen for the American Civil Liberties Union; by Chauncey Eskridge, Mario G. Obledo, Leroy D. Clark, Nathaniel R. Jones, and Vernon Jordan for the National Association for the Advancement of Colored People et al.; by Marshall J. Hartman for the National Legal Aid and Defender Association; by Michael V. DiSalle for Edmund G. Brown et al.; by Hilbert P. Zarky for James V. Bennett et al.; and by Luke McKissack, pro se.
Per Curiam.
Petitioner in this case, which has been orally argued and is now sub judice, has filed a Suggestion of Mootness and Motion for Remand based on the intervening decision of the California Supreme Court in People v. Anderson, 6 Cal. 3d 628, 493 P. 2d 880 (1972). That decision declared capital punishment in California unconstitutional under Art. 1, § 6, of the state constitution. The decision rested on an adequate state ground and the State’s petition for writ of certiorari was denied. 406 U. S. 958. The California Supreme Court declared in the Anderson case that its decision was fully retroactive and stated that any prisoner currently under sentence of death could petition a superior court to modify its judgment. Petitioner thus no longer faces a realistic threat of execution, and the issue on which certiorari was granted — the constitutionality of the death penalty under the Federal Constitution — is now moot in his case. Accordingly the writ of certiorari is dismissed.
Question: What is the court in which the case originated?
001. U.S. Court of Customs and Patent Appeals
002. U.S. Court of International Trade
003. U.S. Court of Claims, Court of Federal Claims
004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces
005. U.S. Court of Military Review
006. U.S. Court of Veterans Appeals
007. U.S. Customs Court
008. U.S. Court of Appeals, Federal Circuit
009. U.S. Tax Court
010. Temporary Emergency U.S. Court of Appeals
011. U.S. Court for China
012. U.S. Consular Courts
013. U.S. Commerce Court
014. Territorial Supreme Court
015. Territorial Appellate Court
016. Territorial Trial Court
017. Emergency Court of Appeals
018. Supreme Court of the District of Columbia
019. Bankruptcy Court
020. U.S. Court of Appeals, First Circuit
021. U.S. Court of Appeals, Second Circuit
022. U.S. Court of Appeals, Third Circuit
023. U.S. Court of Appeals, Fourth Circuit
024. U.S. Court of Appeals, Fifth Circuit
025. U.S. Court of Appeals, Sixth Circuit
026. U.S. Court of Appeals, Seventh Circuit
027. U.S. Court of Appeals, Eighth Circuit
028. U.S. Court of Appeals, Ninth Circuit
029. U.S. Court of Appeals, Tenth Circuit
030. U.S. Court of Appeals, Eleventh Circuit
031. U.S. Court of Appeals, District of Columbia Circuit (includes the Court of Appeals for the District of Columbia but not the District of Columbia Court of Appeals, which has local jurisdiction)
032. Alabama Middle U.S. District Court
033. Alabama Northern U.S. District Court
034. Alabama Southern U.S. District Court
035. Alaska U.S. District Court
036. Arizona U.S. District Court
037. Arkansas Eastern U.S. District Court
038. Arkansas Western U.S. District Court
039. California Central U.S. District Court
040. California Eastern U.S. District Court
041. California Northern U.S. District Court
042. California Southern U.S. District Court
043. Colorado U.S. District Court
044. Connecticut U.S. District Court
045. Delaware U.S. District Court
046. District Of Columbia U.S. District Court
047. Florida Middle U.S. District Court
048. Florida Northern U.S. District Court
049. Florida Southern U.S. District Court
050. Georgia Middle U.S. District Court
051. Georgia Northern U.S. District Court
052. Georgia Southern U.S. District Court
053. Guam U.S. District Court
054. Hawaii U.S. District Court
055. Idaho U.S. District Court
056. Illinois Central U.S. District Court
057. Illinois Northern U.S. District Court
058. Illinois Southern U.S. District Court
059. Indiana Northern U.S. District Court
060. Indiana Southern U.S. District Court
061. Iowa Northern U.S. District Court
062. Iowa Southern U.S. District Court
063. Kansas U.S. District Court
064. Kentucky Eastern U.S. District Court
065. Kentucky Western U.S. District Court
066. Louisiana Eastern U.S. District Court
067. Louisiana Middle U.S. District Court
068. Louisiana Western U.S. District Court
069. Maine U.S. District Court
070. Maryland U.S. District Court
071. Massachusetts U.S. District Court
072. Michigan Eastern U.S. District Court
073. Michigan Western U.S. District Court
074. Minnesota U.S. District Court
075. Mississippi Northern U.S. District Court
076. Mississippi Southern U.S. District Court
077. Missouri Eastern U.S. District Court
078. Missouri Western U.S. District Court
079. Montana U.S. District Court
080. Nebraska U.S. District Court
081. Nevada U.S. District Court
082. New Hampshire U.S. District Court
083. New Jersey U.S. District Court
084. New Mexico U.S. District Court
085. New York Eastern U.S. District Court
086. New York Northern U.S. District Court
087. New York Southern U.S. District Court
088. New York Western U.S. District Court
089. North Carolina Eastern U.S. District Court
090. North Carolina Middle U.S. District Court
091. North Carolina Western U.S. District Court
092. North Dakota U.S. District Court
093. Northern Mariana Islands U.S. District Court
094. Ohio Northern U.S. District Court
095. Ohio Southern U.S. District Court
096. Oklahoma Eastern U.S. District Court
097. Oklahoma Northern U.S. District Court
098. Oklahoma Western U.S. District Court
099. Oregon U.S. District Court
100. Pennsylvania Eastern U.S. District Court
101. Pennsylvania Middle U.S. District Court
102. Pennsylvania Western U.S. District Court
103. Puerto Rico U.S. District Court
104. Rhode Island U.S. District Court
105. South Carolina U.S. District Court
106. South Dakota U.S. District Court
107. Tennessee Eastern U.S. District Court
108. Tennessee Middle U.S. District Court
109. Tennessee Western U.S. District Court
110. Texas Eastern U.S. District Court
111. Texas Northern U.S. District Court
112. Texas Southern U.S. District Court
113. Texas Western U.S. District Court
114. Utah U.S. District Court
115. Vermont U.S. District Court
116. Virgin Islands U.S. District Court
117. Virginia Eastern U.S. District Court
118. Virginia Western U.S. District Court
119. Washington Eastern U.S. District Court
120. Washington Western U.S. District Court
121. West Virginia Northern U.S. District Court
122. West Virginia Southern U.S. District Court
123. Wisconsin Eastern U.S. District Court
124. Wisconsin Western U.S. District Court
125. Wyoming U.S. District Court
126. Louisiana U.S. District Court
127. Washington U.S. District Court
128. West Virginia U.S. District Court
129. Illinois Eastern U.S. District Court
130. South Carolina Eastern U.S. District Court
131. South Carolina Western U.S. District Court
132. Alabama U.S. District Court
133. U.S. District Court for the Canal Zone
134. Georgia U.S. District Court
135. Illinois U.S. District Court
136. Indiana U.S. District Court
137. Iowa U.S. District Court
138. Michigan U.S. District Court
139. Mississippi U.S. District Court
140. Missouri U.S. District Court
141. New Jersey Eastern U.S. District Court (East Jersey U.S. District Court)
142. New Jersey Western U.S. District Court (West Jersey U.S. District Court)
143. New York U.S. District Court
144. North Carolina U.S. District Court
145. Ohio U.S. District Court
146. Pennsylvania U.S. District Court
147. Tennessee U.S. District Court
148. Texas U.S. District Court
149. Virginia U.S. District Court
150. Norfolk U.S. District Court
151. Wisconsin U.S. District Court
152. Kentucky U.S. Distrcrict Court
153. New Jersey U.S. District Court
154. California U.S. District Court
155. Florida U.S. District Court
156. Arkansas U.S. District Court
157. District of Orleans U.S. District Court
158. State Supreme Court
159. State Appellate Court
160. State Trial Court
161. Eastern Circuit (of the United States)
162. Middle Circuit (of the United States)
163. Southern Circuit (of the United States)
164. Alabama U.S. Circuit Court for (all) District(s) of Alabama
165. Arkansas U.S. Circuit Court for (all) District(s) of Arkansas
166. California U.S. Circuit for (all) District(s) of California
167. Connecticut U.S. Circuit for the District of Connecticut
168. Delaware U.S. Circuit for the District of Delaware
169. Florida U.S. Circuit for (all) District(s) of Florida
170. Georgia U.S. Circuit for (all) District(s) of Georgia
171. Illinois U.S. Circuit for (all) District(s) of Illinois
172. Indiana U.S. Circuit for (all) District(s) of Indiana
173. Iowa U.S. Circuit for (all) District(s) of Iowa
174. Kansas U.S. Circuit for the District of Kansas
175. Kentucky U.S. Circuit for (all) District(s) of Kentucky
176. Louisiana U.S. Circuit for (all) District(s) of Louisiana
177. Maine U.S. Circuit for the District of Maine
178. Maryland U.S. Circuit for the District of Maryland
179. Massachusetts U.S. Circuit for the District of Massachusetts
180. Michigan U.S. Circuit for (all) District(s) of Michigan
181. Minnesota U.S. Circuit for the District of Minnesota
182. Mississippi U.S. Circuit for (all) District(s) of Mississippi
183. Missouri U.S. Circuit for (all) District(s) of Missouri
184. Nevada U.S. Circuit for the District of Nevada
185. New Hampshire U.S. Circuit for the District of New Hampshire
186. New Jersey U.S. Circuit for (all) District(s) of New Jersey
187. New York U.S. Circuit for (all) District(s) of New York
188. North Carolina U.S. Circuit for (all) District(s) of North Carolina
189. Ohio U.S. Circuit for (all) District(s) of Ohio
190. Oregon U.S. Circuit for the District of Oregon
191. Pennsylvania U.S. Circuit for (all) District(s) of Pennsylvania
192. Rhode Island U.S. Circuit for the District of Rhode Island
193. South Carolina U.S. Circuit for the District of South Carolina
194. Tennessee U.S. Circuit for (all) District(s) of Tennessee
195. Texas U.S. Circuit for (all) District(s) of Texas
196. Vermont U.S. Circuit for the District of Vermont
197. Virginia U.S. Circuit for (all) District(s) of Virginia
198. West Virginia U.S. Circuit for (all) District(s) of West Virginia
199. Wisconsin U.S. Circuit for (all) District(s) of Wisconsin
200. Wyoming U.S. Circuit for the District of Wyoming
201. Circuit Court of the District of Columbia
202. Nebraska U.S. Circuit for the District of Nebraska
203. Colorado U.S. Circuit for the District of Colorado
204. Washington U.S. Circuit for (all) District(s) of Washington
205. Idaho U.S. Circuit Court for (all) District(s) of Idaho
206. Montana U.S. Circuit Court for (all) District(s) of Montana
207. Utah U.S. Circuit Court for (all) District(s) of Utah
208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota
209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota
210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma
211. Court of Private Land Claims
212. United States Supreme Court
Answer:
|
songer_appbus
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
DAYTON INDEPENDENT SCHOOL DISTRICT, et al., Plaintiffs, v. U.S. MINERAL PRODUCTS COMPANY, W.R. Grace & Co., and United States Gypsum Co., Defendants. COUNTY OF ORANGE, et al., Plaintiffs-Appellees, v. NATIONAL GYPSUM COMPANY, Defendant-Appellant. DAYTON INDEPENDENT SCHOOL DISTRICT, et al., Plaintiffs-Appellees, v. U.S. MINERAL PRODUCTS, CO., et al., Defendants, W.R. Grace & Company, Defendant-Appellant. COUNTY OF ORANGE, et al., Plaintiffs-Appellees, v. NATIONAL GYPSUM CO., et al., Defendants, W.R. Grace & Company, Defendant-Appellant. DAYTON INDEPENDENT SCHOOL DISTRICT, et al., Plaintiffs-Appellees, v. U.S. MINERAL PRODUCTS CO., et al., Defendants, United States Gypsum Company, Defendant-Appellant. COUNTY OF ORANGE, et al., Plaintiffs-Appellees, v. NATIONAL GYPSUM CO., et al., Defendants, United States Gypsum Company, Defendant-Appellant.
Nos. 89-2529, 89-2733 and 89-2734.
United States Court of Appeals, Fifth Circuit.
July 26, 1990.
Rehearing Denied in No. 89-2733 Aug. 28, 1990.
Lawrence T. Hoyle, Jr., Denise D. Colliers, Charles B. Howland, Ralph A. Jacobs, Arlene Fickler, Hoyle, Morris & Kerr, Philadelphia, Pa., Harold H. Walker, Jr., Gard-ere & Wynne, Dallas, Tex., Patricia S. Greek, Andrews & Kurth, Houston, Tex., Walter J. Crawford, Wells, Peyton, Beard, Greenberg, Hunt & Crawford, Beaumont, Tex., Charles Dewey Cole, Jr., Meyer, Suozzi, English & Klein, P.C., A.W. Davis, Jr., Newton, Tex., Wendell C. Radford, Benckenstein, Oxford, Radford & Johnson, Beaumont, Tex., for Nat. Gypsum Co.
Martin Dies, Mary Caroline Parker, Orange, Tex., A.W. Davis, Jr., Newton, Tex., for County of Orange, et al.
Richard C. Hile, Tonahill, Hile, Leister & Jacobellis, Jasper, Tex., Ronald Scott, Robert B. Watts, Bracewell & Patterson, Houston, Tex., Martin Dies, Tonahill, Hile, Leis-ter & Jacobellis, Beaumont, Tex., for Dayton Independent School Dist., et al.
Patricia S. Greek, Andrews & Kurth, Houston, Tex., Charles D. Cole, Jr., Meyer, Suozzi, English & Klein, Mineóla, N.Y., Edward H. Green, Weller, Wheelus & Green, Beaumont, Tex., Stephen S. Andrews, Woodward, Hall & Primm, Houston, Tex., John H. Lewis, Jr., Amelia C. Benton, Morgan, Lewis, & Bockius, Philadelphia, Pa., Walter J. Crawford, Jr., Wells, Peyton, Beard, Greenberg, Hunt & Crawford, Beaumont, Tex., for other interested party —W.R. Grace & Co.
Edward H. Green, Beaumont, Tex., John H. Lewis, Jr., Amelia C. Benton, Morgan, Lewis & Bockius, Philadelphia, Pa., Weller, Whellus & Green, Beaumont, Tex., Stephen S. Andrews, Woodard, Hall & Primm, Houston, Tex., for other interested party— U.S. Gypsum Co.
Benckenstein, Oxford, Radford & Johnson, Beaumont, Tex., for U.S. Mineral.
Before THORNBERRY, GEE and WILLIAMS, Circuit Judges.
JERRE S. WILLIAMS, Circuit Judge:
Defendants in two consolidated asbestos removal cost recovery actions appeal from the district court’s orders denying their motions to dismiss for lack of subject matter jurisdiction. They assert that plaintiffs-appellees have failed to state a claim upon which relief can be granted under Section 107(a) of the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C. § 9607(a). We find that Congress did not intend CERCLA to cover asbestos removal cost recovery actions. We vacate the district court’s orders.
I. Facts and Prior Proceedings
Appellee Dayton Independent School District filed a federal diversity suit in 1981, asserting state law tort claims against an asbestos manufacturer, appellant United States Gypsum Co. (“U.S. Gypsum”). Dayton Independent School District v. United States Gypsum Co. (“Dayton I”), 682 F.Supp. 1403 (E.D.Tex.1988). In that suit, Dayton sought to recover the costs of removing asbestos-containing ceiling and fireproofing products from various buildings. The case quickly exploded into a huge suit, eventually involving over 100 plaintiffs (mostly school districts) who asserted various claims against numerous asbestos manufacturers and suppliers. One of the added defendants was appellant W.R. Grace & Co.-Conn. (“Grace”).
The parties to the Dayton I litigation all were diverse with the exception of one defendant, appellant National Gypsum Co. (“National Gypsum”), which was a citizen of Texas as were the plaintiffs. National Gypsum consequently was dismissed by the district court to maintain federal diversity jurisdiction.
In April 1986, National Gypsum once again was named in the Dayton I suit. In order to establish federal jurisdiction, since the presence of National Gypsum would destroy diversity, plaintiffs asserted a federal claim against National Gypsum under Section 107(a) of the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C. § 9607(a). National Gypsum moved to dismiss the CERCLA claims based upon lack of jurisdiction for failure to state a claim under CERCLA. When the district court denied National Gypsum’s motion to dismiss, the company sought review in this Court by writ of mandamus. This Court denied the petition and held that National Gypsum first must seek certification from the district court in accordance with 28 U.S.C. § 1292(b). When plaintiffs subsequently dropped their opposition to the motion, the district court granted National Gypsum’s motion and dismissed National Gypsum again. In so doing, the court indicated that plaintiffs had failed to state a claim under CERCLA.
In April 1987, the district court severed from the Dayton I suit all of the claims asserted against one defendant, U.S. Mineral Products Company, because of issues unique to its case regarding whether any of the plaintiffs ever even used its products. This severed suit, Dayton Independent School District, et al. v. U.S. Mineral Products Co., et al. (“Dayton II”), is one of the two actions that form the basis for the instant appeal. The remaining defendants in Dayton I, including appellants W.R. Grace and U.S. Gypsum, entered into a settlement with the Dayton I plaintiffs. The district court granted final judgment, dismissing the Dayton I suit with prejudice.
In May 1988, Dayton II likewise mushroomed into massive litigation. Originally a suit by a subgroup of the Dayton I plaintiffs against U.S. Mineral Products, fifty-seven new plaintiffs intervened, bringing several new claims against new defendants. Among those newly joined as defendants were appellants Grace and United States Gypsum Co., both of whom had been party-defendants in Dayton I. All claims in this suit were based upon state law, and federal jurisdiction was based exclusively on diversity.
Also in May 1988, appellee County of Orange filed an original suit in federal court against appellant National Gypsum, the non-diverse defendant dismissed from Dayton I, asserting a cause of action under CERCLA. County of Orange v. National Gypsum Co., No. B-88-00429-CA (E.D.Tex.). This suit is the second action involved in this appeal. In the County of Orange action, the asserted application of the federal statute provided the sole basis for jurisdiction as both plaintiff and defendant were Texas citizens. Before appellant National Gypsum was served, an amended complaint was filed, naming six new plaintiffs who brought pendent state law claims against original defendant National Gypsum and against two new defendants, appellant Grace and appellant U.S. Gypsum. Soon thereafter, National Gypsum moved for dismissal of the County of Orange action, asserting a lack of subject matter jurisdiction, again based on plaintiffs’ failure to state a claim under CERCLA and the lack of any other basis for jurisdiction. The district court denied the motion, but certified the order for interlocutory appeal pursuant to § 1292(b).
The crowning glory in the complex history of this case came when the district court entered an order in January 1989 consolidating the Dayton II and County of Orange actions. The plaintiffs together filed a consolidated complaint, the “First Amended Original Consolidated Complaint”. In the new complaint, all of the Dayton //and County of Orange plaintiffs added CERCLA claims against all of the defendants in their respective actions.
Additionally and significantly, in the new complaint, the Dayton II plaintiffs also asserted CERCLA claims against National Gypsum, which had not previously been named in the Dayton II suit. The new presence in Dayton II of National Gypsum destroyed its previously valid diversity jurisdiction, leaving jurisdiction resting solely on the asserted federal claims under CERCLA. Consequently, appellant Grace filed a motion in district court to dismiss the entire consolidated complaint, claiming jurisdictional defect due to plaintiffs’ failure to state a claim under CERCLA and the lack of subject matter jurisdiction based upon any other ground. Appellant United States Gypsum Co. joined in and adopted co-defendant Grace’s motion. The motion was denied. The district court, however, also certified this order for interlocutory appeal. We initially denied Grace’s motion to certify the additional question of whether the original County of Orange complaint properly was amended to add additional plaintiffs, diverse defendants, and state law claims if no CERCLA action exists. But we subsequently issued an order on September 19, 1989, that we would hear all issues material to the district court’s order from which Grace’s interlocutory appeal was taken.
This Court now faces the three consolidated interlocutory appeals brought by National Gypsum, W.R. Grace, and United States Gypsum. All three appeals raise the common question of whether plaintiffs can state a claim under CERCLA. Grace additionally challenges the district court’s subject matter jurisdiction over both the Dayton II and County of Orange actions.
The complete stage for these appeals, however, has not yet been set. This Court also is confronted with a set of motions that a previous panel determined should be carried with the case. In November 1989, a few days after appellants had filed briefs on the merits of the interlocutory appeals, plaintiff-appellees moved in district court for leave to amend the first amended consolidated complaint. The district court granted this motion despite the fact that this Court had asserted appellate jurisdiction over part of the ease. In their subsequent second amended consolidated complaint, all plaintiffs-appellees in both actions dropped all claims against the non-diverse National Gypsum, and dropped all claims against all defendants based upon CERCLA. Appellees now move this Court to dismiss the subject appeals as moot. U.S. Gypsum and National Gypsum have filed cross-motions for summary reversal, entry of judgment, and sanctions.
II. Mootness: “Going through the Motions ”
The first issue that must be resolved in this ease is whether the subject appeals have become moot in the light of the second amended consolidated complaint. In the second complaint, which was filed in district court after appellants had filed briefs on the merits of these appeals in this Court, plaintiffs-appellees dropped all CERCLA claims and dropped non-diverse National Gypsum from the consolidated actions in district court. The claim is that the amended complaint created or restored federal diversity jurisdiction in both actions. Thus, subject matter jurisdiction no longer rests on plaintiffs-appellees’ ability to establish federal question jurisdiction under CERCLA. They no longer pursue any CERCLA claims, nor do they assert any claims against any non-diverse parties. It is urged, therefore, that the appeals now have become moot.
Appellants National Gypsum and U.S. Gypsum oppose the motion. They strongly urge this Court to deny appellees’ motion to dismiss the subject appeals because granting the motion would perpetuate “plaintiffs’ recurring use of a contrived CERCLA claim to manufacture federal court jurisdiction”. As evidence that appel-lees have only abandoned the CERCLA claims temporarily to escape appellate review, appellants point to appellees’ contention on the merits of these appeals that they did state a valid claim under CERC-LA.
While it appears that appellees have attempted to manipulate the court system to their best advantage, we do not find this argument persuasive. If the issue on appeal is moot, then regardless of the desirability of cutting short' appellees’ manipulations and resolving the substantive CERCLA issue at the appellate level, this Court does not have the power to address it.
Grace argues that the appeals are not moot because the district court did not have jurisdiction to grant appellees’ motion for leave to amend their first amended consolidated complaint. The argument is persuasive. A “federal district court and a federal court of appeals should not attempt to assert jurisdiction over a case simultaneously.” Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58, 103 S.Ct. 400, 402, 74 L.Ed.2d 225 (1982). When one aspect of a case is before the appellate court on interlocutory review, the district court is divested of jurisdiction over that aspect of the case. Coastal Corp. v. Texas Eastern Corp., 869 F.2d 817, 820-21 (5th Cir.1989). A district court does not have the power to “alter the status of the case as it rests before the Court of Appeals”. Id. By granting plaintiffs’ motion to amend and drop all CERCLA claims and dismiss National Gypsum from the actions, the district court significantly changed the status of the appeals. It acted outside its authority.
Appellees counter with two Third Circuit cases stating that the rule that a trial court loses jurisdiction pending appeal is not jurisdictional but only a judge-made rule, designed to avoid confusion or a waste of time. See RCA Corp. v. Local 421, Intern. Federation of Prof., 700 F.2d 921, 924 (3d Cir.1983); United States v. Leppo, 634 F.2d 101, 104 (3d Cir.1980). It is urged that the rule should not be employed to defeat its purpose or to induce unnecessary paper shuffling. We need not consider the scope or extent of these two cases. We are bound by our well-established rulings that the district court loses jurisdiction over all matters which are validly on appeal. See Coastal Corp., supra, 869 F.2d at 820-21 and cases cited therein. This rule which we follow rigorously is based upon Griggs, supra, 459 U.S. 56, 103 S.Ct. 400. We find that the district court acted without jurisdiction in granting appellees leave to amend to drop the CERCLA claim and dismiss National Gypsum as defendant. The subject appeals therefore are not moot. We deny appellees’ motion to dismiss the appeals.
III. Failure to State CERCLA Claim
We turn to the merits of the appeals. First, we must determine whether plaintiffs-appellees failed to state a claim upon which relief can be granted under Section 107(a) of CERCLA. Appellants urge that the district court’s orders denying their motions to dismiss should be reversed or vacated because CERCLA does not provide a private right of action to recover the costs of removal of asbestos-containing materials from the structure of buildings.
Section 107(a) of CERCLA provides in relevant part:
(a) Covered persons; scope; recoverable costs and damages ...
Notwithstanding any other provision or rule of law, and subject only to the defenses set forth in subsection (b) of this section—
sjs sf:
(3) any person who by contract, agreement, or otherwise arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treatment, of hazardous substances owned or possessed by such person, by any other party or entity, at any facility or incineration vessel owned or operated by another party or entity and containing such hazardous substances
shall be liable for—
(A) all costs of removal or remedial action incurred by the United States Government or a State or an Indian tribe not inconsistent with the national contingency plan;
(B) any other necessary costs of response incurred by any other person consistent with the national contingency plan;
* * * * * *
42 U.S.C. § 9607(a).
Appellees claim that Section 107(a) grants them a private right of action against “generators” (suppliers and manufacturers) who “disposed” of the hazardous substance asbestos by placing it in the building materials installed in their buildings. Appellants concertedly contend, however, that the statute, legislative history, and case law all conclusively show that Congress never intended CERCLA to provide a right to recover the costs of asbestos removal.
We look to the statutory language first. The statute in terms provides that “any person ... who arranged the disposal ... of hazardous substances ... at a facility ... shall be liable” for the costs of removing the substance. It is not disputed that asbestos constitutes a “hazardous substance” within the meaning of the statute. Of greater concern are the terms “disposal” and “facility”.
Congress adopted in CERCLA the definition of disposal set out in Section 1004 of the Solid Waste Disposal Act, 42 U.S.C. § 6903(3). 42 U.S.C. § 9601(29). In that statute, disposal is defined as
the discharge, deposit, injection, dumping, spilling, leaking, or placing of any solid waste or hazardous waste into or on any land or water so that such solid waste or hazardous waste or any constituent thereof may enter the environment or be emitted into the air or discharged into any waters, including ground waters.
42 U.S.C. § 6903(3). Appellees insist that the sale of asbestos-containing building materials constitutes "disposal" within the meaning of the statute. In essence, they argue that the issue of disposal should be characterized as a factual issue to be determined on a case-by-case basis. Because the "disposal" of asbestos is a factual issue on which reasonable minds can differ, it contends that dismissal of the complaint for failure to state a cause of action would be premature and inappropriate.
Appellees undertake to turn dumping and disposal into building construction. We reject the contention. Under the applicable RCRA definition, or under even a broader general definition, there is no possible reasonable interpretation of the term "disposal" that could encompass the commercial sale of asbestos-containing useful building products by the defendant manufacturers and suppliers. "[T]he sale of a hazardous substance for a purpose other than its disposal does not expose defendant to CERCLA liability." See Prudential Ins. Co. of Am. v. United States Gypsum Co. 711 F.Supp. 1244, 1254 (D.N.J.1989); United States v. Westinghouse Electric Corp., 22 E.R.C. [BNA] 1230 (S.D.Ind.1983). The record is devoid of any substantive evidence that appellants merely characterized their activities as "sales" in order to cloak disposal activities. Instead, it is clear that appellants manufactured the asbestos-containing building materials for the primary purpose of creating a new useful and marketable product for the construction industry. Appellants' actions therefore cannot be considered "disposal" within the meaning of CERCLA.
Additionally, CERCLA holds liable only those defendants who arranged for the disposal of a hazardous substance "at a facility". 42 U.S.C. § 9607(a). The statute provides:
(9) The term "facility" means (A) any building, structure, installation, equipment, pipe or pipeline ..., well, pit, pond, lagoon, impoundment, ditch, landfill, storage container, motor vehicle, rolling stock, or aircraft, or (B) any site or area where a hazardous substance has been deposited, stored, disposed of, or placed, or otherwise come to be located; but does not include any consumer product in consumer use or any vessel.
42 U.S.C. § 9601(9). The provision expressly exempts consumer products from the definition of facility for purposes of determining liability under the statute. 42 U.S.C. § 9601(9). Appellants assert that this exemption applies to the "facility" into which they allegedly disposed of the asbestos-the building materials. Since the building materials are without a doubt consumer products, they cannot be held liable for disposing of asbestos "at a facility".
Appellees expend much wasted effort to show that the exemption does not apply because the "facilities" to be considered are the buildings in which the asbestos-containing materials werd installed, and not the materials themselves. The provision exempting consumer products obviously was meant to protect from liability those who engage in production activities with a useful purpose, as opposed to those engaged in the disposal of hazardous substances. It is clear that Congress did not intend CERCLA to target legitimate manufacturers or sellers of useful products. Rather, taken in context, the provision reflects Congress' desire to hold liable those who would attempt to dispose of hazardous wastes or substances under various deceptive guises in order to escape liability for their disposal.
The legislative history reinforces appellants’ argument that Congress intended to provide recovery only for releases or threatened releases from inactive and abandoned waste sites, not releases from useful consumer products in the structure of buildings. The sale of asbestos-containing products for useful consumption is not the “arranging for disposal” of a hazardous substance at a “facility”, Section 107(a) of CERCLA, that the statute is designed to combat.
The courts, without apparent exception, have concluded that CERCLA does not provide a remedy for asbestos removal. See First United Methodist Church of Hyattsville v. United States Gypsum Co., 882 F.2d 862, 867 (4th Cir.1989); Corp. of Mercer Univ. v. National Gypsum Co., No. 85-126-3-MAC, 1986 WL 12447 (M.D.Ga. order issued March 9, 1986); 3550 Stevens Creek Associates v. Barclays Bank of California, No. C-87-20672-RPA (N.D.Cal. order issued Sept. 28, 1988), appeal pending (9th Cir.); Prudential Ins. Co. of Am. v. United States Gypsum Co., 711 F.Supp. 1244 (D.N.J.1989); Retirement Community Developers, Inc. v. Merine, 713 F.Supp. 153 (D.Md.1989). We agree with the collective wisdom contained in these cases.
We note that appellees repeatedly have dropped, or have tried to drop, all CERCLA claims. If they really believed their claims were valid, they would be expected to persevere in the appellate courts. Their obvious and repeated avoidance of appellate review shows they too realize the statute means what it clearly says.
Based upon the language of the statute, its legislative history, and the relevant case law, we hold that Congress did not contemplate recovery under this statute of the costs incurred to effect asbestos removal from buildings. We conclude that appel-lees failed to state a claim upon which relief can be granted under Section 107(a) of CERCLA.
IV. Jurisdiction over the County of Orange Suit
Appellant Grace properly raises other jurisdictional claims. With respect to the County of Orange suit, Grace contends that the district court should have dismissed the entire County of Orange action for lack of jurisdiction because it did not have either federal question or diversity jurisdiction over the case at its commencement. The original suit was a suit brought by a single plaintiff asserting a CERCLA claim against the non-diverse National Gypsum. Jurisdiction was predicated solely on the federal claim. Since plaintiff failed to state a claim under CERCLA, the entire suit should have been dismissed. Appellants urge that appellee County of Orange did not have standing to amend the original complaint, and therefore the district court erred in allowing it to amend to name new plaintiffs, defendants, and claims. See Summit Office Park, Inc. v. United States Steel Corp., 639 F.2d 1278, 1282 (5th Cir.1981).
Appellees argue to the contrary that Orange County was entitled as a matter of right to amend its complaint, pursuant to F.R.C.P. Rule 15(a), to add the new parties and state law claims. McLellan v. Mississippi Power & Light Company, 526 F.2d 870 (5th Cir.1976), mod. on other grounds, 545 F.2d 919 (5th Cir.1977) (en banc). In McLellan, this Court held that a plaintiff could amend his complaint under Rule 15(a) to add new claims and new defendants, thereby establishing jurisdiction despite the fact that the original defendant properly was dismissed for failure to state a federal claim against it.
Both appellants and appellees miss the critical point. Regardless of whether ap-pellees possessed the right under F.R.C.P. Rule 15(a) to amend their original complaint to name new parties and claims, thereby creating jurisdiction, the amended complaint in this case did not accomplish that result. At no time since its inception has there been federal question or diversity jurisdiction in the County of Orange suit. It is well-established that the exercise of pendent jurisdiction over state law claims is proper only when there is a substantial federal question before the court. See Slaughter v. Allstate Ins. Co., 803 F.2d 857, 859 (5th Cir.1986); Hondo National Bank v. Gill Savings Ass’n., 696 F.2d 1095, 1102 (5th Cir.1983). Because appel-lees have failed to state a federal question, we decline to exercise jurisdiction over ap-pellees’ pendent state claims.
Appellees put forth the argument that their recent attempt to amend their complaint in district court in order to drop National Gypsum, which they claim was proper under F.R.C.P. 21, has had the effect of injecting valid diversity jurisdiction. But as we stated above, the district court lacked jurisdiction to change the status of the parties pending the disposition of this appeal. In the posture of the case before us, subject matter jurisdiction is lacking.
Appellees alternatively urge us to exercise our discretion in favor of allowing them, either here or on remand to the district court, to amend their complaint to dismiss National Gypsum, which would create diversity jurisdiction retroactively. While we have the discretionary power to grant the plaintiffs-appellees leave to amend in order to dismiss the non-diverse National Gypsum, see Newman-Green Inc. v. Alfonzo-Larrain, — U.S. -, 109 S.Ct. 2218, 2225-26, 104 L.Ed.2d 893 (1989), we decline to do so here. Plaintiffs-appel-lees attempted to bootstrap themselves into federal court by virtue of their invalid CERCLA claims. There is no justification to complicate this complex litigation further by allowing the entire nature of the case to be altered. We dismiss this case in its entirety.
It is also within our power to dismiss the entire Dayton II action for lack of jurisdiction as well. We do not'choose, however, to take that course. In that action, the plaintiffs originally did have valid diversity jurisdiction, which was subsequently destroyed when they joined the CERCLA-Na-tional Gypsum bandwagon. Instead of dismissing the entire Dayton II suit, we recognize a right to litigate the issues raised by means of a diversity proceeding. So we dismiss defendant-appellant National Gypsum from the Dayton II action and restore diversity jurisdiction.
V. National Gypsum as an Indispensable Party
Finally, appellant Grace argues that the district court should have dismissed both the Dayton II and County of Orange cases in their entirety because National Gypsum is an indispensable party that cannot be dismissed to create or restore diversity jurisdiction. As we already dismiss the entire County of Orange action, we need only consider the argument with respect to the Dayton II action.
Under Rule 19(b) of the Federal Rules of Civil Procedure, in order to determine whether a party is indispensable to the action, a court must consider the following factors:
first, to what extent a judgment rendered in the person’s absence might be prejudicial to the person or those already parties; second, the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; third, whether a judgment rendered in the person’s absence will be adequate; fourth, whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder.
F.R.C.P. Rule 19(b).
With respect to the first two factors, the absence of National Gypsum would not be prejudicial to any of the parties nor to National Gypsum. If it is a joint tort-fea-sor, co-defendants can seek contribution and/or indemnity in state court, or perhaps even federal court if diverse. If it is the sole tort-feasor as to some claims, litigation of the remaining claims cannot prejudice National Gypsum or the other parties. Regarding the third factor, it is true that the judgment for those plaintiffs who have buildings for which National Gypsum is the sole alleged tort-feasor will not be “adequate”. These plaintiffs, however, still have state court in which to bring their independent claims. Finally, we acknowledge that the plaintiffs would have what might be an adequate remedy in state court if we dismissed the action in its entirety. But, if we did so, claims against many parties which are properly in federal court would be dominated by a claim against just one of many alleged tort-feasors.
Having given these factors due consideration, we cannot conclude that National Gypsum is indispensable to the Dayton II action. In further support of our conclusion, we find it suggestive that the Dayton I plaintiffs and defendants, many of which are present in this case, did not consider National Gypsum indispensable to that litigation. There is no significant difference between the cases. It is true that National Gypsum’s absence from that suit has created in part the morass that we face in this appeal, but that fact still does not render National Gypsum indispensable within the meaning of Rule 19.
VI. Res Judicata Effect of Dayton I
Many of the plaintiffs involved in the Dayton II action were parties to the Dayton I litigation. We are concerned that these plaintiffs are attempting to take two bites out of the proverbial litigation apple by being involved in a suit against U.S. Gypsum and Grace. To the extent that they seek to relitigate claims already decided in the previous litigation, we find that those claims are res judicata. Due to the complexity of the action, and the attendant difficulty in ascertaining on appeal exactly which party is bringing which claim against which defendant, we leave it to the district court to sort out and dismiss those claims that have been adjudicated.
VII. Conclusion
Appellees failed to state a claim upon which relief can be granted under Section 107(a) of CERCLA. We therefore vacate the district court’s orders denying all three of appellants’ motions to dismiss for failure to state a claim under CERCLA. The entire County of Orange action is dismissed for lack of subject matter jurisdiction. We dismiss National Gypsum from the Dayton II action, thereby restoring diversity jurisdiction, and affirm the refusal of the district court to dismiss that case. We remand Dayton II to the district court with instructions to consider and determine the res judicata effect of the Dayton I litigation and settlement on those parties present in both the Dayton I and Dayton II actions.
AFFIRMED IN PART VACATED IN PART AND REMANDED.
. Approximately forty-two of the Dayton II plaintiffs that added CERCLA claims against National Gypsum were also party plaintiffs in Dayton I, in which the district court had already determined that the plaintiffs failed to state a claim against National Gypsum under CERCLA and dismissed National Gypsum from that suit. These plaintiffs in essence are attempting to relitigate an issue or claim already decided against them.
. Until plaintiffs’ second amended complaint, the district court never had diversity jurisdiction over County of Orange because of the presence of the non-diverse National Gypsum at its inception. The dismissal of National Gypsum assertedly would "create” diversity jurisdiction retroactively. Jurisdiction in Dayton II, on the other hands, originally was based on diversity, which was then destroyed when National Gypsum was added by virtue of the first amended consolidated complaint. The dismissal of National Gypsum would operate to "restore” the previously valid diversity jurisdiction.
. Appellants National Gypsum and U.S. Gypsum filed cross-motions seeking sanctions against ap-pellees for playing this "cat-and-mouse” game with them and the Court with respect to the CERCLA claims. While the appellees might have manipulated the court and defendants, and appellees’ timing in filing its various amendments and motions has caused appellants to prepare for an appeal that appellees subsequently tried to make moot, we are not convinced that their actions warrant sanctions. Consolidated cases of this size
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_r_stid
|
12
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Your task is to identify the state of the first listed state or local government agency that is a respondent.
KOA GORA v. TERRITORY OF HAWAII.
No. 10940.
Circuit Court of Appeals, Ninth Circuit.
Jan. 4, 1946.
Rehearing Denied Feb. 11, 1946.
Fred Patterson and E. J. Botts, both of Honolulu, T. H., and Herbert Chamberlin, of San Francisco, Cal., for appellant.
W. Z. Fairbanks, Public Prosecutor, City and County of Honolulu, and John E. Parks, Asst. Public Prosecutor, both of Honolulu, T. H., for appellee.
Before DENMAN, HEALY and BONE, Circuit Judges.
BONE, Circuit Judge.
This is an appeal from a decision of the Supreme Court of the Territory of Plawaii, affirming the judgments of two lower courts both of which found appellant guilty of violating Section 6253, Revised Laws of Hawaii, 1935, as amended by Act 88, Session Laws of 1941.
Briefly stated, the facts as testified to in the trial in the Circuit Court are as follows. At about 10:30 a. m., on July 6, 1943, one Arthur Notikai, a shore patrolman with the United States Navy,, went to the premises on Kamamalu Street in Honolulu where appellant conducted a rooming house. Notikai, accompanied by a member of the Honolulu Police Department, went there to make an investigation of the place. He entered the premises alone, allegedly looking for a room. Appellant conducted him to a small building on the premises containing a room with shower and toilet. While in this room, appellant unbuttoned Notikai’s trousers and laid his hands on his private parts.
The lower courts also found appellant guilty of selling Notikai a pint of liquor in violation of Section 2630, Revised Laws of Hawaii, 1935, but no appeal is taken from that conviction.
Appellant was first tried and found guilty in the District Court of Honolulu before a District Magistrate, He appealed to the Circuit Court of the Territory of Hawaii, was given a trial de novo, and again found guilty.
The statute in question, Section 6253, Revised Laws of Hawaii, 1935, reads as follows: “Any man or woman who is guilty of lewd conversation, lascivious conduct, or libidinous solicitations, shall be punished by imprisonment of not more than one year or by a fine of not exceeding one thousand dollars ($1,000.00) or by both such imprisonment and fine.”
The accusation against appellant, as contained in the notice and certificate of appeal from the District Court, reads: “That Koa Gora, at Honolulu, City and County of Honolulu, Territory of Hawaii on the 6th day of July, A.D., 1943, did do that which was lewd and lascivious in conduct, contrary to Section 6253 of the Revised Laws of Hawaii, 1935 * * *.”
On this appeal,'appellant challenges first, the validity of the accusation under the Sixth Amendment of the Federal Constitution, and the validity of the statute under the Fifth Amendment of the Constitution.
First, as to the accusation, appellant claims that it failed to set forth the alleged offense with reasonable particularity as a result of which appellant was prevented from adequately preparing his defense. He also argues that because of the form of this charge he cannot plead his conviction in the event of a subsequent prosecution for the same offense. Appellant at no time objected in either of the lower courts to the insufficiency of the information. This objection was raised for the first time on appeal in the Supreme Court of Hawaii.
Many courts have held that it is not necessary that the particular lascivious acts be set forth; the charge is sufficient if it merely follows the words of the statute. Rosen v. United States, 161 U.S. 29, 16 S.Ct. 434, 480, 40 L.Ed. 606; Price v. United States, 165 U.S. 311, 17 S.Ct. 366, 367, 41 L.Ed. 727; People v. Carey, 217 Mich. 601, 187 N.W. 261; State v. Burgess, 123 Me. 393, 123 A. 178; People v. Kratz, 230 Mich. 334, 203 N.W. 114; State v. Schumacher, 195 Iowa 276, 191 N.W. 870; Glover v. State, 179 Ind. 459, 101 N.E. 629, 45 L.R.A.,N.S., 473; Kelly v. People 192 Ill. 119, 61 N.E. 425, 85 Am.St.Rep. 323; English v. State, 122 Fla. 77, 164 So. 848; State v. Vliet, 120 N.J.L. 23, 197 A. 894.
If in preparing for trial, appellant had felt that a particularization of the alleged lascivious acts was necessary for a proper defense, he could have asked the court for a bill of particulars. Section 5353, Revised Laws of Hawaii, 1935. See Rosen v. United States, supra; Durland v. United States, 161 U.S. 306, 16 S.Ct. 508, 40 L.Ed. 709; Dunbar v. United States, 156 U.S. 185, 15 S.Ct. 325, 39 L.Ed. 390; Johnson v. United States, 9 Cir., 59 F.2d 42, 44.
Inasmuch as appellant did not at any time either before or during the course of the trial object to the sufficiency of the information, we cannot see how the form of the charge prejudiced the preparation of his defense. It has been held many times that if the defendant fails to object to the sufficiency of the information until after the verdict it will be deemed that he was sufficiently apprised of the nature of the charge against him and the case will not be reversed in the absence of prejudice. Ledbetter v. United States, 170 U.S. 606, 18 S.Ct. 774, 42 L.Ed. 1162; Armour Packing Co. v. United States, 209 U.S. 56, 28 S.Ct. 428, 52 L.Ed. 681; Holmgren v. United States, 217 U.S. 509, 30 S.Ct. 588, 54 L.Ed. 861, 19 Ann.Cas. 778; Durland v. United States, supra; Kirby v. United
States, 174 U.S. 47, 19 S.Ct. 574, 43 L.Ed. 890; Coates v. United States, 9 Cir.. 59 F. 2d 173.
In regard to appellant’s claim that the charge does not sufficiently protect him from a subsequent prosecution of the same offense, the charge here generally defines the offense. Moreover, in order to protect himself from a second prosecution, appellant may resort to the record and evert to oral testimony to prove his prior conviction. Dunbar v. United States, supra, 15 S.Ct. at page 327; Connors v. United States, 158 U.S. 408, 15 S.Ct. 951, 39 L.Ed. 1033; Bartell v. United States, 227 U.S. 427, 33 S.Ct. 383, 384, 57 L.Ed. 583; Capone v. United States, 7 Cir., 56 F.2d 927, 933; United States v. Remington, 2 Cir., 64 F.2d 386. The record in this case would be sufficient to afford any needed particulars of the prior conviction. Any particulars that this charge fails to set forth are matters of form and not of the substance of the crime charged.
Appellant’s complaint against Section 6253, set out above, is that the phrase “lascivious conduct” “fixes no immutable standard of guilt. The standard is left to the variant views of different courts and juries.” Appellant adds that.it is true that the offense of “lascivious conduct” was known to the common law, “and that courts frequently resort to the common law to ascertain the meaning of a statute coitched in general terms”. See Martin v. United States, 2 Cir., 278 F. 913. Appellant claims, however, that “resort to the common law cannot save said Section 6253. At common law the offense of ‘lascivious conduct’ had to be ‘openly and publicly committed’ (State v. Moore, 31 Tenn. 136; 36 Corpus Juris 1038), and so alleged in the accusation (Delany v. People, 10 Mich. 241).”
“Lascivious” is defined by the Supreme Court as “that form of immorality which has relation to sexual impurity”, [Emphasis supplied] Swearingen v. United States, 161 U.S. 446,451,16 S.Ct. 562, 563, 40 L.Ed. 765. Other courts which have construed statutes similar in form and phraseology to the one at bar have had no difficulty in defining the phrase “lascivious conduct”. State v. Millard, 18 Vt. 574, 46 Am.Dec. 170; Commonwealth v. Wardell, 128 Mass. 52, 35 Am.Rep. 357, 359; State v. Vliet, supra; State v. Burgess, supra; People v. Ring, 267 Mich. 657, 255 N.W. 373, 375, 93 A.L.R. 993. In State v. Millard, supra, the court laid down the following rule which the above courts and others have accepted: “No particular definition is given, by the statute, of what constitutes this crime. The indelicacy of the subject forbids it, and does not require of the court to state what particular conduct will constitute the offence. The common sense of the community, as well as the sense of decency, propriety and morality, which most people entertain, is sufficient to apply the statute to each particular case, and point out what particular conduct is rendered criminal by it.” See also People v. Kratz, 230 Mich. 334, 203 N.W. 114; 8 R.C.L. § 830.
Nor have the above cases found it necessary to resort to the common law to define lascivious conduct. Under the statutes which the above cases construe, and under the statute before us, lascivious conduct is immorality relating to sexual impurity whether committed publicly or privately, and although the common law required the acts which amount to lascivious conduct to be “public”, the common law did not define those acts with any more certainty than do the statutes today. “The sense of decency, propriety and morality, which mose people entertain” in the community is still the test. If the Legislature of Hawaii wishes to make certain acts of sexual impurity punishable if committed in private as well as in public, the courts cannot deny the Legislature this right.
Affirmed.
Counsel advises us in argument that this court is not a court of record and alleged criminal offenses may be charged orally (with reference to the statute involved). On appeal from this court to the Circuit Court, the District Court prepared a “Certificate of Appeal” to the Circuit Court which is set out infra.
Question: What is the state of the first listed state or local government agency that is a respondent?
01. not
02. Alabama
03. Alaska
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. Florida
11. Georgia
12. Hawaii
13. Idaho
14. Illinois
15. Indiana
16. Iowa
17. Kansas
18. Kentucky
19. Louisiana
20. Maine
21. Maryland
22. Massachussets
23. Michigan
24. Minnesota
25. Mississippi
26. Missouri
27. Montana
28. Nebraska
29. Nevada
30. New
31. New
32. New
33. New
34. North
35. North
36. Ohio
37. Oklahoma
38. Oregon
39. Pennsylvania
40. Rhode
41. South
42. South
43. Tennessee
44. Texas
45. Utah
46. Vermont
47. Virginia
48. Washington
49. West
50. Wisconsin
51. Wyoming
52. Virgin
53. Puerto
54. District
55. Guam
56. not
57. Panama
Answer:
|
songer_numresp
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Your specific task is to determine the total number of respondents in the case. If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
William BROCK, Secretary of Labor, United States Department of Labor, Plaintiff-Appellant, v. INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL UNION NO. 369, AFL-CIO, Defendant-Appellee.
No. 84-5130.
United States Court of Appeals, Sixth Circuit.
Argued Aug. 2, 1985.
Decided May 13, 1986.
Raymond J. Donovan, Secretary, U.S. Dept, of Labor, Atlanta, Ga., William H. Berger, Atty., W. Hickman Ewing, Jr., U.S. Atty., Memphis, Tenn., W. James Ellison, Donald D. Carter, Jr. (argued), U.S. Dept, of Labor, Washington, D.C., for plaintiff-appellant.
Tim Edward, Lynn Agee, Berber, Berber & Agee, Memphis, Tenn., Deborah Godwin (argued) for defendant-appellee.
Before ENGEL and KENNEDY, Circuit Judges, and NEESE, Senior District Judge.
The Honorable C.G. Neese, Senior Judge for the United States District Court for the Eastern District of Tennessee, sitting by designation.
ENGEL, Circuit Judge.
The Secretary of Labor appeals from a judgment entered in favor of the International Union of Operating Engineers, Local Union 369, AFL-CIO in the Secretary’s action brought under Title IV of the Labor Management Reporting and Disclosure Act of 1959 (LMRDA). 29 U.S.C. § 401 et seq., to set aside an election of officers conducted by the Union on August 11, 1981, insofar as it affected the election for the offices of business agent, recording-corresponding secretary, financial secretary, guard, and two Executive Board positions. After making oral findings of fact on the record in open court, the trial judge held that while a violation of the LMRDA had been established by the Secretary, the presumption arising therefrom that the violation may have affected the election had been overcome. The trial judge then went on to hold that the violation did not in fact affect the election, and entered judgment for the Union. We affirm, but on the alternate basis, raised by the Union but not directly ruled upon by the district court, that the Secretary’s action must fail for failure of the complaining parties to exhaust internal union remedies as required by 29 U.S.C. § 482(a)(1).
I.
In an effort to protect the rights of individual employees to participate in the choice of their own union representatives, subchapter IV of the Labor-Management Reporting and Disclosure Act of 1959, 29 U.S.C. § 481, carefully sets forth discrete provisions governing the election of union officers by secret ballot, free of unethical and unlawful influence. Subsection (g) of 29 U.S.C. § 481 provides:
No moneys received by any labor organization by way of dues, assessment, or similar levy, and no moneys of an employer shall be contributed or applied to promote the candidacy of any person in any election subject to the provisions of this subchapter. Such moneys of a labor organization may be utilized for notices, factual statements of issues not involving candidates, and other expenses necessary for the holding of an election.
Enforcement of the foregoing provisions of the Act is provided in section 482. Under section 482(a), a member of a labor organization who complains of a violation of the Act and who has first exhausted the remedies available under the constitution and bylaws of his union or has proceeded for three months after their invocation without obtaining a final decision, may file a complaint with the Secretary within one calendar month thereafter challenging the validity of the election. Section 482(b) further provides that the Secretary shall investigate the complaint and, if he finds probable cause to believe that a violation of the subchapter has occurred and has not been remedied, shall within sixty days after the filing of such complaint bring a civil action against the labor organization in the United States district court in which the labor organization maintains its principal office. Under these provisions, then, exhaustion of union remedies by a complaining union member is a prerequisite to a suit by the Secretary against the union under 29 U.S.C. § 482(b). Moreover, because the Act provides no machinery whereby the Secretary may initiate action, the Secretary can take no independent action against a union until an aggrieved employee has filed a complaint.
The exhaustion requirement has two aspects: procedure and scope. Hodgson v. District 6, United Mine Workers, 474 F.2d 940, 944 (6th Cir.1973). The Union in this case does not dispute that its complaining members, James Russell and R.C. Ward, followed the union procedures and complained through proper union channels. The Union does, however, challenge the permissible scope of the Secretary’s complaint in the district court, given the nature of the protests that were filed by Russell and Ward.
The Supreme Court has addressed the exhaustion issue in two cases. In Wirtz v. Local Union No. 125, Laborers’ International Union, 389 U.S. 477, 88 S.Ct. 639, 19 L.Ed.2d 716 (1968) (Laborers’ Union), the Secretary filed a complaint challenging the validity both of a general election of local union officers and of a runoff election necessitated by a tie vote for one office in the general election. The loser in the runoff election had protested internally only the conduct of that election, alleging that the practice of the local’s secretary-treasurer of paying from union funds delinquent dues of selected members resulted in ineligible members being allowed to vote in the election. The Secretary’s investigation disclosed not only that many ineligible members had voted in both the general and runoff elections, but also that 16 of the 27 candidates for office in the general election, including the complaining member's opponent, were ineligible.
The Supreme Court held that the Secretary was entitled to challenge the general election as well as the runoff election “because [the] union had fair notice from the violation charged by [the complaining member] in his protest of the runoff election that the same unlawful conduct probably occurred at the earlier election as well.” Id. at 481, 88 S.Ct. at 641. The Court rejected the argument that the Secretary’s complaint must be limited solely to the allegations made in the union member’s initial protest, finding that “Congress, having given the Secretary broad investigative power, cannot have intended that his right to relief be defined by a complaining member’s ignorance of the law or the facts or by the artlessness of the member’s protest.” Id. at 485, 88 S.Ct. at 643. The Court recognized that the statute was designed not only to responsibly redress members’ election grievances, but also to foster union self-government. However, it felt that both objectives would be “furthered by permitting the Secretary to include in his complaint at least any § 401 violation he has discovered which the union had a fair opportunity to consider and redress in connection with a member’s initial complaint.” Id. at 484, 88 S.Ct. at 643.
Three years later, in Hodgson v. Local Union 6799, United Steelworkers, 403 U.S. 333, 91 S.Ct. 1841, 29 L.Ed.2d 510 (1971) (Local 6799), the Court made it clear that the Secretary did not have authority to litigate every violation the investigation might reveal once a union member had exhausted internal union remedies concerning a particular complaint. In Local 6799, an unsuccessful candidate filed a written protest with the union, complaining of several violations including the use of union facilities to aid incumbents. After failing to obtain relief through union procedures, he filed a complaint with the Secretary of Labor. The complaint repeated the charge that union facilities had been used improperly and raised a new objection concerning a meeting-attendance requirement imposed as a condition of candidacy for union office. After investigating the complaint, the Secretary brought suit to invalidate the election for both improper use of union facilities and for imposition of unreasonable eligibility requirements.
The Court held that the complaining union member’s failure to object to the attendance rule during pursuit of his internal union remedies barred the Secretary from later challenging the rule in court. The Secretary had contended that the statute authorized him “to investigate and litigate any and all violations that may have affected the outcome of an election once a union member has exhausted his internal union remedies concerning any violation that occurred during that election.” Id. at 337, 91 S.Ct. at 1844. The Court rejected that argument, finding that the Secretary’s position would leave the exhaustion requirement with “virtually no purpose or part to play in the statutory scheme” and would slight the congressional interest in avoiding unnecessary governmental interference with internal union affairs. Nevertheless, the Court recognized that the exhaustion requirement should not be applied so stringently as to bar claims simply because union members are inexpert in framing their protests:
Of course, any interpretation of the exhaustion requirement must reflect the needs of rank and file union members— those people the requirement is designed ultimately to serve. We are not unmindful that union members may use broad or imprecise language in framing their internal union protests and that members will often lack the necessary information to be aware of the existence or scope of many election violations. Union democracy is far too important to permit these deficiencies to foreclose relief from election violations; and in determining whether the exhaustion requirement of § 402(a) has been satisfied, courts should impose a heavy burden on the union to show that it could not in any way discern that a member was complaining of the violation in question. But when a union member is aware of the facts supporting an alleged election violation, the member must, in some discernible fashion, indicate to his union his dissatisfaction with those facts if he is to meet the exhaustion requirement.
Id. at 340-41, 91 S.Ct. at 1846.
Our circuit has addressed the exhaustion issue on two separate occasions. In Hodgson v. Local 1299, United Steelworkers, 453 F.2d 565 (6th Cir.1971), we held that the Secretary was not empowered to challenge the validity of a meeting-attendance rule for eligibility for union office when the complaining union member’s internal protest challenged only the manner in which the rule was applied. Several candidates for union office who had been declared ineligible to run had complained of the election committee’s decision to exclude from consideration the first thirteen months of the three-year period preceding the election when applying the meeting-attendance rule. They argued that the full three years should have been considered. We found that the challenge to the rule’s application had not given the union fair notice of any complaint about the rule’s validity. We also noted that, although the complaining members easily could have raised an objection to the rule’s validity, they had asked the union instead to apply the rule differently.
Later, in Hodgson v. District 6, United Mine Workers, 474 F.2d 940 (6th Cir.1973), our court again faced the question whether a particular protest had challenged the validity, and not just the method of application, of a candidate eligibility rule. The complaining union member, William Howard, had been prevented from becoming a candidate for the office of International Executive Board Member when the recording secretary of one of the locals that nominated him failed to send the nomination certificate to the union’s district headquarters within the time provided by the union rules. Howard sent letters of protest to union officials, complaining that he had been disqualified from being a candidate when he actually had received the nominations of the required number of local unions, and that it was “not my fault or the fault of the members of these locals.” Id. at 943. After receiving no relief from the union, Howard filed a complaint with the Secretary of Labor. The Secretary investigated the complaint and brought suit charging that the eligibility rule was unreasonable and, therefore, invalid. The court held that Howard had exhausted internal union remedies on a challenge to the rule’s validity because “[t]he members of the Executive Committee of District 6 could have easily discerned, if they had any interest in looking into the matter, that Howard was really complaining about the validity of Article VIII of the [union] constitution which vested in the Recording Secretary such absolute and arbitrary power and authority to vitiate his candidacy, when in fact he had fully complied with all of the rules.” Id. at 946. The court held that exhaustion must be objectively, rather than subjectively, determined because otherwise “union officials could make it very difficult to prove that they had knowledge that the validity of a rule was being attacked.” Id. at 946 n. 6.
The rule emerging from these cases seems to be that the exhaustion requirement is satisfied when the union reasonably should have been able to discern from the protest that the member was complaining of the violation ultimately litigated by the Secretary. This interpretation has been applied by several other circuits. See Donovan v. Missouri Pacific System Federation Joint Protective Board, 737 F.2d 445, 448 (5th Cir.1984), and cases cited therein. The sense of the Act and its interpretation is that it must be realistically applied but with due regard for a balance between the rights of industrial union members and the real need of elected union officials to get on with the business of carrying out their duties without the debilitative drag of tardily asserted challenges to their authority. Equally important is the interest in minimizing government intervention into union affairs by giving unions the first opportunity to put their own house in order.
We turn now to the undisputed facts in this litigation.
II.
The defendant International Union of Operating Engineers, Local Union No. 369, AFL-CIO, is a labor organization within the meaning of the Act. See 29 U.S.C. § 402(i). Local 369 is the collective bargaining agent for operating engineers in a geographical area extending from the Mississippi River eastward to a distance of forty miles east of Nashville, thus covering most of middle Tennessee and all of west Tennessee. In compliance with the statute and with the constitution and bylaws of the Union, an election of officers of Local 369 was scheduled to take place on August 11, 1981. Actual voting was to take place at three locations, Nashville, Memphis, and Lexington, Tennessee. The election had been preceded by approximately three months of vigorous campaigning by the several candidates for office.
It is undisputed that on the morning of election day, the incumbent president of the Union, Charles Stewart, arrived at the Nashville polling place to discover that his opponent was passing out pre-printed leaflets which listed a preferred slate of union officers. Stewart then instructed the union's paid secretary, Pam Cates, to type a list of candidates whom he, Stewart, endorsed. Ms. Cates typed the list on a union typewriter and reproduced several copies on a union photocopy machine. There is also evidence that Ms. Cates took the list to a printshop to get additional copies. It is uncertain whether the paper employed for these copies was furnished by the printshop or came from the Union. It is undisputed, however, that at the time she engaged in this activity, Ms. Cates was working on time paid directly by the Union. Later in the day, Stewart and his supporters passed out this list to members of the Union who were voting at the Nashville polling place. Of the nine candidates supported by Stewart three lost, including Stewart himself. Six members of Stewart's slate were elected: the business agent, recording-corresponding secretary, financial secretary, guard, and two Executive Board members. The margin by which these candidates were elected ranged from four votes for one Executive Board member to 178 votes for the office of recording-corresponding secretary. Between eight and nine hundred union members cast their votes at the three locations, depending upon the particular office being voted upon. For example, 830 members cast their votes for president, 413 for Stewart and 417 for Robert (Frenchie) Andujo, Sr. The vote in Nashville for the office of president was 189 for Andujo and 138 for Stewart.
Shortly after the election, two defeated candidates, James E. Russell and R.C. Ward, lodged written complaints with the Local Union, complaining that the voting records from the Lexington polling place had been lost and that other candidates had solicited votes from union cars on union time in cities other than Nashville. Neither candidate complained of campaign literature being prepared at union expense by Stewart and other union employees in Nashville. Both Russell and Ward testified at trial that they were not aware of the violation until after they filed their complaint with the Secretary of Labor. The Secretary, however, concedes that several other members of the Union in Nashville were aware of Stewart’s violation on the day of the election but did not submit a protest. The Union proceeded to investigate the protest as filed but dismissed it for lack of evidence and lack of merit. That dismissal was duly appealed to the International Union’s Executive Board which denied the appeal. The complaining union members then filed timely complaints to the same effect with the Secretary of Labor.
While investigating the complaints made, the investigator for the Department of Labor learned of the copying incident. Although the Secretary did not file suit on the charges which had been alleged in the union member’s protests, he did bring suit to invalidate the election based upon the copying incident.
The district court in oral findings made from the bench found that the contribution of Ms. Cates’ time in typing the lists and in making copies of the union’s copy equipment was sufficient to constitute a violation of section 481(g) of the LMRDA and was sufficient to give rise to a presumption that the outcome of the election may have been affected. The court, however, found the facts of the case sufficient to overcome that presumption and, therefore, entered judgment in favor of the Union. While not fully addressing the exhaustion issue raised by the Union, the court stated that it was “troubled” with the “validity of the complaint” and found that “somebody, including the two people that complained, should have known [that the violation occurred and that it] should have been brought to the attention of the Union first at the Executive Board.”
That the Union president’s activity in employing Ms. Cates and the Union copying machine for personal electioneering purposes was a plain violation of section 481(g) is not seriously disputed. Certainly the trial judge’s findings in this regard cannot be said to be clearly erroneous. Our review of the relevant case law in this and other circuits and more particularly in the Supreme Court requires us to recognize that once a violation of section 481 has been demonstrated, the burden upon a defendant union to show that the violation did not affect the election outcome is substantial. See Wirtz v. Hotel, Motel & Club Employees Union, Local 6, 391 U.S. 492, 506-07, 88 S.Ct. 1743, 1751-52, 20 L.Ed.2d 763 (1968); Marshall v. Local 1010, United Steelworkers, 664 F.2d 144, 148 (7th Cir.1981); Donovan v. Local Union 70, International Brotherhood of Teamsters, Chauffeurs, Warehouseman, and Helpers, 661 F.2d 1199, 1202 (9th Cir.1981); Marshall v. Local Union 12447, United Steelworkers, 591 F.2d 199, 205-06 (3d Cir.1978); Usery v. International Organization of Masters, Mates and Pilots, 538 F.2d 946, 949 (2d Cir.1976). Findings of harmlessness have generally been confined to situations in which the particular violation can clearly be shown to have been isolated in its effect. See, e.g., Usery v. Stove, Furnace and Allied Appliance Workers, 547 F.2d 1043, 1046 (8th Cir.1977); Marshall v. American Postal Workers, 486 F.Supp. 79, 82 (D.D.C.1980); cf. Donovan v. Local 6, Washington Teachers’ Union, 747 F.2d 711 (D.C.Cir.1984). We find it unnecessary to address this issue here, however, because it is apparent to us that the law in this circuit and in the Supreme Court strongly supports the alternative basis for affirmance urged by the Union.
in.
The Secretary contends that because Russell and Ward lacked knowledge of the incident at the polling place in Nashville, he should be allowed to assert it in his complaint. This argument is not that the exhaustion requirement has been satisfied but rather that it should be excused for violations of which the particular complaining union members were unaware. Arguably, there is some support for this position in the Supreme Court’s decisions in Laborers’ Union and Local 6799.
In addition, at least two district courts have accepted the argument that the exhaustion requirement should be excused when complaining union members did not know and could not have known of the violation. Donovan v. Local 738, International Union United Automobile, Aerospace and Agricultural Implement Workers, 575 F.Supp. 52 (D.Md.1983); Donovan v. Blasters, Drillrunners and Miners Union, Local No. 29, 521 F.Supp. 595 (S.D.N.Y.1981). However, in neither of these cases did the court analyze or explain the rationale or policy behind the holding.
The primary policy behind the Secretary’s position appears to be the public interest in assuring free and democratic union elections, a policy which “transcends the narrower interest of the complaining union member.” Steelworkers v. Usery, 429 U.S. 305, 309, 97 S.Ct. 611, 614, 50 L.Ed.2d 502 (1977) (quoting Wirtz v. Bottle Blowers Assn., 389 U.S. 463, 475, 88 S.Ct. 643, 650, 19 L.Ed.2d 705 (1968)). Therefore, it is arguable that, to protect this public interest, the Secretary should be allowed to litigate election violations of which complaining union members were unaware. The difficulty with this line of reasoning is that it finds no support in either the language or the underlying policies of the statute.
The statutory scheme makes no provision for exceptions to the exhaustion requirement of section 482(a), nor does the legislative history of the LMRDA give any indication that Congress intended that the exhaustion requirement be excused for violations of which union members were unaware. Indeed, the legislative history of the Act quite clearly expresses a congressional intent to minimize government intervention into union affairs in order to encourage union self-government. The Supreme Court also has noted that this policy objective is consistent with, and promoted by, an exhaustion requirement that permits “the unions themselves [to] remedy as many election violations as possible without the Government’s ever becoming involved.” Local Union 6799, 403 U.S. at 339, 91 S.Ct. at 1845. See also S.Rep. No. 187, 86th Cong., 1st Sess. 21, reprinted in 1959 U.S. Code Cong. & Ad.News 2318, 2337. Furthermore, the cases interpreting the exhaustion requirement flexibly, so as not to preclude complaints the union reasonably should have been able to discern from the complaining member’s protest, do not stand for the proposition that the requirement may be completely excused. To accept the contention that the Secretary may litigate violations of which no union member complained simply because the complaining member was unaware of them would almost certainly undermine both the policies and the limits on the Secretary’s power that are implicit in the statutory scheme.
We do not believe, therefore, that the exhaustion requirement may be excused under the circumstances here. While it is indeed true that the two disappointed candidates who did complain did not know of the activity in Nashville, it is equally plain and found by the district judge that this information was fully known in Nashville and that any reasonable investigation could quickly have revealed the violation. Action could then have been taken on that complaint had any Union member seen fit to do so. The trial judge’s findings in this regard to the extent they are factual, are supported by the record and are not clearly erroneous.
Upon a careful examination of the record, including the language of the protest as actually filed with the Union and the Secretary, we are also satisfied that the exhaustion requirement was not met here with respect to the incident in Nashville. The protest letters alleged two specific violations: the loss of records from the Lexington polls and the solicitation of votes from Union cars on Union time in cities other than Nashville. Neither of these violations was related in any way to the copying incident. The only other allegation in the protest was the statement that “[tjhere are numerous other reasons for my protest.” While we believe that such protest should be liberally construed, it is in our view quite unreasonable to hold that based upon the protest as filed, the Union should have been able to discern from this unsupported, all-inclusive statement, that the members were complaining of the copying incident. To permit so generalized a complaint to trigger an investigation by the Secretary would, in the words of the Supreme Court, leave the exhaustion requirement with “virtually no purpose or part to play in the statutory scheme.” Local 6799, 403 U.S. at 340, 91 S.Ct. at 1846. It is not claimed, nor do we believe can it be claimed upon this record, that the Union should have been able to discern from the protest the existence of the complaint in Nashville and thus to have been in a position to address that question when the actual protest was presented to it and to the Union’s Executive Board and to the International. The violation charged by the Secretary in his complaint was therefore not one “which the union had a fair opportunity to consider and redress in connection with a member’s initial complaint.” Wirtz v. Local 125, 389 U.S. at 484, 88 S.Ct. at 643.
AFFIRMED.
. Any reader predisposed to a given result upon the facts here should recognize that there is no evidence in the record that any of the six officers whose election was challenged had any part in the unlawful conduct. So far as we know, they could have strongly opposed aligning their own candidacy with others on the slate, including Stewart. There is no evidence whatever that any of the six challenged candidates had anything to do with the unlawful leaflets or even desired to be identified with the others listed on it.
. This argument apparently stems from the Supreme Court’s language in Laborers’ Union, 389 U.S. at 485, 88 S.Ct. at 643, that Congress did not intend to define the Secretary’s right to relief "by a complaining member’s ignorance of the law or the facts,’’ and from the Court's language in Local 6799, 403 U.S. at 340-41, 91 S.Ct. at 1846, that "union democracy is far too important to permit [a lack of information about the existence or scope of many election violations] to foreclose relief from election violations." We do not deem this language controlling, however.
. S.Rep. No. 187, 86th Cong., 1st Sess., reprinted in 1959 U.S.Code Cong. & Ad.News 2318, 2323. Here, the Senate Report states:
In acting on this bill the committee followed three principles:
1. The committee recognized the desirability of minimum interference by Government in the internal affairs of any private organization. Trade unions have made a commendable effort to correct internal abuses; hence the committee believes that only essential standards should be imposed by legislation. Moreover, in establishing and enforcing statutory standards great care should be taken not to undermine union self-government or weaken unions in their role as collective-bargaining agents. * * *
Question: What is the total number of respondents in the case? Answer with a number.
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.
John ROCKBRIDGE and Henry Zah, Individually and On Behalf of All Others Similarly Situated, Plaintiffs and Appellants, v. Anthony LINCOLN, Area Director, Bureau of Indian Affairs, et al., Defendants and Appellees.
No. 25437.
United States Court of Appeals, Ninth Circuit.
Sept. 1, 1971.
Donald Juneau (argued), Theodore R. Mitchell, Window Rock, Ariz., for appellants.
George R. Hyde (argued), S. Billingsley Hill, Dept. of Justice; Shiro Kashiwa, Asst. Atty. Gen., Land & Nat. Resources Div., Washington, D. C.; Richard K. Burke, U. S. Atty., Michael Lasher, Asst. U. S. Atty., Phoenix, Ariz., for appellees.
Before MERRILL and ELY, Circuit Judges, and FERGUSON, District Judge.
Honorable Warren J. Ferguson, United States District Judge, Central District of California, sitting by designation.
FERGUSON, District Judge:
The question presented is whether a system of unregulated trading post monopolies allegedly imposed upon the Navajo Indians by governmental officials can be challenged in court. The district court held that it lacks jurisdiction. We reverse.
This appeal, pursuant to 28 U.S.C. § 1291, is from a judgment dismissing appellants’ action to require the Secretary of the Interior, the Commissioner of Indian Affairs, and the Area Director of the Navajo Indian Reservation to adopt and enforce certain rules and regulations governing traders doing business on the Navajo Indian Reservation. The appellants filed their complaint as a class action on their own behalf and on behalf of all Navajo Indians residing on the reservation.
Appellants claim that a duty to adopt and enforce such regulations arises out of 25 U.S.C. §§ 261 and 262. The appel-lees contend that the sections grant them such discretion within the meaning of the Administrative Procedure Act (5 U.S.C. § 701 et seq.) as to preclude litigation. These sections provide as follows:
Ҥ 261. Power to appoint traders with Indians
“The Commissioner of Indian Affairs shall have the sole power and authority to appoint traders to the Indian tribes and to make such rules and regulations as he may deem just and proper specifying the kind and quantity of goods and the prices at which such goods shall be sold to the Indians.”
Ҥ 262. Persons permitted to trade with Indians
“Any person desiring to trade with the Indians on any Indian reservation shall, upon establishing the fact, to the satisfaction of the Commissioner of Indian Affairs, that he is a proper person to engage in such trade, be permitted to do so under such rules and regulations as the Commissioner of Indian Affairs may prescribe for the protection of said Indians.”
By their motion to dismiss, the appel-lees concede for the purpose of this appeal the truthfulness of the allegations set forth in the complaint. Delesdernier v. O’Rourke & Warren Company, 305 F. 2d 929 (5th Cir. 1962). In summary, these allegations are:
1. The Navajo Reservation is approximately the size of West Virginia, and is occupied by 120,000 Navajos.
2. No one is allowed to conduct business on the reservation without the approval of the Commissioner of Indian Affairs. There are now approximately 100 traders, whose total gross receipts during the past six years averaged 14.5 million dollars per year.
3. Family income for the Navajos averages $1,500 per year. The effective unemployment rate is nearly 80%.
4. The trading post is the only area outlet for groceries and supplies. It is the only local buyer for livestock, wool and other Navajo products. It has the only telephone, gasoline pump and post office and is the only local source of credit by loans, pawns and open accounts.
5. The trader dominates the relationship between the Navajos and those outside the reservation to his own economic advantage. The trader frequently acts as liaison between state welfare agencies and the Navajo applicants and withholds proceeds of welfare checks or other checks sent to them until their loans are paid.
6. The United States Railroad Retirement Board employs traders to act as special claims agents. In this capacity, the trader disperses one of the few sources of wage income on the reservation. He is able to, and often does, favor the employment of those Navajos who have credit accounts owing to him.
7. Because of the licensing procedures of the Commissioner, each trader has an effective geographical monopoly of Navajo consumers and resources in his trading area, which works to the benefit of the trader and against the Navajos.
8. It is not possible for the Navajos to trade outside the reservation because the vast majority of roadways are unpaved and in winter months and during spring and fall rains, transportation is difficult to impossible.
9. The traders have a legal monopoly, since they have a captive market and need not worry about competition. They are not subject to the controls of the free enterprise system.
10. The unregulated trading post system permits the trader to exact unduly high prices for his goods; to sell inferior products; to.charge any rate of interest; and to use dishonest weights and' measures. The system permits the trader economically to manipulate the Navajo.
11. While the Commissioner leaves traders on the Navajo, Hopi and Zuni Reservations free from price regulation, he subjects traders on other Indian Reservations to price controls.
12. The Commissioner has issued a few regulations concerning relatively unimportant features of the trading post operation, such as, the issuance of pawn receipts, with no regulation of interest rates. He requires that prices be plainly marked, but places no restraint on prices, and he has provided no means whatsoever to enforce even the few regulations which have been adopted.
The appellants seek orders which would (1) require the appellees to adopt adequate rules and regulations which govern traders on the reservation for the protection of the Navajos, including specification of “the kind and quantity of goods and the prices at which such goods shall be sold”; and (2) require appellees to enforce those regulations and the regulations which are now in effect.
Appellants allege jurisdiction under a variety of statutes, treaties and constitutional provisions. They are 25 U.S.C. §§ 261-264; Article 1, Sec. 8, clause 3 of the Constitution; the Fifth Amendment; Treaty of 1849 between the Navajo Tribe and the United States (9 Stat. 974); Navajo Treaty of 1868 (15 Stat. 667); the Administrative Procedure Act, 5 U.S. C. § 701 et seq.; 28 U.S.C. § 1331, involving a federal question and $10,000; 28 U.S.C. § 1361, the Mandamus Statute; and 28 U.S.C. § 1651, the All Writs Statute.
The district court granted the appel-lees’ motion to dismiss holding that the Administrative Procedure Act (5 U.S.C. § 701 et seq.) did not confer jurisdiction on the court. The court reasoned that 25 U.S.C. §§ 261 and 262 are purely discretionary and therefore specifically exempted from the Act. The district court further held that the Mandamus Statute (28 U.S.C. § 1361) was likewise inapplicable, and that since the appellees had not “acted” in violation of their statutory powers, the doctrine of sovereign immunity is a bar to the action.
We hold that the district court has jurisdiction under the Administrative Procedure Act, and that the doctrine of sovereign immunity is not a bar to this action.
Section 702 of the Administrative Procedure Act (5 U.S.C. § 702) provides that “[a] person suffering legal wrong because of agency action * * * is entitled to judicial review thereof”. Section 703 sets forth that “[t]he form of proceeding for judicial review is * * * any applicable form of legal action, including actions for declaratory judgments or writs of prohibitory or mandatory injunction. * * * ” Section 706 (1) directs the reviewing court to “compel agency action unlawfully withheld”. The Act has been interpreted to permit the relief sought. Mollohan v. Gray, 413 F.2d 349 (9th Cir. 1969); United States v. Walker, 409 F.2d 477 (9th Cir. 1969) ; Adams v. Witmer, 271 F.2d 29 (9th Cir. 1959). Appellees contend, however, that this is a case within 5 U.S.C. § 701(a)
(2) , which provides that the Act is not applicable when “agency action is committed to agency discretion by law”. Whether agency action is “committed to agency discretion” depends upon whether Congress has manifested in the statutes governing the agency action in question an intent to cut off review. See 4 Davis, Administrative Law Treatise § 28.16; Jaffe, Judicial Control of Administrative Action 374-75 (1965). A permissive statutory term, like “as he may deem just and proper”, 25 U.S.C. § 261, is not by itself to be read as a congressional command precluding judicial review. The question is whether nonreviewability can fairly be inferred from the over-all statutory scheme. Barlow v. Collins, 397 U.S. 159, 90 S.Ct. 832, 25 L.Ed.2d 192 (1970).
In order to properly determine whether inaction is “ * * * committed to [the Commissioner’s] discretion” by Sections 261 and 262, it is thus necessary first to focus upon the legal relationship between the United States and the Indians. In Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 8 L.Ed. 25 (1831), Chief Justice Marshall set forth that relationship. “[The Indians] are in a state of pupilage; their relationship to the United States resembles that of a ward to his guardian.” 30 U.S. at 17. In United States v. Kagama, 118 U.S. 375, 6 S.Ct. 1109, 30 L.Ed. 228 (1886), the duty of the government was defined. “From their [the Indians’] very weakness and helplessness, so largely due to the course of dealing of the Federal Government with them and the treaties in which it has been promised, there arises the duty of protection, and with it the power.” 118 U.S. at 384, 6 S.Ct. at 1114. See also Choctaw Nation v. United States, 119 U.S. 1, 75 S.Ct. 75, 30 L.Ed. 306 (1886).
In Seminole Nation v. United States, 316 U.S. 286, 62 S.Ct. 1049, 96 L.Ed. 561 (1942), the Court stated:
“In carrying out its treaty obligations with the Indian tribes, the Government is something more than a mere contracting party. Under a humane and self imposed policy which has found expression in many acts of Congress and numerous decisions of this Court, is has charged itself with moral obligations of the highest responsibility and trust. Its conduct, as disclosed in the acts of those who represent it in dealings with the Indians, should therefore be judged by the most exacting fiduciary standards.” 316 U.S. 296-297, 62 S.Ct. 1054.
More recently, in Warren Trading Post Co. v. Arizona Tax Comm’n, 380 U.S. 685, 85 S.Ct. 1242, 14 L.Ed.2d 165 (1965), the Court held that Congress has so broadly occupied the field of trading with Indians on reservations that no room remained for state laws imposing additional burdens on traders.
The lengthy debate in Congress in 1876 which preceded the passage of Section 261 centered around two basic issues: (1) Whether the Interior Department or the War Department ought to have control over trading posts on Indian Reservations, and (2) what could be done to protect the Indians from exploitation by unethical traders. 4 Cong.Rec. (44th Cong. June 20, 1876) pp. 3906-3926.
The Bureau of Indian Affairs was under the control of the War Department from 1789 to 1849, at which time it was transferred to the Interior Department. During the debates of 1876, approval was sought for an amendment, initially approved in the House, transferring the Bureau of Indian Affairs back to the War Department. A considerable portion of the debate on this suggestion centered around the abuses visited upon the Indians by traders during the period of time when the War Department previously had control. The comments of Senator Logan regarding those abuses are set forth in Appendix A.
In discussing a related amendment regarding the issuance of trading licenses by the Commissioner, which was subsequently agreed to and became a part of the Bill, Congressman Magninis set forth in explicit detail the injustices which had occurred as the result of unregulated monopolies in the Indian trading post system. His statement, in part, is set forth in Appendix B.
Shortly after the statements of Senator Logan and Congressman Magninis, Congressman Randall submitted the report of the conference committee to the House. It, in part, recommended the adoption of the following:
“Sec. 5. And hereafter the Commissioner of Indian Affairs shall have the sole power and authority to appoint traders to the Indian tribes and to make such rules and regulations as he may deem just and proper, specifying the kind and quantity of goods and the prices at which such goods shall be sold to the Indians.” 4 Cong.Rec. (44th Cong. August 11, 1876) p. 5477.
As noted earlier, the House previously had voted to transfer the Bureau of Indian Affairs back to the War Department. Section 5 remained unchanged through the subsequent conference committees and ultimately became § 261.
When viewed in light of this historical background, the language of § 261 becomes much clearer. When it states that the Commissioner is to have “sole” power to license and regulate traders, it means that he, as opposed to the War Department or some other federal administrative official, has that power.
In addition to centering power in the commissioner, Congress acted to prevent the widespread abuses within the existing unregulated trading post system revealed by the debates. There can be no question but that when Congress enacted § 261 it intended that the Commissioner would “specify [ing] the kind and quantity of goods and the prices at which such goods shall be sold to the Indians”. Congress delegated to the Commissioner the task of determining the specific content of these regulations. This does not mean that the Commissioner has unbridled discretion to refuse to regulate, but rather that he shall exercise discretion in deciding what regulations to promulgate and in determining specific quantities, prices and kinds.
This conclusion is not only consistent with the clear purpose of Congress, but also demanded by traditional rules of statutory construction. If Congress had intended that the Commissioner’s discretion would be unlimited, then much of the language in § 261— “specifying the kind and quantity of goods and the prices at which such goods shall be sold to the Indians” — would be superfluous. It is a cardinal principle of statutory construction that whenever possible statutes are to be given such effect that no clause, sentence or word is rendered superfluous, void, contradictory or insignificant. Richards v. United States, 369 U.S. 1, 11, 82 S.Ct. 585, 7 L.Ed.2d 492 (1962).
Moreover, statutes passed for the benefit of dependent Indian tribes and communities are to be liberally construed in favor of the Indians, and any doubt as to the proper construction is to be resolved in the latter’s favor. Squire v. Capoeman, 351 U.S. 1, 6-7, 76 S.Ct. 611, 100 L.Ed. 883 (1956); Holt v. Commissioner of Internal Revenue, 364 F.2d 38 (8th Cir. 1966), cert. denied, 386 U.S. 931, 87 S.Ct. 952, 17 L.Ed.2d 805 (1967).
Section 262 was enacted in 1903, twenty-seven years after section 261. While there is no statutory history to aid in interpreting this section, a careful reading suggests two possible interpretations. First, the provision “under such rules and regulations as the Commissioner of Indian Affairs may prescribe for the protection of said Indians”, may be read as a grant of authority to the Commissioner allowing him to promulgate rules in addition to those already required by § 261, i. e., rules unrelated to the price, quantity or kind of goods sold by the traders. Apparently the Commissioner took this view in acting to regulate the issuance of pawn tickets. Such regulation, while of doubtful propriety under § 261, is clearly authorized by § 262.
A second possible interpretation of this provision is that Congress intended to limit the Commissioner’s discretion in rule making to those rules and regulations which are “for the protection of said Indians”. Thus, for instance, he could not act in the trader’s interest, but only for the protection of the Indian. These two interpretations are not in any way inconsistent with each other, and it seems likely that both were intended. However, neither is necessary for the resolution of this case in its present posture.
. In sum, the legislative history does not support the contention that the regulations promised under §§ 261, 262 are wholly within the discretion of the Commissioner and thus immune from judicial review. The history demonstrates that the statutes in question were passed with a specific set of legislative objectives in mind and that the lawfulness of the Commissioner’s exercise of discretion — his decisions to regulate or not to regulate in any particular instance, as well as the particular mode of regulation chosen — is to be determined by reference to these objectives. See generally, Citizens to Preserve Overton Park, Inc. et al. v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). There the Supreme Court set forth the scope of judicial review under the Administrative Procedure Act as follows:
“Scrutiny of the facts does not end, however, with the determination that the Secretary has acted within the scope of his statutory authority. Section 706(2) (A) requires a finding that the actual choice made was not ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’ 5 U.S.C. § 706(2) (A) (Supp. V). To make this finding the court must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment. L. Jaffe, supra, at 182. See McBee v. Bomar, 296 F.2d 235, 237 (CA 6 1961); In re Josephson, 218 F.2d 174, 182 (CA 11954); Western Addition Community Organization v. Weaver, 294 F.Supp. 433 (N.D.Calif.1968). See also Wong Wing Hang v. Immigration & Naturalization Serv., 360 F.2d 715, 719 (CA 2 1966). Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency.” 401 U.S. at 416, 91 S.Ct. at 823.
The Administrative Procedure Act may not, however, provide a basis for review of governmental decisions if the doctrine of sovereign immunity is controlling so as to bar the suit. This court’s position on this issue and a detailed discussion of the relevant Supreme Court decisions was fully set forth in Judge Ely’s opinion in State of Washington v. Udall, 417 F.2d 1310 (9th Cir. 1969).
In dismissing the instant action, the district court stated that “[sjince the federal officers have not ‘acted’ in violation of their statutory powers, sovereign immunity is a bar to this suit”. This conclusion can be interpreted in two ways. First, it may be no more than a restatement of the court’s prior conclusion that the appellees were free to act or not to act in their discretion. Alternatively, it might mean that far from acting in excess of their authority, at the very worst the appellees acted well within their authority. In other words, they underacted, rather than overacted.
It is traditionally said that a suit is not violative of the doctrine of sovereign immunity if (1) the officer’s powers are limited by statute and he acts in excess of that authority or ultra vires; or (2) the officer was acting unconstitutionally or pursuant to an unconstitutional grant of authority. Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 689-691, 69 S.Ct. 1457, 93 L.Ed. 1628 (1949). However, for the purposes of sovereign immunity, this court can see no valid distinction between the public official who has a statutory duty to act and does not and the one who has a duty not to act and does. This was clearly the view of Congress in enacting the Administrative Procedure Act, since it provides that a reviewing court should “compel agency action unlawfully withheld”. 5 U.S.C. § 706(1).
Of course, here, as in all other suits to compel actions on the part of federal officials, some suits must be dismissed “even though the officers were not acting pursuant to valid statutory authority, because the relief sought would work an intolerable burden on governmental functions, outweighing any consideration of private harm.” State of Washington v. Udall, supra, 417 F.2d at 1318.
Appellants are not seeking money damages from the government, nor are they seeking to assert some right against it or to block a government project. The relief they seek does not in any way affect the sovereign power of the United States. The government is not asked to give up a right, to grant a concession, to dispose of property or to relinquish authority. Appellants merely seek a court order directing certain government officials to perform acts which Congress has already directed those officials to perform — the promulgation and enforcement of certain rules. In light of the legislative history and the remedy sought, it can hardly be argued that the relative equities and burdens in the present case are such that sovereign immunity ought to preclude consideration on the merits.
Finally, as stated in State of Washington v. Udall, supra, “[u]nder the foregoing principles, since sovereign immunity did not require dismissal of the complaint in this ease, District Court jurisdiction also existed under the federal question and declaratory judgment statutes, 28 U.S.C. §§ 1331, 2201, and under the mandamus statute, 28 U.S.C. § 1361.” 417 F.2d at 1320.
The case is reversed and remanded to the district court, with directions to assume complete jurisdiction over the controversy. In the event that after a trial on the merits the appellants are entitled to relief, the district court has jurisdiction to enter such decrees as will protect the Navajo Indians in their relationship with the traders on the reservation within the guidelines that Congress has prescribed.
APPENDIX A
Statement of Senator Logan:
“Reference has been made to extor-tions and wrongs perpetrated upon the Indians under the present system. That there are errors which need correction I will not deny; but let us refer to some of the prices paid by the Indians for articles under the old regime.
“I call the attention of the Senate to a report which I have here, and I have copied it from the papers accompanying the report of 1834, made to the Congress of the United States already referred to. I find that at Fort Leavenworth, within easy reach of the markets, guns which cost in Saint Louis $7 were sold to the Indians for $30 apiece; axes costing thirty-seven and a half cents were turned over to them for $2 apiece. A double handful of salt — for that was the way they measured it then to the Indian — costing sixty-two cents a bushel, was turned over to the Indians for $1. Five and six gallon kettles, costing twenty-five cents per pound, sold for $12 apiece by the War Department to the Indians. On the navigable waters of the Upper Missouri a yard of strouding, costing $1.80, sold for $8; a blanket costing $3 sold for $10; calico costing sixteen cents per yard sold for $1; powder costing thirty cents per pound sold for $1.50; tobacco costing from five to seven cents sold for $1; blue strouding costing eighty cents sold for $9, etc.
“If any gentleman disputes this, I have right here the sworn evidence, the bills reported to a committee of Congress in 1834, showing these facts in the face of all the honesty that is attributed to the War Department. I defy any man to show me that such robbery has ever been perpetrated on Indians in this country as was perpetrated, according to this report of 1834, by the War Department on the Indians of this country. It was robbery, sir; it was not fraud; it was open, palpable robbery.” 4 Cong.Ree. (44th Cong. June 20, 1876) p. 3910.
APPENDIX B
Statement of Congressman Magninis:
“Every one in this House and in the country has been humiliated by the exposures made of abuses in this direction during the last few years. They have been painful and humiliating to us all. We have seen injustice done to individuals and the robbery of Indians permitted, whole tracts of country turned over to the domination of speculators and reservations extended over the public lands for private benefit. I say this regardless of the persons to whom these privileges have been granted. So long as these monopolies are to be granted it is no matter to me who enjoys the benefits. My opposition is not directed against individuals, but against the system under which these abuses are possible and under which these special privileges are granted.
“The history of American trade with the Indians is not a record that we can be peculiarly proud of. Fraud and avarice have nurtured passions not only between the red and white, but rival traders in time past have marshaled tribe against tribe and originated intertribal wars which have done far more to reduce the Indian to nothingness than all the encroachments and conflicts of the whites.
“When our non-intercourse law was adopted, it was intended not to rob but to protect the Indians. It was never intended to be a cover for fraud, nor designed to set up monopolies for the enrichment of traders against the interests of the Indians; but under its provisions, during the subsequent administrations of the Department, monopolies did grow up and strengthen themselves until they became the rule of Indian trade.
“In 1865 an effort was made, originated, I believe, by the gentleman from Iowa, [Mr. Kasson,] to cure these abuses, and an amendment was made to an appropriation bill, which is now the second section of the law in the Revised Statutes, which provided that thereafter all loyal citizens who were of good, moral character should be able to obtain upon application, without discrimination in favor of persons, license to trade with the Indians. That law has been evaded in a way which I will explain, and which evasion my amendment is intended to prevent in future. And certainly we ought to try in every way to prevent monopoly of trade on these Indian reservations. I submit that when an Indian is an industrious hunter, and by his industry in the chase and skill in woodcraft and trapping he secures a large quantity of robes, furs, and peltries, he should be allowed to sell them where he can get the most for the product of his toil, and also he should be allowed to purchase where he can get the most for his money.
“What would be thought if the Government were to establish such a system of trade in all our villages and give to one or more traders the right to establish the prices at which goods should be sold and the rates which the working-man should receive for the product of his labor ? How long would the people of this country stand it? Why should not the Indians have the benefit of that competition which everywhere is the best regulator of prices ?
“And graver evils have resulted from this system. Under its cloak the corrupt rings have been formed, and the chief abuses of the Indian service have occurred behind its convenient cover. It has enabled the corrupt agent to keep every one off the reservation except his confidants and accomplices; and thus under an almost impenetrable cover, and beyond the reach of detection, much of that unholy work has been done which has brought such odium upon the Indian service. It is to this system I object, and the amendment is intended to break up.” 4 Cong. Rec. (44th Cong. June 6,1876) p. 3639.
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_classact
|
B
|
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether the case is described in the opinion as a class action suit. If so, the opinion should specifically indicate that the action was filed as a representative of a class or of "all others similarly situated".
Anthony LaMARCA, Martin Saunders and Edwin Johnson, individually and on behalf of all others similarly situated, and David Aldred, Steve H. Bronson, Jr., Eddie Cobb, Ron Durrance, Wayne Epprecht, Michael Gordon and Billy Joe Harper, individually, Plaintiffs-Appellees, v. R.V. TURNER, individually in his former capacity as Superintendent of Glades Correctional Institution, Chester Lambdin, in his official capacity as Superintendent of Glades Correctional Institution, Defendants-Appellants.
No. 90-5909.
United States Court of Appeals, Eleventh Circuit.
July 7, 1993.
Michael B. Davis, Davis, Carroll, Colbath & Isaacs, & Stinson, P.A, West Palm Beach, FL, Walter M. Meginniss, Asst. Atty. Gen., Dept, of Legal Affairs, Tallahassee, FL, for defendants-appellants.
David M. Lipman, Miami, FL, William R. Amlong, Amlong & Amlong, Ft. Lauderdale, FL, James A Tucker, Florida Rural Legal Services, Inc., Fort Myers, FL, for plaintiffs-appellees.
Before TJOFLAT, Chief Judge, DUBINA, Circuit Judge, and WILLIAMS , Senior Circuit Judge.
Honorable Jerre S. Williams, Senior U.S. Circuit Judge for the Fifth Circuit, sitting by designation.
TJOFLAT, Chief Judge:
This is a suit brought by ten present and former inmates of Glades Correctional Institution (GCI), a Florida prison. They seek individually, under 42 U.S.C. § 1983 (1988), money damages for cruel and unusual punishment they allege they suffered because of the deliberate indifference of a former superintendent of the institution, Randall Turner. The plaintiffs still housed at GCI also seek an injunction, on behalf of all present and future inmates at the prison, against the current superintendent, Chester Lambdin, to correct certain allegedly unconstitutional conditions of confinement.
After the parties joined issue (on the plaintiffs’ third amended complaint), the district court, having denied Turner’s demand for a jury trial, tried the ten damages claims and entered judgment for eight of them. Turner appealed, but we dismissed the appeal for want of a final judgment as the district court had not disposed of the still pending claim for injunctive relief. LaMarca v. Turner, 861 F.2d 724 (11th Cir.1988) (Table) (the first appeal). After our order dismissing the appeal reached the district court, Turner moved the court to reopen the record on the plaintiffs’ damages claims so that he could introduce some additional evidence on the issue of liability. The court, concluding that it lacked jurisdiction to revisit those claims, denied the motion. The court then turned to the claim for injunctive relief.
After hearing five days of testimony relating to the current conditions of confinement, the court identified several areas of concern that “require[d its] attention.” Although the challenged prison conditions had improved considerably, the court concluded that injunc-tive relief was necessary. The court’s final judgment therefore granted injunctive relief and the money damages previously awarded, along with attorney’s fees under 42 U.S.C. § 1988 (1988). The instant appeal is from that final judgment. Turner appeals the damages awards; Lambdin appeals the injunction.
We now vacate all of the damages awards and remand them for further proceedings. We do so as to five of the appellees because the court should have honored Turner’s demand for a jury trial. As to the three remaining appellees, the court applied the wrong legal standard for Eighth Amendment damages liability and, moreover, erred in concluding that it lacked jurisdiction (following dismissal of the first appeal) to reopen the record and entertain the evidence Turner proffered in defense of the damages claims. Finally, we vacate in part the injunction against Lambdin and remand the matter of equitable relief for further proceedings.
Part I of this opinion outlines the case’s procedural history and describes the facts underlying the damages claims and the claim for injunctive relief. Part II rejects Turner’s argument that the plaintiffs failed to present sufficient evidence to prevail, but holds that the district court applied the wrong legal standard for Eighth Amendment liability for money damages. Part III addresses the district court’s grant of injunctive relief. Part IV considers Turner’s Seventh Amendment jury demand. Finally, part V reviews Turner’s attacks on the trial court’s treatment of his motions to continue and to augment the trial record.
I.
A
On May 14, 1982, Anthony LaMarca, then an inmate at GCI, filed a handwritten pro se complaint in the district court stating that he had “been countlessly approached, threatened with physical violence and assaulted by other inmates at [GCI] because [he] refused to participate in homosexual activities, or pay protection to be left alone.” He alleged that “a severe lack of protection” existed at GCI and that “the institution seem[ed] unable or unwilling to handle the situation.” On September 21, 1983, LaMarca, having obtained counsel, filed an amended complaint adding three other GCI prisoners as plaintiffs, Martin Saunders, Edwin Johnson, and Henry Rosenbaum. Each-prisoner sought damages under 42 U.S.C. § 1983, and, as class representatives, “injunctive relief for all ... present and future inmates of GCI.” On November 2, 1983, the defendants, Turner and Lambdin, filed their answer to the first amended complaint.
On August 26, 1985, more than a year and a half after the defendants answered the first amended complaint, the plaintiffs moved the court to amend the complaint a second time, adding seven plaintiffs, David Aldred, Steve H. Bronson, Jr., Eddie Cobb, Ron Durrance, Wayne Eppreeht, Michael Gordon, and Keith Harris. Each alleged that he was assaulted while an inmate at GCI, and sought damages against Turner under 42 U.S.C. § 1983.
The defendants objected to the joinder of these additional plaintiffs, claiming that the joinder would unreasonably burden their preparation for trial which was then set for November 4,1985. Nevertheless, the magistrate judge who was to hear the case granted plaintiffs’ motion to amend. The defendants immediately requested a continuance of the trial, arguing that in light of the presence of the seven new plaintiffs, they required at least ninety days for additional discovery and trial preparation. The magistrate judge granted the defendants a one-month continuance, resetting the trial for December 2, 1985. On November 8, 1985, the defendants filed a demand for jury trial “of all issues so triable.”
On November 13,1985, Turner and Lamb-din requested another continuance, claiming that they could not complete discovery and prepare for trial by the December 2 trial date. Two days later, before the court could act on the motion, the plaintiffs moved the court for leave to file a third amended complaint, adding another plaintiff, Billy Joe Harper, who sought damages against Turner, and dropping Harris from the suit. The court referred both motions to the magistrate judge. On November 28, the magistrate judge gave the plaintiffs leave to amend, but refused to grant the defendants a continuance or a jury trial. The defendants, pursuant to S.D.Fla.Mag.J.R. 4(a), immediately appealed the magistrate judge’s rulings to the district court. On December 2, the court affirmed these rulings and the trial began.
To summarize, on December 2, the case proceeded to trial on the allegations of the third amended complaint. This complaint stated section 1983 claims for damages against Turner, individually, by LaMarca, Saunders, and Johnson (the original plaintiffs), and Aldred, Bronson, Cobb, Durrance, Epprecht, Gordon, and Harper (the new plaintiffs). The original plaintiffs also served as representatives for purposes of the class action claim for injunctive relief against Lambdin in his official capacity as superintendent of GCI.
B.
The magistrate judge, operating under S.D.Fla.Mag.J.R. 1(f), commenced the bench trial. At the plaintiffs’ request, the magistrate judge bifurcated the proceeding, indefinitely postponing consideration of the claim for injunctive relief. The trial, therefore, considered only the damages claims against Turner. The following is a brief statement of the facts the court found.
The inmate assaults complained of occurred between 1981 and 1984, during Turner’s tenure as superintendent. GCI had four dorms (“A”, “B”, “C”, “D”). The A and D dorms each had two wings containing three rows of twenty bunk beds. The B and C dorms were smaller, but also had bunk beds arranged in three rows. Each dorm had a shower, located at one end of the building, and a “wicket,” or cage, located in the center of the dorm, that provided officers with a vantage point from which to observe the inmates. A guard’s view from the wicket into the interior of the dorm and the shower area was obstructed by sheets and towels the inmates hung from their bunk beds, the placement of bunk beds next to the isles leading to the shower area, and opaque glass on the shower door. While officers were supposed to patrol the interiors of the dorms regularly, they did not.
The prison also maintained cells for disciplinary, administrative, and protective confinements. This special detention suffered from substandard conditions. The cells lacked adequate ventilation, had poor lighting, and were infested with roaches and vermin. Prisoners were allowed little or no exercise, only three showers a week, no canteen privileges, and only limited use of the law library. Inmates in the general population could gain access to the confinement area by crawling under a poorly maintained fence or with the permission of the guard in charge of the area. These confinements, therefore, failed to insulate inmates from their tormentors. Finally, an inordinate number of inmates requested protective confinement, leading to overcrowding and indicating that a serious problem existed in the general population. The court found that the conditions in protective confinement were substandard, and therefore discouraged inmates from remaining in this potential safe-haven.
Turner, in a July 16, 1981 letter to his superior, described the prevailing atmosphere at GCI: “On an almost daily basis I feel that our security staff is simply being tolerated by the inmate population rather than being in control of the operation of the institution.” LaMarca, 662 F.Supp. at 673. The presence of contraband (weapons, alcohol, and drugs), corruption of GCI’s staff, inmate violence, and homosexual activity were accepted as part of prison life.
While a minimal level of contraband may be an unavoidable aspect of prison life, excessive quantities of contraband flowed freely into and within the prison. Prison officials made “little or no effort ... to control illicit activity at GCI, resulting in readily-available contraband.” Id. at 657. Inmates carried knives and openly used drugs. The contraband problem was compounded by staff corruption, as prison officials contributed to, and apparently profited from, the contraband, and utilized prisoners to “control” and punish other prisoners.
GCI’s staff permitted regular, unsupervised showings of hard-core pornographic movies. As Dr. Swanson, an expert witness for the plaintiffs, testified, these movies “would only serve to maximize the possibility of sexual and other violence.” Indicative of this observation, during the movies, “[s]ounds of inmates screaming and crying could be heard.”
When alerted to specific dangers, prison staff often looked the other way rather than protect inmates. Rather than offer to help, the staff suggested that the inmates deal with their problems “like men,” that is, use physical force against the aggressive inmate.
Several management problems persisted during Turner’s tenure as superintendent: low morale among the prison’s staff, high employee turnover (leading to a less experienced staff), high vacancy rates for staff positions, and inadequate supervision of employees. As Turner confirmed, these problems had a direct effect on GCI’s ability to maintain security. Certain of the prison’s standard operating procedures were insufficient to protect prisoner safety. For example, the procedures for investigating rapes, to the extent such procedures existed, were not followed; some of the reported incidents were not investigated at all. The lack of such procedures created an atmosphere of tolerance of rape which enhanced the risk that incidents would occur. Id. at 678 (finding an atmosphere where “inmates could rape other vulnerable inmates without concern of being detected or deterred”).
Aggression was commonplace and exacerbated by the readily available contraband and an excessively permissive atmosphere. While underfunding, overcrowding, and a lack of security personnel no doubt contributed to these problems, Turner could have controlled the permissive atmosphere through proper supervision and could have remedied the contraband problems with inexpensive modifications to the prison’s procedures and physical plant. In sum, as the court concluded, “Turner’s overall laxity in managing and controlling his staff’ directly contributed to an unconstitutional condition of confinement at GCI consisting of an undeterred atmosphere of violence. Id. at 662, 684.
For purposes of this appeal, the appellants concede the credibility of the plaintiffs’ accounts of the alleged assaults. A group of inmates, one brandishing a bush ax, made an unsuccessful attempt sexually to assault La-Marca in a dorm. Inmates raped Saunders in a small bathroom adjacent to the confinement area; he reported the incident but officials did not investigate and refused his request for a medical examination. Inmates repeatedly attacked Johnson while he was in protective confinement. Inmates raped Al-dred and Durranee in shower areas. Aldred reported the incident to an officer, but there was no investigation. Bronson was sexually assaulted with the handle of a baseball bat on GCI’s recreation field. Cobb was stabbed by an inmate who, because of his cooperation with guards in conducting illicit activities, was protected.
C.
On January 8, 1986, after the parties had filed proposed findings of fact and conclusions of law, and had argued them before the magistrate judge, the magistrate judge issued a 135-page “Report and Recommendation” recommending a specific damages award for each of the ten plaintiffs. The district court reviewed the magistrate judge’s report de novo, see Federal Magistrate’s Act, 28 U.S.C. § 636(b)(1) (1988); S.D.Fla.Mag-is.J.R. 4(b), and adopted his recommendations in all relevant detail as to eight of the plaintiffs. The court entered judgment accordingly on June 4, 1987.
As noted earlier, although the district court had neither addressed nor disposed of the claim for injunctive relief, Turner appealed to this court. We dismissed the appeal for want of a final judgment and returned the case to the district court for further proceedings on that claim.
D.
On the first day of trial before the district court on the claim for injunctive relief, David M. Lipman, counsel for the inmate class, conceded that the atmosphere at GCI had changed “in such a manner that as to [many] conditions and practices, [the class] no longer [sought] injunctive relief.” Although the district court observed that Superintendent Lambdin “appears to be a dedicated public servant,” and that physical conditions at GCI were “generally satisfactory,” the court found “ample room for improvement in the conditions at GCI.” In the court’s view, the superintendent and his staff still did not take the threat of inmate violence seriously enough. In particular, they failed to ensure that GCI’s policies designed to protect prisoners, including regular security patrols, were properly carried out. Finally, the court concluded that GCI’s failure to make adequate psychological counseling available to rape victims constituted cruel and unusual punishment because it constituted deliberate indifference to a serious medical need. See generally Estelle v. Gamble, 429 U.S. 97, S.Ct. 285, 50 L.Ed.2d 251 (1976).
Concluding that Lambdin had not shown that “the wrongs of the past could not reasonably be expected to recur,” the court ordered injunctive relief. On October 6, 1990, the court entered a final judgment (1) providing such relief, (2) incorporating by reference the judgment it had entered on June 4,1987, which awarded eight of the plaintiffs money damages against Turner, and (3) awarding the plaintiffs attorney’s fees.
II.
Turner challenges the court’s determination that he was deliberately indifferent to the plaintiffs’ safety in violation of the Eighth Amendment and 42 U.S.C. § 1983. He asserts that the plaintiffs failed to make out a case of liability against him — in particular, he claims that the evidence does not support the district court’s findings of fact — and that the court applied the wrong legal standard in determining liability. We conclude that although the record contains sufficient evidence upon which the district court could find liability, the court failed to make certain essential findings of fact and erred in its legal analysis. Consequently, we return this case to the district court for further consideration.
In subpart A, we review the elements necessary to establish Turner’s liability for money damages under section 1983 and the sufficiency of the evidence presented as to each element. We review the evidence presented at trial in the light most favorable to the plaintiffs. Whitley v. Albers, 475 U.S. 312, 322, 106 S.Ct. 1078, 1085, 89 L.Ed.2d 251 (1986). Because we conclude that the evidence was sufficient as to each element, in subpart B we address Turner’s specific challenges to the legal standard the district court employed. As discussed in part IV, Turner was entitled to a jury trial as to the new plaintiffs’ claims; we, therefore, only review these challenges in the context of the original plaintiffs’ claims.
A.
The plaintiffs claim that Turner failed to provide them with reasonable protection from prison violence in violation of the Eighth Amendment. The plaintiffs do not argue that Turner knew of specific threats to their safety. Rather, they argue that Turner failed to ensure their protection from the general danger arising from a prison environment that both stimulated and condoned violence. This theory of liability creates substantial, but, as we shall see, not insurmountable obstacles to the plaintiffs’ claims.
To prevail on their Eighth Amendment claim for damages brought under section 1983, the plaintiffs must prove three elements: (1) a condition of confinement that inflicted unnecessary pain or suffering, Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392, 2399, 69 L.Ed.2d 59 (1981), (2) the defendant’s “deliberate indifference” to that condition, Wilson v. Seiter, — U.S. -, 111 S.Ct. 2321, 2327, 115 L.Ed.2d 271 (1991), and (3) causation, Williams v. Bennett, 689 F.2d 1370, 1389-90 (11th Cir.1982). For our purposes, the Eighth Amendment defines the contours of the first two elements and section 1983 delimits the third.
1.
First, the condition must have inflicted unnecessary pain or suffering upon the prisoner. This objective standard “embodies ‘broad and idealistic concepts of dignity, civilized standards, humanity, and decency ...,’” but must be balanced against competing penological goals. Gamble, 429 U.S. at 102, 97 S.Ct. at 290 (quoting Jackson v. Bishop, 404 F.2d 571, 579 (8th Cir.1968)). The evidence presented at trial of an unjustified constant and unreasonable exposure to violence at GCI, as described in part I.B., clearly satisfies this standard. Zatler v. Wainwright, 802 F.2d 397, 400 (11th Cir. 1986); Williams, 689 F.2d at 1376; see Wilson, — U.S. at-, 111 S.Ct. at 2326-27; Jones v. Diamond, 636 F.2d 1364, 1374 (5th Cir.) (“When prison officials have failed to control or separate prisoners who endanger the physical safety of other prisoners and the level of violence has become so high ... it constitutes cruel and unusual punishment-”), cert. dismissed, 453 U.S. 950, 102 S.Ct. 27, 69 L.Ed.2d 1033 (1981), and overruled on other grounds by International Woodworkers of Am. v. Champion Intern. Corp., 790 F.2d 1174 (5th Cir.1986); Gates v. Collier, 501 F.2d 1291, 1308-10 (5th Cir. 1974).
2.
Second, the plaintiffs must show the defendant’s deliberate indifference to the conditions. The Supreme Court recently held that the Eighth Amendment contains a subjective component: whether the defendant wantonly permitted the constitutionally infirm condition to persist. Wilson, — U.S. at-, 111 S.Ct. at 2323; see also Gamble, 429 U.S. at 104, 97 S.Ct. at 291. In prison condition cases, “deliberate indifference” constitutes wantonness. Wilson, — U.S. at-, 111 S.Ct. at 2327.
To be deliberately indifferent, a prison official must knowingly or recklessly disregard an inmate’s basic needs so that knowledge can be inferred. Duckworth v. Franzen, 780 F.2d 645, 652 (7th Cir.1985), cert. denied, 479 U.S. 816, 107 S.Ct. 71, 93 L.Ed.2d 28 (1986). Because the Eighth Amendment requires a subjective standard, to demonstrate an official’s deliberate indifference, a plaintiff must prove that the official possessed knowledge both of the infirm condition and of the means to cure that condition, “so that a conscious, culpable refusal to prevent the harm can be inferred from the defendant’s failure to prevent it.” Duck-worth, 780 F.2d at 653. Thus, if an official attempts to remedy a constitutionally deficient prison condition, but fails in that endeavor, he cannot be deliberately indifferent unless he knows of, but disregards, an appropriate and sufficient alternative.
In this case, the plaintiffs presented incident reports, internal staff reports, and reports by external investigators each supporting a finding that Turner knew that an unreasonable risk of violence existed at GCI and knew of alternative means that would have brought that risk to within constitutional norms. For example, a January 30,1980 Palm Beach County Grand Jury Presentment identified evidence of “lax security precautions,” and recommended procedural changes in light of “accusations of drugs, alcohol, and other contraband, gambling, theft, confiscation, and payoffs among the inmates and personnel of GCI.” Similarly, an external management review of GCI conducted from August 26 to 29,1980, concluded that “[t]he assault trend, both inmate on inmate and inmate on staff, from July 1979, through June 1980, has increased.” Finally, Turner’s July 16, 1981 letter to his superiors evidenced his knowledge of a lack of
control of the operation of the institution .... Many of the officers that we have assigned to very sensitive security posts are so inexperienced or else have so little capability in this business that they simply do not realize the seriousness of dealing with the type of personnel that we are receiving.
The plaintiffs’ evidence painted a dark picture of life at GCI; a picture that would be apparent to any knowledgeable observer, and certainly to an official in Turner’s position. An inference can be drawn from this evidence that Turner did know that GCI failed to provide inmates with reasonable protection from violence.
Mere knowledge of the infirm conditions persisting at GCI does not establish deliberate indifference. The plaintiffs must also demonstrate that, with knowledge of the infirm conditions, Turner knowingly or recklessly declined to take actions that would have improved the conditions.
Turner points to evidence of his actions to improve safety conditions at GCI to illustrate his affirmative efforts to improve the conditions of confinement there. Turner testified that he attempted to secure additional funds, make improvements to GCI’s physical plant, expand recruitment efforts, and institute policies that would have reduced the risk of violence if his staff had followed them. Turner argues that he was unable to ameliorate further the unsafe conditions at GCI; he did all he could within the budgetary constraints he faced, and, therefore, was not deliberately indifferent.
In rebuttal, the plaintiffs presented evidence (1) that Turner failed to ensure that his direct subordinates followed the policies he established, and (2) of specific, low-cost actions that Turner could have taken and that his successors successfully undertook. This evidence supports a finding that Turner knowingly “fail[ed] adequately to supervise correctional officers up to the lieutenant level[,] resulting] in corruption and incompetence among the officers and a lack of reasonable protection of inmates.” LaMarca, 662 F.Supp. at 665; see Harris v. Thigpen, 941 F.2d 1495, 1505 (11th Cir.1991) (suggesting that inadequate staffing may rise to deliberate indifference as to prisoner safety (citing Ramos v. Lamm, 639 F.2d 559, 575 (10th Cir.1980, cert. denied, 450 U.S. 1041, 101 S.Ct. 1759, 68 L.Ed.2d 239 (1981))); cf. Jordan v. Gardner, 986 F.2d 1521, 1530 (9th Cir.1993) (en banc) (“It is simply not enough to say ... that [the official] gave the issue a great deal of thought. The ‘sufficiently culpable state of mind’ necessary to find deliberate indifference has more meaning than that.”).
Determining whether Turner otherwise lacked the means to correct GCI’s failure adequately to protect inmates requires a more detailed analysis. In Williams, we held that an official “may not escape liability solely because of the legislature’s failure to appropriate requested [and necessary] funds.” 689 F.2d at 1387. Where, as here, the lack of funds contributed to the condition, the plaintiffs must “demonstrate that a particular defendant [nevertheless] had the capability (authority and means) to provide adequate security and did not do so.” Id. at 1389.
To circumvent Turner’s “insufficient funds defense,” the plaintiffs presented evidence of Turner’s capacity, within budgetary constraints, to improve prison safety. We agree with the district court that the plaintiffs’ evidence supports the findings that Turner could have, but did not, take steps to minimize at least the following problems at GCI:
(1) improper and inadequate staff training ..., (2) a staff out of control who did not report rapes, assaults, and illegal activities up through the chain of command, (3) [Turner’s] failure to supervise staff and administer measures which would “minimize the chance of error and maximize the full satisfaction of constitutional protection,” in (i) not stationing officers to patrol throughout the dormitories, particularly at night, and leave the wicket cage, and in (ii) permitting the obscuring of vision of the officers in the wicket by allowing inmates to hang sheets ..., (4) [Turner’s] shocking failure to employ any standard procedure to investigate incidents of alleged rapes, [ (5) ] [Turner’s] failure to provide inmate movement controls thus reducing the casual egress and ingress of aggressive assailant wolves within the open dormitories, and [ (6) ] [Turner’s] failure to transfer know[n] assailants or inmates who should have been known to be assailants out of GCI.
LaMarca, 662 F.Supp. at 708 (citations omitted).
Consideration of such evidence comes perilously close to second-guessing the difficult choices that prison officials must face and of improperly extending deliberate indifference standards to mere “inadvertence or error[s] in good faith.” Wilson, — U.S. at-, 111 S.Ct. at 2324 (citing Whitley v. Albers, 475 U.S. 312, 319, 106 S.Ct 1078, 1084, 89 L.Ed.2d 251 (1986)). Nevertheless, such evidence is probative of the means available to Turner and must be considered. This evidence directly addresses the question of whether monetary restraints frustrated Turner’s good faith efforts, or whether he knowingly or recklessly disregarded solutions within his means. While much of the record indicates that Turner did make good faith efforts to resolve the dilemmas facing GCI, the evidence does support the plaintiffs’ position that Turner recklessly disregarded the necessary means to protect inmate safety.
3.
Third, section 1983 “requires proof of an affirmative causal connection between the actions taken by a particular person ‘under color of state lavif and the constitutional deprivation.” Williams, 689 F.2d at 1380 (citing Monell v. Department of Social Servs., 436 U.S. 658, 692, 98 S.Ct. 2018, 2036, 56 L.Ed.2d 611 (1978)); Redman v. County of San Diego, 942 F.2d 1435, 1439 (9th Cir. 1991) (en banc) (requiring an act or omission causing the constitutional deprivation), cert. denied, — U.S. -, 112 S.Ct. 972, 117 L.Ed.2d 137 (1992). Section 1983 thus focuses our inquiry on whether an official’s acts or omissions were the cause — not merely a contributing factor — of the constitutionally infirm condition.
“A causal connection may be established by proving that the official was personally involved in the acts that resulted in the constitutional deprivation.” Zatler v. Wainwright, 802 F.2d 397, 401 (11th Cir. 1986). Because the analysis focuses on the defendant’s conduct, the doctrine of respondeat superior does not apply. Whether a defendant actually controls, or fails properly to supervise a subordinate, however, may prove to be relevant inquiries. See Rizzo, 423 U.S. at 375-76, 96 S.Ct. at 606.
If a plaintiff establishes a causal link between the defendant’s acts or omissions and the infirm condition, the defendant is “precluded from contending that the unconstitutional condition was not at least a proximate cause of ... injuries” that arose from that condition. Williams, 689 F.2d at 1389. This is not to say that a plaintiff need not show a causal link between the constitutionally infirm condition and the alleged injuries. Rather, the finding that a prison condition offends the Eighth Amendment presupposes the distinct likelihood that the harm threatened will result. The wrong in Eighth Amendment cases is the deliberate indifference to a constitutionally infirm condition; that wrong must, in turn, have been the proximate cause of the plaintiffs’ injuries, here the injuries brought about by the assaults.
In Doe v. Sullivan County, 956 F.2d 545 (6th Cir.), cert. denied, — U.S. -, 113 S.Ct. 187, 121 L.Ed.2d 131 (1992), the Sixth Circuit addressed causation under section 1983 arising from allegations of “systematic deficiencies” in a prison’s protection of inmates similar to those in the instant case. The plaintiff presented evidence of overcrowding, dark cells, insufficient staff, lack of mental and physical evaluations, and inadequate surveillance. Id. at 550. Additionally, a penological expert testifying for the plaintiff concluded that there was a pattern of violence among inmates at the prison and that because of the plaintiffs slight build and mental disability, prison officials should have placed him in protective custody. Id. at 549. In reviewing the sufficiency of the evidence to show causation, the Sixth Circuit concluded “that more is required than [a] naked assertion that the assault would not have occurred but for the offensive conditions. To hold otherwise would effectively transform the causality requirement from a substantive element of proof into one of pleading.” Id. at 550. In this case, the plaintiffs presented evidence to support their allegations that Turner “was in a position to take steps that could have averted” the alleged unconstitutional condition at GCI, “but, through [deliberate] indifference, [he] failed to do so.” Williams, 689 F.2d at 1384.
The plaintiffs presented evidence supporting five conditions of confinement that were under Turner’s control and that together created an unconstitutional risk of violence at GCI: (1) a “prevalence of ... weapons” at GCI, (2) the lack of adequate patrols, (3) the lack of adequate reporting procedures for rapes and assaults, (4) the presence of “obvious and rampant indicia of homosexual activity,” and (5) a lack of supervision of officers leading to corruption and incompetence. La-Marca, 662 F.Supp. at 664-65. The evidence supports the plaintiffs’ assertion that Turner could have brought GCI within constitutional norms through more diligent supervision of his officers, by establishing and enforcing rules and procedures to eliminate specific sources of danger to prisoners, and through low-cost modifications to GCI’s physical plant. In particular, Turner could have taken significant steps to eliminate the highly permissive atmosphere at GCI both as to officers shirking their duties and as to prisoners engaging in extortion, harassment, sexual activity, and sexual and other assaults.
As we discussed in part II.A2., the evidence strongly supports a finding that, even within the constraints he faced, Turner had the means substantially to improve prisoner safety at GCI. This evidence also supports findings that Turner knew that the actions he undertook would be insufficient to provide inmates with reasonable protection from violence, and that other means were available to him which he nevertheless disregarded. Such evidence provides the necessary causal link between Turner and the infirm conditions at GCI.
Finally, the evidence shows a link between the unconstitutional conditions and the plaintiffs’ injuries. The record supports the district court’s finding “that due to [their] very nature as acts of violence, the rapes that occurred are not isolated incidents of sexual conduct, but rather flow directly from the lawless prison conditions at GCI.... [These conditions created] the background and climate which ... preordained homosexual rapes and other inmate assault[s].” LaMar-ea, 662 F.Supp. at 687. The evidence thus permits a finding of a causal link between the objectively intolerable conditions at GCI and the plaintiffs’ injuries.
B.
Having determined that the plaintiffs presented sufficient evidence to establish liability on their damages claims against Turner, we turn to Turner’s specific challenges to the legal standard the district court employed in assessing liability. Turner contends that the district court clearly erred in its analysis of (1) his deliberate indifference to the constitutionally infirm injury producing conditions, and (2) causation. We disagree.
1.
Turner challenges the district court’s finding that he knew of several problems at GCI that contributed to the constitutionally infirm conditions. He argues that without this finding, the district court might not have concluded that he knew of the infirm conditions and thus that he had been deliberately indifferent to the plaintiffs’ safety.
Turner points to specific language in the district court’s opinion indicating that the court applied a negligence standard to determine his knowledge of the infirm conditions and the problems that caused them. For instance, in its discussion of Turner’s indifference to prisoner safety, the court stated that “[a] section 1983 plaintiff must prove either that the official knew or should, have known that his action infringed a clearly established constitutional right of the plaintiff, regardless of the officials’ subjective intent-” LaMarca, 662 F.Supp. at 663 (emphasis added) (internal quotations and citations omitted); see also id. at 658, 678-79 (relying on knowledge “discernable to any
Question: Is the case described in the opinion as a class action suit?
A. No
B. Yes
Answer:
|
songer_district
|
C
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable".
JOHNSON v. UNITED STATES.
(Circuit Court of Appeals, Eighth Circuit.
January 16, 1925.)
No. 6072.
intoxicating liquors <@=236(11) — Evidence held insufficient to sustain conviction for feloni-ously selling whisky.
Evidence held insufficient to sustain conviction for feloniously selling whisky.
In Error to the District Court of the United States for the .Western District of Oklahoma; John H. Cotteral, Judge.
Charlie Johnson was convicted of feloni-ously selling whisky, and he brings error.
Reversed and remanded, with instruction to grant new trial.
B. C. Trice, of Pawhuska, Okl., for plaintiff in error.
W. A. Maurer, U. S. Atty., and James A. Ingraham, Asst. U. S. Atty., both of Oklahoma City, Okl.
Before SANBORN and KENYON, Circuit Judges, and BOOTH, District Judge.
SANBORN, Circuit Judge.
Charlie Johnson, the defendant below, was indicted, tried, and convicted of feloniously selling whisky to Ben Andrews on or about June 13, 1920, in Osage county, Okl. At the close of the evidence at the trial counsel for the defendant moved the court to instruct the jury to return a verdict in his favor on the ground that the evidence was insufficient to sustain a verdict ag’ainst him. The court denied the motion; defendant’s counsel excepted and assigns this ruling as error.
The only evidence for the government was the testimony of one Cooper that about 3 o’clock in the morning of June 11, 1920, he saw the defendant at Pawhuska, Okl., and a certified copy of the testimony of one Ben Andrews taken at the preliminary hearing on June 14, 1920, before United States Commissioner Mellott. Ben Andrew's had died before the commencement of the trial. That certified copy shows that Commissioner Mel-lott acted as prosecuting attorney before himself; that he conducted the direct examination of Andrews. Andrews testified that he did not pay Johnson any money. Asked if he talked to Johnson about intoxicating liquor, lie said Johnson said he might look around. Asked if he made a statement to the chief of police that he gave defendant an amount of money, he testified, “I didn’t intend to say it.” On cross-examination he testified that he had the conversation with the defendant about the 10th or 11th of June; that the defendant did not deliver to him any whisky and that he did not pay him any money; that he paid “this fellow”; that he did not know whether the defendant sent “this fellow” to him or not; and that he did not know whether the defendant had anything to do with the transaction. On redirect examination by the commissioner, he testified that he told the chief he paid “the boy” for it. Then the-eommissioner’s examination proceeded in this way:
“Q. You swore in the affidavit that you-purchased two quarts of whisky from Charlie Johnson and paid $25 a piece. A. I paid that boy. * * *
“Q. Did you buy two quarts of whisky and give $25 each? A. I might have. I spent a lot of money.
“Q. You gave $25 to Charlie Johnson?’ A. I might have.
“Q. I want you to say yes or no. A. I gave him the money.”
Andrews was then again examined on cross-examination, on redirect examination, and on recross. In these examinations he-testified that these transactions were on the-10th or 3.1th of June, 1920; that he was (hen drunk and had been drunk for about a week. There was no other substantial testimony against the defendant.
For the defense the defendant testified that he never sold Ben Andrews any whis-ky; that he was not in Pawhuska but was. iu Bartlesville from "Wednesday night, June 9, 1920, until the night of Saturday, June 12, at the garage of Mr. and Mrs. Dawson, getting his car repaired; that Bartlesville-was 35 miles from Pawhuska and he never saw Ben Andrews at any time about the-,11th of June, 1920. N. Lewis testified that he had a talk with Ben Andrews about the middle of July, 3920, and Andrews told him. that he did not buy any whisky of the defendant. Mrs. Dawson testified that she resided at Bartlesville; that she and her husband ran a garage and repair shop for automobiles there; that on the night of Wednesday, the 9th of June, 1920, the defendant drove into her garage and left his ear; that on Thursday their mechanic worked on the car and that with the exception of a few minutes Thursday morning the car remained in the garage all day Thursday, all day Friday, and all day Saturday; that she saw the defendant around the garage at different times from Thursday morning until late Saturday night; that she made a charge on her books of the work that was done; and that she knew positively that the defendant. did not leave Bartlesville until Sunday morning. Mrs. Turner testified that the defendant took her to ride in Bartlesville oñ the morning of Thursday or Friday and that he was in Bartlesville from Thursday the 10th to Saturday night the 12th.
The testimony of these witnesses for the defense is clear, reasonable, and substantial. On the other hand, the testimony of Ben Andrews that he was on June 10 and 11, 1920, and had been for a week, drunk, is not challenged and the remainder of his testimony leaves no doubt that while he was in that condition statements were secured from him which he would not have testified to at the preliminary hearing if he had not been coerced so to do’by the attitude and questions of the commissioner and the fact that his previous statements had b'een so procured. A copy of the testimony of a deceased witness taken before the issues for trial have been settled is far from being of the highest and most persuasive character, and where that testimony shows, as in this ease, that the witness was drunk at the times of the transactions to which it relates, and that when he gave his-testimony he contradicted himself and was easily' led or . forced to testify as the examiner wished him to, first on one side and then on the other, his testimony is not of so substantial a character that a defendant should be deprived of his liberty upon it in the face of clear and unimpeaehed evidence to the contrary. Vernon v. United States, 146 F. 121, 123, 76 C. C. A. 547; Union Pacific Coal Co. v. United States, 173 F. 737, 740, 97 C. C. A. 578; Sullivan v. United States (C. C. A.) 283 F. 865, 868; Wright v. United States, 227 F. 855, 857, 142 C. C. A. 379; Willsman v. United States (C. C. A.) 286 F. 852, 856; Grantello v. United States (C. C. A.) 3 F.(2d) 117, opinion filed November 12, 1924. The court below should have granted the motion to instruct the jury to return a verdict for the defendant.
Let the judgment below be reversed, and let the ease be remanded to the court below with instructions to grant a new trial.
Question: From which district in the state was this case appealed?
A. Not applicable
B. Eastern
C. Western
D. Central
E. Middle
F. Southern
G. Northern
H. Whole state is one judicial district
I. Not ascertained
Answer:
|
songer_appel1_7_5
|
F
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "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).
Calvin W. SLAUGHTER and Carol Ann Slaughter, Plaintiffs-Counter Defendants-Appellants, v. ALLSTATE INSURANCE COMPANY, et al., Defendants-Counter Plaintiff-Appellees.
No. 86-2201.
Summary Calendar.
United States Court of Appeals, Fifth Circuit.
Nov. 3, 1986.
David T. Lopez & Associates, David T. Lopez, Houston, Tex., for plaintiffs-counter defendants-appellants.
Bracewell & Patterson, V. Scott Kneese, Dennis Childs, Houston, Tex., for defendants-counter plaintiff-appellees.
Before RUBIN, RANDALL, and HIGGINBOTHAM, Circuit Judges.
ALVIN B. RUBIN, Circuit Judge:
Calvin W. Slaughter, who was forty-one years old and had worked for Allstate Insurance Company for sixteen years, was discharged for the stated reason that he had submitted a false insurance claim for damages to his home. Allstate replaced him with a younger person. Slaughter and his wife sued Allstate and various Allstate employees, asserting claims under the Age Discrimination in Employment Act of 1967, as well as various tort claims under Texas state law. Allstate counterclaimed, asserting that Slaughter had violated a covenant not to compete following his discharge, and obtained a preliminary injunction from the district court against his competition. Subsequently, the district court dismissed the claims against the Allstate employees and rendered summary judgment in favor of Allstate. We affirm the judgments of the district court.
I.
Slaughter, an insurance sales agent for Allstate, had an Allstate policy on his home for fire and extended coverage in the amount of $85,000, subject to a deductible of $850. The premium was lower than it would have been if the deductible had been less. The policy was to expire on March 27, 1984. Slaughter testified in his deposition that he had decided to increase the coverage and decrease the deductible, but had neither filed an application to do so nor paid the additional premium that this would entail when on March 24 he suffered water damage, amounting to $550, to a carpet in his home. Subsequently, on March 26, Slaughter filed an application to Allstate to increase the insured value of his home and decrease the deductible. He dated the application March 26, but backdated the effective date of the change to March 23. As a result of the lower deductible, half of the damage to the carpet was covered. Slaughter filed a claim for his loss without reporting to his supervisors that he had made the changes in his policy after the loss had occurred.
Several days thereafter, Slaughter discussed the changes with his superior. What was said then is disputed. Slaughter’s version is that the superior told him that the claim would probably be denied, but that denial would be the worst that could happen, and that Slaughter should submit it for a “management exception.” Allstate investigated the matter, and after further discussions with Slaughter, discharged him on September 7.
In his complaint, Slaughter prayed for reinstatement and compensatory and punitive damages. Although he alleged that, “unless subjected to the specific injunctive orders of this court, the Defendants will continue to deny to the Plaintiff the benefits of his contract of employment as an insurance sales agent, and the Plaintiff has no plain and adequate remedy at law,” Slaughter did not seek any injunctive relief other than reinstatement in the complaint.
II.
The Act gives no basis for relief against the company employees as individuals. Reinstatement, the only appropriate relief sought by Slaughter under the Act, could be granted only by Allstate. The complaint stated no other federal claim against the named individual defendants. The judgment dismissing the age discrimination claim against the individual defendants was, therefore, correct. In the absence of a federal claim, a district court may in its discretion, and generally should, dismiss pendent state law claims. The district court properly declined to exercise jurisdiction of the state law claims against the individual defendants.
III.
The district court entered the preliminary injunction enforcing Slaughter’s covenant not to compete on May 23, 1985. The preliminary injunction was then appealable as of right. Fed.R.App.Proc. 4(a)(1) requires the notice of appeal from any order appealable as of right to be filed within 30 days after the order is entered. That time limit is jurisdictional. Because Slaughter did not file a notice of appeal until March 1986, we lack jurisdiction to consider the appeal from the preliminary injunction.
IV.
The party opposing a motion for summary judgment may not rest on the allegations of his complaint. As the Supreme Court held in Celotex Corp. v. Catrett, the party who bears the burden of proof on an issue at trial must, in responding to a proper motion for summary judgment, “make a sufficient showing on an essential element of [his] case” to establish a genuine dispute. If he has had sufficient time for discovery, he must “designate ‘specific facts showing that there is a genuine issue for trial.'" Although our earlier jurisprudence required the district judge to search the record for a genuine dispute about a material fact, Celotex Corp., as well as this court’s recent decision in Fontenot v. Upjohn Co., makes clear that the moving party must point out to the court the absence of evidence showing a genuine dispute — though the moving party need not always present actual evidence negating a dispute. The court in Celotex Corp. said:
Rule 56 must be construed with due regard not only for the rights of persons asserting claims and defenses that are adequately based in fact to have those claims and defenses tried to a jury, but also for the rights of persons opposing such claims and defenses to demonstrate in the manner provided by the Rule, prior to trial, that the claims and defenses have no factual basis.
Allstate’s motion for summary judgment was based almost entirely on Slaughter’s deposition supplemented by other evidentiary materials. The Slaughters did not file any evidentiary material in opposition
to this motion. The Slaughters do not point, either in the record or in their brief to this court, to any genuine dispute of a material fact. While Slaughter did not backdate the form that he filled out to change his policy, he did backdate the effective date of the change. The Slaughters’ suggestion that it is not dishonest to backdate the effective date of an insurance policy to acquire retroactive coverage betrays a curious sense of morality. That Slaughter took such action was sufficient to warrant his discharge absent use of the incident as a pretext to cloak discrimination.
Whether, as Slaughter contends, he told his supervisor about the discrepancy in dates a few days after making the change, or, as Allstate’s evidence indicates, this conversation about the discrepancy in dates took place a month later, when Allstate was investigating the matter, is immaterial. The conversation did not negate the earlier dishonesty but, at most, minimized in Slaughter’s mind the danger to which he had exposed himself. Slaughter points to nothing other than this conversation to show that Allstate’s reasons for discharging him were pretextual.
While Slaughter said in his deposition that he believed and suspected that Allstate had a company policy of replacing agents over 40 with younger agents to reduce expenses, he admitted having no personal knowledge of such a policy and adduced no evidence of it. Testimony based on conjecture alone is insufficient to raise an issue as to the existence of the alleged policy. It is difficult indeed to see how Allstate would save money with such a policy, since the evidence shows that all agents were paid on a commission basis, with compensation keyed to sales, so that younger agents making greater sales earned more than Slaughter.
The burden of establishing pretext rests on the party asserting age discrimination. In Anderson v. Liberty Lobby, Tree., the Supreme Court held that “evidence” as weak as Slaughter’s cannot preclude summary judgment, saying:
The mere existence of a scintilla of evidence in support of the plaintiff’s position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.
* * * * * *
If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted. (Citations omitted.)
There is, of course, no rule of law prohibiting summary judgment in an age discrimination case.
Slaughter’s pendent state claims against Allstate include a contention that Allstate breached its contract with him by discharging him without notice. The contract, however, does not require notice and an opportunity for corrective action before discharge on grounds of dishonesty. It requires advance warning and counselling only in instances of unsatisfactory work. Here, dishonesty was the ground for discharge.
The Slaughters also assert the existence of evidence from which a jury might have determined that Allstate slandered him, but do not identify that evidence. The only testimony adduced on this issue related to the circumstances of Slaughter’s termination. The publicity given Slaughter’s discharge was in publications that (i) were privileged because they were made in good faith, between persons within the Allstate system who had an interest in the discharge, or (ii) stated nothing about the reason for his termination.
The state law claim against Allstate for intentional infliction of emotional distress depends on the successful assertion of an independent tort, and was therefore properly dismissed. The conspiracy claim was properly dismissed because it was made only against the individual defendants, who had already been dismissed from the case, and not against Allstate.
Y.
The Slaughters assert that the district court erred in “failing to consider and exercise pendent party jurisdiction” of their state law claims against the Allstate employees. The Slaughters, however, never invoked pendent party jurisdiction. Moreover, even when properly invoked, the exercise of pendent jurisdiction is left to the discretion of the district judge. Their claims were dismissed without prejudice.
For these reasons, we AFFIRM the judgments of the district court.
. 29 U.S.C. § 623, et seq. (1986).
. United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966).
. --- U.S. ---, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
. Id. at ---, 106 S.Ct. at 2553.
. Id.
. 780 F.2d 1190, 1195-97 (5th Cir.1986).
. Celotex Corp., --- U.S. at ---, 106 S.Ct. at 2555.
. Confer v. SKF Industries, Inc., 40 FEP 1721, 1724 (W.D.Pa.1986). [Available on WESTLAW, DCTU database].
. United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 716, 103 S.Ct. 1478, 1482, 75 L.Ed.2d 403 (1983).
. --- U.S. ---, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
. Id. at ---, 106 S.Ct. at 2512, 2511.
. See Anderson v. Liberty Lobby, --- U.S. ---, 106 S.Ct. 2505.
. Bergman v. Oshman’s Sporting Goods, Inc., 594 S.W.2d 814, 816 (Tex.Civ.App. --- Tyler 1980, no writ).
. Vietnamese Fishermen’s Assn. v. Knights of the Ku Klux Klan, 518 F.Supp. 993, 1013-14 (S.D.Tex.1981); cf. Fenslage v. Dawkins, 629 F.2d 1107, 1110-11 (5th Cir.1980).
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_jurisdiction
|
B
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to some threshold issue at the trial court level. These issues are only considered to be present if the court of appeals is reviewing whether or not the litigants should properly have been allowed to get a trial court decision on the merits. That is, the issue is whether or not the issue crossed properly the threshhold to get on the district court agenda. The issue is: "Did the court determine that it had jurisdiction to hear this case?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".If the opinion discusses challenges to the jurisdiction of the court to hear several different issues and the court ruled that it had jurisdiction to hear some of the issues but did not have jurisdiction to hear other issues, answer "Mixed answer".
COMMERCIAL STANDARD INS. CO. v. DAVIS et al.
No. 6907.
Circuit Court of Appeals, Fifth Circuit.
Dec. 19, 1933.
Rehearing Denied Jan. 13, 1934.
Hobart Price, of Dallas, Tex., for appellant.
Harris M. Kimbrough, of Amarillo, Tex., and Neth L. Leachman, of Dallas, Tex., for appellees.
Before BRYAN, FOSTER, and SIBLEY, Circuit Judges.
SIBLEY, Circuit Judge.
The questions made on this appeal can best be understood by following the development of the litigation. Early Davis was working as an oil well driller on June 14, 1930, when he was injured by an accident. He sought eompensation under the Texas Workmen’s Compensation Law (Vernon’s Ann. Civ. St. Tex. art. 8306 et seq.) before the Industrial Accident Board, naming as his employer Operators Oil Company, whose insurer was Commercial Standard Insurance Company. Pending the inquiry, he learned that the well at which he was working might have been taken over at the date of his injury by Sunray Oil Company, whose insurer was Century Indemnity Company, and he amended his claim to allege this situation and to claim against the Sunray Company and its insurer if in fact he had become its employee. The Board made an award in his favor and against the Century Indemnity Company. That Company and Davis each gave notice of dissatisfaction and each filed suit as provided by the act (Vernon’s Ann. Civ. St. Tex. art. 8307, § 5) to set the award aside, Davis filing his suit against both insurers in the state court and Century Indemnity Company filing in the federal court against Davis and Commercial Standard Insurance Company. Federal jurisdiction was based on diversity of citizenship, Century Indemnity Company being a corporation of Connecticut and Davis being a citizen and Commercial Standard Insurance Company a corporation of Texas. Thereupon Century Indemnity Company claiming that a separable controversy existed between Davis and itself alone in the state court suit, removed it to the federal court. All parties then joined in a motion to consolidate the two cases into one, which was done. Eight months later Commercial Standard Insurance Company moved to dismiss the consolidated ease for want of federal jurisdiction, but no order appears on the motion. A trial resulted in a verdict in favor of Davis for a total temporary disability lasting 250 weeks against Commercial Standard Insurance Company, and in favor of Century Indemnity Company. Commercial Standard Insurance Company appealing assigns three errors: That the court is without federal jurisdiction to enter a judgment between Davis and itself, being citizens of the same state; that a form of verdict covering total temporary disability followed by partial disability was not submitted to the jury in the charge; and that all costs were taxed against it.
The judgment is rendered in a consolidation of two suits, in each of which the same parties and the same general controversy appear. If the court had jurisdiction over either of the original suits it could try the controversy. As to the removed suit, the contention to uphold jurisdiction is that there was a separable controversy between Davis and Century Indemnity Company touching its liability to which Commercial Standard Insurance Company was no necessary or proper party. As to the original federal suit, the contention is that an award was to be set aside to which both Davis and Commercial Standard Insurance Company were parties and both were indispensable defendants, and that the court having jurisdiction of the entire controversy could not only render judgment as between. Davis and Century Indemnity Company but also as between him and Commercial Standard Insurance Company. The petition in the State Court is brought against “Commercial Standard Insurance Company and/or Century Indemnity Company,” and abounds in allegations containing that linguistic abomination “and/or” which certainly has no place in the art of pleading. It may he that a separable controversy may be spelled out of it. Removal because of such controversy would under 28 USCA § 71 remove the whole suit and all controversies included in it, Gainesville v. Brown-Crummer Co., 277 U. S. 55, 48 S. Ct. 454, 72 L. Ed. 781, including controversies between citizens of the same state. Barnett v. Mayes (C. C. A.) 43 F.(2d) 521, 522. In the only ease we know of where the constitutionality of such a result has been considered, constitutionality was upheld. Hoffman v. Lynch (D. C.) 23 F.(2d) 518. But we prefer to say that the proceedings against the award are special ones under the Texas Compensation Law designed to review and settle the whole liability for the accident promptly and effectually, and in them all parties interested ought to be joined; that Century Indemnity Company had a right to seek federal jurisdiction in its suit to set aside the award and that in it the federal court had authority to adjudicate the whole case as one controversy, treating jurisdiction over questions arising between citizens of the same state as dependent on the jurisdiction over the controversy between the parties of diverse citizenship.
It may be that under the law and the evidence the jury might have found total disability for a limited period as they did, and then have found additional partial disability thereafter, and that the judge should so have instructed them. But the failure is not to be complained of by the appellant insurer, because such an instruction would if acted on have added to the verdict against it. We cannot suppose that the jury included any period of partial disability in the 250 weeks which they fixed, for the verdict is express that for that time the disability will be total. Only Davis could complain that they were not told that they might consider whether after total there might ensue partial disability.
The ease is one at law. The appellant lost it — not only the consolidated case, but each of the suits composing it. There is no reason why all costs should not go against it.
Judgment affirmed.
Question: Did the court determine that it had jurisdiction to hear this case?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_appnatpr
|
2
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Matthew BARNHART and Donald McLean, Appellants, v. COMPUGRAPHIC CORPORATION, Appellee.
No. 90-1698.
United States Court of Appeals, Third Circuit.
Submitted Pursuant to Rule 12(6) Feb. 6, 1991.
Decided June 12, 1991.
Howard G. Silverman, Kane & Silver-man, P.C., Philadelphia, Pa., for appellants.
Craig E. Zeigler, Montgomery, McCracken, Walker & Rhodes, Philadelphia, Pa., for appellee.
Before MANSMANN, SCIRICA and HIGGINBOTHAM, Circuit Judges.
OPINION OF THE COURT
A. LEON HIGGINBOTHAM, Jr., Senior Circuit Judge.
This case presents the appeal of the district court’s order and judgment dated July 23, 1990 which denied appellants’ motion for an award of reasonable attorney’s fees and costs. The questions for decision before us are 1) whether the finding of a good faith dispute under the Pennsylvania Wage Payment and Collection Law (“WPCL”), 43 Pa.Stat.Ann. tit. 43, §§ 260.-9, 260.10 et seq. (Purdon 1964 & Supp. 1990), precludes a debtor from collecting attorney’s fees when that debtor has been awarded damages for past due wages; and 2) whether appellants have complied with Fed.R.Civ.P. 52(a) and 59(e) and Rule 20(c) of the Local Rules of Civil Procedure for the United States District Court for the Eastern District of Pennsylvania. Because we believe that the district court improperly interpreted the Pennsylvania Wage Payment and Collection Law (“WPCL”) on the issue of attorney’s fees and costs, and because we believe that the plaintiffs below complied with the applicable procedural rules, we will reverse.
I.
Plaintiffs-appellants, Matthew Barnhart and Donald McLean, were employed as sales representatives by defendant-appel-lee, Compugraphic Corporation (“Compu-graphic”) until the fall of 1988. On August 5, 1988, the appellants were laid off from the company. Both parties agree that the plaintiffs were laid off due to “poor business conditions and lack of cash flow” at Compugraphic, and not because of the plaintiffs’ deficient performance. On November 2, 1988, the plaintiffs filed a complaint against Compugraphic, and sought recovery of commissions for sales which they made prior to their layoffs, but which were not shipped until after their lay offs.
The district court granted a judgment in favor of the employees for past due wages on November 2, 1989. The district court reasoned that since plaintiffs “did most of the work associated with these orders,” they were entitled to a percentage of the commissions received. App. at 8. The court also found “that there was a good faith dispute between Compugraphic and the plaintiffs on the issues litigated....” Pursuant to this finding, the court made no award for liquidated damages under the WPCL. The district court did not address the attorney’s fees petition, but indicated that plaintiffs could file for attorney’s fees at the completion of the appellate process. In a Judgment Order dated June 5, 1990, this court affirmed the judgment of the district court. App. at 38-39.
Thereafter, on July 9, 1990, plaintiffs filed a supplemental petition for attorney’s fees and costs pursuant to the WPCL. This petition incorporated the original petition which had been filed with the district court prior to its decision issued on November 2, 1989. On July 23, 1990, the district court denied plaintiffs’ petition for reasonable attorney’s fees and costs, which was based upon the WPCL, on the ground that the existence of a good faith dispute between the plaintiffs and Compugraphic barred plaintiffs’ cause of action under the WPCL.
On August 1, 1990, the plaintiff-appellants filed a motion to alter or amend the district court’s judgment. The district court denied the motion on September 7, 1990. On the same day, the appellants filed a second motion to alter or amend the judgment. This motion was also denied on September 18, 1990. Subsequently, the plaintiffs filed this appeal.
Jurisdiction was proper in the district court pursuant to 28 U.S.C. § 1332. We have jurisdiction over this matter pursuant to 28 U.S.C. § 1291.
II.
There are two issues before this court on appeal. We must decide whether a finding of a good faith dispute between an employee and employer precludes an award of reasonable attorney’s fees and costs under the WPCL for an employee who has already prevailed on a claim for past due wages. This is an issue of first impression in the federal court, and we have been cited to only one Common Pleas Court decision in the Pennsylvania courts. See Gingrich v. City of Lebanon, 9 Lebanon Co. Legal Journal, 335, 339-340 (C.P. Lebanon Co. 1963). Since this issue has not been decided by the Supreme Court of Pennsylvania, we are obligated to predict how that court would decide this issue. Erie Castings Co. v. Grinding Supply, Inc., 736 F.2d 99, 100 (3d Cir.1984).
We must also determine whether the plaintiffs properly pled their case in accordance with the applicable rules of procedure.
We will exercise plenary review of the district court’s interpretation of the WPCL, and of its decision regarding the plaintiffs-appellants’ compliance with the procedural rules.
Generally, the prevailing plaintiff is not entitled per se to attorney’s fees and costs from a defendant. Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 247-250, 95 S.Ct. 1612, 1616-1618, 44 L.Ed.2d 141 (1975). However, if a statute authorizes recovery, a prevailing party may recover attorney’s fees. Id. at 247, 95 S.Ct. at 1616. The court below held in favor of Compugraphic and determined that the Pennsylvania WPCL does not authorize a prevailing employee whose employer has, in good faith, denied plaintiff wages to seek attorney’s fees. The appel-lee, Compugraphic, argues that the liquidated damages statute, 43 Pa.Stat.Ann. § 260.10, intended to provide some guidance on the issue of attorney’s fees despite the fact that it does not explicitly mention attorney’s fees. According to Compu-graphic, since the statute requires payment of wages and damages if the employer does not have a good faith reason for not paying previously, it indicates that a showing of bad faith is necessary before a plaintiff can file a claim for attorney’s fees and costs. However, a careful analysis of the WPCL indicates that a finding of a good faith dispute between an employer and an employee should not preclude a plaintiff from filing a claim for attorney’s fees and costs. 43 Pa.Stat.Ann. § 260.9a(f) expressly authorizes the payment of reasonable attorney’s fees and costs for any action brought pursuant to the statute. Conversely, the liquidated damages statute, § 260.10, does not mention attorney’s fees at all. The liquidated damages statute is essentially a penalty provision aimed at deterring employers who, in bad faith, withhold legitimate payment to its employees — it is not applicable to the issue of attorney’s fees. The good faith/bad faith issue relates to the liquidated damages provisions under § 260.10 which stands separately from the issue of attorney’s fees and costs. Generally, the purpose underlying the WPCL is to protect employees, and to remove some of the obstacles to litigation facing many employees. Pa.Stat.Ann. tit. 43 § 260.1. Compare, Todora v. Jones, 304 Pa.Super. 213 at 215, 450 A.2d 647 at 649 (1982) (Pennsylvania WPCL is not the sole basis of recovery for an employee who has not been paid wages due). Regardless of whether or not an employer exercised good faith in impermissibly withholding wages, an employee may be deterred from filing suit because of exorbitant legal costs. Therefore, the good faith/bad faith inquiry is not relevant to the issue of attorney’s fees in cases involving the award of compensatory damages. Although we do not compel trial courts to grant aggrieved plaintiffs, who are entitled to past due wages under the WPCL, attorney’s fees and costs, we hold that a finding of good faith on behalf of the employer does not preclude the plaintiffs from seeking an award of attorney’s fees.
There are a few cases which provide guidance regarding the award of attorney’s fees under the WPCL, though we have found no case which is directly on point.
As noted previously, we must be primarily guided by state law when interpreting the WPCL. The Lebanon County Court of Common Pleas is the only Pennsylvania court to consider the award of attorney’s fees under this statute. Gingrich v. City of Lebanon, 9 Lebanon Co. Legal Journal, at 335. In Gingrich, the court awarded attorney’s fees to a plaintiff who had prevailed on a claim for wages, but had not prevailed on a claim for liquidated damages. Id. at 339-40.
In the absence of additional guidance from the state courts, it is helpful to consider other relevant federal cases from our circuit. This court’s opinion in Carpenters Health and Welfare Fund of Philadelphia and Vicinity v. Kenneth R. Ambrose, Inc., 727 F.2d 279 (3d Cir.1983), is particularly instructive. In Carpenters, this court considered the defendant’s appeal from a district court judgment finding their company liable for delinquent fringe benefit contributions under § 301 of the Labor Management Relations Act of 1947 (“LMRA”) and under § 260.10 of the Pennsylvania WPCL. The district court in Carpenters acknowledged the defendant’s good faith in failing to pay the required contributions. The court noted the following:
... [T]he defendants’ failure to pay the required contributions into the union welfare fund was not, in any sense, a deliberate and intentional “refusal to honor their promises to pay” or “contemptuous disregard of an obligation,” as plaintiffs now contend. Rather, they failed to pay for the best of all possible reasons: They did not have the money. More importantly still, the reason the defendants were unable to pay was because the firms with which they contracted ... were financially irresponsible and failed to pay the defendants.
Carpenters, 121 F.2d at 285. Despite the apparent good faith of the defendants, the court below determined that attorney’s fees could be assessed against the defendants. However, the district court adjusted the attorney’s fee award such that it was assessed against the company only and not against the defendants as individual officers of the company. This court affirmed the district court’s judgment, but assessed attorney’s fees against both the company and against the individuals as officers of the company. This court noted that despite the financial difficulties faced by the defendants, they were not the only victims.
Other victims include the working men and women who expended their labor for the Ambroses [defendants] and were entitled to the pension and related benefits under the union contract. Other, though perhaps less obvious, victims are the plaintiffs’ health and welfare funds, which are entities legally separate from the Union, entitled to the money contractually due them to meet their statutory and fiduciary obligations to the members of the Union.
Id. at 286.
Further support for the award of attorney’s fees in the case at bar is found in Teamsters Pension Fund of Philadelphia and Vicinity v. Philadelphia Fruit Ex change, 603 F.Supp. 877 (E.D.Pa.1985). In Teamsters the district court awarded attorney’s fees to plaintiffs who had previously received past due wages from the defendant, despite the trial court’s finding that the defendants had acted in good faith and that the plaintiffs were, therefore, not entitled to liquidated damages. Although the court’s award of attorney’s fees in Teamsters primarily involved the application of § 502(g)(2) of the Employee Retirement Income Security Act (ERISA), it also relied upon the application of the Pennsylvania Wage Payment Collection Law. Id. at 880 (citing Pa.Stat.Ann. tit. 43 § 260.3(b) and 260.9a(f) (Purdon Supp.1984-85)). The court noted the following:
Moreover, since plaintiffs have also brought suit under the WPCL, they are similarly entitled to judgment as a matter of law as to the unpaid contributions and reasonable attorney’s fees under state law.
Teamsters, 603 F.Supp. at 880.
Contrary to the position taken by the defendants, the court indicated that the WPCL was a valid alternative basis for liability.
When we consider both the statutory purpose of the WPCL, and the limited case law interpreting that provision, it is clear that the award of attorney’s fees under that statute should not be conditioned upon a finding of bad faith on behalf of the defendant. Therefore, we reverse the district court’s holding, and remand for a determination of the proper amount of the attorney’s fee award.
III.
We must also determine whether plaintiffs properly pled their request for attorney s fees in accordance with the applicable procedural rules. The appellants here contest the district court’s deb rmination in its order denying the motion to alter or amend that they chose to proceed under the common law for the actual amounts due them and only invoked the WPCL for the purpose of claiming liquidated damages. The district court reasoned that since the WPCL contained a provision for attorney’s fees, and under the common law the parties must bear their own costs, plaintiffs who were awarded common law damages only, and were denied any claim for liquidated damages under the WPCL, were barred from seeking attorney’s fees under the WPCL. App. at 70-71. The appellants here argue that the district court erred in its determination that plaintiff invoked the WPCL solely for the purpose of claiming liquidated damages. Upon review, we find that the Pennsylvania WPCL contains both a civil remedies provision (43 Pa.Stat.Ann. § 260.9a) and a provision for liquidated damages (43 Pa. Stat.Ann. § 260.10). We also find that the appellant, in his original and amended complaints, properly invoked each of these provisions of the WPCL in accordance with the rules of pleading. Accordingly, we reverse the district court’s holding.
Second, appellees contend that the plaintiff’s petition for attorney’s fees was not accompanied by a brief in support of such petition as required by Rule 20(c) of the Local Rules of Civil Procedure for the United States District Court for the Eastern District of Pennsylvania. Since this issue was not raised below, we need not address it here. Further, there is no indication that the trial judge based his determination on the ground that appellee now raises. However, on the merits, plaintiffs’ petition for attorney’s fees briefly states the legal basis for the petition (i.e. the WPCL), and subsequently outlines the fees requested. This appears to be sufficient under Local Rule 20(c).
IV.
In conclusion, we hold that the finding of a good faith dispute between an employee and employer does not preclude an award of reasonable attorney’s fees and costs under the WPCL for an employee who has already prevailed on her claim for past due wages. Based upon the foregoing, the judgment of the trial court is reversed and the case is remanded for a determination of the amount of attorney’s fees to which the plaintiffs are entitled. All proper costs and fees related to this appeal and in the litigation before the trial court must be imposed against the appellee.
. Plaintiff McLean began his employment with Compugraphic in October of 1984, and plaintiff Barnhart began his employment in August of 1985.
. Title 43 Pa.Stat. § 260.10 contains the liquidated damages provision of the Pennsylvania Wage Payment and Collection Law. This provision allows employees who have prevailed on their claims for past-due wages to collect an additional amount in damages "equal to twenty-five (25%) of the total amount of wages due ...” if the wages remain unpaid for a period of thirty or sixty days. The appropriate period depends on whether the employee received payment on a scheduled or unscheduled basis.
. On appeal, neither the plaintiffs nor Compu-graphic challenge the district court’s finding of a good faith dispute between plaintiffs and Compugraphic, or the district court’s refusal to grant liquidated damages pursuant to the WPCL.
. In Todora v. Jones & Laughlin Steel Corp., 304 Pa.Super. 213, 450 A.2d 647, 649 (1982), a Pennsylvania court observed "that the Wage Law has been the subject of infrequent use by litigants in our courts” thus resulting in a "dearth of reported decisions, both from our appellate and lower courts.”
. This court has also attempted to review the legislative history of the Wage Payment Collection Law to further determine the purposes underlying the law. Unfortunately, there are no substantive remarks included in the history of this law which would instruct this court.
. The appellee here notes that Teamsters is distinguishable because it involved an interpretation of ERISA, as noted above, and under ERISA the award of liquidated damages or attorney’s fees is not conditioned on the absence of a good faith dispute.
Therefore, once Judge Green decided that the employer contributions were due and owing, an award of liquidated damages and attorneys’ fees was automatic under ERISA, regardless of whether the employer acted in good faith or bad faith.
Appellee’s Br. at 17.
. Federal Rule of Civil Procedure 8 outlines the requirements for proper pleading. As the Supreme Court noted in Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957), Rule 8 basically requires that a pleading provide sufficient notice to the defendant of the type of litigation that this involved. In the case at bar, the Amended Complaint clearly alleges that the defendant/appellee was in violation of the WPCL by failing to pay wages, and that plaintiff was entitled to attorney’s fees as a result of this violation. App. at 108-114.
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer:
|
songer_district
|
F
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable".
M.J. WHITMAN & CO., INC. PENSION PLAN, Plaintiff-Appellant, v. AMERICAN FINANCIAL ENTERPRISES, INC., American Financial Corporation, Carl H. Lindner, Robert D. Lind-ner, Julius S. Anreder, James E. Evans, David M. Gerstein, Sandra W. Heimann, S. Craig Lindner, Lester W. Rubin, and Ronald F. Walker, Defendants-Appel-lees.
No. 83-3012.
United States Court of Appeals, Sixth Circuit.
Argued Nov. 17, 1983.
Decided Jan. 17, 1984.
Gene Mesh, Cincinnati, Ohio, Sidney B. Silverman, argued, Silverman & Harnes, New York City, for plaintiff-appellant.
Louis F. Gilligan, Cincinnati, Ohio, James E. Burke, argued, for defendants-appellees.
Before KEITH and KENNEDY, Circuit Judges, and PRATT, District Judge.
Honorable Philip Pratt, United States District Court for the Eastern District of Michigan, Southern Division, sitting by designation.
CORNELIA G. KENNEDY, Circuit Judge.
M.J. Whitman & Co., Inc. Pension Plan (Whitman), a shareholder in American Financial Enterprises, Inc. (AFEI), brought this derivative suit to compel AFEI to register under the Investment Company Act of 1940 (ICA or the Act), 15 U.S.C. § 80a-l et seq. (1981). The District Court found no private right of action to compel registration under the ICA and granted summary judgment against Whitman. On appeal, we affirm the grant of summary judgment on a different ground; even assuming that a private right of action exists, AFEI is exempt from registration according to the provisions of the ICA.
AFEI is the successor in interest to the New York, New Haven and Hartford Railroad Company (the Railroad). The Railroad filed for reorganization under the federal bankruptcy laws in 1961. During reorganization proceedings, the Railroad transferred substantially all of its assets to the Penn Central Transportation Company, which itself subsequently filed for bankruptcy reorganization. Eventually, the Railroad received in return cash, redeemable securities of the reorganized Penn Central Corporation (Penn Central), and six percent of Penn Central’s outstanding common stock. AFEI’s assets presently consist largely of cash, government securities, and Penn Central securities.
AFEI’s principal stockholder is American Financial Corporation (AFC), which owns about 70% of AFEI’s outstanding stock and about two-thirds of all AFEI stock available for distribution. These interests in AFEI constitute less than ten per cent of AFC’s assets. Although AFC has hundreds of shareholders, all common stock in AFC is owned by Carl H. Lindner and members of his family. When Whitman filed its complaint in this case, three of the ten directors on AFEI’s board were members of the Lindner family and three other directors were associated professionally with AFC.
The membership of AFEI’s board of directors, as well as the other provisions of the Plan of Reorganization, were approved by the federal bankruptcy court in 1980. Creditors of the Railroad received ownership of all AFEI securities. Because reorganization left AFEI with disproportionately large holdings of cash and securities typical of an investment company, the bankruptcy court directed the Railroad’s Trustee to seek an exemption from registration. The Securities and Exchange Commission (SEC) issued to AFEI a “no-action” letter recognizing a one-year exemption from registration as a transient investment company. When this exemption period expired, AFEI was not engaged in “non-investment company business,” as the no-action letter had anticipated, and had increased its investment holdings, particularly in Penn Central securities. In response to an inquiry, AFEI informed the SEC that it did not intend to register since it believed that the company was covered by a statutory exception to the registration requirement applicable to reorganized companies. The SEC did not respond to this information.
Whitman’s suit alleges that this failure to register has injured AFEI’s shareholders. In the complaint, the management of AFEI is charged with behavior that would arguably violate the ICA if the company were registered with the SEC. The provisions of the ICA, however, apply only to registered companies. Accordingly, Whitman filed this suit to compel AFEI to register under the ICA, thus becoming subject to its requirements.
The District Court granted summary judgment against Whitman on the grounds that the ICA does not create a private right of action to compel an investment company to register with the SEC. Observing that the Act contains no general express private right of action, the District Court found no evidence in the language or history of the statute of any legislative intent to imply a private remedy for shareholders under the Act.
We do not find it necessary to determine whether a private right of action may be inferred from the ICA. Assuming ar- gaendo that a private right of action exists, and that a shareholder such as Whitman may bring suit to compel registration, the grant of summary judgment against Whitman may be affirmed on alternative grounds. See Herm v. Stafford, 663 F.2d 669, 684 (6th Cir.1981); Winter v. Local Union No. 639, 569 F.2d 146, 151 (D.C.Cir. 1977); United States v. General Motors Corp., 518 F.2d 420, 441 (D.C.Cir.1975). Here, AFEI may not be compelled to register with the SEC since it is exempt from registration under the ICA.
Section 6(a)(3) of the Act exempts reorganized investment companies that satisfy five requirements. The parties agree that AFEI clearly satisfies four of these five requirements: 1) it was reorganized under the supervision of a court of competent jurisdiction after the effective date of the Act; 2) it was not an investment company at the commencement of reorganization proceedings; 3) all of its securities were owned by creditors or by persons who took on account of creditors’ claims at the conclusion of reorganized proceedings, and 4) no securities of AFEI have been sold or offered for sale to the public since the reorganization concluded.
The dispute in this case centers on the fifth requirement, that more than 50% of a company’s voting securities and other securities representing more than 50% of the net asset value of the company must be “owned beneficially” by 25 or fewer people. Here, one company, AFC, owns more than 50% of AFEI’s stock. AFEI argues that its shares owned by AFC are beneficially owned by a single entity; Whitman on the other hand contends that ownership by AFC must be attributed to the hundreds of shareholders of AFC. Section 6(a)(3) provides that beneficial ownership is determined according, to the manner set out in § 3(c)(1) of the Act.
Under § 3(c)(1), if a company owns ten percent or more of the outstanding voting securities of the issuer, the securities are deemed owned by the company’s shareholders; since AFC owns considerably more than ten percent of AFEI’s outstanding securities, all AFC’s shareholders would be deemed to own beneficially the company’s share in AFEI were it not for a 1980 amendment to the ICA. That amendment added the provision that a company’s ownership of shares in another company is not attributed to the parent company’s shareholders if the value of all securities owned by the parent company of all companies which are or would be excluded “solely by this paragraph” does not exceed ten percent of the parent company’s assets.
The meaning of “solely by this paragraph” is disputed in this case, and no court has previously interpreted the phrase. AFEI argues that the reference to companies excluded “solely by this paragraph” contained in § 3(c)(1)(A) when incorporated by reference into § 6(a)(3)’s exemption for reorganized investment companies should be construed to refer to companies exempt under § 6(a)(3). According to this reasoning, AFC should total all its interests in § 6(a)(3) companies, and if the sum is less than ten percent of AFC’s assets, beneficial ownership in its AFEI securities should not be attributed to AFC’s shareholders. On the other hand Whitman contends that “solely by this paragraph” indicates that the exclusion from attribution of ownership to shareholders attaches only to companies that satisfy all the requirements of § 3(c)(1). Section 3(c)(1)(A) explains how beneficial ownership is determined; it is preceded in § 3(c)(1) by a provision excluding from the definition of an investment company any issuer whose outstanding securities are beneficially owned by a hundred or fewer persons and which is not publicly selling its securities. AFEI has more than a hundred shareholders, and so could not be excluded solely by § 3(c)(1); Whitman would conclude that beneficial ownership of AFEI securities, therefore, should be attributed to AFC’s shareholders, thus disqualifying AFEI from exemption under § 6(a)(3).
Under Whitman’s reasoning, a company must satisfy § 3(c)(1) before the beneficial ownership provisions are applied to determine whether the company is exempt under § 6(a)(3). However, a company that satisfies § 3(c)(1) is excluded from the definition of an investment company altogether; a § 6(a)(3) exemption would be unnecessary. This resúlt of Whitman’s interpretation violates the “elementary canon of construction that a statute should be interpreted so as not to render one part inoperative.” Colautti v. Franklin, 439 U.S. 379, 392, 99 S.Ct. 675, 684, 58 L.Ed.2d 596 (1979); see, e.g., Weinberger v. Hynson, Westcott & Dunning, Inc., 412 U.S. 609, 633, 93 S.Ct. 2469, 2485, 37 L.Ed.2d 207 (1973); Meade Township v. Andrus, 695 F.2d 1006, 1009 (6th Cir.1982). AFEI’s interpretation incorporating the § 3(c)(1)(A) test for beneficial ownership into § 6(a)(3) so that companies need satisfy only the requirements for a § 6(a)(3) exemption to avoid attribution of ownership to all shareholders produces more reasonable results.
In 1980, Congress passed the Small Business Investment Incentive Act which added § 3(c)(l)(A)’s exception to attribution for companies whose interest in companies excluded “solely by this paragraph” does not exceed ten percent of their assets. Legislative history does not reveal how Congress intended the phrase “solely by this paragraph” to be interpreted in the context of § 6(a)(3). Congress’ evident purpose in amending § 3(c)(1) was to encourage investment in small development companies by making exclusion from the definition of an investment company more available through relaxing the rules for attributing beneficial ownership of securities by a corporation to its shareholders. As Whitman points out, this purpose is not advanced by exempting AFEI from registration; AFEI is not a small development company. Congress did state, however, that the provision amending § 3(c)(1) “would be available to all private investment companies, not just business development companies.” H.R. Rep. No. 1341, 96th Cong., 2d Sess. 27, re printed in 1980 U.S.Code Cong. & Ad.News 4800, 4809. Accordingly, there is no reason to conclude, as Whitman urges us, that § 3(c)(1)(A) should not be applied to avoid attributing ownership of AFEI securities to all AFC’s shareholders. Beyond that, legislative history gives no indication how Congress intended § 3(c)(1) and § 6(a)(3) to be interpreted.
We hold, therefore, that in the absence of evidence of legislative intent to the contrary and in view of the unreasonable results of Whitman’s interpretation, the § 3(c)(1)(A) reference to companies excluded “solely by this paragraph” should be interpreted as referring to companies exempted by § 6(a)(3). In this case, AFC’s holdings in all § 6(a)(3) companies, including AFEI, do not exceed ten percent of its assets, so that beneficial ownership of AFEI securities is not attributed to AFC’s shareholders under § 3(c)(1)(A). This conclusion agrees with the interpretation of these sections put forward by the SEC in its statement of interest submitted in this case as amicus curiae. Courts ordinarily show great deference to the construction of a statute by the agency charged with its administration. See, e.g., Indiana and Michigan Municipal Distributors Association v. Federal Energy Regulatory Commission, 659 F.2d 1193, 1196 (D.C.Cir.1981); Hill v. Tennessee Valley Authority, 549 F.2d 1064, 1070 (6th Cir.1977), aff’d, 437 U.S. 153, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978); Begley v. Mathews, 544 F.2d 1345, 1352 (6th Cir.1976), cert. denied, 430 U.S. 985, 97 S.Ct. 1684, 52 L.Ed.2d 380 (1977). While we are clearly not bound by the SEC’s construction of securities laws, we recognize that the SEC is the agency charged with administering the ICA, and we regard its interpretation of the statute with deference.
In this case, the interpretation favored by the SEC is the one we would choose independently. Following that interpretation, we find that more than 50% of AFEI’s securities are held by one beneficial owner, AFC; accordingly, AFEI satisfies the requirements of § 6(a)(3) and is exempt from the registration requirement of the ICA. We, therefore, affirm the District Court’s grant of summary judgment and agree that Whitman cannot compel AFEI to register under the ICA.
. Specifically, Whitman alleges that the composition of the board of directors does not satisfy the ICA’s requirement that 40% of the members be disinterested, 15 U.S.C. § 80a-10(a), and challenges as improper certain fees paid by AFEI to AFC for various services.
. If a statute does not authorize a private right of action, the court should dismiss for failure to state a claim upon which relief can be granted, not for lack of subject-matter jurisdiction. Lewis v. Transamerica Corp., 575 F.2d 237, 239 n. 2 (9th Cir.1978), aff’d in part and rev’d in part on other grounds, 444 U.S. 11, 100 S.Ct; 242, 62 L.Ed.2d 146 (1979); Wilson v. First Houston Investment Corp., 566 F.2d 1235, 1237 n. 2 (5th Cir.1978), vacated and remanded on other grounds, 444 U.S. 959, 100 S.Ct. 442, 62 L.Ed.2d 371 (1979). “[A] complaint that alleges the existence of a federal question establishes jurisdiction, even though the court ultimately decides that the plaintiff’s federal rights were not violated.” Mobil Oil Corp. v. Kelley, 493 F.2d 784, 786 (5th Cir.), cert. denied, 419 U.S. 1022, 95 S.Ct. 498, 42 L.Ed.2d 296 (1974). This court has subject-matter jurisdiction over this dispute whether or not an implied private right of action is found.
. Any company which since the effective date of this subchapter or within five years prior to such date has been reorganized under the supervision of a court of competent jurisdiction, if (Á) such company was not an investment company at the commencement of such reorganization proceedings, (B) at the conclusion of such proceedings all outstanding securities of such company were owned by creditors of such company or by persons to whom such securities were issued on account of creditors’ claims, and (C) more than 50 per centum of the voting securities of such company, and securities representing more than 50 per centum of the net asset value of such company, are currently owned beneficially by not more than twenty-five persons; but such exemption shall terminate if any security of which such company is the issuer is offered for sale or sold to the public after the conclusion of such proceedings by the issuer or by or through any underwriter. For the purposes of this paragraph, any new company organized as part of the reorganization shall be deemed the same company as its predecessor; and beneficial ownership shall be determined in the manner provided in section 80a-3(c)(l) of this title.
15 U.S.C. § 80a-6(a)(3) (1981).
. That section provides the following description of beneficial ownership;
Beneficial ownership by a company shall be deemed to be beneficial ownership by one person, except that, if the company owns 10 per centum or more of the outstanding voting securities of the issuer, the beneficial ownership shall be deemed to be that of the holders of such company’s outstanding securities (other than short-term paper) unless, as of the date of the most recent acquisition by such company of securities of that issuer, the value of all securities owned by such company of all issuers which are or would, but for the exception set forth in this subparagraph, be excluded from the definition of investment company solely by this paragraph, does not exceed 10 per centum of the value of the company’s total assets....
15 U.S.C. § 80a-3(c)(l)(A) (1981).
Question: From which district in the state was this case appealed?
A. Not applicable
B. Eastern
C. Western
D. Central
E. Middle
F. Southern
G. Northern
H. Whole state is one judicial district
I. Not ascertained
Answer:
|
sc_caseorigin
|
212
|
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.
CALIFORNIA v. NEVADA
No. 73,
Orig.
Argued April 14, 1980
Decided June 10, 1980
BbeNNAN, J., delivered the opinion for a unanimous Court.
James H. Thompson, Special Deputy Attorney General of Nevada, argued the cause for defendant. With him on the brief were Richard H. Bryan, Attorney General, Larry D. Struve, Chief Deputy Attorney General, and Harry W. Swain-ston, Deputy Attorney General.
Jan S. Stevens, Assistant Attorney General of California, argued the cause for plaintiff. With him on the briefs were George Deukmejian, Attorney General, and N. Gregory Taylor, Assistant Attorney General.
Solicitor General McCree and Deputy Solicitor General Claiborne filed a memorandum for the United States as amicus curiae.
Mr. Justice Brennan
delivered the opinion of the Court.
The report of the Special Master tenders for the Court’s approval his determination of the true boundary between the States of California and Nevada. That boundary was the subject of numerous surveys in the latter half of the 19th century, and the central question presented in this original action is which, if any, of the lines which resulted properly marks the rugged border between the two States. The Special Master combed the voluminous record and concluded that in combination the two most recent surveys had fixed a boundary to which both States have acquiesced for the better part of a century. Applying the doctrine of prescription and acquiescence, he concluded that the boundary so fixed was the proper one. Nevada takes exception to that determination on several grounds. We overrule those exceptions and, with the qualifications hereinafter noted, approve and adopt the Special Master’s report.
I
The two straight-line segments that make up the boundary between California and Nevada were initially defined in California’s Constitution of 1849. The first, the “north-south” segment, commences on the Oregon border at the intersection of the 42d parallel and the 120th meridian and runs south along that meridian to the 39th parallel. And the second, the “oblique” segment, begins at that parallel and runs in a southeasterly direction to the point where the Colorado River crosses the 35th parallel. Cal. Const., Art. XII (1849). In 1850, when California was admitted to the Union, Congress approved the 1849 Constitution, and with it California’s eastern boundary. Act of Sept. 9, 1850, 9 Stat. 452.
On the same day that it admitted California, Congress established a territorial government in the area immediately to the east. The organic Act for that new Territory — which was then called Utah — stated that it was to be “bounded on the west by the State of California.” Act of Sept. 9, 1850, 9 Stat. 453. Eleven years later, the Territory of Nevada was created out of Utah. Congress indicated in the organic Act that Nevada might include portions of what was then California, but with the proviso that “so much of the Territory within the present limits of the State of California shall not be included within this Territory until the State of California shall assent to the same by an act irrevocable without the consent of the United States. . . .” Act of Mar. 2, 1861, 12 Stat. 210. No assent was ever given by California. Accordingly, when Nevada was admitted as a State in 1864 its western boundary and California’s eastern one remained congruent.
Notwithstanding brief and incomplete surveying efforts in the decade after California was admitted, the actual location on the ground of that State’s eastern boundary remained highly uncertain — so much so that fighting broke out over the precise whereabouts of a small valley on the north-south line above Lake Tahoe, and a border town along the oblique line found itself claimed as the seat of both a Nevada and a California county. These difficulties led California and Nevada to commission a joint survey of their border. Conducted in 1863, that survey located what is known as the Houghton-Ives line from the Oregon border south along the 120th meridian to a point in Lake Tahoe and then southeast for about 103 miles along the oblique line in the direction of the relevant point on the Colorado River. The remaining 300-plus miles of the oblique border were not surveyed.
Both California and Nevada adopted the Houghton-Ives line by statute, but its significance was to be short-lived. In 1867-1868 Daniel G. Major surveyed the Oregon-Califomia boundary for the General Land Office. One step in his work was to locate the intersection of that boundary and the 120th meridian. This he did, at a point more than two miles west of that meridian as marked by Houghton-Ives. This discrepancy eventually led the Commissioner of the General Land Office to recommend that Congress appropriate money for a full survey of the eastern boundary of California. His recommendation was followed in 1872.
The new survey was conducted by Allexey W. Yon Schmidt. While originally instructed to commence his north-south line at the point located by Daniel G. Major, Yon Schmidt concluded that the actual 120th meridian lay not only east of “Major’s comer,” but six-tenths of a mile east of the Hough-ton-Ives line as well. Accordingly, Von Schmidt marked a new north-south line starting at this location. His survey of the oblique boundary also had its surprises. From the intersection of his north-south segment and the 39th parallel he set off in what he thought was the direction of the intersection of the Colorado River and the 35th parallel. Unfortunately, the Colorado River had shifted since the point for which he was aiming had been marked, and rather than end at the wrong place he attempted to correct the line he was marking. It later turned out that his corrections were not complete and his line not entirely straight. But linear or not, his work did generate a boundary. And, although neither State adopted it by statute, the Von Schmidt survey won gradual acceptance in both California and Nevada.
In the 1880’s, however, substantial doubts about the accuracy of the oblique segment of the Von Schmidt line were voiced in Washington. As a result, Congress appropriated funds in 1892 for a new survey of that segment. The survey was undertaken by personnel of the United States Coast and Geodetic Survey and conducted over a period of several years. It yielded a new oblique line and determined that the one charted by Von Schmidt had been neither straight nor accurate. Both States adopted the United States Coast and Geodetic Survey line by statute — California in 1901 and Nevada in 1903.
The Special Master concluded that the Yon Schmidt survey of the north-south line and the United States Coast and Geodetic Survey one of the oblique line were the most recent and accurate surveys available. While noting that Yon Schmidt had not been entirely accurate, the Master found that the north-south line that resulted from his survey had been consistently and routinely recognized and accepted by agencies and departments of the State of Nevada for more than a century. That the Houghton-Ives line was the first north-south boundary marked and the only one approved by statute was, he found, beside the point because as a practical matter that boundary had been superseded a decade after it was established and neither State had objected. As for the oblique boundary, the Master found that the United States Coast and Geodetic Survey line had not only been adopted by statute, but also been accepted and used by the two States for nearly 80 years. Since both States had treated these lines as the boundary from the time they were drawn, the Master invoked the doctrine of acquiescence to determine that together they in fact constitute the true and correct interstate boundary.
II
The State of Nevada’s primary contention is that the Special Master’s reliance upon the doctrine of acquiescence was in error. Basically, the argument is that once Nevada and California had conducted the 1863 joint survey which produced the Houghton-Ives line the Federal Government had no constitutional authority to mark a different line which had the effect of removing territory from one State and granting it to the other. Since the Congress was without power to determine the Yon Schmidt and United States Coast and Geodetic Survey lines, the argument continues, they are without legal effect. And because States may not confer upon the Federal Government a power which the Constitution does not vest in it, acquiescence in those lines cannot make them lawful. Thus, Nevada concludes, either (1) Congress is constitutionally empowered to redraw the boundaries of the several States, in which case the Von Schmidt and Geodetic Survey lines may be upheld regardless of acquiescence, or (2) Congress is constitutionally powerless to alter those boundaries, in which case no mere century of acquiescence can convert a usurpation into law.
The flaw in this argument is that it assumes that there must be a particular relationship between the origins of a boundary and the legal consequences of acquiescence in that boundary. In fact, however, no such relationship need exist. Longstanding acquiescence by California and Nevada can give the Von Schmidt and Geodetic Survey lines the force of law whether or not federal authorities had the power to draw them. And the determination that the two States’ conduct has had precisely this effect, therefore, does not place any sort of constitutional imprimatur upon the federal actions involved. See Ohio v. Kentucky, 410 U. S. 641, 648-651 (1973) ; Indiana v. Kentucky, 136 U. S. 479, 509-510 (1890). Accordingly, we need not address the issue of federal power to which Nevada adverts. It is enough that California claims and has always claimed all territory up to a specifically described boundary — the 120th meridan and the oblique line with which it connects — and that both States have long acquiesced in particular lines marking that boundary. If Nevada felt that those lines were inaccurate and operated to deprive it of territory lawfully within its jurisdiction the time to object was when the surveys were conducted, not a century later. Ohio v. Kentucky, supra, at 649. In consequence, we hold that in these circumstances the Special Master was fully justified in invoking the doctrine of acquiescence.
Ill
Having determined that the Special Master’s resolution of the boundary dispute was proper, we turn to his recommendations regarding the quite separate issue of ownership of various disputed borderlands. This matter is here on California’s motion to file a second amended complaint and bifurcate issues, which seeks further proceedings before the Special Master after the boundary questions are determined. Specifically, the United States has apparently confirmed or “clear-listed” to California and Nevada certain parcels that turn out to be on the “wrong” side of the boundary between those States. The Special Master was of the view that California’s motion should be allowed and that he should be authorized (1) to determine whether the United States should be made a party to this case and (2) to make recommendations as to the quieting of title on various borderlands.
We decline at this point to expand the Special Master’s reference. The ownership and title questions that remain typically will involve only one or the other State and the United States, or perhaps various citizens of those States. Disputes between California and Nevada are not in the offing. In consequence, even if some of the ownership questions to come do fall within our original jurisdiction, they will not fall within our exclusive jurisdiction. 28 U. S. C. § 1251 (1976 ed., Supp. II). Under these circumstances we see no reason to refer the matter to the Special Master. On the contrary, litigation in other forums seems an entirely appropriate means of resolving whatever questions remain.
In sum, we overrule Nevada’s exceptions and approve and adopt the Special Master’s report and recommendations except insofar as those recommendations would allow California’s second amended complaint and permit proceedings relating to the ownership of disputed lands on the California-Nevada boundary.
So ordered.
California instituted this original action on April 22, 1977, when it filed its motion for leave to file complaint and complaint. On June 29, 1977, we granted that motion and appointed the Special Master. Basically, California sought a declaration that the currently recognized line dividing the two States was in fact the lawful boundary. As counsel for the State characterized it at oral argument, the suit was in the nature of a quiet title action and was precipitated by growing doubts about the geographic accuracy of the existing line as well as concerns regarding the validity of certain titles which depended upon the location of the border. The Special Master’s report was filed in this Court on October 29, 1979, 444 U. S. 922, and we set Nevada’s exceptions and related matters for oral argument. 444 U. S. 1065 (1980).
Nevada’s Constitution stated that its boundary would proceed “in a North Westerly direction along [the oblique section of the] Eastern boundary line of the State of California to the forty third degree of Longitude West from Washington [and then] North along said forty third degree of West Longitude, and said Eastern boundary line of the State of California to the forty second degree of North Latitude. . . Nev. Const., Art. XIV, § 1 (1864). Although it turns out that the 43d degree of longitude west from Washington does not exactly coincide with the 120th meridian west of Greenwich — which was the north-south reference in the California Constitution — the Special Master concluded that the Congress that approved Nevada’s Constitution was of the view that the two lines were identical. Certainly the language of the Nevada Constitution supports this conclusion by seeming to equate the 43d degree of longitude west of Washington with the eastern boundary of California. In any event, we need not explore the matter further since it would be relevant only were we to require a new survey of one or the other longitudinal line, and we do not find such a new survey necessary.
Indeed, the town — Aurora—elected representatives to both the California and Nevada Legislatures in 1862, and those representatives apparently became speakers of their respective legislatures.
Two years later one James S. Lawson extended the oblique portion of the Houghton-Ives line another 73 miles.
A third survey, conducted in the summer of 1872 near the Oregon border, contributed to the confusion by concluding that the 120th meridian lay to the east of the locations pinpointed by both Major and Houghton-Ives.
Nevada's statute was in effect when the present litigation was commenced, although it has subsequently been repealed.
California notes that Nevada welcomed the Yon Schmidt survey at the time it was conducted. Indeed, the Surveyor General of that State remarked that “within a year the State will be inclosed by an actual surveyed line and monuments, and the troubles heretofore existing, to State and county officials, in dealing with an imaginary line, will be entirely and forever obviated.” Report of the Surveyor General and State Land Register of the State of Nevada for the years 1871 and 1872, p. 8.
Nor is Nevada’s position saved by the contention that California could not profit by the doctrine of acquiescence because its claim to the lands up to the Von Schmidt and United States Coast and Geodetic Survey lands was not made under color of title or claim of right. The fact is that California’s claim has always been for all lands on its side of the boundary described rather specifically in its Constitution. So long as its claims were made under a survey that purported to reflect that boundary, it had colorable title and a claim of right.
Several subsidiary issues relating to the Califomia-Nevada border are considered in the Special Master’s recommendations. First, it turns out that Von Schmidt’s north-south line and the United States Coast and Geodetic Survey oblique line do not intersect at precisely the 39th parallel, as in theory they should. The Special Master suggests that the two States be given the opportunity to determine by agreement the point in Lake Tahoe where the two lines meet. Failing such an accord, he indicates that he would recommend a solution; but this probably will not be necessary since the parties are apparently in agreement that if the balance of the Master’s report is accepted the best course is to extend the oblique line in a northwesterly direction to the point where it crosses the north-south line. This solution to the problem is entirely permissible. Cf. New Hampshire v. Maine, 426 U. S. 363 (1976). Second, the Master recommends that he be authorized to arrange for surveys, at the parties’ expense, if necessary to resolve disputes over the precise location of portions of either of the lines we approve today. That, too, seems appropriate. And third, he states that we should reserve the taxing of costs until after a further report — a suggestion which we will follow since the possibility of partial surveys would make an assessment at this time premature.
At oral argument, counsel for the State of California conceded that he knew of no instance in which both States claimed the same parcel.
Question: What is the court in which the case originated?
001. U.S. Court of Customs and Patent Appeals
002. U.S. Court of International Trade
003. U.S. Court of Claims, Court of Federal Claims
004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces
005. U.S. Court of Military Review
006. U.S. Court of Veterans Appeals
007. U.S. Customs Court
008. U.S. Court of Appeals, Federal Circuit
009. U.S. Tax Court
010. Temporary Emergency U.S. Court of Appeals
011. U.S. Court for China
012. U.S. Consular Courts
013. U.S. Commerce Court
014. Territorial Supreme Court
015. Territorial Appellate Court
016. Territorial Trial Court
017. Emergency Court of Appeals
018. Supreme Court of the District of Columbia
019. Bankruptcy Court
020. U.S. Court of Appeals, First Circuit
021. U.S. Court of Appeals, Second Circuit
022. U.S. Court of Appeals, Third Circuit
023. U.S. Court of Appeals, Fourth Circuit
024. U.S. Court of Appeals, Fifth Circuit
025. U.S. Court of Appeals, Sixth Circuit
026. U.S. Court of Appeals, Seventh Circuit
027. U.S. Court of Appeals, Eighth Circuit
028. U.S. Court of Appeals, Ninth Circuit
029. U.S. Court of Appeals, Tenth Circuit
030. U.S. Court of Appeals, Eleventh Circuit
031. U.S. Court of Appeals, District of Columbia Circuit (includes the Court of Appeals for the District of Columbia but not the District of Columbia Court of Appeals, which has local jurisdiction)
032. Alabama Middle U.S. District Court
033. Alabama Northern U.S. District Court
034. Alabama Southern U.S. District Court
035. Alaska U.S. District Court
036. Arizona U.S. District Court
037. Arkansas Eastern U.S. District Court
038. Arkansas Western U.S. District Court
039. California Central U.S. District Court
040. California Eastern U.S. District Court
041. California Northern U.S. District Court
042. California Southern U.S. District Court
043. Colorado U.S. District Court
044. Connecticut U.S. District Court
045. Delaware U.S. District Court
046. District Of Columbia U.S. District Court
047. Florida Middle U.S. District Court
048. Florida Northern U.S. District Court
049. Florida Southern U.S. District Court
050. Georgia Middle U.S. District Court
051. Georgia Northern U.S. District Court
052. Georgia Southern U.S. District Court
053. Guam U.S. District Court
054. Hawaii U.S. District Court
055. Idaho U.S. District Court
056. Illinois Central U.S. District Court
057. Illinois Northern U.S. District Court
058. Illinois Southern U.S. District Court
059. Indiana Northern U.S. District Court
060. Indiana Southern U.S. District Court
061. Iowa Northern U.S. District Court
062. Iowa Southern U.S. District Court
063. Kansas U.S. District Court
064. Kentucky Eastern U.S. District Court
065. Kentucky Western U.S. District Court
066. Louisiana Eastern U.S. District Court
067. Louisiana Middle U.S. District Court
068. Louisiana Western U.S. District Court
069. Maine U.S. District Court
070. Maryland U.S. District Court
071. Massachusetts U.S. District Court
072. Michigan Eastern U.S. District Court
073. Michigan Western U.S. District Court
074. Minnesota U.S. District Court
075. Mississippi Northern U.S. District Court
076. Mississippi Southern U.S. District Court
077. Missouri Eastern U.S. District Court
078. Missouri Western U.S. District Court
079. Montana U.S. District Court
080. Nebraska U.S. District Court
081. Nevada U.S. District Court
082. New Hampshire U.S. District Court
083. New Jersey U.S. District Court
084. New Mexico U.S. District Court
085. New York Eastern U.S. District Court
086. New York Northern U.S. District Court
087. New York Southern U.S. District Court
088. New York Western U.S. District Court
089. North Carolina Eastern U.S. District Court
090. North Carolina Middle U.S. District Court
091. North Carolina Western U.S. District Court
092. North Dakota U.S. District Court
093. Northern Mariana Islands U.S. District Court
094. Ohio Northern U.S. District Court
095. Ohio Southern U.S. District Court
096. Oklahoma Eastern U.S. District Court
097. Oklahoma Northern U.S. District Court
098. Oklahoma Western U.S. District Court
099. Oregon U.S. District Court
100. Pennsylvania Eastern U.S. District Court
101. Pennsylvania Middle U.S. District Court
102. Pennsylvania Western U.S. District Court
103. Puerto Rico U.S. District Court
104. Rhode Island U.S. District Court
105. South Carolina U.S. District Court
106. South Dakota U.S. District Court
107. Tennessee Eastern U.S. District Court
108. Tennessee Middle U.S. District Court
109. Tennessee Western U.S. District Court
110. Texas Eastern U.S. District Court
111. Texas Northern U.S. District Court
112. Texas Southern U.S. District Court
113. Texas Western U.S. District Court
114. Utah U.S. District Court
115. Vermont U.S. District Court
116. Virgin Islands U.S. District Court
117. Virginia Eastern U.S. District Court
118. Virginia Western U.S. District Court
119. Washington Eastern U.S. District Court
120. Washington Western U.S. District Court
121. West Virginia Northern U.S. District Court
122. West Virginia Southern U.S. District Court
123. Wisconsin Eastern U.S. District Court
124. Wisconsin Western U.S. District Court
125. Wyoming U.S. District Court
126. Louisiana U.S. District Court
127. Washington U.S. District Court
128. West Virginia U.S. District Court
129. Illinois Eastern U.S. District Court
130. South Carolina Eastern U.S. District Court
131. South Carolina Western U.S. District Court
132. Alabama U.S. District Court
133. U.S. District Court for the Canal Zone
134. Georgia U.S. District Court
135. Illinois U.S. District Court
136. Indiana U.S. District Court
137. Iowa U.S. District Court
138. Michigan U.S. District Court
139. Mississippi U.S. District Court
140. Missouri U.S. District Court
141. New Jersey Eastern U.S. District Court (East Jersey U.S. District Court)
142. New Jersey Western U.S. District Court (West Jersey U.S. District Court)
143. New York U.S. District Court
144. North Carolina U.S. District Court
145. Ohio U.S. District Court
146. Pennsylvania U.S. District Court
147. Tennessee U.S. District Court
148. Texas U.S. District Court
149. Virginia U.S. District Court
150. Norfolk U.S. District Court
151. Wisconsin U.S. District Court
152. Kentucky U.S. Distrcrict Court
153. New Jersey U.S. District Court
154. California U.S. District Court
155. Florida U.S. District Court
156. Arkansas U.S. District Court
157. District of Orleans U.S. District Court
158. State Supreme Court
159. State Appellate Court
160. State Trial Court
161. Eastern Circuit (of the United States)
162. Middle Circuit (of the United States)
163. Southern Circuit (of the United States)
164. Alabama U.S. Circuit Court for (all) District(s) of Alabama
165. Arkansas U.S. Circuit Court for (all) District(s) of Arkansas
166. California U.S. Circuit for (all) District(s) of California
167. Connecticut U.S. Circuit for the District of Connecticut
168. Delaware U.S. Circuit for the District of Delaware
169. Florida U.S. Circuit for (all) District(s) of Florida
170. Georgia U.S. Circuit for (all) District(s) of Georgia
171. Illinois U.S. Circuit for (all) District(s) of Illinois
172. Indiana U.S. Circuit for (all) District(s) of Indiana
173. Iowa U.S. Circuit for (all) District(s) of Iowa
174. Kansas U.S. Circuit for the District of Kansas
175. Kentucky U.S. Circuit for (all) District(s) of Kentucky
176. Louisiana U.S. Circuit for (all) District(s) of Louisiana
177. Maine U.S. Circuit for the District of Maine
178. Maryland U.S. Circuit for the District of Maryland
179. Massachusetts U.S. Circuit for the District of Massachusetts
180. Michigan U.S. Circuit for (all) District(s) of Michigan
181. Minnesota U.S. Circuit for the District of Minnesota
182. Mississippi U.S. Circuit for (all) District(s) of Mississippi
183. Missouri U.S. Circuit for (all) District(s) of Missouri
184. Nevada U.S. Circuit for the District of Nevada
185. New Hampshire U.S. Circuit for the District of New Hampshire
186. New Jersey U.S. Circuit for (all) District(s) of New Jersey
187. New York U.S. Circuit for (all) District(s) of New York
188. North Carolina U.S. Circuit for (all) District(s) of North Carolina
189. Ohio U.S. Circuit for (all) District(s) of Ohio
190. Oregon U.S. Circuit for the District of Oregon
191. Pennsylvania U.S. Circuit for (all) District(s) of Pennsylvania
192. Rhode Island U.S. Circuit for the District of Rhode Island
193. South Carolina U.S. Circuit for the District of South Carolina
194. Tennessee U.S. Circuit for (all) District(s) of Tennessee
195. Texas U.S. Circuit for (all) District(s) of Texas
196. Vermont U.S. Circuit for the District of Vermont
197. Virginia U.S. Circuit for (all) District(s) of Virginia
198. West Virginia U.S. Circuit for (all) District(s) of West Virginia
199. Wisconsin U.S. Circuit for (all) District(s) of Wisconsin
200. Wyoming U.S. Circuit for the District of Wyoming
201. Circuit Court of the District of Columbia
202. Nebraska U.S. Circuit for the District of Nebraska
203. Colorado U.S. Circuit for the District of Colorado
204. Washington U.S. Circuit for (all) District(s) of Washington
205. Idaho U.S. Circuit Court for (all) District(s) of Idaho
206. Montana U.S. Circuit Court for (all) District(s) of Montana
207. Utah U.S. Circuit Court for (all) District(s) of Utah
208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota
209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota
210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma
211. Court of Private Land Claims
212. United States Supreme Court
Answer:
|
sc_lcdispositiondirection
|
B
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine whether the decision of the court whose decision the Supreme Court reviewed was itself liberal or conservative. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. The lower court's decision direction is unspecifiable if the manner in which the Supreme Court took jurisdiction is original or certification; or if the direction of the Supreme Court's decision is unspecifiable and the main issue pertains to private law or interstate relations
SOUTH PRAIRIE CONSTRUCTION CO. v. LOCAL NO. 627, INTERNATIONAL UNION OF OPERATING ENGINEERS, AFL-CIO, et al.
No. 75-1097.
Decided May 24, 1976
Together with No. 75-1243, National Labor Relations Board v. Local No. 627, International Union of Operating Engineers, AFL-CIO, et al., also on petition for writ of certiorari to the same court.
Per Curiam.
Respondent Union filed a complaint in 1972 with the National Labor Relations Board alleging that South Prairie Construction Co. (South Prairie) and Peter Kiewit Sons’ Co. (Kiewit) had violated §§ 8 (a)(5) and (1) of the National Labor Relations Act, as amended, 61 Stat. 140, 29 U. S. C. §§ 158 (a)(5) and (1), by their continuing refusal to apply to South Prairie’s employees the collective-bargaining agreement in effect between the Union and Kiewit. The Union first asserted that since South Prairie and Kiewit are wholly owned subsidiaries of Peter Kiewit Sons’, Inc. (PKS), and engage in highway construction in Oklahoma, they constituted a single “employer” within the Act for purposes of applying the Union-Kiewit agreement. That being the case, the Union contended, South Prairie was obligated to recognize the Union as the representative of a bargaining unit drawn to include South Prairie’s employees. Disagreeing with the Administrative Law Judge on the first part of the Union’s claim, the Board concluded that South Prairie and Kiewit were in fact separate employers, and dismissed the complaint.
On the Union’s petition for review, the Court of Appeals for the District of Columbia Circuit canvassed the facts of record. It discussed, inter alia, the manner in which Kiewit, South Prairie, and PKS functioned as entities; PKS’ decision to activate South Prairie, its nonunion subsidiary, in a State where historically Kiewit had been the only union highway contractor among the latter’s Oklahoma competitors; and the two firms’ competitive bidding patterns on Oklahoma highway jobs after South Prairie was activated in 1972 to do business there.
Stating that it was applying the criteria recognized by this Court in Radio Union v. Broadcast Service, 380 U. S. 255 (1965), the Court of Appeals disagreed with the Board and decided that on the facts presented Kiewit and South Prairie were a single “employer.” It reasoned that in addition to the “presence of a very substantial qualitative degree of centralized control of labor relations,” the facts “evidence a substantial qualitative degree of interrelation of operations and common management — one that we are satisfied would not be found in the arm’s length relationship existing among uninte-grated companies.” 171 U. S. App. D. C. 102, 108, 109, 518 F. 2d 1040, 1046, 1047 (1975). The Board’s finding to the contrary was, therefore, in the view of the Court of Appeals “not warranted by the record.” Id., at 109, 518 F. 2d, at 1047.
Having set aside this portion of the Board’s determination, however, the Court of Appeals went on to reach and decide the second question presented by the Union’s complaint which had not been passed upon by the Board. The court decided that the employees of Kiewit and South Prairie constituted the appropriate unit under § 9 of the Act for purposes of collective bargaining. On the basis of this conclusion, it decided that these firms had committed an unfair labor practice by refusing “to recognize Local 627 as the bargaining representative of South Prairie’s employees or to extend the terms of the Union’s agreement with Kiewit to South Prairie’s employees.” Id., at 112, 518 F. 2d, at 1050. The case was remanded to the Board for “issuance and enforcement of an appropriate order against . . . Kiewit and South Prairie.” Ibid.
Petitioners South Prairie and the Board in their petitions here contest the action of the Court of Appeals in setting aside the Board’s determination on the “employer” question. But their principal contention is that the Court of Appeals invaded the statutory province of the Board when it proceeded to decide the § 9 “unit” question in the first instance, instead of remanding the case to the Board so that it could make the initial determination. While we refrain from disturbing the holding of the Court of Appeals that Kiewit and South Prairie are an “employer,” see NLRB v. Pittsburgh S. S. Co., 340 U. S. 498 (1951), we agree with petitioners’ principal contention.
The Court of Appeals was evidently of the view that since the Board dismissed the complaint it had necessarily decided that the employees of Kiewit and South Prairie would not constitute an appropriate bargaining unit under § 9. But while the Board’s opinion referred to its cases in this area and included a finding that “the employees of each constitute a separate bargaining unit,” 206 N. L. R. B. 562, 563 (1973), its brief discussion was set in the context of what it obviously considered was the dispositive issue, namely, whether the two firms were separate employers. We think a fair reading of its decision discloses that it did not address the “unit” question on the basis of any assumption, arguendo, that it might have been wrong on the threshold “employer” issue.
Section 9 (b) of the Act, 29 U. S. C. § 159 (b), directs the Board to
“decide in each case whether, in order to assure to employees the fullest freedom in exercising the rights guaranteed by this Act, the unit appropriate for the purposes of collective bargaining shall be the employer unit, craft unit, plant unit, or subdivision thereof . . .
The Board's cases hold that especially in the construction industry a determination that two affiliated firms constitute a single employer “does not necessarily establish that an employerwide unit is appropriate, as the factors which are relevant in identifying the breadth of an employer’s operation are not conclusively determinative of the scope of an appropriate unit.” Central New Mexico Chapter, National Electrical Contractors Assn., Inc., 152 N. L. R. B. 1604, 1608 (1965). See also B & B Industries, Inc., 162 N. L. R. B. 832 (1967). Cf. Gerace Constr., Inc., 193 N. L. R. B. 645 (1971).
The Court of Appeals reasoned that the Board’s principal case on the “unit” question, Central New Mexico Chapter, supra, was distinguishable because there the two affiliated construction firms were engaged in different types of contracting. It thought that this fact was critical to the Board’s conclusion in that case that the employees did not have the same “community of interest” for purposes of identifying an appropriate bargaining unit. Whether or not the Court of Appeals was correct in this reasoning, we think that for it to take upon itself the initial determination of this issue was “incompatible with the orderly function of the process of judicial review.” NLRB v. Metropolitan Ins. Co., 380 U. S. 438, 444 (1965). Since the selection of an appropriate bargaining unit lies largely within the discretion of the Board, whose decision, “if not final, is rarely to be disturbed,” Packard Motor Co. v. NLRB, 330 U. S. 485, 491 (1947), we think the function of the Court of Appeals ended when the Board’s error on the “employer” issue was “laid bare.” FPC v. Idaho Power Co., 344 U. S. 17, 20 (1952).
As this Court stated in NLRB v. Food Store Employees, 417 U. S. 1, 9 (1974):
“It is a guiding principle of administrative law, long recognized by this Court, that 'an administrative determination in which is imbedded a legal question open to judicial review does not impliedly foreclose the administrative agency, after its error has been corrected, from enforcing the legislative policy committed to its charge.' FCC v. Pottsville Broadcasting Co., 309 U. S. 134, 145 (1940).”
In foreclosing the Board from the opportunity to determine the appropriate bargaining unit under § 9, the Court of Appeals did not give “due observance [to] the distribution of authority made by Congress as between its power to regulate commerce and the reviewing power which it has conferred upon the courts under Article III of the Constitution.” FCC v. Pottsville Broadcasting Co., 309 U. S. 134, 141 (1940).
The petitions for certiorari are accordingly granted, and that part of the judgment of the Court of Appeals which set aside the determination of the Board on the question of whether Kiewit and South Prairie were a single employer is affirmed. That part of the judgment which held that the two firms’ employees constituted the appropriate bargaining unit for purposes of the Act, and which directed the Board to issue an enforcement order, is vacated, and the case is remanded to the Court of Appeals for proceedings consistent with this opinion.
It is so ordered.
The relevant portions of the Act, §§ 8 and 9, 29 U. S. C. §§ 158 and 159, provide in part:
“Sec. 8 (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 7;
“(5) to refuse to bargain collectively with the representatives of his employees, subject to the provisions of section 9 (a).
“Sec. 9 (a) Representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the employees in such unit....
“(b) The Board shall decide in each case whether, in order to assure to employees the fullest freedom in exercising the rights guaranteed by this Act, the unit appropriate for the purposes of collective bargaining shall be the employer unit, craft unit, plant unit, or subdivision thereof . . . .”
On the facts of this ease, the Union first had to establish that Kiewit and South Prairie were a single “employer.” If it succeeded, the existence of a violation under § 8 (a) (5) would then turn on whether under § 9 the “employer unit” was the “appropriate” one for collective-bargaining purposes.
We need not for present purposes set out the facts as Summarized at length in the Court of Appeals’ opinion. See 171 U. S. App. D. C. 102, 104r-107, 518 F. 2d 1040, 1042-1045 (1975).
“[I]n determining the relevant employer, the Board considers several nominally separate business entities to be a single employer where they comprise an integrated enterprise, N. L. R. B. Twenty-first Arm. Rep. 14r-15 (1956). The controlling criteria, Set out and elaborated in Board decisions, are interrelation of operations, common management, centralized control of labor relations and common ownership.” 380 U. S., at 256.
See n. 1, supra.
“Were we called upon to pass on the Board's conclusions in the first instance or to make an independent' review of the review by the Court of Appeals, we might well support the Board’s conclusion and reject that of the court below. But Congress has charged the Courts of Appeals and not this Court with the normal and primary responsibility for granting or denying enforcement of Labor Board orders.” 340 U. S., at 502.
The Administrative Law Judge’s decision in favor of the Union included a conclusion that the pertinent employees of Kiewit and South Prairie constituted an appropriate unit under § 9 (b). But that conclusion was, of course, preceded by the determination that the two firms were a single employer. In disagreeing on the “employer” issue, the Board was not compelled to reach the § 9 (b) question in order to dismiss the complaint.
Compare Radio Union v. Broadcast Service, 380 U. S. 255 (1965), with Packard Motor Co. v. NLRB, 330 U. S. 485, 491-492 (1947).
Question: What is the ideological direction of the decision reviewed by the Supreme Court?
A. Conservative
B. Liberal
C. Unspecifiable
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.
NEW MEXICO v. EARNEST
No. 85-162.
Argued April 1, 1986
Decided June 27, 1986
Paul Bardacke, Attorney General of New Mexico, argued the cause for petitioner. With him on the briefs was William McEuen, Assistant Attorney General.
J. Thomas Sullivan argued the cause for respondent. With him on the brief was Gary C. Mitchell.
A brief of amici curiae urging reversal was filed for the State of Indiana et al. by Linley E. Pearson, Attorney General of Indiana, William E. Daily and Lisa M. Paunicka, Deputy Attorneys General, Robert K. Corbin, Attorney General of Arizona, John J. Kelly, Chief State’s Attorney of Connecticut, Charles M. Oberly, Attorney General of Delaware, Richard Opper, Attorney General of Guam, Corinne K. A. Watanabe, Attorney General of Hawaii, Jim Jones, Attorney General of Idaho, Neil F. Hartigan, Attorney General of Illinois, William J. Guste, Jr., Attorney General of Louisiana, Mike Greely, Attorney General of Montana, Irwin I. Kimmelman, Attorney General of New Jersey, Anthony Celebrezze, Attorney General of Ohio, Michael Turpén, Attorney General of Oklahoma, Travis Medlock, Attorney General of South Carolina, W. J. Michael Cody, Attorney General of Tennessee, Jim Mattox, Attorney General of Texas, David L. Wilkinson, Attorney General of Utah, Jeffrey Amestoy, Attorney General of Vermont, William G. Broaddus, Attorney General of Virginia, Bronson C. La Follette, Attorney General of Wisconsin, and Archie G. McClintock, Attorney General of Wyoming.
Briefs of amici curiae urging affirmance were filed for the New Mexico Public Defender Department by David Stafford and Susan Gibbs; and for the American Civil Liberties Union et al. by Burt Neubome and Charles S. Sims. .
Per Curiam.
We vacate the judgment of the Supreme Court of New Mexico and remand for further proceedings not inconsistent with the opinion in Lee v. Illinois, 476 U. S. 530 (1986).
It is so ordered.
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_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".
BETHLEHEM SHIPBUILDING CORPORATION, Limited, et al. v. MONAHAN, Deputy Com’r., et al.
No. 2739.
Circuit Court of Appeals, First Circuit.
Dec. 17, 1932.
La Rue Brown, of Boston, Mass. (Elias Eield, Richard H. Field, and Brown, Field & McCarthy, all of Boston, Mass., on the brief), for appellants.
Raymond F. Barrett, of Boston, Mass. (William J. Holbrook, of .Boston, Mass., on the brief), for appellee Leon E. Simpson.
Before BINGHAM, WILSON, and MORTON, Circuit Judges. ,
BINGHAM, Circuit Judge.
This is a suit-to enjoin the enforcement of a compensation order made under the Longshoremen’s and Harbor Workers’ Compensation Act (33 IT. S. C. § 901 et seq, [33 USCA § 901 et seq.]). In the District Court the plaintiffs contended that the entire award of the Deputy Commissioner was not in accordance with law, in that (1) there was no evidence before him to justify his finding that the employer neglected to furnish medical1 treatment to its employee, Simpson; and (2) that the general finding of the Commissioner that the employer neglected to furnish medical treatment was inconsistent with his specific findings.
.The District Court found and ruled that the compensation order was in accordance with law in so far as it awarded Simpson compensation for medical services of Dr. Ryan, the services furnished at the Weymouth Hospital, and the services of the nurse, Mrs. Campbell, but was not to the extent that it required the plaintiffs'to pay for the surgical services of Dr. Brown, and enjoined the enforcement of the order in fhe latter respect only. It is from this decree in so far as 'it upheld the order of the Commissioner that this appeal is taken.
The question presented relates to the liability of the plaintiffs under section 7(a) of the act, 33 U. S. C. § 907 (a), 33 TTS.CA § 907(a), for the services in question.
The facts as found by the Commissioner-are: - That on March 14, 1931, Simpson, while employed by the shipbuilding corporation, received an occupational injury to the thumb on his left hand necessitating amputation of a portion of it; that the plaintiffs furnished medical treatment by Drs. McCausland and Burke until April 11, 1931; that on that day, Saturday, at about 2 o’clock p. m., Simpson went to Dr. McCausland for treatment, complaining of severe pain in the left arm; that Dr; McCausland examined mm and found red streaks extending up the arm, which condition he diagnosed as lymphangitis ; that he applied hot bandages and directed the patient to go home and put hot dressings on the thumb every two hours; that Dr. McCausland then told Simpson he would be absent from home until the following Monday and advised that, if the treatment did not give relief, to get in touch with Dr. Burke or Dr. Jones, the plant physicians for the employer; that Simpson follow-, ed the instructions, but did not obtain any relief and about 8 o’clock on the same day he went for advice to the home of Dr. Mitchell, first-aid man at the plant of the employer; that Mitchell declined to treat him, but told him to follow the directions of Dr. McCausland, and, if he did not get relief, to get in touch with Dr. Burke or Dr. J ones; that later that evening, the pain became more intense, the red streaks wider, and swelling developed in the left auxilliary glands; that thereupon an effort was made in Simpson’s behalf to secure the services of Dr. Burke and Dr. Jones, but without success in either ease; that an emergency existed; that immediate medical attention was necessary to prevent the spread of the infection in Simpson’s left arm and his possible death; and that the employer neglected to furnish such medical attention; that in this situation Dr. Ryan, Simpson’s own physician, was called at about 11 p. m. that night to attend him; that'when Dr. Ryan arrived Simpson was in a serious condition, suffering from blood poisoning, and was ordered immediately to the Weymouth Hospital, where he remained from April 11 to April 26, 1931; that Dr. Ryan found it necessary to consult Dr. Brown, a surgeon; that on April 16, 1931, Dr. Brown saw Simpson at the Weymouth .Hospital, found a septic condition, and removed several crusts over the thumb of the left hand and also removed an embedded suture. Also that the services of Dr. Ryan, Dr. Brown, the facilities at the Weymouth Hospital, and the services of the nurse were necessary; that these doctors furnished the employer and the Deputy Commissioner a proper report within twenty days following the first treatment; and that the bills of the doctors, the hospital, and the nurse were reasonable.
The evidence before the Commissioner discloses that the plaintiff knew of Simpson’s injury; that they had been requested to furnish medical and surgical assistance, and that they had furnished it down to the afternoon of April 11; that then Dr. McCausland, the physician and surgeon in charge, went away without arranging with Dr. Burke or Dr, Jones to 'attend the patient, and at a time when he had reason to believe that the patient was liable to need' their attention, but left it upon Simpson to get in touch with Dr. Burke or Dr. Jones; and that soon there.after, on that day, his condition became critical, requiring immediate attention. The claimant’s evidence shows that while he was in this critical condition, suffering pain, his wife sent her brother to a nearby grocery store to call one of these doctors over the telephone, but that neither one was at home and it was unknown when they would return home or where they were; that in this extremity Dr. Ryan was called at about 11 p. m., and on his arrival, the claimant being in a serious condition, suffering from blood poisoning, the doctor ordered him taken to the hospital. In this situation it cannot reasonably be said that there was no evidence from which it could be found that the plaintiffs had neglected to provide the necessary medical treatment and care for the claimant. Moreover, it appears that when the plaintiffs, on April 14, objected to the employment of Dr. Brown and endeavored to have Dr. Ryan select a doctor froni one of three that they named to perform the necessary surgical operation, they raised no objection to the services rendered or reasonably necessary to be rendered by Dr. Ryan or the nurse or to the facilities afforded by the hospital, but recognizing their failure, impliedly assented thereto. The evidence not only warrants a finding that the plaintiffs had neglected to provide necessary medical attention and care, but, having done so, they assented to the rendition of services by Dr. Ryan, the use of the hospital, and the services of the nurse.
The general finding of the Commissioner —that the employer neglected to furnish medical treatment—is not inconsistent with his special findings or they with it.
The decree of the District Court is affirmed, with costs to the appellee Leon E. Simpson.
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:
|
sc_petitioner
|
193
|
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.
BLOCK, SECRETARY OF AGRICULTURE, et al. v. NEAL
No. 81-1494.
Argued January 19, 1983
Decided March 7, 1983
Marshall, J., delivered the opinion of the Court, in which Brennan, White, Blackmun, Powell, Rehnquist, Stevens, and O’Connor, JJ., joined. Burger, C. J., concurred in the judgment.
Carter G. Phillips argued the cause for petitioners. With him on the briefs were Solicitor General Lee, Assistant Attorney General McGrath, Deputy Solicitor General Getter, Anthony J. Steinmeyer, and Margaret E. Clark.
Lenny L. Croce argued the cause for respondent. With him on the brief were Neil G. McBride and Dean Hitt Rivkin
David M. Madway filed a brief for the National Housing Law Project as amicus curiae urging affirmance.
Jan Perkins filed a brief for Oregon Legal Services Corp. as amicus curiae.
Justice Marshall
delivered the opinion of the Court.
The Secretary of Agriculture is authorized by Title V of the Housing Act of 1949, 63 Stat. 432, as amended, 42 U. S. C. §1471 et seq. (1976 ed., and Supp. V), to extend financial and technical assistance through the Farmers Home Administation (FmHA) to low-income rural residents who seek to obtain housing. Respondent Onilea Neal, the recipient of an FmHA loan for the construction of a prefabricated house, brought this action under the Federal Tort Claims Act, 28 U. S. C. §§ 1346(b), 2671-2680. She alleged that defects discovered after she set up residence were partly attributable to the failure of FmHA employees properly to inspect and supervise construction of her house. This case presents the question whether respondent’s action is barred by 28 U. S. C. § 2680(h), which precludes recovery under the Tort Claims Act for “[a]ny claim arising out of . . . misrepresentation. ”
I
A
The facts described in respondent’s complaint may be summarized as follows. Unable to obtain credit from other sources, Neal applied for a Rural Housing Loan from FmHA pursuant to § 502(a) of the Housing Act of 1949, 42 U. S. C. § 1472(a). FmHA approved her application in June 1977. During the summer of that year, Neal received advice from S. Lain Parkison, the FmHA Supervisor for Roane County, Tenn.
On August 8, 1977, Neal contracted with Home Marketing Associates, Inc. (Home Marketing), for the construction of a prefabricated house. The contract required that Home Marketing’s work conform to plans approved by FmHA. It also granted FmHA the right to inspect and test all materials and workmanship and reject any that were defective. At the same time, Neal entered into a deed of trust with FmHA and signed a promissory note providing for repayment of the principal sum of $21,170, plus interest of 8% per annum on the unpaid principal.
Home Marketing commenced work on Neal’s house in August 1977 and finished the following month. An FmHA official, Mary Wells, inspected the site on three occasions: soon after construction began, shortly before it was concluded, and after the house was completed. Her inspection reports contained no adverse comments on the construction work. After her third inspection, Wells issued a final report, signed by Neal, which indicated that the construction accorded with the drawings and specifications approved by FmHA. Home Marketing issued a one-year builder’s warranty covering workmanship, materials, and equipment.
Neal moved into the house in 1977. During the winter, she discovered that the heat pump in the house was not working properly. She notified FmHA and Home Marketing. An inspection by Parkison, the County FmHA Supervisor, revealed that the heat pump unit was either defective or undersized. On March 22, 1978, FmHA’s State Director and other FmHA officials conducted a complete inspection and identified 13 additional defects in the construction of the house. These included deviations from plans approved by FmHA and from applicable Minimum Property Standards. The inadequacies in materials and workmanship included defects in caulking, bridging, sealing, and plumbing, and extended to all areas of the house, such as the porch, the rear door, the floor, the roof, the exterior paint, and the interior wall finish. Home Marketing refused to comply with FmHA’s request to cure these defects in accordance with the builder’s warranty.
In November 1978 respondent asked FmHA to pay for the correction of the heating system and other structural defects. It declined to do so.
B
The United States District Court for the Eastern District of Tennessee dismissed Neal’s complaint for failure to state a claim on which relief can be granted. Neal v. Bergland, 489 F. Supp. 512 (1980). It found that no contractual duty to supervise the construction of respondent’s home was created either by the Federal Housing Act of 1949 and the regulations promulgated thereunder or by the various agreements between respondent and FmHA. The court concluded that regulations requiring FmHA officials to ensure that the builder adhere to the terms of its construction contract were intended solely to protect the Government’s security interest, and were not intended to make FmHA warrant the quality of construction for the benefit of those receiving rural assistance loans. Id., at 514-515. The District Court also concluded that respondent failed to state a claim against FmHA under applicable tort law. Id., at 515.
The Court of Appeals reversed. Neal v. Bergland, 646 F. 2d 1178 (CA6 1981). It agreed with the District Court that FmHA had no contractual obligation to provide Neal with technical assistance or to inspect and supervise construction of her house. Id., at 1181. However, the Court of Appeals found that respondent’s complaint stated a claim for negligence under the principle “that one who undertakes to act, even though gratuitously, is required to act carefully and with the exercise of due care and will be liable for injuries proximately caused by failure to use such care.” Id., at 1181-1182, citing Restatement (Second) of Torts §323 (1965). It noted that, subject to express exceptions, the Tort Claims Act, 28 U. S. C. §2674, authorizes suit against the Government for the negligence of a federal agency in performing a voluntary undertaking. Ibid.
The Court of Appeals then considered the question now before us: whether respondent’s claim “aris[es] out of. . . misrepresentation,” 28 U. S. C. § 2680(h), and is therefore ex-eluded from coverage by the Tort Claims Act. Distinguishing this case from others including United States v. Neustadt, 366 U. S. 696 (1961), the court concluded that respondent’s negligence claim did not fall within this exception to the waiver of sovereign immunity. The Secretary of Agriculture and other Government officials petitioned for certiorari and suggested summary reversal on the ground that the decision below cannot be reconciled with this Court’s decision in Neustadt. We granted the writ, 456 U. S. 988 (1982), and we now affirm.
II
The question before us is a narrow one. Petitioners argue only that respondent’s claim is a claim of “misrepresentation” within the meaning of § 2680(h). They do not seek review of the threshold determination that respondent’s complaint states a claim for negligence under the Good Samaritan doctrine that is otherwise actionable under 28 U. S. C. §2674. Thus, we need not decide precisely what Neal must prove in order to prevail on her negligence claim, nor even whether such a claim lies. Nor are we called on to consider whether recovery is barred by any other provision of the Tort Claims Act, including the exception for any action “based upon the exercise or performance or the failure to exercise or perform a discretionary function.” §2680(a). Finally, we are not asked to determine whether the administrative remedy created by the Housing Act of 1949, 42 U. S. C. § 1479(c) (1976 ed., Supp. V), provides the exclusive remedy against the Government for damages attributable to the negligence of FmHA officials.
The scope of the “misrepresentation” exception to the Tort Claims Act was the focus of this Court’s decision in United States v. Neustadt, supra. Neustadt purchased a house in reliance on an appraisal undertaken by the Federal Housing Administration (FHA) for mortgage insurance purposes. After he took up residence, cracks appeared in the ceilings and walls of his house. The cracks were caused by structural defects that had not been noticed by the FHA appraiser during the course of his inspection. Neustadt sued the Government under the Tort Claims Act to recover the difference between the fair market value of the property and the purchase price. He alleged that the FHA had negligently inspected and appraised the property, and that he had justifiably relied on the appraisal in paying a higher price for the house than he would otherwise have paid.
This Court held that the claim in Neustadt arose out of “misrepresentation” under § 2680(h). We determined initially that § 2680(h) applies to claims arising out of negligent, as well as intentional, misrepresentation. 366 U. S., at 703-706. This Court found that Neustadt’s claim that the Government had breached its “duty to use due care in obtaining and communicating information upon which [the plaintiff] may reasonably be expected to rely in the conduct of his economic affairs,” merely restated the traditional legal definition of “negligent misrepresentation” as would have been understood by Congress when the Tort Claims Act was enacted. Id., at 706-707. Finally, we examined the National Housing Act of 1934, as amended, under which the FHA had conducted its appraisal, and found nothing to indicate “that Congress intended, in a case such as this, to limit or suspend the application of the ‘misrepresentation’ exception of the Tort Claims Act.” Id., at 708-710.
We cannot agree with petitioners that this case is controlled by Neustadt. As we recognized in that decision, the essence of an action for misrepresentation, whether negligent or intentional, is the communication of misinformation on which the recipient relies. The gravamen of the action against the Government in Neustadt was that the plaintiff was misled by a “Statement of FHA Appraisal” prepared by the Government. Neustadt alleged no injury that he would have suffered independently of his reliance on the erroneous appraisal. Because the alleged conduct that was the basis of his negligence claim was in essence a negligent misrepresentation, Neustadt’s action was barred under the “misrepresentation” exception.
Section 2680(h) thus relieves the Government of tort liability for pecuniary injuries which are wholly attributable to reliance on the Government’s negligent misstatements. As a result, the statutory exception undoubtedly preserves sovereign immunity with respect to a broad range of Government actions. But it does not bar negligence actions which focus not on the Government’s failure to use due care in communicating information, but rather on the Government’s breach of a different duty.
In this case, unlike Neustadt, the Government’s misstatements are not essential to plaintiff’s negligence claim. The Court of Appeals found that to prevail under the Good Samaritan doctrine, Neal must show that FmHA officials voluntarily undertook to supervise construction of her house; that the officials failed to use due care in carrying out their supervisory activity; and that she suffered some pecuniary injury proximately caused by FmHA’s failure to use due care. FmHA’s duty to use due care to ensure that the builder adhere to previously approved plans and cure all defects before completing construction is distinct from any duty to use due care in communicating information to respondent. And it certainly does not “appea[r] beyond doubt” that the only damages alleged in the complaint to be caused by FmHA’s conduct were those attributable to Neal’s reliance on FmHA inspection reports. Conley v. Gibson, 355 U. S. 41, 45-46 (1957). Neal’s factual allegations would be consistent with proof at trial that Home Marketing would never have turned the house over to Neal in its defective condition if FmHA officials had pointed out defects to the builder while construction was still underway, rejected defective materials and workmanship, or withheld final payment until the builder corrected all defects.
Of course, in the absence of the “misrepresentation” exception to the Tort Claims Act, respondent could also have brought a claim for negligent misrepresentation to recover for any injury caused by her misplaced reliance on advice provided by FmHA officials and on the FmHA inspection reports. Common to both the misrepresentation and the negligence claim would be certain factual and legal questions, such as whether FmHA officials used due care in inspecting Neal’s home while it was under construction. But the partial overlap between these two tort actions does not support the conclusion that if one is excepted under the Tort Claims Act, the other must be as well. Neither the language nor history of the Act suggests that when one aspect of the Government’s conduct is not actionable under the “misrepresentation” exception, a claimant is barred from pursuing a distinct claim arising out of other aspects of the Government’s conduct. “ ‘The exemption of the sovereign from suit involves hardship enough where consent has been withheld. We are not to add to its rigor by refinement of construction where consent has been announced.’” United States v. Aetna Surety Co., 338 U. S. 366, 383 (1949), quoting Anderson v. Hayes Constr. Co., 243 N. Y. 140, 147, 153 N. E. 28, 29-30 (1926) (Cardozo, J.). Any other interpretation would encourage the Government to shield itself completely from tort liability by adding misrepresentations to whatever otherwise actionable torts it commits.
We therefore hold that respondent’s claim against the Government for negligence by FmHA officials in supervising construction of her house does not “aris[e] out of . . . misrepresentation” within the meaning of 28 U. S. C. § 2680(h). The Court of Appeals properly concluded that Neal’s claim is not barred by this provision of the Tort Claims Act because Neal does not seek to recover on the basis of misstatements made by FmHA officials. Although FmHA in this case may have undertaken both to supervise construction of Neal’s house and to provide Neal information regarding the progress of construction, Neal’s action is based solely on the former conduct. Accordingly, the judgment of the Court of Appeals is
Affirmed.
The Chief Justice concurs in the judgment.
Regulations then in effect allowed the recipient of an FmHA loan under § 502 of the Housing Act of 1949, 42 U. S. C. § 1472, to obtain new housing in one of three ways. The method undertaken by respondent, known as the “contract method” of financing new construction, involved the performance of work by a builder in accordance with a signed contract approved by FmHA. See 7 CFR § 1804.4(d) (1977). Although the FmHA “will not become a party to a construction contract nor incur any liability thereunder,” ibid., its officials were significantly involved in all phases of the construction of respondent’s house. For example, the FmHA County Supervisor was authorized to assist the borrower in selecting a contractor based on the bids or proposals and the contractor’s qualifications. § 1804.4(d)(6). He reviewed all plans and specifications, § 1804.4(a), and was required to give prior approval of any changes in the plans, § 1804.4(d), or in the contract. § 1804.4(d)(8). He was responsible for making periodic and final inspections. § 1804.4(d)(6)(i)(/). See also §§ 1808.2, 1803.5, 1804.4(g). He also had a responsibility to see that partial payments made to the contractor were properly applied against his bills for material and labor, § 1804.4(d)(7)(iv), and to determine that work was performed in compliance with all the terms and conditions of the contract before making final payment. § 1804.4(d)(7)(vii). Finally, he assisted the borrower with respect to claims arising under the builder’s warranty. § 1804.4(g)(5).
The court cited, inter alia, Indian Towing Co. v. United States, 350 U. S. 61 (1955) (Coast Guard’s failure to maintain the beacon light in a lighthouse); Seaboard Coast Line R. Co. v. United States, 473 F. 2d 714 (CA5 1973) (negligent design and construction of a drainage ditch); and Barron v. United States, 473 F. Supp. 1077 (Haw. 1979) (failure to require a subcontractor to comply with a contract’s safety requirements).
The Court of Appeals found that respondent stated a claim against the United States under the common-law Good Samaritan doctrine which is described in § 823 of the Restatement (Second) of Torts (1965). However, the court did not expressly find that Tennessee law recognizes this doctrine, see 28 U. S. C. § 1346(b), and would apply it to a private person responsible for similar negligence. See 28 U. S. C. § 2674; Rayonier, Inc. v. United States, 352 U. S. 315, 319 (1957); Indian Towing Co. v. United States, supra. Nor did the court describe in any significant detail what respondent must show in order to prevail on her negligence claim.
Compare, e. g., Johansen v. United States, 343 U. S. 427 (1952) (Federal Employees’ Compensation Act provides exclusive remedy for civilian employees), with United States v. Muniz, 374 U. S. 150, 160 (1963) (provision allowing compensation of certain prison inmates for work-related injuries was not exclusive remedy for inmate), and United States v. Brown, 348 U. S. 110, 111 (1954) (receipt of disability payments under the Veterans Act does not bar recovery under the Tort Claims Act).
Petitioners do argue at length, however, that neither the Housing Act of 1949 nor subsequent amendments were intended to expand liability beyond that established under the Tort Claims. Act. Brief for Petitioners 22-32. Because we find that respondent’s claim under the Good Samaritan doctrine is not barred by the “misrepresentation” exception to the Tort Claims Act, we do not consider whether the Housing Act provides an alternative basis for respondent’s claim.
The Court distinguished negligent misrepresentation from the “many familiar forms of negligent misconduct [which] may be said to involve an element of ‘misrepresentation,’ [only] in the generic sense of that word.” 366 U. S., at 711, n. 26. The “misrepresentation” exception applies only when the action itself falls within the commonly understood definition of a misrepresentation claim, which “ ‘has been identified with the common law action of deceit,’ and has been confined ‘very largely to the invasion of interests of a financial or commercial character, in the course of business dealings.’” Ibid,.,
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_counsel2
|
E
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
UNITED STATES of America v. Louis B. ADERMAN.
No. 11211.
United States Court of Appeals Seventh Circuit.
Nov. 5, 1954.
Louis B. Aderman, Milwaukee, Wis., for appellant.
Ellis J. Hughes, Asst. U. S. Atty., Milwaukee, Wis., for appellee.
Before MAJOR, LINDLEY, and SWAIM, Circuit Judges.
MAJOR, Circuit Judge.
This appeal is from a denial by the United States District Court for the Eastern District of Wisconsin of defendant’s motion, brought in the nature of a writ of error comm nobis, to void a judgment of conviction and sentence entered in the same court. The propriety of the action is sought to be sustained on authority of United States v. Morgan, 346 U.S. 502, 74 S.Ct. 247, which held that under certain circumstances, the validity of a conviction and sentence may be tested, in the court where entered, by a motion such as was made by the defendant in the instant matter.
Defendant was convicted in a trial by the court without a jury on a two-count indictment, the former charging a violation of Sec. 88, Title 18 U.S.C. (1946 ed.), and the latter of Sec. 80 of the same Title. Upon appeal to this court, the judgment was affirmed. United States v. Aderman, 7 Cir., 191 F.2d 980. The charges made in each count of the indictment are set forth in that opinion at page 982. As to the proof relied upon to sustain the judgment, this court stated at page 982:
“While the record in this case discloses considerable controversy over many of the details of the transaction here involved, there appears to be no dispute as to the essential facts, and the only question so far as the evidence is concerned ia whether it supports the court’s finding of guilt.”
We then set forth in considerable detail a statement of the evidence (commencing on page 982), reference to which is made in order to avoid repetition. We held that the facts disclosed supported the judgment.
Subsequent to denial of certiorari by the Supreme Court, 342 U.S. 927, 72 S.Ct. 366, 96 L.Ed. 691, defendant filed in the District Court a motion to reduce sentence, contending that the court had sentenced him under the wrong provisions of the statute, which contention was in part sustained. Thereafter, on February 18, 1953, defendant filed a motion for a new trial on the ground of newly discovered evidence under Rule 33 of the Federal Rules of Criminal Procedure, 18 U.S.C. The District Court denied this motion and, upon appeal, this court affirmed. United States v. Aderman, 7 Cir., 209 F.2d 777. In doing so, we stated at page 778:
“We have examined at considerable length the original record, including the documentary and parol evidence, * * * and are of the opinion that this evidence, * * * amply sustained denial of the motion for a directed verdict at the end of the government’s evidence. In addition, the evidence was strengthened later by the admissions of defendant, himself, upon the witness stand.”
Defendant contends that the judgment and conviction were void because of a denial of due process of law resulting from the failure of the prosecutor (an Assistant United States District Attorney) to inform the District Court that the substantive offense charged against defendant contained the specific elements, (1) that the defendant had knowledge that a false certificate was to be used, (2) that the defendant had knowledge that such certificate contained a fraudulent or fictitious statement or entry and (3) that the prosecutor ignored the essential element of knowledge but tried the case and obtained the conviction on the theory that the offenses were established by proof that the defendant caused the certificate to be used by a trick, scheme or device.
Defendant, in connection with his motion, submitted a transcript of the proceedings of the trial, containing 720 pages, for the purpose, so he asserts, of demonstrating that there was no proof of the essential element of knowledge relative to the issuance or use of the certificate. In connection therewith, defendant in his brief asserts:
“The transcript of proceedings of the trial itself proves that Mr. Hughes as prosecutor contended that the appellant [defendant] was guilty of the alleged substantive offense of causing a false certificate by a trick, scheme or device. In convincing the District Court that the appellant was guilty of the alleged substantive offense of causing a false certificate by a trick, scheme or device, Mr. Hughes ignored the rule that penal statutes must be strictly construed.”
As a result of this alleged erroneous position assumed by the prosecutor, defendant in his brief states:
“The presentation of an irrelevant mistaken issue by the prosecutor and the admission of evidence in support of that issue caused the appellant to have an unfair trial and thereby there was a violation of the due process clause of the Fifth Amendment to the United States Constitution.”
Concerning this asserted “mistaken issue,” defendant in his brief states:
“* * * neither the District Court nor the counsel for the appellant [defendant] questioned the issue as presented and argued by the prosecutor * * *. That it occurred to no one to doubt the prosecutor’s construction of the penal offense at issue is evident from the nature of appellant’s defense at the trial in- which he consistently maintained good-faith and complete lack of criminal intent.”
Defendant in his original trial and in both former appeals to this court was represented by eminent counsel Of his own Choosing. On the instant occasion he appeárs as attorney pro se. Defendant ignores the fact, at any rate no mention is made of it, that the transcript of the- Original proceedings which he now seeks to utilize in support of his motion has twice been reviewed by this court, resulting, in a decision in one case that the evidence was sufficient to support the judgment of conviction and, in the other, that it was sufficient to justify the trial court’s denial of a motion for a new trial. The.-present position of the defendant simmers down, to nothing more than that there was a variance between the proof and the. allegations of the indictment, occasioned by an alleged misinterpretation'of -the law by the prosecutor, which deceived the trial court , as well as defendants own, eminent .‘counsel. Consistency would, justify the assertion, which is not made, that this, court for the same reason has been deceived on two occasions.
No good purpose could be served in a detailed analysis of the reasoning in United States v. Morgan, 346 U.S. 502, 74 S.Ct. 247, upon which defendant relies. Whatever may be said or thought of that opinion, we think it is without application to the instant situation. There, it was held that the writ was employable . to test the validity of a judgment wherein the defendant alleged that af the time of his conviction he was 19 years of age,, without counsel, without knowledge of law and not advised as to his rights. In 'the course of its discussion, the court stated in 346 U.S. at page 511, 74 S.Ct. at page 252:
“Continuation of "litigation after final judgment and exhaustion or waiver of any statutory right of review should be allowed through this extraordinary remedy, only under circumstances compelling such action to achieve justice.”
It is a far cry 'from'the facts of‘the Morgan case to those relied upon here, wherein the defendant, hims.elf a lawyer, represented by able counsel, had the opportunity in the trial- court and twice in this court to raise, the issue now relied upon. A recognition of defendant’s contention would demolish the time-honored rule that in every law suit, the stage is reached where a judgment becomes final. If the defendant' today, is permitted to litigate the issue now sought to be injected, tomorrow he would be entitled to litigate some other issue, and there would be no end.
The order appealed from is
Affirmed.
. Now 18 U.S.C.A. § 371.
. Now 18 U.S.C.A. §§ 287, 1001.
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_casedisposition
|
B
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed. The information relevant to this variable may be found near the end of the summary that begins on the title page of each case, or preferably at the very end of the opinion of the Court. For cases in which the Court granted a motion to dismiss, consider "petition denied or appeal dismissed". There is "no disposition" if the Court denied a motion to dismiss.
RODRIGUEZ v. COMPASS SHIPPING CO., LTD., et al.
No. 79-1977.
Argued January 12, 1981
Decided May 18, 1981
Stevens, J., delivered the opinion for a unanimous Court.
Martin Lassoff argued the cause for petitioners. On the brief was Morris Cisner.
Joseph T. Stearns argued the cause and filed a brief for respondents Compass Shipping Co., Ltd., et al. Francis X. Byrn argued the cause and filed a brief for respondent Ove Skou, R. A.
Together with Perez v. Arya National Shipping Line, Ltd., and Barulec v. Ove Skou, R. A., also on certiorari to the same court (see this Court’s Rule 19.4).
Harry M. Philo, Arthur Both, C. Arthur Rutter, Jr., and John H. Klein filed a brief for the Association of Trial Lawyers of America as amicus curiae urging reversal.
Justice Stevens
delivered the opinion of the Court.
The question presented in these three cases is whether a longshoreman may prosecute a personal injury action against a negligent shipowner after his right to recover damages has been assigned to his employer by operation of § 33 (b) of the Longshoremen’s and Harbor Workers’ Compensation Act (Act), 33 U. S. C. § 901 et seq,
Each petitioner is a longshoreman who was injured aboard ship in the regular course of his employment. Each asserted a claim for compensation against the stevedore by whom he was employed. Each accepted compensation from his employer pursuant to an award in a compensation order. More than six months later, each commenced an action against the shipowner alleging that the defendant had negligently caused his injury. The District Courts granted motions for summary judgment filed by the respondent shipowners on the ground that, by reason of the longshoremen’s failure to bring suit within six months, their causes of action had been assigned to the stevedores who thereafter had the exclusive right to pursue the third-party claims. The Court of Appeals for the Second Circuit affirmed, 617 F. 2d 955 (1980); 622 F. 2d 572 and 575 (1980), and we granted certiorari to resolve the conflict with the contrary holding of the Court of Appeals for the Fourth Circuit in Caldwell v. Ogden Sea Transport, Inc., 618 F. 2d 1037 (1980). 449 U. S. 818.
There is no dispute about the parties’ respective interests in either (a) a claim asserted by a longshoreman against a shipowner within the 6-month period following acceptance of a compensation award, or (b) a claim asserted by the stevedore against the shipowner after the 6-month period has elapsed. In the former situation, the longshoreman has exclusive control of the action; any recovery in excess of the amount required to pay the cost of litigation and to reimburse the employer for the statutory compensation paid pursuant to the award belongs entirely to the longshoreman. In the latter situation, the stevedore has exclusive control of the litigation; any net recovery — after the compensation award and the litigation costs have been recouped — must be shared 80% by the longshoreman and 20% by the employer. The question presented by these cases is what right, if any, the longshoreman has against the third-party shipowner if he does not sue within the 6-month period and the employer fails to do so thereafter. Both the plain language of the statute and the history of its amendments dictate the same answer.
I
Even though the language of § 33 (b) is simple and direct, it is appropriate to begin by quoting our description last Term of the context in which it appears:
“The Act provides a comprehensive scheme governing an injured longshoreman’s rights against the stevedore and shipowner. The longshoreman is not required to make an election between the receipt of compensation and a damages action against a third person, 33 U. S. C. §933 (a). After receiving a compensation award from the stevedore, the longshoreman is given six months within which to bring suit against the third party. 33 U. S. C. § 933 (b). If he fails to seek relief within that period, the acceptance of the compensation award operates as an assignment to the stevedore of the longshoreman’s rights against the third party.” Bloomer v. Liberty Mutual Ins. Co., 445 U. S. 74, 77-78.
As is apparent, § 33 (b) plays a central role in this comprehensive legislative scheme.
The language of § 33 (b) is both mandatory and unequivocal. It provides that the acceptance of compensation under an award “shall operate as an assignment to the employer of all right of the person entitled to compensation to recover damages against such third person unless such person shall commence an action against such third person within six months after such award.” 33 U. S. C. § 933 (b) (emphasis supplied).
The only conditions precedent to the statutory assignment are the acceptance of compensation pursuant to an award in a compensation order and the passage of the required period of six months. These conditions are admittedly satisfied in these cases. The statutory assignment encompasses “all right” of the employee to recover damages from a third party. These words preclude the possibility that the assignment is only a partial one that does not entirely divest the employee of his right to sue, or that the employee and the employer possess concurrent rights to sue in the postassignment period. When the § 33 (b) assignment occurs, it transfers the employee’s entire right to commence a third-party action to the employer.
Application of this plain statutory language to the undisputed facts in these cases leads to the conclusion that petitioners may not pursue their claims for damages against the respondent shipowners. Petitioners filed these actions well beyond the 6-month period following acceptance of compensation, and offered no excuse for their delay. Although their employers failed to pursue the assigned claims, the statute does not expressly require that employers pursue third-party claims, nor does it provide for relief to employees should the assigned claims lie dormant. Therefore, petitioners appear to be without a cause of action under the statute.
In an attempt to avoid the conclusion mandated by its plain language, petitioners contend that the Act should be construed either to include an unexpressed condition precedent to any effective assignment — namely, the absence of any possible conflict of interest between the employer-stevedore and the employee — or to grant the employee an implicit right to have the third-party claim reassigned if the employer fails to sue. Normally, these contentions would be foreclosed by the lack of any ambiguity in the statutory language. But the statutory language was also unambiguous in 1956 when this Court held in Czaplicki v. The Hoegh Silvercloud, 351 U. S. 525, that § 33 (b) contained a limited exception. It therefore is appropriate to evaluate petitioners’ contentions in the light of the relevant legislative history. In making this evaluation, however, we adhere to the rule that, “[a]bsent a clearly expressed legislative intention to the contrary, [the statutory] language must ordinarily be regarded as conclusive.” Consumer Product Safety Comm’n v. GTE Sylvania, Inc., 447 U. S. 102, 108.
II
As originally enacted in 1927, the Act gave an injured longshoreman the right to elect between the certain recovery of compensation from his employer without any proof of fault, or the less certain, but probably more generous, remedy of an action for damages against a negligent third party. The employee’s election to accept compensation under the Act effected an immediate assignment to his employer of his cause of action for negligence. Under the original Act, the longshoreman could pursue either remedy but not both, and nothing more than the acceptance of compensation was required to evidence the employee’s election. See, e. g., Toomey v. Waterman S.S. Corp., 123 F. 2d 718, 721 (CA2 1941).
In 1938, Congress amended the Act to provide that the acceptance of compensation would operate as an assignment only if the payment was “under an award in a compensation order filed by the deputy commissioner.” This procedural change was designed to protect the employee from the harsh consequences of an improvident election. Although Congress thereby reduced the danger that an employee would make an election without being advised about its consequences, the 1938 amendment did nothing to mitigate those consequences once the election was made.
In 1956, this Court held that an injured longshoreman could enforce his right of action against a third party, notwithstanding his acceptance of compensation from his employer. Czaplicki v. The Hoegh Silver cloud, supra. In that case, both the employer and the third party allegedly responsible for the unseaworthy condition that had caused the employee’s injury were insured by the Travelers Insurance Co. Because the stevedore had no interest in recovering the compensation payments that had been made by its insurance carrier, and because that carrier would be responsible for both prosecuting and defending any third-party claim, no one other than the injured longshoreman had a sufficient interest in the claim to bring suit. Because of the conflict between the assignee’s interest and the interest of the employee, the Court construed the Act to allow the longshoreman to enforce the third-party claim in his own name. The Court did not hold that no assignment had occurred; rather, it held that under “the peculiar facts” of the case, the election and consequent assignment did not bar the employee’s action.
Two years after Czaplicki, in Johnson v. Sword Line, Inc., 257 F. 2d 541 (1958), the Court of Appeals for the Third Circuit held that a different sort of conflict of interest would also preserve the longshoreman’s right to sue a third party after accepting compensation from his employer. This Court had previously held, in Ryan Stevedoring Co. v. Pan-Atlantic S.S. Corp., 350 U. S. 124, that a shipowner who was hable to a longshoreman could assert a claim for indemnity against the employer-stevedore. That holding inevitably created a conflict .between the stevedore’s interest in recouping the compensation awarded to the longshoreman and its interest in avoiding the risk of a substantially larger liability as an in-demnitor. The Court of Appeals reasoned that the stevedore’s potential liability under the indemnity claim authorized by Ryan Stevedoring had the practical effect of enlarging the conflict-of-interest rationale of Czaplicki, which had narrowly rested on the peculiar facts of that case, to encompass substantially every case in which a stevedore failed to bring a third-party action. Accordingly, the court concluded that a conflict of interest could be presumed to exist whenever the statutory assignee failed to pursue or to reassign the assigned claim, unless that claim was obviously lacking in merit. See 257 F. 2d, at 544-546.
The impact of Ryan Stevedoring upon third-party claims assigned to employers by operation of § 33 (b) was brought to the attention of Congress as well. In 1956, a House Subcommittee conducted hearings on proposed legislation that ultimately evolved into the 1959 amendments to the Act. One of the bills considered by the Subcommittee was H. R. 5357, which provided, among other things, that an employee could commence a third-party suit within six months after accepting compensation, and that an employer who successfully pursued an assigned third-party claim was entitled to keep one-third of any net recovery. As explained by Congressman Zelenko, the bill’s author, these provisions were designed to mitigate the problems identified in Justice Black’s dissenting opinion in Ryan Stevedoring. Other witnesses appearing before the Subcommittee also expressed concern about the conflict-of-interest problem created by Ryan Stevedoring and endorsed H. R. 5357 as an effective solution to that problem.
In 1959, Congress acted to remedy the problems created by the potential conflict between the interests of the employer and the employee in prosecuting third-party claims. Its solution was not to create or to define an exception to the assignment by operation of law. Rather, Congress substantially adopted the central provisions of the Zelenko bill by amending § 33 (b) to postpone the assignment by operation of law until six months after the acceptance of compensation under an award, and by amending § 33 (e) to allow an employer to retain one-fifth of the net proceeds of its successful third-party action. The effect of the 6-month provision, of course, was to give the longshoreman an unqualified right to bring a third-party action during the 6-month period. If his financial circumstances made it imperative that he accept a prompt settlement of his compensation claim, he could do so without forfeiting his right to seek a more liberal recovery from a responsible third party. Moreover, by bringing his own action, the longshoreman could avoid the risk that his employer’s potential conflict of interest — or possibly erroneous evaluation of the merits of the claim — might result in its abandonment. The amendment to § 33 (e) provided an additional incentive to the employer to sue after assignment of the claim by giving him a share in any excess recovery.
Nothing in the 1959 amendments purports to preserve the employee’s right to commence a third-party suit after the 6-month period expires. Although the amendments encourage employers to pursue assigned claims, they do not qualify the assignee’s control of the cause of action after the assignment takes place. To the contrary, the legislative history indicates that once the 6-month period expires, the employer possesses complete control of third-party claims.
This history forecloses the argument that Congress did not intend an assignment of a third-party claim to be effective unless there was an absence of any potential conflict of interest between the assignee and the longshoreman. The statutory language provides a different and clearly defined solution to the conflict-of-interest problem that had been created by Ryan Stevedoring. Congress unequivocally made the choice in favor of first giving the employee exclusive control of the cause of action for a 6-month period and then giving the employer exclusive control thereafter, instead of opting for any form of simultaneous joint or partial control. The simple standard set forth in § 33 (b) protects the interests of both employees and employers, and is consistent with the general policy of the Act to encourage the prompt and efficient administration of compensation claims. See Potomac Electric Power Co. v. Director, Office of Workers’ Compensation Programs, 449 U. S. 268, 282.
Ill
Although the assignment at the end of the 6-month period occurs automatically, the Court of Appeals for the Fourth Circuit has held that the employee retains a right after assignment to compel the assignee either to bring a third-party suit or to reassign the cause of action to the employee in response to a formal request to do so. See Caldwell v. Ogden Sea Transport, Inc., 618 F. 2d 1037 (1980). The court “readily found” the procedural mechanism for implementing this nonstatutory right to a reassignment, id., at 1046, but we find no evidence that Congress created either the substantive right itself or the procedural rights that the court discerned.
The predicate for the Fourth Circuit’s analysis was an assumption that Congress did not intend to allow the longshoreman to lose his rights against a third party simply because (a) he failed to take any action within six months and (b) his employer decided not to sue the third party thereafter. To avoid the “practical problem” presented in such a situation, the court fashioned a “solution” that the Act “does not specifically provide.” Id., at 1045. We are persuaded that the reason Congress did not specifically provide the solution which the court readily found is that Congress did indeed intend to require the employee either to act promptly or to accept the consequences of an assignment of his claim to the employer. One of the consequences of such an assignment is the risk that the employer will choose not to sue. The comprehensive character of the procedures outlined in the Act precludes the fashioning of an entirely new set of remedies to deal with an aspect of a problem that Congress expressly addressed. The fact that parties sometimes fail to assert meritorious claims within the period authorized by law is not a sufficient reason for refusing to enforce an unequivocal statutory bar.
IV
Finally, relying upon Edmonds v. Compagnie Generale Transatlantique, 443 U. S. 256, petitioners argue that Congress’ failure to amend § 33 (b) in 1972, when the Act was thoroughly re-examined, evidences implicit congressional approval of the decision of the Court of Appeals for the District of Columbia Circuit in Potomac Electric Power Co. v. Wynn, 120 U. S. App. D. C. 13, 343 F. 2d 295 (1965) (per curiam). In that case, the court held that a longshoreman who has accepted compensation under an award may maintain a third-party action whenever it becomes evident that his employer has no intention to file suit on the assigned claim. Id., at 16, 343 F. 2d, at 298. See also Joyner v. F & B Enterprises, Inc., 145 U. S. App. D. C. 262, 264, 448 F. 2d 1185, 1187 (1971). The court construed the 1959 amendments as enlarging the employee’s protection, and considered the rationale of Czapliehi to apply whenever a potential conflict of interest is present. In its judgment, the employer’s failure to sue was sufficient evidence of a conflict to justify an independent action by the employee, notwithstanding the assignment provisions in the Act. 120 U. S. App. D. C., at 16, 343 F. 2d, at 298.
For reasons already stated, we are satisfied that that opinion did not correctly construe the 1959 amendments. It is true that Congress did not expressly disclaim that case in 1972, but that legislative inaction does not modify the plain terms of the 1959 amendments. Nor did Congress expressly endorse the Wynn decision. More importantly, the statutory interpretation announced in Wynn can hardly be compared to the well-established rule of maritime law at issue in Edmonds. There is no reason to believe that “Congress has relied upon conditions” that Wynn created. Edmonds, supra, at 273. In fact, the statutory changes adopted in 1972 are entirely consistent with our interpretation of § 33 (b). Moreover, those changes remind us that one of the purposes of the Act is to minimize the need for litigation as a means of providing compensation for injured workmen. See Bloomer, 445 U. S., at 86.
Three of the 1972 Amendments are pertinent. First, the level of benefits was substantially increased, thereby increasing the likelihood that the statutory compensation recoverable without proof of fault would be adequate. Second, the shipowner’s right to seek indemnity from the stevedore under Ryan Stevedoring was eliminated, thereby removing a category of litigation from the courts, placing more definite limits on the stevedore’s insurance costs, and removing a potential source of conflict between the interests of employers and employees. Third, the shipowner’s nearly absolute liability for unseaworthiness was eliminated, thereby further narrowing the area of potential litigation and increasing the relative importance of statutory awards as the favored method of compensation. See generally Scindia Steam Navigation Co. v. De Los Santos, ante, at 164-165. In making these changes, Congress necessarily balanced the conflicting interests of the vessel owner, the stevedore, and the longshoreman. As with other problems of interpreting the intent of Congress in fashioning various details of this legislative compromise, the wisest course is to adhere closely to what Congress has written. The meaning of § 33 (b) is plain and should be respected.
V
In sum, we conclude that the Court of Appeals in these cases correctly held that § 33 (b) precludes petitioners from pursuing their third-party claims. Whatever the continued validity of our decision in Czaplicki, a question we need not and do not decide today, these cases do not involve “the peculiar facts” on which Czaplicki was based. Rather, petitioners essentially have relied upon conflicts inherent in the statutory scheme and in the relationships among longshoremen, stevedores, and shipowners. The notion adopted in some post-Czaplicki decisions that a conflict of interest may be presumed whenever an employer does not sue on an assigned claim is simply untenable in light of the plain statutory language and the history of the 1959 and 1972 Amendments. We leave for another day the question whether an assignment under § 33 (b) will bar a longshoreman’s third-party action if there is specific evidence of a serious conflict of interest Congress could not have foreseen when it enacted and amended § 33.
The judgments of the Court of Appeals are
Affirmed.
Although a single petition for certiorari was filed on behalf of the three petitioners, their lawsuits proceeded independently of one another at earlier stages of the litigation. Three separate District Court opinions were issued. See Rodriguez v. Compass Skipping Co., 456 F. Supp. 1014 (SDNY 1978); Perez v. Arya National Shipping Line, Ltd., 468 F. Supp. 799 (SDNY 1979); Barulec v. Ove Skou, R. A., 471 F. Supp. 358 (SDNY 1979). The Court of Appeals affirmed the decision in Rodriguez in a published opinion, 617 F. 2d 955 (1980), and on the same day affirmed the Perez and Barulec decisions in unpublished orders citing its opinion in Rodriguez. See Barulec v. Ove Skou, R. A., 622 F. 2d 572 (1980); Perez v. Arya National Shipping Line, Ltd., 622 F. 2d 575 (1980).
Section 33 (b) of the Act provides:
“Acceptance of such compensation under an award in a compensation order filed by the deputy commissioner or [Benefits Review] Board shall operate as an assignment to the employer of all right of the person entitled to compensation to recover damages against such third person unless such person shall commence an action against such third person within six months after such award.” 44 Stat. (part 2) 1440, as amended, 33 U. S. C. §933 (b).
In the Rodriguez and Barulec cases, the plaintiffs and their employers agreed to settlements in informal conferences convened by the Office of Workers’ Compensation Programs. Although a since-amended regulation ■required that such settlements be embodied in formal compensation orders, see 20 CFR § 702.315 (a) (1976), no formal orders were entered in these cases. Accordingly, the plaintiffs argued in the lower courts that the assignment provision of § 33 (b) had not been activated because they had not accepted “compensation under an award in a compensation order filed by the deputy commissioner or Board,” as required by the statute. The District Courts rejected petitioners’ argument, concluding that settlement agreements reached after official informal conferences were equivalent to formal orders for purposes of § 33 (b). See Rodriguez, supra, at 1018-1020; Barulec, 471 F. Supp., at 360-362. The Court of Appeals agreed. See 617 F. 2d, at 958-960. Although petitioners challenged this ruling in their petition for certiorari, our order granting the petition did not extend to this question. 449 U. S. 818. Accordingly, for purposes of our decision, we assume that their acceptance of compensation operated as an assignment under § 33 (b). Petitioner Perez apparently did not contend below that he had not accepted “compensation under an award” within the meaning of § 33 (b). See 468 F. Supp. 799 (SDNY 1979).
Rodriguez filed suit approximately 32 months, Perez filed suit approximately 15 months, and Barulec filed suit approximately 1 year after accepting -compensation. See 617 F. 2d, at 957; Perez, 468 F. Supp., at 800; Barulec, 471 F. Supp., at 359.
The Act expressly 'provides that the employee is not required to elect between his right to compensation from his employer and his claim for damages against a third party. Section 33 (a), as set forth in 33 U. S. C. § 933 (a), provides:
“If on account of a disability or death for which compensation is payable under this chapter the person entitled to such compensation determines that some person other than the employer or a person or persons in his employ is liable in damages, he need not elect whether to receive such compensation or to recover damages against such third person.” Section 5 (b) of the Act, as set forth in 33 U. S. C. §905 (b), provides:
“In the event of injury to a person covered under this chapter caused by the negligence of a vessel, then such person, or anyone otherwise entitled to recover damages by reason thereof, may bring an action against such vessel as a third party in accordance with the provisions of section 933 of this title, and the employer shall not be liable to the vessel for such damages directly or indirectly and any agreements or warranties to the contrary shall be void. If such person was employed by the vessel to provide stevedoring services, no such action shall be permitted if the injury was caused by the negligence of persons engaged in providing stevedoring services to the vessel. If such person was employed by the vessel to provide ship building or repair services, no such action shall be permitted if the injury was caused by the negligence of persons engaged in providing ship building or repair services to the vessel. The liability of the vessel under this subsection shall not be based upon the warranty of seaworthiness or a breach thereof at the time the injury occurred. The remedy provided in this subsection shall be exclusive of all other remedies against the vessel except remedies available under this chapter.”
In all three eases, although the District Courts rejected the contention that a stevedore’s failure to pursue an assigned claim, without more, establishes a conflict of interest resulting in reassignment of the claim to the longshoreman, the plaintiffs were given an opportunity to present evidence establishing a specific conflict of interest, such as that found in Czaplicki v. The Hoegh Silvercloud, 351 U. S. 525. See Rodriguez, supra, at 1023; Perez, 468 F. Supp., at 801; Barulec, 471 F. Supp., at 362. Despite the opportunity to pursue further discovery, none of the plaintiffs was able to present evidence supporting his conflict-of-interest allegation, and the District Courts accordingly entered summary judgment in favor of the shipowners.
See n. 1, supra.
The Fourth Circuit issued its opinion in Caldwell eight days after the Rodriguez opinion was issued by the Second Circuit.
Section 33 (f) of the Act, as set forth in 33 U. S. C. § 933 (f), provides:
“If the person entitled to compensation institutes proceedings within the period prescribed in subdivision (b) of this section the employer shall be required to pay as compensation under this chapter a sum equal to the excess of the amount which the Secretary determines is payable on account of such injury or death over the amount recovered against such third person.”
Section 33 (e) of the Act, as set forth in 33 U. S. C. §933 (e), provides:
“Any amount recovered by such employer on account of such assignment, whether or not as the result of a compromise, shall be distributed as follows:
“(1) The employer shall retain an amount equal to—
“(A) the expenses incurred by him in respect to such proceedings or compromise (including a reasonable attorney's fee as determined by the deputy commissioner or Board);
“(B) the cost of all benefits actually furnished by him to the employee under section 907 of this title;
“(C) all amounts paid as compensation;
“(D) the present value of all amounts thereafter payable as compensation, such present value to be computed in accordance with a schedule prepared by the Secretary, and the present value of the cost of all benefits thereafter to be furnished under section 907 of this title, to be estimated by the deputy commissioner, and the amounts so computed and estimated to be retained by the employer as a trust fund to pay such compensation and the cost of such benefits as they become due, and to pay any sum finally remaining in excess thereof to the person entitled to compensation or to the representative; and
“(2) The employer shall pay any excess to the person entitled to compensation or to the representative, less one-fifth of such excess which shall belong to the employer.”
In Edmonds v. Compagnie Generale Transatlantique, 443 U. S. 256, 269, we described § 33 (b) :
“Under § 933 (b), an administrative order for benefits operates as an assignment to the stevedore-employer of the longshoreman’s rights against the third party unless the longshoreman sues within six months.”
See nn. 3, 4, supra.
As originally enacted, and until 1959, §33 (a) read:
"If on account of a disability or death for which compensation is payable under this Act the person entitled to such compensation determines that some person other than the employer is liable in damages, he may elect, by giving notice to the deputy commissioner in such manner as the commission may provide, to receive such compensation or to recover damages against such third person.” 44 Stat. (part 2) 1440.
The original § 33 (b) provided:
“Acceptance of such compensation shall operate as an assignment to the employer of all right of the person entitled to compensation to recover damages against such third person, whether or not the person entitled to compensation has notified the deputy commissioner of his election.” 44 Stat. (part 2) 1440.
From 1938 until 1959, §33 (b) provided:
"Acceptance of such compensation under an award in a compensation order filed by the deputy commissioner shall operate as an assignment to the employer of all right of the person entitled to compensation to recover damages against such third person.” 52 Stat. 1168.
The amendment’s purpose was explained in the House Report:
“The purpose of this amendment is to remove possible cause of complaint regarding the operation of the provision in subdivision (b) of section 33 in making the mere acceptance of compensation work automatically an assignment to the employer of all rights of action against the third party tort feasor. Acceptance of compensation without knowledge of the effect upon such rights may work grave injustice. The assignment of this right of action against the third party might properly be contingent upon the acceptance of compensation under an award in a compensation order issued by the deputy commissioner, thus giving opportunity to the injured person ... to consider the acceptance of compensation from the employer with the resulting loss of right to bring suit in damages against the third party, or a refusal of compensation so as to pursue the remedy against the third party alleged to be liable for the injury.” H. R. Rep. No. 1945, 75th Cong., 3d Sess., 9 (1938).
See also Hernandez v. Costa Armatori, S. p. A., 467 P. Supp. 1064, 1066 (EDNY 1979), affirmance order, 622 P. 2d 573 (CA2 1980).
In the interim between the 1938 amendment and the decision in Czaplicki, this Court issued two decisions of some significance to the present case. In 1946, in Seas Shipping Co. v. Sieracki, 328 U. S. 85, the Court concluded that an injured longshoreman could pursue a third-party claim against a shipowner for unseaworthiness, as well as for negligence. In 1956, in Ryan Stevedoring Co. v. Pan-Atlantic S.S. Corp., 350 U. S. 124, the Court held that a shipowner found liable to a longshoreman for damages in a third-party action could seek indemnification from the stevedore based upon the stevedore's contractual duty to provide workmanlike service. Congress in 1972 overruled both Sieracki and Ryan Stevedoring. See Edmonds v. Compagnie Generale Transatlantique, 443 U. S., at 262.
Section 33 (i) of the Act as it read in 1956 provided that a stevedore's compensation insurer was subrogated to the stevedore’s rights in the assigned claim. “Travelers, therefore, was the proper party to sue on those rights of action.” 351 U. S., at 529. The subrogation provision is now §33 (h), 33 U. S. C. §933 (h).
The Court explained its reasoning in detail:
"[T]he injured employee has an interest in his right of action even after it has been assigned. Normally, this interest will not be inconsistent with that of the assignee, for presumably the assignee will want to recoup the payments made to the employee. Since the assignee’s right to recoup comes before the employee’s interest, and because the assignee is likely to be in a better position to prosecute any claims against a third party, control over the right of action is given to the assignee, who can either institute proceedings for the recovery of damages against a third person, 'or may compromise with such third person either without or after instituting such proceeding.’ §33 (d), 33 U. S. C. §933 (d). In giving the assignee exclusive control over the right of action, however, we think that the statute presupposes that the assignee’s interests will not be in conflict with those of the employee, and that through action of the assignee the employee will obtain his share of the proceeds of the right of action, if there is a recovery. Here, where there is such a conflict of interests, the inaction of the assignee operates to defeat the employee’s interest in any possible recovery. Since an action by Travelers would, in effect, be an action against itself, Czaplicki is the only person with sufficient adverse interest to bring suit. In this circumstance, we think the statute should be construed to allow Czaplicki to enforce, in his own name, the rights of action that were his originally.” 351 U. S., at 531.
At several points in the Czaplicki opinion, the Court emphasized the limited nature of its holding:
“Czaplieki’s rights of action were held by the party most likely to suffer were the rights of action to be successfully enforced. In these circumstances, we cannot agree that Czaplicki is precluded by the assignment of his rights of action from enforcing those rights in an action brought by himself.” Id,., at 530.
“Respondents contend that since Czaplicki did not, under §33 (a), 33 U. S. C. § 933 (a), elect to proceed against third parties, but rather chose to accept compensation, he can in no event revoke this election and maintain this suit. But, as this Court has already pointed out
Question: What is the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed?
A. stay, petition, or motion granted
B. affirmed (includes modified)
C. reversed
D. reversed and remanded
E. vacated and remanded
F. affirmed and reversed (or vacated) in part
G. affirmed and reversed (or vacated) in part and remanded
H. vacated
I. petition denied or appeal dismissed
J. certification to or from a lower court
K. no disposition
Answer:
|
songer_r_subst
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "sub-state governments, their agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
COMMISSIONER OF INTERNAL REVENUE v. STEWART.
No. 11154.
United States Court of Appeals Sixth Circuit.
Jan. 23, 1951.
Virginia H. Adams, Washington, D. C. (Theron Lamar Caudle, Ellis N. Slack, and Virginia H. Adams, Washington, D. C., on the brief), for petitioner.
Roy F. Andes, Detroit, Mich. (Roy F. Andes, Detroit, Mich., on the brief), for respondent.
Before MARTIN, McALLISTER and MILLER, Circuit Judges.
MILLER, Circuit Judge.
The Commissioner of Internal Revenue seeks a review of the ruling of the Tax Court which held that a notice of deficiency was invalid for failure to comply with the statutory provisions with respect to mailing.
The notice of deficiency was in the usual form; its inside address was to “Dr. Kirk Stewart, 904 Stroh Bldg., Detroit, Mich.,” the taxpayer and respondent herein; it was dated March 10, 1948; it was enclosed in an envelope addressed to the taxpayer’s counsel, Mel W. Werden, 7310 Woodward Avenue, Detroit, Michigan. It was sent by registered mail. The letter stated—
“You, are advised that the determination of your income tax liability for the taxable years 1944-1945-1946 discloses a deficiency of $9,112.41, as shown in the attached statement.
“In accordance with the provisions of existing Internal Revenue Laws, notice is hereby given of the deficiency mentioned.”
There were attached to the letter three copies of Form 870, a “Waiver of Restrictions on Assessment and Collection of Deficiency in Tax.” The form showed income tax deficiencies for the years 1944, 1945 and 1946 in the sums of $3,661.53, $3,121.54 and $2,329.34 respectively, or a total of $9,112.41. The letter referred to the right to file a petition with the Tax Court for a redetermination of the deficiency and to the execution 'of the forms if the taxpayer did not desire to file such a petition. The letter contained no other documents or enclosures.
On February 4, 1948, prior to the mailing of the deficiency notice, and in response to a 10-day letter dated January 27, 1948 and received by the taxpayer, Werden conferred with Richard F. Okie, a member of the Audit Review Board of the office of the Collector of Internal Revenue of the District of Michigan, in which conference Okie requested that Werden file a copy of his power of attorney from the petitioner. A power of attorney from the taxpayer to Werden, executed on February 6, 1948, was duly filed.
A 30-day letter dated February 9, 1948, was issued by the Collector and addressed to the taxpayer. No schedules or other basis for imposing additional taxes were enclosed with that letter. On February 19, 1948, the Collector addressed a letter to the taxpayer and mailed it to Werden. The letter stated — “Attached herewith is the technical report and Forms 872 which were erroneously omitted in the 30-Day letter dated February 9, 1948.” The report and form showed the basis of the deficiency.
On June 7, 1948, the taxpayer filed his petition with the Tax Court for a rede-termination of the deficiency set forth by the Commissioner in his notice of deficiency dated March 10, 1948. The petition stated — “The Notice of Deficiency (a copy of which is attached and marked Exhibit “A”) was mailed to the Petitioner on March 10, 1948 as the Petitioner believes.” It set out the alleged deficiencies for each of the taxable years in controversy and stated in what respects the Commissioner erred in determining the qlaimed deficiency. In the verification attached thereto the taxpayer stated under oath “that he has read the foregoing petition and is familiar with statements contained therein * * The Commissioner filed his answer on July 19, 1948. The taxpayer filed his reply on September 7, 1948. On April 22, 1949, the case was set for hearing on June 14, 1949 at Detroit, Michigan. On June 14, 1949, the taxpayer, acting through another attorney who had entered his appearance in the case on September 9, 1948, moved to dismiss the appeal for the reason that the Commissioner had never m.ade a determination of any deficiency in income taxes against the taxpayer as required by law, in that the said notice of deficiency wa-s not mailed to the taxpayer, but was mailed to Werden, the taxpayer’s auditor. Thereafter, the proceeding was dismissed by the Tax Court for lack of jurisdiction, which ruling is the subject of this review.
Section 272(a) of the Internal Revenue Code, 26 U.S.C.A. § 272(a) provides as follows : “If in the case of any taxpayer, fhe Commissioner determines that there is a deficiency in respect of the tax imposed by this chapter, the Commissioner is authorized to send notice of such deficiency to the taxpayer by registered mail. Within ninety days after such notice is mailed * * the taxpayer may file a petition with the Board of Tax Appeals for a redetermination of the deficiency. No assessment of a deficiency in respect of the tax imposed by this chapter and no distraint or proceeding in court for its collection shall be made, begun, or prosecuted until such notice has been mailed to the taxpayer, nor until the expiration of such ninety-day period, nor, if a petition has been filed with the Board, until the decision of the Board has become final. * * * ” The taxpayer contends that since the statute requires the notice of the deficiency assessment to be sent “to the taxpayer by registered mail,” the action of the Commissioner in sending it to the -taxpayer’s auditor and attorney, instead of to the taxpayer himself, was not a compliance with the provisions of the statute, and was therefore an invalid notice. The Tax Court ruled that since the statute limited the way in which the notice could be sent it negatived any other mode of action; that the Commissioner was required to send the notice of deficiency to the- taxpayer in strict accord with the statutory requirements; and since he did not do so, the petition must be dismissed for lack of jurisdiction.
We are of the opinion that such a strict literal construction of the statute is not authorized in the present case. It is clear that the purpose of the deficiency notice is to give the taxpayer notice that the Commissioner means to assess a deficiency tax against him and to give him an opportunity to have such ruling reviewed by the Tax Court before it becomes effective. Commissioner v. New York Trust Co., 2 Cir., 54 F.2d 463, 465; Commissioner v. Forest Glen Creamery Co., 7 Cir., 98 F.2d 968, 971; Olsen v. Helvering, 2 Cir., 88 F.2d 650, 651. In addition to giving the taxpayer notice of the proposed deficiency assessment, the mailing of the deficiency notice limits the period of time thereafter to ninety days in which the taxpayer c,an have the question reviewed by the Tax Court. If the taxpayer receives notice of the proposed assessment, and during the ninety-day period thereafter files his petition for review with the Tax Court, the purposes of the Act have been accomplished. Although some courts have -said that strict compliance with the statutory notice provisions is necessary in order to validate the assessment and to give the Tax Court jurisdiction to review it, we do not think that such a view is the correct one. In Commissioner v. Forest Glen Creamery Co., supra, the Court said, 98 F.2d at page 971,. “ * * * there is no indication in the statute of an intention to require the notice to be the basis of jurisdiction of the Board in a technical sense.” As pointed out by Commissioner v. New York Trust Co., supra, 54 F.2d at page 465, it is the taxpayer who invokes the jurisdiction of the Bo,ard by filing his petition to review. This Court has previously ruled that a failure to strictly comply with the statutory notice provisions does not necessarily deprive the Tax Court gf its jurisdiction to act in the matter. Warner Collieries Co. v. United States, 6 Cir., 63 F.2d 34; Commissioner v. Nichols & Cox Lumber Co., 6 Cir., 65 F.2d 1009. See also Burnet v. San Joaquin Fruit & Investment Co., 9 Cir., 52 F.2d 123, 128. Under Section 272(d) Internal Revenue Code, the required mailing of the deficiency notice can be waived by the taxpayer without invalidating the validity of- the assessment. In the following cases it was held that defects or irregularities in giving the required statutory notice were waived by the taxpayer’s action in proceeding with a petition for review in the Tax 'Court, which thereupon acquired jurisdiction to determine the matter: Haag v. Commissioner, 7 Cir., 59 F.2d 516, 518; Commissioner v. New York Trust Co., supra, 54 F.2d at page 466.
In the present case, the taxpayer received the full measure of protection guaranteed to him by Section 272(a) of the Code. Following the usual preliminary investigation and discussion of the taxpayer’s returns, the Commissioner made the tentative deficiency .assessment. Notice of the deficiency assessment was sent by registered mail to the taxpayer’s attorney, previously authorized under a power of attorney filed with the Commissioner “to represent him * * * in connection with the proposed deficiency for the calendar years 1943, 1944, 1945 and 1946, now pending before the department * * * ” and who was by the terms of the power of attorney “authorized to prosecute any * *. * ¡appeals or claims arising out of the aforesaid tax liability and in particular the proceedings necessary to defeat the proposed deficiency now pending before the department, and to do any and all acts in connection therewith as fully to all intents and purposes as the grantor itself might or could do.” Under the few of principal and agent, the Commissioner’s notice to the taxpayer’s attorney clothed with such authority was notice to the taxpayer himself. Keeping in mind that the final purpose of the deficiency notice is to afford the taxpayer an opportunity to appeal to the Tax Court, and that in the present case the taxpayer acting through his attorney promptly took such an appeal, we fail to see in what way the taxpayer has been prejudiced or harmed. No objection was made by the taxpayer ¡at the time of filing his petition for review of any defect or irregularities in the giving of the required notice. To hold the notice insufficient under such circumstances, would “allow the technical an undue triumph over the substantial.” Pittsburgh Terminal Coal Corp. v. Heiner, D.C.W.D.Pa., 56 F.2d 1072, 1075. See also Kohlhase v. Commissioner, 6 Cir., 181 F.2d 331. In our opinion, whatever technical defect existed in sending the notice to the taxpayer’s .attorney, duly authorized to act in the matter, instead of to the taxpayer himself, was clearly waived by the later action of the taxpayer in filing his petition for review with the Tax Court, seeking a redetermination in his favor of the deficiency asserted by the Commissioner. Warner Collieries Co. v. United States, supra, 6 Cir., 63 F.2d 34; Commissioner v. Nichols & Cox Lumber Co., supra, 6 Cir., 65 F.2d 1009; Commissioner v. New York Trust Co., supra, 2 Cir., 54 F.2d 463; Burnet v. San Joaquin Fruit & Investment Co., supra, 9 Cir., 52 F.2d 123; Haag v. Commissioner, supra, 7 Cir., 59 F.2d 516; American Auto Trimming Co. v. Lucas, 59 App.D.C. 171, 37 F.2d 801.
In the present case, it is clear that the taxpayer personally either actually received the notice following its receipt by his attorney, or was completely advised by his attorney of its receipt by him and of its contents. A copy of the notice was attached to the petition filed by him in the Tax Court. He examined the petition before it was filed. In his affidavit attached to the petition, the taxpayer stated that he had read the petition and was familiar with the statements contained therein. Formal, immaterial defects in the giving of the required statutory notice have been disregarded when it appears that the notice actually reached the taxpayer. Wright v. Commissioner, 4 Cir., 101 F.2d 309; Haag v. Commissioner, supra, 7 Cir., 59 F.2d 516; Whitmer v. Lucas, 7 Cir., 53 F.2d 1006; Dilks v. Blair, 7 Cir., 23 F.2d 831. In the Whitmer case the Court said— “It is reasonable to conclude that, even though a slight error may be made in the street address, the taxpayer is not harmed if the letter is actually and promptly delivered to his proper address. The purpose of the statute has been fully accomplished when the taxpayer is notified of the deficiency or additional assessment proposed to be made by the Commissioner.” [53 F.2d 1007.]
The taxpayer also contends that the deficiency notice was invalid because it contained no particulars or explanations of how the Collector arrived at the alleged deficiencies. No particular form of notice is required by Section 272(a) of the Code. We are of the opinion that the notice in the present case was sufficient where it fairly advised the taxpayer that the Commission has determined a deficiency, gave the taxpayer the amounts thereof and the years involved, and the taxpayer was fully advised, as shown by his petition filed with the Tax Court, of the reasons forming the basis for the Commissioner’s action. Commissioner v. Forest Glen Creamery Co., supra, 7 Cir., 98 F.2d 968, 971; Olsen v. Helvering, supra, 2 Cir., 88 F.2d 650, 651; Ventura Consolidated Oil Fields v. Rogan, 9 Cir., 86 F.2d 149, 153. In Olsen v. Helvering, supra, the Court said— “ * * * the notice is only to advise the person who is to p,ay the deficiency that the Commissioner means to assess him; anything that does this unequivocally is good enough.”. [88 F.2d 651.]
The judgment of the Tax ‘Court is reversed and the action is remanded for further proceedings consistent with the views expressed herein.
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_weightev
|
A
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the 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".
CHICAGO BRIDGE & IRON COMPANY, a corporation, Appellant, v. HARTFORD FIRE INSURANCE COMPANY, a corporation, et al.
No. 77-1227.
United States Court of Appeals, District of Columbia Circuit.
Argued Feb. 16, 1978.
Decided Dec. 21, 1978.
Ross O’Donoghue, Washington, D. C., for appellant.
John P. Arness, Washington, D. C., with whom Gail Starling Marshall, Washington, D. C., was on the brief, for appellee, Hartford Fire Ins. Co.
Samuel Becker, Washington, D. C., was on the brief, for appellee, Thomas G. Corcoran.
Also, Frank H. Strickler, Washington, D. C., entered an appearance for appellees, Hodges and Lee.
Before WRIGHT, Chief Judge, and MacKINNON and WILKEY, Circuit Judges.
Opinion for the court filed by MacKINNON, Circuit Judge.
MacKINNON, Circuit Judge:
On December 21, 1972, Chicago Bridge and Iron Co. (hereafter “CBI”) entered into a stock purchase agreement with two of the major shareholders (hereafter “Sellers”) in Fairmac Corporation. The assets of Fair-mac included an apartment complex in Washington, D. C. called “McLean Gardens.” The purchase price paid by CBI for the outstanding Fairmac stock owned by the Sellers, either individually or in a trusteeship capacity, was $16,500,000. In this action, CBI claims breach of warranty damages in the amount of $157,000.
On June 29, 1973, about six months after the execution of the stock purchase agreement, a suit was filed against CBI Fairmac, the successor corporation to Fairmac, for damages arising out of the tragic rape and murder on September .10, 1972 of Rebecca Rieser, a tenant of the McLean Gardens complex owned at that time by Fairmac. The complaint alleged that Miss Rieser had been murdered by a Fairmac employee; it sought punitive and compensatory damages for negligent hiring and retention of the employee. The litigation was settled in 1975 by a total payment to the Rieser estate of $650,000 by CBI Fairmac. CBI Fairmac possessed a liability insurance policy issued by New Hampshire Indemnity Co. (hereafter “New Hampshire”) with individual limits of $1 million. This policy had been outstanding when the murder was committed, but CBI Fairmac and New Hampshire contended that the policy did not cover punitive damages. Under the final settlement arrangement, the insurer paid $400,000, and CBI Fairmac paid $250,000 and released New Hampshire from any further liability on its policy (J.A. 46). On December 30, 1975, CBI, the majority shareholder in CBI Fairmac, filed suit against the Sellers seeking recovery of the damages it allegedly suffered as a result of CBI Fairmac’s payment of punitive damages toward settlement of the Rieser litigation. The stock sales agreement provided that Sellers would not be liable for misrepresentation or breach of warranty unless the losses exceeded $100,000. Of the $157,000 claimed in this action, which is the amount by which CBI Fairmac’s payment exceeded the contractually agreed $100,000 floor,' $150,000 represent monies paid by CBI Fairmac in settlement of the Rieser suit, and'the remaining $7,000 represent a claim for architectural services. After full and extensive discovery, the defendant Sellers filed motions for summary judgment, which were granted by the district court'on January 31, 1977.
The contract between CBI and the stockholders for the sale of stock contained the following provision:
3.6 Disclosure. Neither this Agreement nor any certificate or other document furnished to the Purchaser hereunder or in connection with the transactions contemplated hereby contains to the knowledge of any of the Sellers any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained herein and therein not misleading. There is no fact to the knowledge of the Sellers not disclosed, in this Agreement which materially adversely affects' or in the future may (so far as the Sellers can now foresee) materially adversely affect the condition (financial or other), business or prospects of the Corporation.
Stock Purchase Agreement of December 21, 1972, at J.A. 15-16. Also, the Sellers gave the following warranty in an accompanying letter:
We further represent and warrant that nothing has been brought to our attention nor do we know of any fact or condition which would lead us to believe that any of the representations and warranties set forth in Exhibit A attached hereto,[] which Hodges and Lee have made to you, are not true and correct.
Letter of December 21, 1972, at J.A. 30. Thus, the Sellers warranted that the Agreement and other documents furnished to CBI did not omit any material fact necessary to make any statements contained in the Agreement not misleading, and that there was no fact within their knowledge that either was affecting or could foreseeably affect the corporation in a materially adverse way. This warranty clearly did not cover all contingent liabilities. The promise of indemnification extended only to undisclosed material information within the Sellers’ knowledge. This warranty was not absolute or strict, and is thus distinct from those which impose liability on the warrantor irrespective of his knowledge.
The question then is whether the Sellers disclosed all material facts within their knowledge in the manner required by the warranty. The record shows that the Rieser murder had been disclosed orally to representatives of CBI prior to the sale, and that all the information within the knowledge of the Sellers was communicated to CBI (J.A. 189-94, 210, 241-45). There is no material dispute about the nature of these disclosures. Richard Barton, Vice-President and General Counsel of CBI, testified that he attended a meeting in Fairmac offices on September 20,1972, ten days after the murder (J.A. 190-91, 217, 241). Barton testified that Walter Hodges, General Manager of Fairmac, told him that a rape and murder had occurred, and that a Fairmac employee was being held as a suspect (J.A. 241-42). Barton’s recollection was that he examined either a copy of the insurance policy or a binder that showed the existence of $1 million of insurance, and that he satisfied himself that the insurance would cover whatever liabilities developed (J.A. 242-43). Hodges’ testimony closely paralleled Barton’s (J.A. 189-94); Hodges testified that he told Barton “everything we knew about it” (J.A. 190-91, 194). CBI stated in response to one of Hartford’s interrogatories that it had “no information that Hodges and Lee [another manager of Fairmac also present at the September 20 meeting] knew any details other than those disclosed to CBI on September 20,1972” (J.A. 51). Barton also testified that he was not aware of any evidence that Hartford, one of the Sellers, knew more than he was told by Hodges in the September 20 meeting (J.A. 244-45) and that neither he nor anyone else at CBI had “certain knowledge” of the omission of any material information necessary to make the statements in the Agreement not misleading (J.A. 237). Hartford stated in interrogatories that it knew no more than Hodges knew, and that this information was relayed to CBI (J.A. 55). The Rieser suit was filed over six months after the sale of the stock. At the time of the sale, no lawsuit had been filed, and no claim had been asserted, on account of the murder (J.A. 192-93).
The basis of CBI’s complaint is that the Agreement required that all claims be written down in the Agreement or some other document furnished to the Purchaser, and that the failure to list the murder of Miss Rieser is a breach of warranty. Thus, CBI insists that the Agreement and written documents omitted “a material fact necessary in order to make the statements contained herein or therein not misleading” (Agreement, § 3.6). We conclude, however, that the failure to write down the information concerning the murder did not render any statements or representations made by the Sellers misleading. At the time of the sale, there was no present or foreseeable impairment of the corporation’s business or prospects known to the Sellers, and hence, the representations made in the Agreement were not misleading. The failure to make a written disclosure did not “materially adversely affect[ ]” nor could the Sellers foresee that the information they (and the purchasers) had might “in the future . materially adversely affect” the condition of the corporation. The record shows that CBI representatives were satisfied and reasonably believed that the insurance policy Fairmac then had with New Hampshire was adequate to cover whatever liability might develop. CBI, although on notice of the rape and murder and its circumstances to the extent known by defendants, apparently did not believe the incident justified a more detailed immediate investigation, as CBI did not seek out any information beyond that which it obtained from Hodges and Lee. It is unreasonable to suggest the Sellers could foresee at the date of the sale, based on the information they had, that a claim would be filed which would not be covered by insurance and which would therefore require a payment in settlement by the owner of McLean Gardens.
CBI is left only with the argument that defendants should have known facts which would have put defendants on notice that a potentially large judgment against it was possible, a judgment that insurance would not cover. In other words, CBI contends that knowledge of material facts was available to the Sellers, that the additional knowledge could have been gained from further investigation, and that this knowledge is therefore imputable to the Sellers. It is frequently said that “the law imputes knowledge, when opportunity and interest, [combined] with reasonable care, would necessarily impart it.” United States v. Shelby Iron Co., 273 U.S. 571, 580, 47 S.Ct. 515, 519, 71 L.Ed. 781 (1927); Booth Fisheries Corp. v. Coe, 72 U.S.App.D.C. 195, 196 n. 3, 114 F.2d 462, 463 n. 3, cert. denied, 311 U.S. 691, 61 S.Ct. 72, 85 L.Ed. 447 (1940). We do not believe that the Sellers here failed to exercise reasonable care. Generally, shareholders have no duty to inquire into the operation of the corporation’s business and are not chargeable with knowledge of the dealings and other transactions of the corporation. Nettles v. Childs, 100 F.2d 952, 957 (4th Cir. 1939). Sellers, from their relationship to the operation of Fairmac, knew the essential elements of the incident, and those details were transmitted to the purchasers; the failure to commit those details to writing did not breach the warranty, as we have explained above. Given the reasonable belief that the insurance would cover whatever liability might arise, there was no requirement for further investigation, even though hindsight would arrive at a different conclusion.
It is safe to say that all parties, based on the knowledge they possessed, had equal reason to suspect that a lawsuit might be brought, but none believed, or had any reason to believe, that the $1 million liability insurance policy would not cover any judgment that might be rendered. All the liability here, for which recovery is sought from the Sellers, resulted from the claim for punitive damages against CBI Fairmac which was satisfied by the payments by CBI Fairmac and New Hampshire of $650,-000 in settlement of their liability in the litigation, as which time CBI Fairmac released New Hampshire from any obligation beyond the $400,000 paid by it. If any of the parties early on thought of the possibility of punitive damages, there is nothing to indicate that they did not consider it to have been covered by the outstanding insurance policy. And all the parties were on notice of the basic facts of the murder and had any one of them investigated they would have discovered the factual basis from which the claim for punitive damages eventually emerged.
It is the role of this court upon an appeal from an order granting summary judgment to determine whether the substantive law was correctly applied. North Central Airlines v. Continental Oil Co., 187 U.S.App.D.C. 371, 375-376, 574 F.2d 582, 586-87 (1978); Bloomgarden v. Coyer, 156 U.S.App.D.C. 109, 114, 479 F.2d 201, 206 (1973). Our review of the extensive record and consideration of the proceedings in the district court reveal no genuine disputed issues of material fact. Further, we perceive no error in the manner in which the district court interpreted the warranty and applied the substantive law. Hence, the entry of summary judgment for appellees is affirmed.
Judgment accordingly.
. The shareholding Sellers were Hartford Fire Insurance Company (hereafter “Hartford”) and Thomas G. Corcoran (hereafter “Corcoran”), who held some stock individually and some as trustee.
. The Agreement is set forth in the Joint Appendix at 9-30.
. Of the 100 outstanding shares in Fairmac, Hartford owned 69. Twenty-three other shares were either owned individually or held as trustee for other individuals by Corcoran. The remaining eight shares were owned by Walter Hodges and J. L. Lee, managers of Fairmac. On December 21, 1972, Hodges and Lee executed a stock exchange agreement with CBI whereby Hodges and Lee received shares in the new corporation, CBI Fairmac, in exchange for their shares in Fairmac (J.A. 3, 31, 35, 86-117). Hodges and Lee were initially named as third-party defendants, but Hartford’s and Corcoran’s third-party complaints were dismissed in the district court’s January 31¡ 1977 order (J.A. 145).
. The facts of this tragic and brutal crime are set forth in our opinion in Rieser v. District of Columbia, 183 U.S.App.D.C. 375, 377-381, 563 F.2d 462, 464-68 (1977), vacated (Nov. 7, 1977), reinstated in part and amended in part en banc, 188 U.S.App.D.C. 384, 580 F.2d 647 (1978).
. Stock Purchase Agreement of Dec. 21, 1972, § 9, J.A. 25.
. Since the warranty agreement provides for indemnity for losses in excess of $100,000, the parties agree that a ruling with respect to the $7000 claim is necessary only if the larger claim is found to be valid.
. In the joint appendix filed with this court, there is no “Exhibit A” attached to the December 21, 1972 letter, which appears at J.A. 29-.30. It may be that no exhibit was ever attached to the letter. Hartford’s answers to CBI’s interrogatories include a statement that Hartford has no copy of an attachment and the signor does not recall any document being attached at the time of signing. Hartford believes Exhibit A was intended to refer to the “Organizing and Stock Exchange Agreement” entered between Hodges and Lee, and CBI (J.A. 54-55). The Organizing Agreement is reproduced at J.A. 86-108. The warranties given by Hodges and Lee differ from those given by the Sellers (see J.A. 94-95). Regardless of what Hodges and Lee warranted, the warranty being sued upon here runs from the Sellers to CBI, and that warranty states “nothing has been brought to our attention nor do we know of any fact or condition which would lead us to believe that any of the representations and warranties . which Hodges and Lee have made to you, are not true and correct.” (J.A. 30, emphasis added). CBI must show knowledge on the part of the Sellers to recover under this warranty and that it has not done.
. E. g., Blustein v. Eugene Sobel Co., 105 U.S.App.D.C. 32, 263 F.2d 478 (1959). We note that the principal reasons which lend weight toward the imposition of strict liability in other contexts, such as products liability, are absent here where the parties bargained for and negotiated the terms of the contract (J.A. 224-33), where the parties did not possess unequal power, and where the parties had equal knowledge and access to the facts and circumstances underlying the transaction.
. CBI was also represented at this meeting by George Lundin, Tax Manager and Assistant Treasurer. Fairmac was represented by Walter Hodges and J. D. Lee, Managers of Fairmac. J.A. 43.
. There is no basis for concluding that defendants did not disclose the fact of the rape and murder and of what was then known about the suspected involvement of the Fairmac employee. We have discussed this point supra, and we agree with the findings of the district court in this particular. We do not understand CBI to argue that the warranty was breached because disclosure was not made; instead, we understand CBI to argue that the breach occurred because the facts which would support the Rieser estate’s claim or the claim itself were not set forth in the Agreement, any attachment thereto, or any other document given to the purchasers. Appellant’s Br. at 8; Appellant’s Reply Br. at 2.
. CBI has raised other points in its brief and in oral argument and we have carefully considered them, but we dismiss them as insubstantial.
. It is not without significance that the Rieser Estate and the District of Columbia also initially failed to realize the full involvement of all the parties. Rieser v. District of Columbia, supra, 183 U.S.App.D.C. at 381, 388-390, 563 F.2d at 468, 475-77.
Question: Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_geniss
|
F
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous".
NEWSOM et al. v. E. I. DU PONT DE NEMOURS & CO.
No. 10740.
United States Court of Appeals Sixth Circuit.
April 14, 1949.
Whitworth Stokes, of Nashville, Tenn. (Lewis S. Pope, T. J. Sterritt, John Inscho and Whitworth Stokes, all of Nashville, Tenn., on the brief), for appellants.
Charles L. Cornelius, of Nashville, Tenn. (Charles L. Cornelius, of Nashville, Tenn., and C. M. Spargo, of Wilmington, Del., on the brief), for appellee.
Before HICKS, Chief Judge, and ALLEN and McALLISTER, Circuit Judges.
ALLEN, Circuit Judge.
This is an appeal from the judgment of the District Court in consolidated cases which dismissed actions brought on behalf of appellants and other employees of ap-pellee similarly situated.
The complaint prays judgment against the appellee for all overtime work (all time worked or spent in waiting or walking or 'traveling in excess of 40 hours per week in any one workweek) plus liquidated damages and attorneys’ fees. The activities for which compensation is sought are described as being certain preliminary activities after arriving at the places of work, such as putting on aprons and overalls, removing shirts, taping or greasing arms, putting on finger cots, preparing equipment for productive work, turning on switches for lights and machinery, opening windows, and assembling and sharpening tools, and other work necessary to the employment. It is averred that the appellants were required to walk or travel a great many minutes a day solely upon the premises of the appellee, as a necessary prerequisite to productive work, and that the routes employed and the time allowed were under the constant control and supervision of the appellee.
It is also alleged that “At the end of every particular shift, it was necessary that plaintiffs remove grease, gloves, wrappings and other special equipment and appliances, and in a great many instances they were required by the defendant’s regulations to take a shower hath as a safety precaution for the benefit of the defendant.”
Filed after the enactment of the Portal-to-Portal Act, 29 U.S.C.A. § 251 et seq., the amended complaint alleges that under the bargaining contract made between appellee and its employees on September 2, 1944, it was specifically provided in writing that “Time and one-half or double time will be paid when required by law or Government regulation.”
It was also alleged that another paragraph of the contract expressly provided:
“(a) Time and one-half will be paid to hourly roll employees:
“1. For hours worked in excess of eight (8) when more than eight (8) hours are worked consecutively except that, when an employee receives overtime premiums under Company rules for work prior to the start of his regularly 'scheduled work period, overtime premiums for hours worked in excess of eight (8) will be off-set by the overtime premiums payable under such Company rules.”
The answer set up that the contract of September 2, 1944, was written during the war emergency, and that the provision as to time and a half or double time was inserted because there was then in full force and effect a government wartime regulation embodied in Executive Order No. 9240, 40 U.S.C.A. § 326 note, effective October 1, 1942, which provided:
“(1) Where because of emergency conditions an employee is required to work for seven consecutive days in any regularly scheduled workweek a premium wage of double time compensation shall be paid for work on the seventh day
“(2) Where required by the provisions of law or employment contracts, not more than time and one-half wage compensation shall be paid for work in excess of eight hours in any day or forty hours in any workweek or for work performed on the sixth day worked in any regularly scheduled workweek.”
This order was revoked after the encl of hostilities in August, 1945, by Executive Order, 9601, 40 U.S.C.A. § 326 note.
A new bargaining contract made on January 2, 1946, between appellee and its employees omitted the provision that time and a half or double time should be paid when required by law or government regulation, but retained the provision that time and a half should be paid for consecutive hours, worked in excess of eight.
No reply to the answer was filed, and" appellee then moved to dismiss the actions-upon the ground that the District Court had no jurisdiction of the subject-matter, and that the amended complaints do not state a. cause of action within the provisions of the-Portal-to-Portal Act of 1947, 29 U.S.C., §; 251 et seq., 29 U.S.C.A. § 251 et seq.
The District Court granted the motion,, and dismissed the action.
Appellants contend that the judgment should be reversed, on the ground (1) that their claims fall within the exception contained in the Portal-to-Portal Act; and (2)< that if the Portal-to-Portal Act be construed as barring these actions, it is unconstitutional.
The controlling section of the Portal-to-Portal Act of 1947, 29 U.S.C., § 252(a) (1} and (2), 29 U.S.C.A. § 252(a) (1, 2), is as-follows:
“No employer shall be subject to any liability or punishment under the Fair Labor Standards Act of 1938, as amended * * * on account of the failure of such employer to pay an employee minimum! wages, or to pay an employee overtime-compensation, for or on account of any activity of an employee engaged in prior to-the date of the enactment of this Act, except an activity which was compensable by either—
“(1) an express provision of a written or nonwritten contract in effect, at the time of such activity, between such employee, his agent, or collective-bargaining representative and his employer; or
“(2) a custom or practice in effect, at the time of such activity, at the establishment or other place where such employee was employed, covering such activity * * *.”
Also pertinent is § 252(d), which reads:
“No court of the United States * * * shall have jurisdiction of any action or proceeding, whether instituted prior to or after the date of the enactment of this Act [May 14, 1947], to enforce liability or impose punishment for or on account of the failure of the employer to pay minimum wages or overtime compensation under the Fair Labor Standards Act of 1938, as amended, under the Walsh-Healey Act, or under the Bacon-Davis Act, to the extent that such action or proceeding seeks to enforce any liability or impose any punishment with respect to an activity which was not compensable under subsections (a) and (b) of this section.”
As the case was decided on motion to dismiss, we assume the existence of the facts well-pleaded in the complaint. Pacific States Box & Basket Co. v. White, 296 U. S. 176, 185, 56 S.Ct. 159, 80 L.Ed. 138, 101 A.L.R. 853.
Appellants contend that the provision of the contract of September 2, 1944, that time and a half or double time should be paid when required by law or government regulation, expressly incorporated the Fair Labor Standards Act, 29 U.S.C.A. § 201 et seq., into the contract and thereby brought the activities described in the complaint within the exception of the Portal-to-Portal Act. It may be noted that the Fair Labor Standards Act does not provide for double time, and in that respect the provision of the contract would seem to apply to Executive Order 9240, which does provide for time and a half and also for double time. However, the contract provision of September 2, 1944, clearly refers to overtime payments “required by law,” and hence by reference includes the requirement of the Fair Labor Standards Act concerning such payments. Interstate Consolidated Street Ry. Co. v. Commonwealth of Mass., 207 U.S. 79, 84, 28 S.Ct. 26, 52 L.Ed. 111, 12 Ann. Cas. 555. But the fact that the Fair Labor Standards Act is written into and becomes part of an express labor-management contract does not call for reversal of the judgment below. The exception of the Portal-to-Portal Act, 29 U.S.C., § 252(a) (1) and (2), 29 U.S.C.A. § 252(a) (1, 2), does not apply to any and all activities engaged in by employees, but only to such as are expressly compensable under a written or nonwritten contract or custom or practice in effect covering the activity. In order that activities be expressly compensable under this provision they must be specifically described. A contract which does not refer to and specify the activities for which compensation is to be made does not bring the exception into force. It is undisputed on this record that the parties, in executing the contract of September 2, 1944, did not contemplate that the activities described in the complaint should be paid for. Such activities, at that time and always, prior to the decision in Tennessee Coal, Iron & Rd. Co. v. Muscoda Local No. 123, 321 U.S. 590, 64 S.Ct. 698, 88 L.Ed. 949, 152 A.L.R. 1014; Jewell Ridge Coal Corp. v. Local No. 6167, 325 U.S. 161, 65 S.Ct. 1063, 89 L.Ed. 1534; and Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 696, 66 S.Ct. 1187, 90 L.Ed. 1515, had been considered as incidental to and included in the productive work and compensated for by the rate of pay on the particular job. The first requisite, then, for the existence of a contract between the parties to pay for these particular activities, namely, a meeting of the minds, was completely lacking. The transactions in controversy fall squarely within the situation described in the findings and declaration of policy of the Congress made in § 1(a) (5) of the Portal-to-Portal Act, 29 U.S.C., § 251(a) (5), 29 U.S.C.A. § 251 (a) (5), namely, that if this recovery is allowed, it will give payment to employees for engaging in activities no compensation for which had been contemplated by either the employer or employee at the time they were engaged in.
The Fair Labor Standards Act, although incorporated by reference into the contract, does not fill this gap, for it contains no provision with reference to the activities for which recovery is here sought. It embodies provisions regulating minimum wages and maximum hours of work in industry generally. The Act does not define work or workweek, nor say anything as to whether or not preliminary or incidental activities shall be compensable. Section 7, which fixes the maximum hours of a workweek and forbids employment for any time in excess thereof unless time and a half is paid for overtime, 29 U.S.C., § 207, 29 U.S. C.A. § 207, makes no reference to pay for activities such as are here involved. While the provisions of the Fair Labor Standards Act became part of the express contract under the bargaining agreement of September 2, 1944, this incorporation of the statute by reference does not add an express provision covering the particular activities, and therefore the exception of the Portal-to-Portal Act does not apply.
The Portal-to-Portal Act, which became law subsequent to the enactment of the Fair Labor Standards Act, was framed with specific reference to activities such as those involved herein. As has often been repeated, it was passed in order to bar the innumerable claims that were being filed under the Fair Labor Standards Act in order to take advantage of the decisions in Tennessee Coal, Iron & Rd. Co. v. Muscoda Local 123; Jewell Ridge Coal Corp. v. Local No. 6167; and Anderson v. Mt. Clemens Pottery Co., supra. Appellants in effect ask us to read these interpretations into the contract in suitj although with certain exceptions the Portal-to-Portal Act expressly repealed them. Seese v. Bethlehem Steel Co., 4 Cir., 168 F.2d 58, 62. Such a construction would nullify both the purpose and the provisions of the Portal-to-Portal Act. There being no allegation or proof of the existence of an express contract or custom to pay for the activities described in the complaint, they are barred. The District Court had no jurisdiction of them, 29 U.S.C., § 252(d), 29 U.S.C.A. § 252(d), and a cause of action is not stated.
Appellants contend, however, that the provision which was written in all bargaining contracts from September 2, 1944, to the present time, that time and a half for overtime should be paid “for hours worked in excess of eight * * *” constitutes an express written contract within the protection of the exception and independent of the Fair Labor Standards Act. Since certain of these identical provisions were written into the contracts after the adjudication of the Tennessee Coal, Iron & Rd. Co., the Jewell Ridge Coal Corp. and the Anderson cases, supra, it cannot be successfully contended by the appellee that ft did not contemplate that non-productive and incidental activities such as those described in the complaint were work within the Fair Labor Standards Act as interpreted by the Supreme Court in those decisions. However, since the individual contracts of the 334 appellants are independent of statute, the relief sought is not common to all. Rule 23(a) (3), Federal Rules of Civil Procedure, 28 U.S.C.A. Each appellant has a separate and distinct cause of action, and was required to allege that as to him the mattér in controversy exceeds the jurisdictional amount of $3,000. Pinel v. Pinel, 240 U.S. 594, 596, 36 S.Ct. 416, 60 L.Ed. 817; Fisch v. General Motors Corp., 6 Cir., 169 F.2d 266, 274. Since such allegations are lacking, the District Court did not err in dismissing the complaint.
The constitutionality of the Portal-to-Portal Act has also been considered recently by this court in Rogers Cartage Co. v. Reynolds, 166 F.2d 317. While different sections of the Act, namely, § 9 and § 11, 29 U.S.C.A. §§ 258, 260, were there construed the constitutionality of the Act was attacked upon grounds similar to those relied on herein. An exhaustive consideration of the validity of the Act was given by this court in Fisch v. General Motors Corp., supra, and its constitutionality was sustained. Cf. Seese v. Bethlehem Steel Co., supra. We adhere to our previous decisions, and deem it unnecessary further to discuss this portion of appellants’ argument.
The judgment of the District Court is affirmed.
Question: What is the general issue in the case?
A. criminal
B. civil rights
C. First Amendment
D. due process
E. privacy
F. labor relations
G. economic activity and regulation
H. miscellaneous
Answer:
|
songer_casetyp1_1-3-2
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "criminal - state offense".
James Albert KENNEDY, Petitioner-Appellee, v. Jay FAIRMAN, Warden, Pontiac Correctional Center, Respondent-Appellant.
No. 79-1957.
United States Court of Appeals, Seventh Circuit.
Argued Feb. 15, 1980.
Decided April 11, 1980.
Melbourne A. Noel, Jr., Asst. Atty. Gen., Crim. Div., Chicago, 111., for respondent-appellant.
Glenn O. Fuller, Decatur, 111., for petitioner-appellee.
Before CUMMINGS, SPRECHER and TONE, Circuit Judges.
SPRECHER, Circuit Judge.
The question raised in this appeal is whether the district court erred in holding that the statements made by petitioner were obtained in violation of his right to counsel under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). We hold that petitioner waived his right to counsel and reverse the judgment below.
I
Petitioner, James Kennedy, was arrested on July 30, 1976 and charged with the rape and deviate sexual assault of a female with whom he worked at the Temple B’nai Abraham in Decatur, Illinois. On November 23, 1976, a jury acquitted him of the deviate sexual assault charge, but was unable to reach a verdict on the rape charge. A second jury found petitioner guilty of rape and the trial judge sentenced him to a term of fourteen to fifty years in prison. The Illinois Appellate Court affirmed, People v. Kennedy, 60 Ill.App.3d 947, 18 Ill.Dec. 345, 377 N.E.2d 830 (1978), and the state supreme court denied leave to appeal. 71 Ill.2d 612 (1978).
Having exhausted all of his state remedies, Kennedy petitioned the district court for a writ of habeas corpus. In support of the petition, he argued that police had violated his privilege against self-incrimination by eliciting statements from him despite his repeated requests for counsel. The State argued that petitioner had knowingly waived his right to have counsel present. The district court rejected the State’s argument and granted the writ, holding that petitioner had not waived his right to counsel.
In accordance with 28 U.S.C. § 2254(d), the district court relied on the factual findings made by the state trial court, without conducting an evidentiary hearing of its own. Since the factual findings by the state court implicitly resolved conflicts in testimony in favor of the State’s witnesses, the district court correctly did the same.
The relevant facts can be summarized as follows. After being arrested and booked, petitioner was taken directly to an office in the police station for interrogation. The first interview began at 7:40 p. m. It is undisputed that he was informed, both orally and in writing, of his Miranda rights. See Miranda v. Arizona, 384 U.S 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). It is also undisputed that he requested an attorney.
Petitioner was given a copy of the police department’s standard custodial advice form on which he made and initialed the following statements:
1. You do not have to make any statement at this time and have a right to remain silent.
I DENY CHARGE
J.K.
2. Anything that you say can and will be used against you in a Court of Law.
UNDERSTOOD AND STILL DENY CHARGE
J.A.K.
3. You are entitled to an attorney before any interview and to have an attorney present at the interview.
I WANT ATTORNEY
J.A.K.
4. If you cannot afford an attorney, one will be appointed for you.
UNDERSTOOD
J.A.K.
5. The above rights have been read by me and to me and I fully understand them. Understanding the above rights I wish to make a statement to the Police Officers interviewing me. WITH ATTORNEY PRESENT TODAY
Signature
/s/ J. A. Kennedy
Quoted in Kennedy v. Pinkney, 473 F.Supp. 1279, 1281 (C.D.Ill.1979). After making these notations, petitioner made an oral request for an attorney. According to one of the interrogating officers:
Mr. Kennedy said he wanted an attorney and he wanted an attorney there at the time of the interview. He said he didn’t have any money and he wanted the Court to appoint him an attorney. We advised him several times, three or four times that if he wanted a court appointed attorney, we would have to stop the interview and take him back downstairs and he would have to make a court appearance, that we couldn’t get him a court appointed attorney at that time. He didn’t seem to understand it and so we explained it three or four times and then he understood he couldn’t have a court appointed attorney at that time.
Transcript of September 2, 1976, Hearing on Defendant’s Motion to Suppress, at 13-14.
The officer then testified that petitioner was informed that “if he wanted to talk to us, he would have to get his lawyer down there.” Transcript at 17. According to the testimony, the police gave petitioner a telephone book; after a few moments, he said he wanted to call Mr. Asher Geisler, an attorney and member of the congregation for the Temple where Kennedy and the complainant worked. Geisler told petitioner that he could not be with him at that time because he was conducting religious services at the Temple. All parties are in agreement on the facts up to this time. A dispute arises as to what petitioner told police after talking to Geisler, but since the state court credited the officers’ testimony, we are bound by those findings.
According to the interrogating officers, petitioner told them that Geisler instructed him to speak with them. They therefore proceeded to question him about the rape. Petitioner denied any involvement with the complainant.
He was questioned again at approximately 1:30 a. m. the next day. A new interrogator gave him Miranda warnings, reading from the same form on which petitioner had written his request for an attorney. According to the officer, petitioner said he had spoken with an attorney and was willing to talk. While some of the statements made during this second interview hinted at some involvement between petitioner and his co-worker, he still made no statement that amounted to a confession or admission of rape.
A third detective questioned petitioner again at approximately 9:30 a. m. As had each of the preceding officers, the detective read the Miranda rights from the custodial advice form. He testified that petitioner said he understood his rights and was willing to talk. When asked about his written comments on the form, petitioner said his attorney had advised him to talk. During this last interrogation, Kennedy admitted to having engaged in some sexual conduct with the complainant.
Petitioner’s exculpatory statements in the first interview and his admissions in the third interview were introduced at trial.
II
Petitioner argues that the failure of the interrogating officers to cease their questioning as soon as he requested a lawyer constituted a per se violation of his right to counsel. In the recent case of White v. Finkbeiner, 611 F.2d 186 (7th Cir. 1979), however, we laid to rest any speculation about whether this circuit followed a per se rule. We stated:
A per se rule which provided that a suspect could never waive a prior request for counsel would imprison a suspect in his privileges, [citation omitted] This is not to say that continued interrogation or any coercion causing the suspect to waive the request need be condoned. Instead, it merely is an acknowledgement that in certain instances, for various reasons, a person in custody who has previously requested counsel may knowingly and voluntarily decide that he no longer wishes to be represented by counsel.
Id. at 191.
Although the per se argument must fail, the State nevertheless bears the heavy burden of proving that petitioner waived his right to counsel. See Brewer v. Williams, 430 U.S. 387, 404, 405 & n. 10, 97 S.Ct. 1232, 1242 & n. 10, 51 L.Ed.2d 424 (1977). The oft-quoted rule is that the State must show “an intentional relinquishment or abandonment of a known right or privilege.” Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938). According to the district court, the State’s burden was particularly heavy in this case because petitioner had so clearly asserted his right to counsel and “ ‘no reason (such as new facts communicated to the accused or a new incident being inquired about) appeared for repeated questioning.’ ” Kennedy v. Pinkney, 473 F.Supp. at 1285 (C.D.Ill.1979), quoting from Michigan v. Mosley, 423 U.S. 96, 111, 96 S.Ct. 321, 330, 46 L.Ed.2d 313 (1975) (White, J., concurring in result). The district court stated that to meet this heavy burden, the officers should have had petitioner sign a waiver or re-initial the first form, as their perfunctory inquiry into the obvious inconsistency between his oral and written assertions was insufficient. At best, the court concluded, the facts as found by the state court showed that petitioner waived his right to remain silent, and not his right to counsel:
Petitioner’s written statements on the form show clearly that he was asserting his right to counsel, not his right to remain silent. ... A clearer assertion of the right to counsel, however, is difficult to imagine.
# * * * * *
One cannot escape the view that the logic of Miranda requires that the clear assertion of a right requires a proportionally clearer showing of the voluntariness of a subsequent waiver.
Kennedy v. Pinkney, 473 F.Supp. at 1284 (C.D.Ill.1979).
Relying on North Carolina v. Butler, 441 U.S. 369, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979), the State argues that the district court impermissibly focused on the form of the waiver. According to the State, “an explicit statement of waiver is not invariably necessary to support a finding that the defendant waived the right to counsel guaranteed by the Miranda case.” Brief of Appellant at 7.
While the State is correct in stating that an explicit waiver is not invariably necessary, we do not read North Carolina v. Butler, supra, to hold that it is never necessary. In Butler, the defendant was informed of his rights and said he understood them. He then agreed to speak to the interrogator, but would not sign any waiver form. The North Carolina Supreme Court held that defendant’s subsequent inculpatory statement should not have been admitted against him at trial because he had not made a specific waiver of his right to counsel. The United States Supreme Court reversed.
According to the Court, an express statement is not indispensable to finding waiver. 441 U.S. at 373, 99 S.Ct. at 1757. The defendant in Butler had never requested an attorney and the Court held that it was not necessary that he make a specific oral or written waiver of that right. In this case, however, petitioner made a clear, express request for an attorney, and we agree with the district court that the State must make a strong showing of the waiver of that right. But we find that the State made such a showing.
Although the district court .concluded that the State advanced no reason for its continued questioning of petitioner after his request for counsel, the facts reveal a very important reason: petitioner spoke with an attorney who advised him to talk to the police. See U. S. v. Eagan, 516 F.2d 1392, 1393 (8th Cir.), cert. denied, 423 U.S. 856, 96 S.Ct. 106, 46 L.Ed.2d 81 (1975) (confession voluntary where defendant made statements to police after consulting with attorney). Without speculating on the merits of such advice, the fact remains that petitioner’s request for an attorney before speaking with police was certainly honored, and his request to have an attorney present during interrogation seems clearly waived.
After making the written requests on the custodial advice form, petitioner was allowed to speak with ah attorney. The police asked no questions about the incident until after he had spoken with the attorney and told them that he was then willing to talk. Before each subsequent interrogation, he was again informed of his rights and he again agreed to speak to the officers. We believe that petitioner’s waiver of his right to remain silent in this case comes very close to an explicit waiver of his right to have counsel present during the interrogation. Contrary to the conclusion reached by the trial court, in the context of Miranda, a distinction between the right to counsel and the right to remain silent cannot so clearly be drawn.
The right to counsel here is not the separate, independent right guaranteed by the Sixth Amendment. Indeed, petitioner does not argue that it is. Rather, it is merely part of the prophylactic rule developed by the Miranda Court to protect a criminal suspect’s Fifth Amendment privilege against self-incrimination. See Null v. Wainwright, 508 F.2d 340, 342 (5th Cir.), cert. denied, 421 U.S. 970, 95 S.Ct. 1964, 44 L.Ed.2d 459 (1975); Smith v. Wainwright, 581 F.2d 1149, 1152 (5th Cir. 1978). The Miranda Court explained the function of the right to counsel in a Fifth Amendment context:
The circumstances surrounding in-custody interrogation can operate very quickly to overbear the will of one merely made aware of his privilege by his interrogators. Therefore, the right to have counsel present at the interrogation is indispensable to the protection of the Fifth Amendment privilege under the system we delineate today. Our aim is to assure that the individual’s right to choose between silence and speech remains unfettered throughout the interrogation process.
384 U.S. at 469, 86 S.Ct. at 1625. Clearly, the Court intended the right to counsel to aid a suspect in making an intelligent decision about whether to remain silent. It did not create an independent right. We do not mean in any way to imply that every waiver of the right to remain silent constitutes a waiver of the right to counsel. Rather, we hold that under certain circumstances, a waiver of the right to remain silent may also constitute a waiver of the right to counsel. We hold that petitioner’s express waiver of his right to remain silent in this case was clear evidence that he intended also to waive his right to have counsel present during the interrogation.
Petitioner contends that he did not waive any rights by telling the officers that he was willing to talk; rather, he made statements to the police under the erroneous assumption that because he had no attorney present, nothing he said could be used against him. We do not find this argument persuasive.
Defendant himself testified that he knew from his study of Miranda, supra, and Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), that he had a right to counsel. The state court found that petitioner’s knowledge of the law made “unquestionabl[e]” his understanding of his rights. Transcript of September 2, 1976, Hearing on Defendant’s Motion to Suppress, at 52. We can find no error in that conclusion. Cf. U. S. v. Frazier, 476 F.2d 891, 896-98 (D.C. Cir. 1973) (where there was no coercion and defendant had capacity to understand warnings, lower court did not err in concluding that government carried burden of showing knowing and voluntary waiver).
According to the testimony of the last officer to question him, petitioner said that his lawyer had advised him to speak to the police. Since we must credit the officer’s testimony, the only legal conclusion we can reach is that, after speaking with an attorney, petitioner waived his right to have counsel present during questioning. This is not a case where the police continued to question a suspect after he requested counsel in an attempt to break down his resistance and elicit a confession. See, e. g., Maglio v. Jago, 580 F.2d 202, 205 (6th Cir. 1978). Rather, this is a case where petitioner requested a lawyer and was allowed to consult with one. After consulting with an attorney, he agreed to speak with police. Petitioner does not contend that his statements were obtained through coercion or duress; indeed, they were, in the traditional sense, voluntary statements.
We hold that petitioner knowingly waived his right to counsel. We find the judgment of the district court to be clearly erroneous and accordingly reverse.
. Petitioner also argued that certain evidence relating to the deviate sexual assault charge had been introduced in his second trial in violation of the principles of collateral estoppel. The district court found that collateral estoppel did not apply to the evidence in question and petitioner has not appealed that finding.
. 28 U.S.C. § 2254(d) reads in pertinent part:
(d) In any proceeding instituted in a Federal court by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination after a hearing on the merits of a factual issue, made by a State court of competent jurisdiction in a proceeding to which the applicant for the writ and the State or an officer or agent thereof were parties, evidenced by a written finding, written opinion, or other reliable and adequate written indicia, shall be presumed to be correct, unless the applicant shall establish or it shall otherwise appear, or the respondent shall admit—
(1) that the merits of the factual dispute were not resolved in the State court hearing;
(2) that the factfinding procedure employed by the State court was not adequate to afford a full and fair hearing;
(3) that the material facts were not adequately developed at the State court hearing;
(4) that the State court lacked jurisdiction of the subject matter or over the person of the applicant in the State court proceeding;
(5) that the applicant was an indigent and the State court, in deprivation of his constitutional right, failed to appoint counsel to represent him in the State court proceeding;
(6) that the applicant did not receive a full, fair, and adequate hearing in the State court proceeding; or
(7) that the applicant was otherwise denied due process of law in the State court proceeding;
(8) or unless that part of the record of the State court proceeding in which the determination of such factual issue was made, pertinent to a determination of the sufficiency of the evidence to support such factual determination, is produced as provided for hereinafter, and the Federal court on a consideration of such part of the record as a whole concludes that such factual determination is not fairly supported by the record
* * * * * *
. While we might have resolved some of the conflicts differently, the state court observed the witnesses first-hand, and absent an evidentiary hearing in the district court, we must honor the state court’s credibility choices. See 28 U.S.C. § 2254(d); cf. Fed.R.Civ.P. 52(a).
. Petitioner argues that this court adopted a per se rule in U.S. ex rel. Williams v. Twomey, 467 F.2d 1248 (7th Cir. 1972). We specifically rejected such a contention in White. See White v. Finkbeiner, 611 F.2d 186, 191 n. 15 (7th Cir. 1979).
. The Sixth Amendment reads, in pertinent part:
In all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence. U.S.Const., Amend. VI. Petitioner does not argue that he was deprived of this constitutional right. Instead, he argues that his Fifth Amendment privilege against self-incrimination was violated.
. That is not to say that the Miranda rights to counsel and to remain silent are identical. On the contrary, the invocation of one or the other might require different procedures on the part of the police.
In Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975), the Supreme Court stated that when a suspect asserts his right to remain silent, the police must stop the interrogation, but may resume questioning after a reasonable length of time if new warnings are given and if the facts show that they are not making repeated efforts to wear down the suspect’s resistance. Id. at 105-06, 96 S.Ct. at 327. The Court suggested that the procedures might be different where a suspect requested a lawyer. Quoting from Miranda v. Arizona, 384 U.S. 436, 474, 86 S.Ct. 1602, 1627, 16 L.Ed.2d 694 (1966), the Court said:
If the individual cannot obtain an attorney and he indicates that he wants one before speaking to police, they must respect his decision to remain silent.
423 U.S. at 101 n. 7, 96 S.Ct. at 325 n. 7.
In this case, as discussed in the text, police did not question petitioner until after he spoke with an attorney and after he said his attorney had advised him to speak. Therefore, under these facts, it seems clear that petitioner’s express statement that he was willing to speak with police was also a waiver of his right to have counsel present during the interrogation.
Question: What is the specific issue in the case within the general category of "criminal - state offense"?
A. murder
B. rape
C. arson
D. aggravated assault
E. robbery
F. burglary
G. auto theft
H. larceny (over $50)
I. other violent crimes
J. narcotics
K. alcohol related crimes, prohibition
L. tax fraud
M. firearm violations
N. morals charges (e.g., gambling, prostitution, obscenity)
O. criminal violations of government regulations of business
P. other white collar crime (involving no force or threat of force; e.g., embezzlement, computer fraud,bribery)
Q. other state crimes
R. state offense, but specific crime not ascertained
Answer:
|
songer_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 - taxes, patents, copyright - federal taxation - individual income tax (includes taxes of individuals, fiduciaries, & estates). 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".
COMMISSIONER OF INTERNAL REVENUE v. GROMAN.
No. 5779.
Circuit Court of Appeals, Seventh Circuit.
Nov. 30, 1936.
Rehearing Denied Jan. 7, 1937.
Robert H. Jackson, Asst. Atty. Gen., and Sewall Key and Joseph M. Jones, Sp. Assts. to the Atty. Gen., for petitioner.
Egbert Robertson and James C. Spence, both of Chicago, Ill. (Robertson, Crowe & Spence, of Chicago, Ill., of counsel), for respondent.
Before EVANS, Circuit Judge, and LINDLEY and BRIGGLE, District Judges.
EVANS, Circuit Judge.
The Commissioner appeals from a ruling of the Board which held that the stock under consideration, received by respondent, was not taxable to him as gain because received in the course of a reorganization.
The Facts. Respondent was a stockholder in the Metals Refining Company, an Indiana corporation. The Glidden Company is an Ohio corporation. On January 29, 1929, the Glidden Company and all the stockholders of Metals Company entered into an agreement whereby all the stock of the Metals Company was to be transferred to a third company (Metals Refining Co. of Ohio), an Ohio corporation, to be formed by the Glidden Company. The consideration to the stockholders of Metals Company for the trarisfer was '$153,036.66 cash; 5276 shares of 7% prior preferred stock of the Glidden Company at $105 per share; and 5000 shares of 6% cumulative preferred stock of the new company.
Each shareholder of the Indiana corporation, of which respondent was one, received the percentage of this total consideration that his stock holdings bore to the total outstanding stock of said Indiana company. Glidden Company paid cash for the common stock of the new Ohio company. It did not receive any of the preferred stock of this company. The Indiana company was dissolved. Its assets were valued at $1,207,046.66. It is admitted that the cash received by stockholders was taxable and also that respondent’s proportion of the 5000 shares of the preferred stock of the new Ohio Company by him received was not taxable. The issue is limited to respondent’s proportion of 5276 shares of preferred stock of Glidden Company.
Did the Board of Tax Appeals correctly hold that the Glidden Company was a party to a reorganization within the meaning of section 112 (i) (2) of the Revenue Act of 1928?
The pertinent reorganization sections are:
Ҥ 112. (a) General rule. Upon the sale or exchange of property the entire, amount of the gain or loss determined under section 111, shall be recognized, except as hereinafter provided in this section. * * *
“(b) * * * (3) Stock for stock on reorganization. No gain or loss shall be recognized if stock or securities in a corporation a party to a reorganization are, in pursuance of the plan of reorganization, exchanged solely for stock or securities in such corporation or in another corporation a party to the reorganization.
“(4) Same — Gain of corporation. No gain or loss shall be recognized if a corporation a party to a reorganization exchanges property, in pursuance of the plan of reorganization, solely for stock or securities in another corporation a party to the reorganization. * * *
“(5) (c) Gain from exchanges not solely in kind. — (1) If an exchange would be within the provisions of subsection (b) (1), (2), (3), or (5) of this section if it were not for the fact that the property received in exchange consists not only of property permitted by such paragraph to be received without the recognition of gain, but also of other property or money, then the gain, if any, to the recipient shall be recognized, but in an amount not in excess of the sum of such money and the fair market value of such other property.
“(2) If a distribution made in pursuance of a plan of reorganization is within the provisions of paragraph (1) of this subsection but has the effect of the distribution of a taxable dividend, then there shall be taxed as a dividend to each distributee such an amount of the gain recognized under paragraph (1) as is not in excess of his ratable share of the undistributed earnings and profits of the corporation accumulated after February 28, 1913. The remainder, if any, of the gain recognized under paragraph (1) shall be taxed as-a gain from the exchange of property. * * *
“(i) Definition of Reorganization. As used in this section and sections 113 and 115—
“(1) The term ‘reorganization’ means (A) a merger or consolidation (including the .acquisition by one corporation of at least a majority of the voting stock and at least a majority of the total number of shares of all other classes of stock of another corporation, or substantially all the properties of another corporation), or (B) a transfer by a corporation of all or a part of its assets to another corporation if immediately after the transfer the transferor or its stockholders or both are in control of the corporation to which the assets are transferred, or (C) a recapitalization, or (D) a mere change in identity, form, or place of organization, however effected.
“(2) The term ‘a party to a reorganization5 includes a corporation resulting from a reorganization and includes both corporations in the case of an acquisition by one corporation of at least a majority of the. voting stock and at least a majority of the total number of shares of all other classes of stock of another corporation.
“(j) Definition of control. As used in this section the term ‘control’ means the ownership of at least 80 per centum of the voting stock and at least 80 per centum of the total number of shares of all other classes of stock of the corporation.” (26 U.S.C.A. § 112(a), (b) (3), (4) (c) (1,2) and note (g) (1,2) note, (h) and note.)
The recent decisions of the courts which have passed upon similar questions reject the respondent’s contention that he was within the exemption of the reorganization section. In other words, thq [following cases, while not exactly in point, are persuasive. Bus & Transport Securities Co. v. Helvering, 296 U.S. 391, 56 S.Ct. 277, 80 L.Ed. 292; G. & K. Manufacturing v. Helvering, 296 U.S. 389, 56 S.Ct. 276, 80 L.Ed. 291; Ballwood Co. v. Commissioner (C.C.A.) 84 F.(2d) 733.
Determinative of the question before us is the answer to the question, Was Glidden a party to1 reorganization whereby the Indiana Company transferred its stock to the Ohio Company and the latter paid the stockholders of Indiana Company in cash, preferred stock of Ohio Company, and preferred stock of Glidden Company?
We see no reason for extending the meaning of the term “party” as it appears in section 112 (i) (2) (26 U.S.C.A. § 112 (g) (2) note). To hold otherwise would be to usurp legislative functions. Congress has defined a party to a reorganization so as to permit a taxpayer to avoid what would otherwise be taxable income. It could have refused to allow such deductions altogether. Having exempted “gains” through reorganization, it could and did define reorganizations. In so doing it used the term “a party” referring to those who were in the reorganization. We must hold respondent to the definition which Congress specifically gave to the word “party.” It would, we think, be a forced construction to assume that under such circumstances there were parties other than those defined by the statute. Respondent relies upon the exemption of the statute, but declines to abide by the Congressional definition of essential terms.
The conclusion here reached is confirmed if we view the transaction from another approach. Let us assume that we have a taxpayer who owns stock in a corporation which he sells to another corporation. He is paid partly in cash, chiefly in preferred stock of a third corporation, and the balance in preferred stock of a corporation which buys his stock. The price received is in excess of the cost of the stock to him. Is his gain taxable?
There can be no question about the correctness of an affirmative answer save for an alleged exception or exemption from the tax law due to the reorganization provision of the act. The cash received, of course, is not exempt. The taxpayer does not question the tax upon the cash by him received. The Government concedes the soundness of the taxpayer’s claim of exemption so far as the stock of the acquiring corporation is concerned. In the face of this concession this item like the cash item is out of the picture. As to the stock of a third company, even though it be a parent company, there seems no reason for exempting it any more than could be advanced for exempting the cash. Instead of preferred stock of the third company, it might have been bonds of the third or a fourth company, or real estate or physical personal property. The reason for exempting the stock of the purchasing company does not apply.
Our conclusion, however, is based not upon the reasons for Congressional action, but upon the fact that Congress, in exempting gains derived through the transfer of stock which transfers are but a part of reorganizations, saw fit to define with particularity the terms “reorganization” and “parties to reorganization.” As we apply these definitions to the facts before' us, we are impelled to the conclusion that the Glidden preferred stock was not exempted.
The order is reversed, with directions to proceed in accordance with the views herein expressed.
Question: What is the second general issue in the case, other than economic activity and regulation - taxes, patents, copyright - federal taxation - individual income tax (includes taxes of individuals, fiduciaries, & estates)?
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_procedur
|
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 rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant.
UNITED STATES of America, Plaintiff-Appellee, v. Johnny CHARLES, Defendant-Appellant.
No. 71-2061.
United States Court of Appeals, Sixth Circuit.
May 26, 1972.
Robert Allen Sedler, Lexington, Ky., for appellant.
Eldon L. Webb, Asst. U. S. Atty. (Eugene E. Siler, Jr., U. S. Atty., Eastern District of Kentucky, on the brief), for appellee.
Before WEICK, EDWARDS and CELEBREZZE, Circuit Judges.
PER CURIAM.
Appellant was convicted of refusing to report for induction into the Armed Forces in violation of 50 App. U.S.C. § 462(a). The District Court imposed the maximum sentence permissible under § 462 — five years. Appellant contends that his induction order was invalid and that his conviction must therefore be reversed. He also contends that the District Court abused its discretion in imposing the five year prison sentence.
We deal first with the asserted invalidity of Appellant’s induction order.
On October 21, 1970, Appellant was issued an order requiring him to report for induction into the Armed Services. A few days later Appellant telephoned his local Selective Service Board and informed its executive secretary that he intended to seek conscientious objector status. Although the Board accorded him a hearing on his claim it held itself powerless to reopen Appellant’s classification. Appellant reported to the induction center, but refused to take the symbolic step forward required of inductees.
On the record of this case we do not believe the late “crystallization” of Appellant’s conscientious objector beliefs impugns the sincerity of his beliefs. See Ehlert v. United States, 402 U.S. 99, 103, 104, 91 S.Ct. 1819, 28 L.Ed.2d 625 (1971). The timing of Appellant’s request for C.O. status did, however, foreclose his Board from considering his request for reclassification and required that Appellant submit to induction and raise his conscientious objector claim through military channels if the claim was to be heard at all, Ehlert, supra.
Appellant’s selective Service Board did not inform him that he could accept induction and still assert his conscientious objector claim through military channels. In fact, testimony adduced at trial indicated that both local and Kentucky state Selective Service officials were themselves unaware that such right was available to a registrant whose beliefs had crystallized in the period between the issuance of induction orders and his scheduled date of induction.
It is Appellant’s theory that the Selective Service officials had an affirmative duty to inform him of his post induction rights and that their failure to do so invalidated his induction order. He relies heavily on the language of Ehlert, supra, insofar as that decision emphasizes the importance of the post induction avenue of relief for late crystallizers. He also draws this Court’s attention to the practice of the Ohio Selective Service system which regularly sends notices to registrants in Appellant’s position, informing them of their right to raise C.O. claims once they have been inducted into the armed forces.
Appellant has never asserted that the lack of notice prejudiced him in any way; he has never claimed that had he been given notice he would have consented to induction. In fact, the principles of faith accepted by the Jehovah’s Witnesses, upon which Appellant relies for support of his conscientious objector claim, apparently forbid acceptance of induction.
Accordingly, it is apparent that Appellant asks this Court to do no less than adopt a rule of per se invalidity for any induction order issued to a registrant whose conscientious objector beliefs crystallize ■ too late to be examined by a Selective Service Board, and who is not told of his right to pursue his conscientious objector claim after induction into the military. While we believe there is wisdom in the notice policy adopted by the Ohio Selective Service System, we decline to hold that failure to adopt such policy or a substantially equivalent one so infringes the principles of procedural fairness as to require automatic invalidation of induction orders issued by Boards which have not adopted such procedures.
Although we uphold Appellant’s conviction today we are also of the opinion that in imposing the maximum prison sentence available under the statute the District Judge abused the sentencing discretion which is confided to him.
In Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949), the Supreme Court emphasized the importance of “individualizing sentences.” It approved the concept that “the punishment should fit the offender and not merely the crime,” adding also: “The belief no longer prevails that every offense in a like legal category calls for an identical punishment without regard to the past life and habits of a particular offender.” 337 U.S. at 247, 69 S.Ct. at 1083.
Yet, as we have had occasion to point out in the past, the Courts in one District within this Circuit have persistently disregarded this individual sentencing approach with respect to one category of offenses — violations of the Selective Service laws. With very rare exceptions, the judges in the Eastern District of Kentucky have consistently meted out five year prison sentences to draft offenders regardless of the circumstances of the particular offender. We have had occasion to criticize this practice in the past. United States v. Daniels, 429 F.2d 1273 (6th Cir. 1970); United States v. Daniels, 446 F.2d 967 (6th Cir. 1971); United States v. McKinney, 427 F.2d 449 (6th Cir. 1970); United States v. McKinney (6th Cir. #71-1563, decided December 17, 1971); we have not changed our policy on this matter.
In sentencing Appellant, the District Judge declared:
“I always come back to the proposition that the minimum period of service for a man that is inducted is two years. Of course, these defendants are subject to parole when they have served a third of their sentence, and I assume that most of them make it. I don’t know whether that is a rational basis for considering the sentence to be imposed or not, but when you consider a man has just willfully neglected to serve and refused to serve his country, it would seem to be a travesty that he would serve less time at confinement, even under a maximum sentence, than a man who went on and served.” (143a).
Although the District Judge took pains to suggest that he was complying with the rule set out by this Circuit in Daniels (77), it is apparent from the remarks just quoted that he continues to apply an inflexible standard to sentencing in draft cases. Such an approach is inconsistent with the teachings of Williams, supra, and with our decision in Daniels.
While the District Judge also attempted to justify his severe sentence by stating that he found Appellant “insincere” in his beliefs, nothing in the record upon which the District Judge relied would seem to support this statement. On the contrary, the record would seem to disclose a young man whose actions were governed by deeply held religious beliefs. The timing of Appellant’s first interest in the Jehovah’s Witnesses faith, related by the District Court to Appellant’s reclassification as I-A in July would seem much more plausibly traced to his July marriage to a member of the Witnesses faith. Under her influence Appellant began the training required of an entrant to that faith almost immediately. He has continued his work and in March, 1971 was accepted as a Witness and formally baptized. These events are entirely consistent with Appellant’s statements that as a matter of religious conviction he could not accept induction.
It is evident that the real basis for sentencing was simply the District Judge’s belief that no person charged with a draft offense should serve less time in prison than he would have served in the military had he accepted induction. This is not a proper basis for sentencing.
In past decisions we have called the attention of the District Judges in our Circuit to the practices which have become common in two Districts — the Northern District of Ohio and the Western District of Michigan — where young men of the Jehovah’s Witness faith who have refused to comply with draft laws have had their sentences suspended and been placed on probation when they agreed to perform court-ordered alternative service. See United States v. Daniels, 429 F.2d at 1274. We commend such policies to the attention of the Judges of the Eastern District of Kentucky, but in light of the differences which set apart Appellant’s case from those discussed in Daniels, we refrain from indicating that probation is the only appropriate disposition of this case. We do wish to make it clear however, that given the circumstances surrounding the commission of the present offense, a prison term of the length imposed by the District Court seems to us to be inconsistent with the sentencing principles set forth in Williams, supra, and in the Daniels decisions of this Court.
Accordingly, we affirm Appellant’s conviction, but remand for reconsideration of sentence in light of our prior decisions and the concerns expressed in this opinion.
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_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.
VIRGIN ISLANDS HOTEL ASSOCIATION (U.S.), INC., a corporation, Appellant, v. VIRGIN ISLANDS WATER & POWER AUTHORITY.
No. 72-1996.
United States Court of Appeals, Third Circuit.
Argued Jan. 19, 1973.
Decided April 12, 1973.
Evelyn N. Cooper, Isherwood & Colianni, Christiansted, St. Croix, V. I., for appellant.
Ronald H. Tonkin, Atty. Gen. of the Virgin Islands, Sidney H. McKenzie, III, Asst. Atty. Gen., St. Thomas, V. I., Wallace L. Duncan, Duncan & Brown, Washington, D. C., for appellee.
Before VAN DUSEN and ADAMS, Circuit Judges, and BARLOW, District Judge.
OPINION OF THE COURT
VAN DUSEN, Circuit Judge.
This is the second time that these parties, the Virgin Islands Hotel Association (the Hotel Association) and the Virgin Islands Water and Power Authority (the Authority), are before this court. On the first occasion, in Virgin Islands Hotel Ass’n v. Virgin Islands Water & Power Authority, 465 F.2d 1272 (3d Cir. 1972), this court upheld with modification an injunction the district court had issued against the Authority. By order of October 3, 1972, the district court vacated that injunction, and the Hotel Association appeals. We affirm the October 1972 order of the district court.
I. BACKGROUND
It is necessary only to summarize the facts stated in our earlier opinion and in the first opinion of the district court, reported at 54 F.R.D. 377 (D.V.I.1972).
In the late fall of 1971, the Authority became worried that its revenues would soon fail to provide the coverage over interest required by its outstanding debt instruments, with devastating impact on its ability to procure additional needed financing. On November 10, 1971, it issued a press release indicating its intention to raise electric rates by from about 19% for residential users to about 25% for large power users. Public hearings were held one week later, and on December 3 the Authority put the proposed increases into effect.
The Hotel Association was understandably upset, since its members are classified as “large power” users. It immediately sought an injunction against the rate increase. The district court ruled that the Authority had violated 30 V.I.C. § 105(a) (12) in two ways. First, because the Authority did not have at its disposal information on the cost of providing electricity to its various classes of customers, the Authority had failed “to determine . . . reasonable rates.” Second, the public hearings held pursuant to this section 105(a) (12) were altogether inadequate. Among other defects, notice to the public was too short to allow adequate preparation time and the reports the Authority relied on were not made available publicly until the first public hearing. The district court, on February 4, 1972, ordered the Authority to rescind the increases, to have made an appropriate study of costs (called a “rate” study), and to hold proper public hearings on the proposed increases. However, to avoid possible disruption, the court stayed this injunction for ten months.
By decision of June 28, 1972, this court, although ruling that the Authority’s determination of rates is not subject to judicial review, held that review is available when the Authority has “ignored a plain statutory duty, exceeded its jurisdiction, or committed constitutional error.” 465 F.2d at 1275. “The rate fixing procedure created by 30 V.I. C. § 105(a) (12) contemplates a meaningful public hearing at which interested persons can present their views and present evidence in support thereof. Concomitant with such a hearing are the essential requirements of adequate notice, dissemination to the public of the facts and figures on which the Authority relies, and an opportunity afforded to those attending the hearing to rebut such facts and figures.” Id. at 1276. This court agreed with the district court that the Authority’s hearings did not comply with these requirements. This court did not, however, agree that § 105(a) (12) imposed any duty “to make rate studies as such,” id. at 1276, and modified the district court injunction accordingly.
To comply with this court’s mandate, the Authority commissioned new reports from R. W. Beck & Associates and from D.S.S. Engineering, Inc. (hereinafter D.S.S.); it also had Jackson & Moreland prepare an update of the report they had prepared earlier. On July 5, 1972, the Authority issued a press release stating, inter alia, that new hearings would be held and that the earlier Jackson &. Moreland study was available to the public. Beginning on August 12, 1972, the Authority had published in the local newspapers notices that new public hearings would be held on September 11, 12 and 13. The Authority made the Beck and the Jackson & Moreland reports available to the public on August 8, the D.S.S. report on August 28.
The Authority held these hearings as scheduled. At each hearing various officials of the Authority commented on the proposed rate increases, and representatives from the three engineering firms summarized and discussed the contents of their reports. In accordance with the procedure announced at the beginning of each meeting, all persons could submit written questions, which would be answered by either an official of the Authority or a representative from one of the firms. In addition, all persons could submit written statements or, at the conclusion of the Authority’s presentation, deliver oral statements. According to an affidavit of the Authority’s Executive Director, “All questions which were asked were responded to. In addition, any person desiring to make a statement with regard to the proposed subject rate increases were [sic] permitted to do so.”
The Secretary of the Hotel Association’s St. Thomas-St. John Chapter testified at the September 12 hearing held on St. Thomas. In addition, counsel for the Hotel Association and an expert the Association had hired, Constance W. Bary, attended the September 13 hearing held at Christiansted on St. Croix. Counsel objected to the testimony not being sworn and not being subject to oral cross-examination. Counsel had no written questions to submit, but was allowed to give orally an “offer of proof” of what the Hotel Association would have established if an opportunity for cross-examination had been granted. Admitting that Mr. Bary had not been contacted until September 7, such counsel also requested that the hearing be adjourned until November 9. This adjournment would give the Authority time to prepare, and for Mr. Bary to review, data which counsel said were necessary to examine the reasonability of rates. Counsel and Mr. Bary then stated that without such data the Hotel Association was unable to demonstrate the unreasonableness of the proposed rates.
Following the hearings, the Authority determined that the rates it had proposed the previous December were reasonable. The Authority then filed a motion in the district court to vacate the injunction. The district court, after considering the Hotel Association’s allegations of substantive and procedural infirmities, vacated the injunction by its October 1972 order.
II. PROCEDURAL ISSUES
The Hotel Association argues either that the September 1972 hearings did not comply with 30 V.I.C. § 105(a)(12) as interpreted by this court in deciding the previous appeal or that, assuming compliance, the statute itself fails to provide the due process of law required by 48 U.S.C. § 1561 (1970). Specifically, the Hotel Association urges that the notice of the hearings and the prior dissemination of the engineering studies were inadequate; that these deficiencies were perpetuated by the denial of the adjournment it requested; that the hearings themselves should have been trial-type, rather than legislative-type; that they should have been conducted by an impartial hearing officer; and that in making its final decision the Authority improperly relied on evidence not in the record.
“Whether [due process] requires that a particular right obtain in a specific proceeding depends upon a complexity of factors. The nature of the alleged right involved, the nature of the proceeding, and the possible burden on that proceeding, are all considerations which must be taken into account.” Hannah v. Larche, 363 U.S. 420, 442, 80 S.Ct. 1502, 1515, 4 L.Ed.2d 1307 (1960). Accord, Goldberg v. Kelly, 397 U.S. 254, 263, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970); Marine Space Enclosures, Inc. v. Federal Maritime Commission, 137 U.S.App.D.C. 9, 420 F.2d 577, 589-590 (1969).
While this court, in its prior opinion, did not state precisely how many days in advance the schedule of the new hearings had to be announced or the reports disseminated, it stressed the importance of notice and dissemination adequate under the circumstances. To be considered, for example, was the complex nature of the data.
The Hotel Association now complains that notice of about one month was too short. What the Hotel Association in effect asks us to ignore is the district court’s injunction which had been stayed for only ten months. As of June 28, when this court handed down its affirmance of that injunction, it was clear to all concerned that the Authority would have to hold new hearings. Moreover, the July 5th press release was sufficient to warn the Hotel Association of the need to retain its expert. Thus, the Hotel Association has only itself to blame for waiting until the end of August before seeking an expert qualified to present its case. Similarly, the question whether or not the public had enough time to evaluate the three engineering studies should be considered in light of the ability of the public under these circumstances to have been ready for the reports. We are not prepared to reverse the decision of the district court and rule as a matter of law that notice and dissemination were inadequate.
The Hotel Association’s request for a two-month adjournment was properly denied, particularly since the Hotel Association did not' make the request sooner, for example, when the schedule of meetings was announced, but at the last meeting held. Moreover, the argument the Authority presented to the district court, that any additional delay would seriously hamper the sale of new bonds, is a persuasive factor.
The Hotel Association’s most telling argument is that the hearings should have been conducted not as legislative hearings but as adversary proceedings. The chief difference between the two modes as regards this case is that a trial-type hearing typically permits oral cross-examination of witnesses. Our earlier opinion did not decide this question.
The Administrative Procedure Act, 5 U.S.C. § 551 et seq. (1970), is instructive. Rule-making proceedings are controlled by § 553, which requires only that interested parties be given adequate notice of the proposed rule, see § 553(b), and “an opportunity to participate in the rule making through submission of written data, views or arguments with or without opportunity for oral presentation,” § 553(c). The procedure for adjudication is set out in §§ 554 and 556, under which “[a] party is entitled to present his case or defense by oral or documentary evidence, to submit rebuttal evidence, and to conduct such cross-examination as may be required for a full and true disclosure of the facts,” § 556(d). If the Administrative Procedure Act governed the Authority’s rate-making, the appropriate proceeding would be rule-making, because the rates in question have only prospective application. § 551(4); Law Motor Freight, Inc. v. CAB, 364 F.2d 139, 143-144 (1st Cir. 1966); see Jones v. District of Columbia, 116 U.S.App.D.C. 301, 323 F.2d 306, 308-309 (1963).
A second distinction which has been relied on by the federal courts is whether the proposed agency action affects a small or a large number of persons. Compare Bi-Metallic Investment Co. v. State Board of Equalization, 239 U.S. 441, 36 S.Ct. 141, 60 L.Ed. 372 (1915), with Londoner v. Denver, 210 U.S. 373, 28 S.Ct. 708, 52 L.Ed. 1103 (1908). The two rationales underlying this distinction are that decisions affecting large numbers of persons are likely to be more concerned with general policies than with specific facts and that permitting many persons to cross-examine each witness would make proceedings totally unmanageable. See United States v. Florida East Coast Railway Co., 410 U.S. 224, 93 S.Ct. 810, 35 L.Ed.2d 223 (1973). In the present case, of course, the proposed increases affected every person in the Virgin Islands. We do not know, however, that there would have been a multitude of cross-examiners at the September hearings if cross-examination had been available.
A third factor, somewhat overlapping the second, is whether the facts in question are “legislative” or “adjudicative.” See 1 K. C. Davis, Administrative Law Treatise, § 702 (1958). That is, will the agency decision depend chiefly on policy considerations or on specific, especially historical facts which are provable or disprovable? The Authority’s decision here appears to have been made, as 30 V.I.C. § 105(a) provides, in reliance on both types of facts — for example, the costs of providing electric service to its various classes of customers and “making the benefits [of water and electric power systems] available to the inhabitants of the Virgin Islands in the widest economic manner consistent with sound fiscal management, and by this means to promote the general welfare and increase commerce and prosperity. ...” § 105(a).
While Professor Davis would thus suggest that cross-examination would be appropriate at least as to the adjudicative facts, a number of courts have held in cases which, like the one before us, involved complex and technical factual controversies, that written submissions, possibly supplemented by oral argument, suffice. United States v. Florida East Coast Railway Co., supra; Phillips Petroleum Co. v. F. P. C., 475 F.2d 842 (10th Cir. 1973); National Air Carriers Association v. CAB, 141 U.S.App.D.C. 31, 436 F.2d 185, 191-194 (1970); American Airlines, Inc. v. CAB, 123 U.S.App.D.C. 310, 359 F.2d 624 (1966); cases cited note 10. One recent case countenances the restriction that questions be submitted in writing. International Harvester Co. v. Ruckelshaus, 478 F.2d 615 (D.C.Cir., 1973), at p. 18-23. On the other hand, the absence here of any specific statutory procedures such as the Administrative Procedure Act necessitates greater leeway than those courts had.
The present case does not compel us to hold that cross-examination will never be required in hearings under 30 V.I.C. § 105(a) (12). Instead, we rely on the failure of the Hotel Association to have demonstrated the inadequacy of written questions, which were permitted. The Hotel Association could easily have informed itself of this aspect of the Authority’s procedures by attending the September 11 meeting. In fact, a representative of the Hotel Association did attend the September 12 meeting on St. Thomas and no doubt could have told counsel in time to prepare for the September 13 hearing that questions had to be in writing. We have carefully examined the Hotel Association’s “offer of proof” at the September 13 hearing, and no reason appears to us that the points there raised could not have been formulated in written questions. Consequently, we hold that the Hotel Association has not shown that it was prejudiced, and on this basis we decline to reverse the district' court. See Woodbury v. McKinnon, 447 F.2d 839, 844 (5th Cir. 1971); Citizens for Allegan County, Inc. v. FPC, 134 U.S.App.D.C. 229, 414 F.2d 1125, 1134 (D.C.Cir. 1969).
The Hotel Association’s other two procedural claims can be quickly disposed of. First, it did not appear that the officials who conducted the hearings in any way intimidated counsel for the Hotel Association or otherwise deprived it of privileges available to other participants. Moreover, because the Board of the Authority had the responsibility for the final decision on the rate increases, it is not at all evident how having a trial examiner take testimony would have altered that decision in any way. Second, in claiming that the Authority went beyond what was in the record at the hearings, the Hotel Association relies on certain language in the resolution in which the Authority adopted the increases. We find that the Hotel Association’s interpretation of this language is contrary to its obvious meaning.
III. SUBSTANTIVE ISSUES
The Hotel Association contends that the Authority did not have adequate information on which to determine whether or not the rates were reasonable. The essence of this argument is that the Authority does not know how to allocate various expenses between water and power distribution and does not know, how much it costs it to supply power to the various types of power users. However, the three engineering studies introduced at the hearings seem to provide just this type of information. The Hotel Association has clearly failed to demonstrate the type of statutory violation subject to review by this court. See V. I. Hotel Association v. V. I. Water & Power Authority, supra, 465 F.2d at 1274.
Finally, we note that the Hotel Association did not attempt to establish in the Authority’s September 1972 hearings or in the subsequent district court proceeding, and does not now urge, that the increase in electric rates is confiscatory. At the district court proceeding held on December 21, 1971, where the Hotel Association challenged the first set of hearings held by the Authority, there was uneontradicted testimony by various witnesses that the electric power bills of Virgin Islands hotels accounted for between four and eight percent of all operating costs (including debt service). See N.T. 136, 143, 145-146, 153. With the proposed increase in mind, the district court at that time computed that the rate increases would increase overall operating costs by about two percent, an amount which it concluded was not going to put the hotels out of business. N.T. 175-176.
The October 3, 1972, order of the district court will be affirmed.
. This affidavit was submitted with the Authority’s Motion to Vacate Injunction. The Hotel Association neither filed a counter-affidavit nor disputed these assertions at the September 1972 hearings held on the motion.
. Transcript of September 13 hearing at Christiansted, at 74-75; September 29 bearing on Motion to Vacate Injunction, at 7-9.
. Transcript of September 13 hearing at Christiansted, at 7-12.
. Id. at 51-57.
. Id. at 59.
. Id. at 63, 67-71.
. We note that the Authority’s decision as to rates concerns rates which the members of the Hotel Association must pay. That factor distinguishes this case from cases such as Morgan v. United States, 298 U.S. 468, 56 S.Ct. 906, 80 L.Ed. 1288 (1936), where an arm of the Government fixed prices that regulated persons could charge to customers. The distinction is that the latter situation is much more fraught with the potential for taking without just compensation and, consequently, places heavier demands on procedural due process. We recognize, however, that there could be such a taking in the present situation.
. September 29, 1972, hearing on Motion to Vacate Injunction, at 9. Counsel for the Authority reiterated the desirability of a prompt resolution in oral argument before this court. Apparently one practical, and perhaps legal, requirement of selling these municipal bonds is an opinion letter from counsel that there is no litigation in progress which would materially affect the bonds.
. The Hotel Association also is dissatisifed with the failure of the testimony to be sworn. Because the persons who testified did so in their professional capacities, it does not seem particularly significant that they were not under oath.
. Law Motor Freight also holds that, as regards setting agency policy for the future, 5 U.S.C. § 553 provides due process of law. Accord, NLRB v. Delaware Valley Armaments, Inc., 431 F.2d 494, 499 (3d Cir. 1970); California Citizens Band Association, Inc. v. United States, 375 F. 2d 43, 50 (9th Cir. 1967).
. This court is reluctant to hold that cross-examination is never needed, since the Authority has such broad discretion not subject to judicial review, see 465 F. 2d at 1274, and since, in the view of several commentators, cross-examination of experts on technical matters can contribute significantly to the decision-making process. Robinson, The Making of Administrative Policy: Another Look at Rulemaking and Adjudication and Administrative Reform, 118 U.Pa.L.Rev. 485, 521-524 (1970); Spritzer, Uses of the Summary Power to Suspend Rates: An Examination of Federal Regulatory Agency Practices, 120 U.Pa.L.Rev. 39, 95-97 (1971); Comment, Public Participation in Federal Administrative Proceedings, 120 U.Pa.L.Rev. 702, 743-744 (1972).
However, as noted at page 1269 above, several federal cases have held that cross-examination is not mandated in such a situation.
. The Hotel Association made no attempt to offer similar data at the September 1972 district court hearing.
Question: What is the total number of appellants in the case that fall into the category "fiduciaries"? Answer with a number.
Answer:
|
songer_casetyp1_7-2
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation".
Edgar T. WEEKES et al., Appellants, v. ATLANTIC NATIONAL INS. CO., Appellee. CALIFORNIA STATE AUTO ASSOCIATION et al., Appellants, v. ATLANTIC NATIONAL INS. CO., Appellee. ATLANTIC NATIONAL INS. CO., Appellant, v. CALIFORNIA STATE AUTO ASSOCIATION et al., Appellees.
No. 20245.
United States Court of Appeals Ninth Circuit.
Dec. 20, 1966.
Robert G. Begam, of Langerman, Begam & Lewis, Phoenix, Ariz., for appellant and appellee Weekes.
John J. O’Connor, III, of Fennemore, Craig, Allen & McClennen, Phoenix, Ariz., for appellants and appellees California State Auto Ass’n Inter-Ins. Bureau and Samuel Rotanzi.
Mark Wilmer, of Snell & Wilmer, Phoenix, Ariz., for appellee and appellant Atlantic Nat. Ins. Co.
Before MERRILL, KOELSCH and DUNIWAY, Circuit Judges.
DUNIWAY, Circuit Judge:
In this action for declaratory relief, in which jurisdiction is based upon diversity of citizenship, there are three appeals. The action was begun by Atlantic National Insurance Co. (Atlantic). The defendants are California State Automobile Association Inter-Insurance Bureau (California), Samuel Rotanzi (Rotanzi) and Edgar T. Weekes and Catherine H. Weekes, husband and wife, (the Weekes). The facts are not disputed, and the court entered a summary judgment, from various parts of which the Weekes, California and Rotanzi, and Atlantic appeal.
The action arose out of an automobile accident occurring in Arizona. Rotanzi rented a car from Hertz Corporation. There was a collision between that car, driven by Rotanzi, and a car owned by the Weekes. For the purposes of this case, it is stipulated that at the time, Rotanzi was under the influence of intoxicating liquor. The accident occurred on April 20, 1961. On June 26, 1961, the Weekes filed an action in the federal district court claiming personal injury damages exceeding $160,000. In February, 1963, the parties agreed to hold that action in abeyance, to await the outcome of a declaratory judgment action to be filed thereafter. On March 22, 1963, Edgar Weekes filed suit in Arizona Superior Court against Rotanzi, claiming damage to his car; the present suit which is the declaratory judgment action that had been agreed upon, was filed by Atlantic about October 1, 1963, issue finally being joined upon the second amended complaint filed November 20, 1964. The car damage action was settled in October, 1963, and a stipulation was filed in that action on October 22, 1963. Pursuant to that stipulation, the car damage action was dismissed with prejudice upon payment to Weekes of $1,101.52, the exact amount prayed for in the complaint. The purpose of the present suit was to determine questions of insurance coverage. It was on file but. had not come to issue when the property damage action was settled.
Atlantic had issued a policy of insurance to Hertz Corporation, affording liability insurance to persons leasing Hertz; cars. In this action, in its second amended complaint, Atlantic claimed:
1. that the disposition of the car damage action makes it a bar to the personal' injury action;
2. that the coverage issued by California to Rotanzi is primary and Atlantic’s coverage, if any, is secondary, and
3. that coverage was not afforded te Rotanzi because the policy excludes coverage if the accident occurs “while [the car is] being operated * * * by any" person under the influence of intoxicants * * or, alternatively, that this exclusionary clause should at least reduce Atlantic’s liability to a maximum of $10,-000 per person and $20,000 per accident. The policy limits are $100,000 and $300,-000.
California had issued a policy of liability insurance to Rotanzi. Both California and Rotanzi asserted:' (1) that the disposition of the car damage action makes it a bar to the personal injury action; (2) that Atlantic’s coverage is primary, or, alternatively, that the two insurers should participate in proportion to the respective limits of their policies; and (3) that Atlantic’s liability is neither excluded nor limited by its exclusionary clause.
The Weekes asserted that the disposition of the car damage case does not make it a bar to the personal injury action, that Atlantic’s liability is neither excluded nor limited, that California is also liable for Rotanzi’s conduct, and that both Atlantic and California should be required to pay the full amount, up to their full policy limits, of the Weekes’ personal injury claims.
All parties moved for summary judgment. The court’s judgment on these motions is to the following effect (the numbering follows the numbering in the judgment):
1. The disposition of the car damage action does not make it a bar to the personal injury action.
2. A. Coverage of Rotanzi by Atlantic’s policy is not excluded.
B. The limits of Atlantic’s coverage of Rotanzi are $10,000 for one injury, $20,000 for one accident.
C. Atlantic’s coverage is primary.
D. California’s coverage is excess.
The Weekes appeal from paragraph 2B: Atlantic appeals from paragraphs 1, 2A, 2C, and 2D; California and Rotanzi appeal from paragraphs 1 and 2B. We consider these appeals according to their subject matter.
1. The effect of the settlement of the car damage case.
An affidavit submitted in behalf of the Weekes, in support of their motion for summary judgment, shows that in February, 1963, about two years after the personal injury action was filed, the parties agreed that it be “held in abatement” pending disposition of a declaratory judgment action to be filed. In March, 1963, without the knowledge of the attorney who represented the Weekes in the personal injury action, Mr. Weekes, through another attorney, filed the car damage action. Counsel for Mr. Weekes in the car damage case was retained by Allstate Insurance Company. This was a “subrogation” action. Allstate, however, was not named as a plaintiff. The terms of its subrogation rights, if any, are not stated. It does not appear that Allstate paid for the damage to the car, or that Weekes assigned his car damage claim to Allstate, or whether the Allstate policy required that he do so. That policy is not in the record.
The present declaratory judgment action was filed October 1, 1963. Atlantic is represented by different counsel from counsel who were acting for it as Rotanzi’s counsel in both the car damage and personal injury actions. During October, 1963, counsel for both sides in the car damage action agreed to settle and stipulated to its dismissal, with prejudice. An order to that effect was entered October 22, 1963. Not until October 26 did the attorney representing Weekes in the personal injury action learn of this stipulation and dismissal. He learned of it when Weekes brought him a settlement draft containing a full release. The attorney advised Weekes not to sign. After some correspondence with Atlantic’s attorney and the attorney chosen by Allstate to represent Weekes in the ear damage case, a new draft, not containing the release, was issued and Weekes’ counsel in the personal injury case advised Weekes to accept it, which he did. Certain correspondence between Weekes’ attorney in the car damage case, and Atlantic’s attorney in that case and the personal injury case, is set out in the margin.
Atlantic, California and Kotanzi all urge that the stipulated dismissal in the car damage case is res judicata here. Their argument is in substance as follows: Arizona adheres to the single cause of action rule. In negligence cases the cause of action lies in defendant’s breach of duty, and where, as here, that breach causes both personal injury and property damage, there is still but one cause of action. The result of the rule is that if the injured party brings separate actions for personal injury and for property damage, and judgment is for the defendant in either of them, that judgment is res judicata as to the other action, and a bar to its further prosecution. The Arizona court has said that where two cases based on the same cause of action are filed, this result follows, regardless of which action was first commenced.
Dismissal with prejudice is an adjudication on the merits, in favor of the defendant. Here, the property damage case was dismissed with prejudice by stipulation of the parties. This, say appellants, was an adjudication on the merits against Edgar Weekes, and is therefore res judicata in the personal injury case, which must be dismissed. This is particularly true here, they say, because the settlement was completed with full knowledge of the facts. The attorney for Atlantic, representing Rotanzi in both the car damage and the personal injury cases, expressly reserved whatever rights the dismissal might confer; the attorney for the Weekes in the personal injury case knew this and took his chances, based upon his own view of the law. He —and therefore his clients — are bound by the legal result of what he permitted them to do. No fraud was perpetrated.
So far as appears from this record, none of the foregoing applies to Mrs. Weekes. She was not a party to the property damage case. The only case in which any cause of action of hers is asserted is the personal injury case. Her rights in the personal injury case, therefore, have not been adjudicated.
As to Mr. Weekes, the result demanded by the appellants hardly squares with any conceivable notion of justice. The car damage case was brought by an attorney chosen by Allstate, using Weekes’ name. His personal injury attorney did not even know that it had been filed, much less that it had been settled and dismissed, until after it was dismissed. At that point the matter was brought to his attention, and he objected to the release that Weekes was asked to sign. The release was then withdrawn by the attorney who represented both Rotanzi and Atlantic in both cases.
It is quite true that if Arizona law compels the result sought by appellants we must follow it, leaving Mr. Weekes to whatever remedies he may have against those who led him, or allowed him to proceed, down the road to disaster. Counsel suggest that there are two routes whereby Weekes can escape — the so-called “subrogation case” route, and the “consent” route. The subrogation exception to the rule against the splitting of a single cause of action has been recognized where the property element of the damages alleged in an accident case is covered by insurance. The insurer, under the terms of the insurance contract or upon paying off its obligation to the insured and taking an assignment, is seen, in effect, as the holder of a separate cause of action for the property damage. Hence the insurer’s suit for reimbursement from the defendant does not bar the injured party’s action for personal injury damages. The consent exception merely recognizes that the rule against splitting is for the benefit of the defendant and that he must timely object to the splitting. Appellants assert that the Arizona court has not opened the gate to either route. This is true, but it is also true that it has never considered whether it ought to. Other courts, confronted with similar arguments, have opened the gate to one or the other of them.
On the record before us, we cannot support taking the “subrogation case” route. The affidavit of the Weekes’ attorney in support of their motion for summary judgment is totally insufficient. It merely alleges two things: (1) that the attorney for Mr. Weekes in the car damage case was retained by Allstate, Weekes being the nominal plaintiff, and (2) that the action was a “subrogation action.” Item (2) is nothing but a legal conclusion. Rule 56(e) requires “such facts as would be admissible in evidence.” No such facts are alleged, as to the subrogation issue. There is no allegation that Allstate had insured anything, much less any proof of the terms of any Allstate policy. We cannot indulge in any presumptions as to its existence or its terms. Nor can we presume that Allstate had become subrogated to Mr. Weekes’ rights under common law or equity principles when the car damage action was filed. There is no evidence that at that time Allstate had paid anything. See 46 C.J.S. Insurance § 1209, pp. 152-160. Indeed, there is no evidence that Allstate ever paid anything. All that was shown was that the settlement check was payable to and endorsed by Weekes and his attorney, and was also endorsed by Allstate. A counter affidavit establishes that the car damage case was filed in Weekes’ name alone, and that the complaint contained no allegations whatever about any rights of Allstate to recover anything.
No case has been cited to us that opens the gate to the subrogation ease route under such circumstances. Every case having comparable facts refuses to open the gate. In every case in which the gate has been opened, the insurance company-subrogee was the party to the car damage case and its rights were the rights litigated in that case. In every such case, the insurance company had paid off, and was an assignee of the car damage claim, either by operation of law or by express assignment. In every such case, the car owner was not a party to the car damage case. And these were the facts held to be controlling.
We turn then, to the gate to the “consent” route. We are convinced that the Arizona courts would open that gate, but the problem is whether it leads to a culde-sac. The one cause of action rule, and its result, the rule against splitting causes of action, are for the benefit of the defendant — to prevent his being harassed by multiple lawsuits. It would seem to follow that, if the defendant does not object, in either case, to the splitting of the cause of action, he will be held to have waived the point.
The rule against splitting and the reasons for it, and the consent exception, are well stated in Restatement, Judgments, § 62:
Ҥ 62. SPLITTING CAUSE OF ACTION-JUDGMENT FOR PLAINTIFF OR DEFENDANT.
“Where a judgment is rendered, whether in favor of the plaintiff or of the defendant, which precludes the plaintiff from thereafter maintaining an action upon the original cause of action, he cannot maintain an action upon any part of the original cause of action, although that part of the cause of action was not litigated in the original action, except * * *.
“(c) where the defendant consented to the splitting of the plaintiff's cause of action.
“Comment:
a. Rationale. The rule stated in this Section is based on the idea that where a person has a single cause of action, in the interests of convenience and economy to the public and to the defendant he should be entitled to but one right of action and hence should be required to unite in one proceeding all matters which are part of it.
“Comment on Clause (c):
m. Consent of defendant. The purpose of the rule stated in this Section is to protect the defendant from being harassed by several actions based upon a single cause of action. It is not applicable where the defendant consents, in express words or otherwise, to the splitting of the cause of action.
“Where the plaintiff brings separate actions based upon different items included in his claim, and in none of the actions does the defendant make the objection that another action is pending based upon the same claim, a judgment for the plaintiff in one of the actions does not preclude him from obtaining judgment in the other actions. In such a case the failure of the defendant to object to the splitting of the plaintiff’s claim is effective as a consent to the splitting of the claim.”
We agree, and we think that the Arizona courts would agree. Why, then, can it be said that the “consent” gate leads to a cul-de-sac ? Because here, even though the defendant did not object to splitting the cause of action, there was a judgment, on the merits and in favor of the defendant, in the car damage case. It will be noted that the comment on clause (c), quoted above, is limited to the case in which the plaintiff obtains a judgment in one of the cases. The first Comment in the Restatement, dealing with the rationale, which is also quoted above, indicates that the reference to the plaintiff in the above Comment is deliberate. The last paragraph of the first Comment reads:
“The rule stated in this Section is applicable whether the judgment is for the plaintiff or for the defendant, irrespective of the issues raised in the case, provided only that where the judgment is for the defendant it is upon the merits as stated in § 48, and hence is one which would bar the plaintiff from maintaining another action upon the original cause of action.”
It is argued from this that if defendant gets judgment in one of the cases, on the merits, his waiver or consent to the splitting of the cause of action does not extend to a waiver of the res judicata effect of his judgment. This is said to be made clear by Section 48 of the Restatement, to which the foregoing Comment refers. It says:
“§ 48. JUDGMENT FOR DEFENDANT ON THE MERITS— BAR.
Where a valid and final personal judgment is rendered on the merits in favor of the defendant, the plaintiff cannot thereafter maintain an action on the original cause of action.”
And, as the cases cited in note 6, supra, show, the dismissal with prejudice of the car damage case was an adjudication on the merits in favor of Rotanzi. Hence it is urged that it cannot be said that Rotanzi or Atlantic waived the possible res judicata effect of the dismissal with prejudice of the car damage case, that, on the contrary, they expressly asserted their rights, and offered Weekes an alternative, which his attorney elected not to accept.
The Weekes urge that the dismissal was in favor of Rotanzi as a matter of form only, that in substance it was a judgment in favor of Mr. Weekes, who received the full amount prayed for in his complaint. The same, however, can be said of any ease in which the defendant settles and the action is dismissed with prejudice, as occurred in several of the cases cited in note 6, supra. It can be said that Weekes is here attempting a collateral attack upon the car damage judgment, and that this he cannot do.
We need not, and do not, decide this question, however. We assume that the dismissal is res judicata. In presenting their argument, both sides have failed to consider the effect of the Arizona Rules of Civil Procedure, 16 A.R.S., and of the Federal Rules of Civil Procedure. Arizona Rule 8(d) requires that all matters constituting an avoidance or affirmative defense be pleaded. The plea of another action pending is clearly within the rule. No such pleading was filed in the car damage case, although the personal injury case had been pending for more than two years. Under Rule 12 (i), it was waived. This, we think, is “consent” within the meaning of the consent rule. Thus there was consent to the splitting of the single cause of action.
When the car damage case was settled, the personal injury case had been pending in the Federal court for over 2 years. Under F.R.Civ.P. 8(c), res judicata must be pleaded; if not so pleaded, it is waived, Rule 12(h). Here, it can only be raised by supplemental answer under Rule 15(d), since the settlement occurred long after the personal injury suit was filed. Such a pleading can be filed only on motion, and the court “may” permit it, “upon such terms as are just.” So far as appears, no motion for leave to file a supplemental answer has ever been filed in the personal injury case. We think that the attempt to raise the defense in this case should be treated as if it were a motion for leave to file a supplemental answer in the personal injury case. In substance, the court denied a motion for leave to file a supplemental answer in the personal injury case. We think that it did not abuse its discretion in so doing.
A motion for permission to serve and file a supplemental pleading is addressed to the sound discretion of the court The fact is that in the car damage case Weekes recovered, by settlement, exactly what he prayed for in his complaint. The dismissal with prejudice was a substitute for a judgment in Weekes’ favor and a satisfaction of that judgment. The latter would have the same legal effect as a release of the car damage claim, but would not, under the consent exception, bar the personal injury action. The only purpose that the dismissal with prejudice should be given is the same, to release the car damage claim by its dismissal. There is nothing in the record to support a conclusion that any party to the stipulation believed that the personal injury claim was in fact being settled. The correspondence quoted above makes this clear. Before the settlement was completed, the appealing parties eliminated from the settlement check language that would have released the personal injury claim. The check was accepted only after that language was removed. Thus the paying parties paid when they knew that the receiving party intended to settle only the car damage claim. To uphold the contention that the dismissal is res judicata would certainly work an injustice. We hold, as we think that the Arizona courts would hold, that to permit the raising of the defense would work an injustice, and that the court did not abuse its discretion in refusing to permit it. The Arizona Supreme Court has gone out of its way to avoid applying the doctrine of res judicata “so rigidly as to defeat the ends of justice.” We think that that is what it would do here. Paragraph 1 of the judgment is correct.
2. The Effect of the “Intoxicants” Exclusion.
It is not seriously contended that the exclusion of liability in the Atlantic policy is effective to permit Atlantic to escape all liability. The State of Arizona has a Financial Responsibility law that appears to invalidate the exclusion. In the light of the decision in Jenkins v. Mayflower Ins. Exch., 1963, 93 Ariz. 287, 380 P.2d 145, we think that the Arizona courts would strike down the exclusion. Paragraph 2-A of the judgment is correct.
3. The limits of Atlantic’s liability.
The Atlantic policy limits are $100,000/$300,000. The Financial Responsibility law provides, in pertinent part: A.R.S. § 28-1170, subsec. B:
“The owner’s policy of liability insurance must comply with the following requirements:
“2. It shall insure the person named therein or any other person, as insured, using the motor vehicle * * * with the express or implied permission of the named insured * * * subject to limits exclusive of interest and costs, with respect to each motor vehicle as follows:
“(a) Ten thousand dollars because of bodily injury to or death of one person in any one accident.
“(b) Subject to the limit for one person, twenty thousand dollars because of bodily injury to or death of two or more persons in any one accident.
A.R.S. § 28-1170, subsec. F:
“1. The liability of the insurance carrier with respect to the insurance required by this chapter shall become absolute when injury or damage covered by the motor vehicle liability policy occurs. * * * [A]nd no violation of the policy shall defeat or void the policy.”
It is section 1170, subsec. F which nullifies the “intoxicants” exclusion.
The law also provides:
A.R.S. § 28-1170, subsec. G:
“A policy which grants the coverage required for a motor vehicle liability policy may also grant lawful coverage in excess of or in addition to the coverage specified for a motor vehicle liability policy and the excess or additional coverage shall not be subject to the provisions of this chapter. With respect to a policy which grants the excess or additional coverage the term ‘motor vehicle liability policy’ shall apply only to that part of the coverage which is required by this section.”
The appealing parties find some conflict between the provisions of sections 1170, subsec. B and 1170, subsec. G and the provisions of section 1170, subsec. F. We think that there is no conflict, and that section 1170, subsec. F nullifies the exclusion only to the extent of the limits specified in section 1170, subsec. B. To us, section 1170, subsec. G shows that this was the intent of the Arizona legislature. And there is nothing to the contrary in Atlantic’s policy. It provides, with reference to State Financial Responsibility laws as follows:
“When this policy is certified as proof of Financial Responsibility for the future under the provisions of the Motor Vehicle Financial Responsibility law of any state or province, such insurance as is afforded by this policy for bodily injury liability or for property damage liability shall comply with the provisions of such law which shall be applicable with respect to any such liability arising out of the ownership, maintenance or use of the automobile during the policy period, to the extent of the coverage and limits of liability required by such law, but in no event in excess of the limits' of liability stated in this policy.”
To us, this shows an intent, first, to afford the coverage required by the law, and second, to limit the amount of liability to that required by the law. The policy is thus wholly consistent with the law.
The cases on which appellants rely are not in point. None decides the precise question here presented.
Paragraph 2B of the judgment is correct.
4. The primary-excess question.
The contest here is between Atlantic and California. The policy limits of each, as applicable here, are the same —$10,000/$20,000. Atlantic’s policy provides :
“The insurance under this policy shall be excess insurance over any other valid and collectible insurance available to the insured, either as an insured under another policy or otherwise.”
California’s policy provides:
“If the insured has other insurance against the loss covered by part I of this policy the Bureau shall not be liable for a greater portion of such loss than the applicable limit of liability stated in the declaration bears to the total applicable limits of liability of all valid and collectible insurance against such loss; provided, however, the insurance with respect to a temporary substitute automobile or non-owned automobile shall be excess insurance.”
The court held that Atlantic’s coverage is primary, California’s excess. Atlantic attacks this conclusion by arguing that California’s “excess” clause, the proviso in the language quoted above, is not here applicable. It says that the whole paragraph is ambiguous, and should be construed against California so as to bring into effect only California’s pro rata clause. Other courts have not found such clauses ambiguous, nor do we. It follows that we do not have here, as Atlantic asserts, a conflict between Atlantic’s “excess” clause and California’s “pro rata” clause. Rather, here is a conflict between two excess clauses. We find no applicable Arizona decisions, but the normal rule in such cases is that the two policies are to be applied pro rata.
California, however, argues that the judgment is correct because the primary purpose of its policy is to insure Rotanzi while driving his own car, and the coverage given while he is driving another’s car is incidental and intended to operate only as excess to the insurance of the owner of that car, here Hertz, while Atlantic’s policy is primary because it insures Hertz, the owner. In part, California relies on the contention that the excess clause in Atlantic’s policy makes its coverage excess only over “other valid and collectible insurance available,” while California’s excess clause is not so worded. Hence, it says, California’s insurance is not “valid and collectible” unless the damages exceed the limits of Atlantic’s policy. But California’s policy also refers to other “valid and collectible” insurance in the pro rata portion of the paragraph containing the excess proviso, and, the excess language being a proviso to the pro rata provision, it also refers to other “valid and collectible” insurance. We hold that the two excess clauses offset each other, and that each insurer must bear its portion of the loss, in proportion to the limits of its policy. Paragraphs 2C and D of the judgment are erroneous.
Paragraphs 2C and D are reversed; in all other respects, the judgment is affirmed. The matter is remanded with directions to modify paragraphs 2C and D in accordance with this opinion.
The problem as to the effect of the dismissal of the car damage ease should never have arisen if the Weekes’ personal injury counsel had properly protected his clients’ interests. His briefing of the question has been of little assistance to us on this appeal. The Weekes, therefore, although successful here as against the appeals of Atlantic, California and Rotanzi from paragraph 1 of the judgment, shall recover no costs on appeal. Atlantic shall recover one-half of its costs on appeal from the Weekes and one-half of its costs on appeal from California. Otherwise, each party shall bear its own costs on appeal.
. Atlantic's attorney to Weekes’ ear damage attorney:
“Now, in delivering these funds to you, Bill, I want it clearly understood that we are not in any manner waiving, relinquishing or altering what legal effect, if any, the dismissal of the above captioned matter may have on your client’s action that is pending in Federal Court wherein he is represented by Bob Begam. “If the foregoing is not satisfactory to you and your client, please return the enclosed check to me. We will put the above captioned cause back on the trial list and try the lawsuit at the earliest opportunity available.”
A copy was sent to the Weekes’ personal injury attorney. He then wrote to Atlantic’s attorney:
“It was my understanding that Bill was representing Mr. Weekes’ insurance company on their subrogation claim. I can’t imagine why you refer to Mr. Weekes as being Bill’s client. Nor do I understand how the property damage settlement can conceivably have any effect on the pending Federal Court actions.
“Clearly, you can’t be asking Mr. Weekes to sign a general release in order to enable his insurance company to receive compensation for their subrogation claim. I am confident that you and Bill can work this problem out without prejudicing the interest that Mr. Weekes has in processing his personal injury claim.” Atlantic’s attorney replied:
“There is no mention of subrogation in the Complaint in the above captioned matter. Mr. Weekes is named as a party plaintiff and Bill Andrews indicates in the Complaint that he is his attorney as far as the lawsuit is concerned. This is why I refer to Mr. Weekes as being Bill’s client in this suit.
“I am not asking Mr. Weekes to sign anything. There has already been signed by Bill Andrews, as Mr. Weekes’ counsel, a stipulation for dismissal of this cause with prejudice. My last letter to Bill was simply to point out that in paying these moneys to Bill and his client, we are fully reserving any effect that the conclusion of this litigation may have on the suits pending in Federal Court. So you see, Bob, I really have nothing to work out with Bill Andrews — either a) he accepts the money and the Stipulation and order of dismissal with prejudice stands, or b) he returns the money and we try the State action.”
Weekes’ personal injury attorney then wrote to Weekes’ car damage attorney and to Atlantic’s attorney:
“In any event, I want my position, and the position of Mr. Weekes, to be perfectly clear. I am not going to permit Mr. Weekes to sign any document, or endorse any draft, which might be construed as anything other than a special release of the Allstate subrogation claim. While I believe that it would be incredible for Jack or his company to take the position that something more than that has to be signed in order to resolve Allstate’s claim, and while I am convinced that Allstate’s property damage claim is a perfectly valid one, I am afraid that you and Jack will have to work the matter out the best way you can without imposing on Mr. Weekes and his Federal Court action. Mr. Weekes will, as he has in the past, cooperate with Allstate in every way short of prejudicing his far more substantial personal injury claim.”
A few days later he authorized Weekes to endorse and cash the draft. It was payable to Weekes and his attorney in the car damage case.
. Jenkins v. Skelton, 1920, 21 Ariz. 663, 192 P. 249. See also Daniel v. City of Tucson, 1938, 52 Ariz. 142, 79 P.2d 516, 117 A.L.R. 1211; State v. Airesearch Mfg. Co., Inc., 1949, 68 Ariz. 342, 206 P.2d 562; Malta v. Phoenix Title & Trust Co., 1953, 76 Ariz. 116, 259 P.2d 554.
. Jenkins v. Skelton, supra, n. 2; see generally Annot. 62 A.L.R.2d 977.
. See Suttle v. Seely, 1963, 94 Ariz. 161, 382 P.2d 570; Day v. Estate of Wiswall, 1963, 93 Ariz. 400, 381 P.2d 217. These are not accident cases, but they do apply the principle. See also Annot. 62 A.L.R.2d 988.
. Day v. Estate of Wiswall, supra, n. 4.
. Suttle v. Seely, supra, n. 4; Cochise Hotels, Inc. v. Douglas Hotel Operating Co., 1957, 83 Ariz. 40, 316 P.2d 290; DeGraff v. Smith, 1945, 62 Ariz. 261, 157 P.2d 342; Roden v. Roden, 1926, 29 Ariz. 549, 243 P. 413.
. A consent judgment is as much an adjudication on the merits as one following a trial. Suttle v. Seely, supra, n. 4, Wall v. Superior Court, 1939, 53 Ariz. 344, 89 P.2d 624.
. In form, this is correct. In substance, it is not; the dismissal in the car damage case was given in consideration of payment by the defendant to the plaintiff of the full amount prayed for in the complaint.
. Day v. Estate of Wiswall, supra, n. 4; DeGraff v. Smith, supra, n. 6; Suttle v. Seely, supra, n. 4; Cochise Hotels, Inc. v. Douglas Hotel Operating Co., supra, n. 6.
. It is asserted that Weekes had an interest in the car damage case to the extent of $100, the amount of the “deductible” under the Allstate policy. In plain English, appellants assert that Weekes bargained away a substantial cause of action for personal injuries for this dollop of pottage.
. See, as to the “subrogation case route”, Annot., 62 A.L.R.2d 977, 989 ff, as to the “consent route” Restatement, Judgments, § 62.
. Levitt v. Simco Sales Service of Pa., 1957, Del.Super.Ct., 11 Terry 552, 135 A.2d 910; Mims v. Reid, 1957, Fla., 98 So.2d 498; Sibson v. Robert’s Express, Inc., 1962, 104 N.H. 192, 182 A.2d 449; Farmers Ins. Exch. v. Arlt, 1953, N.D., 61 N.W.2d 429; Aubill v. Rowles, 1961, Ohio Com.Pl., 180 N.E.2d 643, 87 Ohio Law Abst. 353; Saber v. Supplee-Wills-Jones Milk Co., 1956, 181 Pa.Super. 167, 124 A.2d 620; Sprague v. Adams, 192
Question: What is the specific issue in the case within the general category of "economic activity and regulation"?
A. taxes, patents, copyright
B. torts
C. commercial disputes
D. bankruptcy, antitrust, securities
E. misc economic regulation and benefits
F. property disputes
G. other
Answer:
|
songer_two_issues
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine whether there are two issues in the case. By issue we mean the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
INTERNATIONAL PRODUCTS CORPORATION, Plaintiff-Appellee, v. Charles A. KOONS, and Jane Roe, Richard Roe and Charles A. Koons, individually and as co-partners doing business under the firm name and style of Charles A. Koons & Company, Defendants-Appellants.
No. 159, Docket 28430.
United States Court of Appeals Second Circuit.
Argued Oct. 4, 1963.
Decided Oct. 28, 1963.
See also, D.C., 33 F.R.D. 21.
Gustave B. Garfield, Francis X. Stephens, Jr., New York City, for defendants-appellants.
Robert B. Block, Pomerantz, Levy, Haudek & Block, New York City, for plaintiff-appellee.
Arthur S. Olick, Asst. U. S. Atty., Robert M. Morgenthau, U. S. Atty. for the Southern Dist. of New York, for the United States.
Before LUMBARD, Chief Judge, and FRIENDLY and SMITH, Circuit Judges.
. This conclusion that the order was not an “injunction” in the sense used in the federal statutes and rules also answers appellants’ contentions as to alleged violations of F.R.Civ.Proc. 65.
FRIENDLY, Circuit Judge.
This is an appeal, allegedly pursuant to 28 U.S.C. § 1292(a) (1), from an order of Judge Metzner in an action brought in the District Court for the Southern District of New York, on the basis of diverse citizenship, by International Products Corporation against Koons, its former president, and others. Koons has counter-claimed and also has instituted a suit for libel against International and its directors. The order concerns a deposition of Jose Seldes, now president of International, taken at defendants’ instance, in which questions were asked as to payments by officers of International to officials of a South American government, and related matters; for convenience we quote the ordering portions in the margin.
The proceedings leading to the order began with an order to show cause signed by Judge Croake on May 24, 1963, itself providing for similar relief pending disposition of the motion which was to be heard on June 6; the order to show cause directed that service be made not only upon defendants and their counsel but,, also upon the Legal Adviser to the Department of State and the Deputy Attorney General. The moving affidavit had claimed that the described material, if publicized in South America, not merely “could be extremely embarrassing and •cause great inconvenience and hardship to International and Jose Seldes” but “would be contrary to the best interests of the foreign policy of the United States,” and that the affiant had “been advised that the Department of State has been informed of this situation and has requested that it and the Department of Justice be notified of this application in order that the Court might ascertain the position of the United States Government with respect thereto.” On June 5, the Assistant Secretary of State for Inter-American Affairs sent the Attorney General a letter which, after referring to the action and the order to show cause, requested the Attorney General to support International’s attempt to preclude disclosure. The next day the United States Attorney for the Southern District of New York filed a Suggestion of Interest of the United States at the direction of the Attorney General pursuant to 5 U.S.C. § 316. A copy of the Assistant Secretary’s letter was attached, and the United States Attorney submitted “to the Court that an order limiting disclosure, as described in this Court’s order to show cause, dated May 24, 1963, would further the foreign policy objective of the United States.” Appellants contend that the Suggestion of Interest was unauthorized by 5 U.S.C. § 316 and that the order deprived them of rights to freedom of speech and to proper preparation of their case which are guaranteed by the First and Fifth Amendments.
We must deal first with appealability. Appellants claim the order was an injunction pendente lite appeal-able under 28 U.S.C. § 1292(a) (1). Appellee responds that the order was simply a pre-trial order under F.R.Civ.Proc. 30 (b), which authorizes the court to seal a deposition and to “make any other order which justice requires to protect the party or witness from annoyance, embarrassment, or oppression”; it calls attention to some of the decisions cited below that the mere presence of words of restraint or direction in an order that is only a step in an action does not make § 1292(a) (1) applicable. Baltimore Contractors, Inc. v. Bodinger, 348 U.S. 176, 75 S.Ct. 249, 99 L.Ed. 233 (1955) ; Fleischer v. Phillips, 264 F.2d 515, 516 (2 Cir.), cert. denied, 359 U.S. 1002, 79 S.Ct. 1139, 3 L.Ed.2d 1030 (1959); Armstrong-Norwalk Rubber Corp. v. Local 283, United Rubber Workers, 269 F.2d 618, 621 (2 Cir. 1959); Greenstein v. National Skirt & Sportswear Ass’n, 274 F.2d 430 (2 Cir. 1960); Grant v. United States, 282 F.2d 165, 169 (2 Cir. 1960); Taylor v. Board of Educ., 288 F.2d 600, 604 (2 Cir.), cert. denied, 368 U.S. 940, 82 S.Ct. 382, 7 L.Ed.2d 339 (1961); Lummus Co. v. Commonwealth Oil Refining Co., 297 F.2d 80, 84-86 (2 Cir. 1961), cert. denied, 368 U.S. 986, 82 S.Ct. 601, 7 L.Ed.2d 524 (1962). These decisions make it plain, for example, that an order sealing a deposition would not be rendered appealable by the addition of a direction to those who attended its taking to refrain from disclosing what they had heard. See 6 Moore, Federal Practice (1953), pp. 46 and 147, and cases there cited. But that does not altogether settle the issue here, since the order enjoined defendants from utilizing not only the deposition but also documents or writings which they had themselves produced or submitted. The single order entered by the district judge might therefore be viewed as in effect two orders: one under F.R.Civ.Proc. 30 (b), which is not appealable, and another going beyond the authority of the Rule, which is. Support for doing this might] be sought in the principle that when a, distinction has to be drawn between a' temporary restraining order, which is, not appealable, and a preliminary injunction, which is, “the label put on the order by the trial court is not decisive,” 3 Barron & Holtzoff, Federal Practice and Procedure (Wright ed. 1958) § 1440, at 509. See Sims v. Greene, 160 F.2d 512 (3 Cir. 1947); Connell v. Dulien Steel Products, Inc., 240 F.2d 414, 417-418 (5 Cir. 1957), cert. denied, 356 U.S. 968, 78 S.Ct. 1008, 2 L.Ed.2d 1074 (1958); Pennsylvania Motor Truck Ass’n v. Port of Philadelphia Marine Terminal Ass’n, 276 F.2d 931 (3 Cir. 1960); Parker v. Columbia Broadcasting System, 320 F.2d 937 (2 Cir. 1963).
We think it better, in line with our prior decisions, to continue to read § 1292(a) (1) as relating to injunctions which give or aid in giving some or all of the substantive relief sought by a complaint (including stays of proceedings “at law,” as in Enelow v. New York Life Ins. Co., 293 U.S. 379, 55 S.Ct. 310, 79 L.Ed. 440 (1935) and Ettelson v. Metropolitan Life Ins. Co., 317 U.S. 188, 63 S.Ct. 163, 87 L.Ed. 176 (1942)) and not as including restraints or directions in orders concerning the conduct of the parties or their counsel, unrelated to the. substantive issues in the action, while awaiting trial. As explained in Baltimore Contractors, Inc. v. Bodinger, supra, 348 U.S. at 181, 75 S.Ct. at 252 and Grant v. United States, supra, 282 F.2d at 169, such a construction provides a better fit with the language of the statute, “where, upon a hearing in equity in a district court,” as this first appeared in § 7 of the Evarts Act, c. 517, 26 Stat. 828 (1891) and later in the Judicial Code of 1911, § 129, 36 Stat. 1134; with the conclusion that the omission of the words “in equity” in the Act of February 13, 1925, 43 Stat. 937, “was not intended to remove that limitation,” Schoenamsgruber v. Hamburg American Line, 294 U.S. 454, 457, fn. 3, 55 S.Ct. 475, 477, 79 L.Ed. 989 (1935); and with the policy considerations which led Congress to create this exception to the federal final judgment rule. Furthermore, to read § 1292(a) (1) so broadly as to include an order, purportedly under F.R.Civ. Proc. 30(b), which grants injunctive relief beyond what the Rule authorizes, would also bring within the- sweep of the statute orders denying requests for such relief, although there would be no such need for appellate intervention as is -created by appellants’ claim that the instant order violates their constitutional rights, and thus to extend our jurisdiction under § 1292(a) (1) would seem quite inconsistent with the federal policy of finality. A decision like Sims v. Greene, supra, that what had been label-led a temporary restraining order was appealable as a temporary injunction, does not run counter to what we deem the correct construction of the statute, since the order related to the very equitable relief sought by the complaint. Neither would we regard the instant order as falling “in that small class which finally determine claims of right separable from, and collateral to, rights asserted in the .action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated,” Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 545-547, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), as we recently did in National Equipment Rental, Ltd. v. Mercury Typesetting Co., 323 F.2d 784 (2 Cir., 1963).
It does not follow, however, "that an order purportedly made under F.R.Civ.Proc. 30(b) which exceeds the power there given to a district court is altogether beyond appellate scrutiny. The normal remedy for action taken in excess of jurisdiction is mandamus. See Rabekoff v. Lazere & Co., 325 F.2d 865, 867 fn. 1 (2 Cir. 1963). In contrast with at least one other circuit, this court has generally declined to consider an appeal from a nonappealable order as a petition for mandamus. See the authorities cited in United States v. O’Connor, 291 F.2d 520, 523-524 (2 Cir. 1961), in which we did so consider an unauthorized appeal in a case where the judge had died. As indicated in the O’Connor opinion, the only justification for what has been thought to be a rather formalistic attitude on our part, see 6 Moore, Federal Practice (1953 ed.), p. 93, is a desire to afford an opportunity for response by the judge, in addition to that made by the party favored by his order. Since this opportunity is rarely availed of, a suitable accommodation can be reached by treating such an appeal, in an appropriate case, as a motion for leave to file a petition for mandamus. An expression of this Court’s views on such a motion will generally obviate any need for a petition or a writ, while still leaving it open to the judge to await a formal petition in the rare case where he wishes to be heard,
The portion of the order which seals the deposition of Seldes and limits defendants and others in their use of information obtained therefrom was plainly authorized by F.R.Civ.Proc. 30(b), and we entertain no doubt as to the constitutionality of a rule allowing a federal court to forbid the publicizing, in advance of trial, of information obtained by one party from another by use of the court’s processes. Whether or not the Rule itself authorizes so much of the order as also seals all affidavits submitted by defendants on various motions, we have no question as to the court’s jurisdiction to do this under the inherent “equitable powers of courts of law over their own process, to prevent abuses, oppression, and injustices,” Gumbel v. Pitkin, 124 U.S. 131, 144, 8 S.Ct. 379, 31 L.Ed. 374 (1888); Parker v. Columbia Broadcasting System, supra, 320 F.2d at 938, or as to the propriety of the exercise of discretion here. Even though the affidavits were defendants’ own productions, their quasi-official appearance might give them more weight with the uninformed than they were entitled to receive, and newspapers might feel freer to publish them, under the privilege to report judicial proceedings, than extra-judicial statements.
What causes concern here is that the order went further and curtailed disclosure of information and writings which defendants and their counsel possessed before they sought to take Seldes’ deposition. We fail to see how the use of such documents or information in arguing motions can justify an order preventing defendants and their counsel from exercising their First Amendment rights to disclose such documents and information free of governmental restraint. Indeed, so far as concerns any claim based on the private interests of International or of Seldes, that question was settled against appellee by our decision in the Parker case, supra, 320 F.2d at 939, a few weeks after the order here under attack was entered. The issue that re^ mains is whether any different conclusion' is called for in this ease because of the Suggestion of Interest of the United States.
Appellants claim in the first instance that the suggestion was unauthorized since the United States has no financial interest in the litigation. But the statute, 5 U.S.C. § 316, is not limited by its terms to cases of financial interest; it authorizes the Attorney General to send any officer of the Department of Justice “to attend to the interests of the United States in any suit pending in any of the courts of the United States, or in the-courts of any State * * Long before the present statute, which derives from the Act of June 22, 1870, c. 150, § 5, 16 Stat. 162, the Attorney General had submitted suggestions as to the immunity of the property of foreign sovereigns, The Schooner Exchange v. M’Faddon, 7 Cranch 116, 147, 11 U.S. 116, 147, 3 L.Ed. 287 (1812), as he has frequently done thereafter. Yet “the interests of the United States” in such cases are simply its interests in friendly intercourse with other nations and in avoiding reprisals by them — the same interests asserted here.
Whatever the case may be as to suggestions of sovereign immunity, see American Law Institute, Restatement of Foreign Relations Law (Proposed Official Draft), § 75 (1962), it is plain that the suggestion here did not bind the court and certainly did not relieve it of the necessity of considering whether the action proposed to be taken would violate the First Amendment. We know of no authority that a court may restrain a private citizen in peace time from giving vent to his views, or publicizing his own information, as to the conduct of officials of foreign governments — any more than it may exert prior restraint on his publication of views concerning officials of our own. Near v. Minnesota ex rel. Olson, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1934). The facts here are far, indeed, from the “exceptional cases” of valid prior restraints recognized in Near — “No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops,” 283 U.S. at 716, 83 S.Ct. 631, 75 L.Ed. 1357; we need not attempt to determine just where the line runs. The conduct of our country’s international relations might indeed be somewhat easier if citizens could be prevented from publicly reflecting on officials of foreign governments even when their information had been privately obtained. But the price of any such facilitation is higher than we have chosen to pay; we rely instead on the responsibility of the press and on the ability of the foreign service to explain to other governments that our Constitution does not permit such suppression of private thought.
We therefore suggest that the District Court modify its order so as to make it plain that no restrictions are imposed on the freedom of the persons named therein to make whatever use they wish of writings (other than papers filed in court) or information which have come into their possession otherwise than through the court’s processes; if this is not done, as we are confident that it will be, appellants may apply for a writ. Since the briefs and appendices of the parties contain some matter the publicizing of which was properly restricted the Clerk is directed to obtain and impound all copies of the same. Appellants may recover their costs as on appeal.
. “Ordered, that the defendants, their attorney, Francis X. Stephens, Jr., Esq., their counsel, Gustave B. Garfield, Esq., and the Bar Association Reporting Service, and any of their representatives or employees, be enjoined from publishing or disclosing to any third party any of the testimony, documents or writing contained or referred to in any of the depositions in the action or documents or writings produced or submitted to this Court, concerning payments to officials of any South American Government, but not restricting the defendants in the use of the discovered information, documents or writing, for trial preparation, includ-
ing depositions of witnesses and pre-trial discovery in connection therewith, or for the trial proper of this action or any other lawsuit in the City, State, or Federal courts in the United States, the use in other lawsuits, however, being subject to the aforesaid restrictions pertaining to disclosure to parties unrelated to the lawsuit in which such information, documents or writings is used; and it is further
“Ordered, that after the deposition of Jose Seldes, held on January 14, 1963, May 23, 1963, and any continuance thereof, and the exhibits marked in connection therewith, is sealed, said deposition shall only be opened by order of this Court; and it is further
“Ordered, that the affidavit of Gustave B. Garfield, Esq., dated April 3, 1963, and the exhibit thereto, submitted in testimony, and now on file in this Court, be impounded by this Court and be subject to the same restrictions applicable to the said deposition of Jose Seldes; and it is further
“Ordered, that all papers on this motion, including the Order to Show Cause, signed by the Honorable Thomas F. Oroake, United States District Judge, and dated May 24, 1963, be impounded by this Court and be subject to the same restrictions applicable to the said deposition of Jose Seldes.”
Garfield’s affidavit of April 3, 1963, referred to in the penultimate paragraph, was made in support of a motion to compel Seldes to answer certain questions.
. The letter said in relevant part:
“The Department of State understands that certain payments, allegedly improper, may have been made by parties or deponents in this litigation to officials of a friendly South American Government. Disclosures and publication to the public at large of the facts alleged in the course of the pretrial proceedings could, in the opinion of the Department of State, lead the Government of the aforesaid friendly country to react in a manner inimical to private American business interests in that country and contrary to the foreign policy objective of the United States.
“Accordingly, this Department requests that you support the attempt to preclude disclosure of the information described above, and that you bring to the attention of the Court the undesirability of premature public disclosure of these allegations.
“This request is subject, of course, to the recognized right of interested parties to apply in the future for orders releasing such information as the interests of justice may require.”
. This would seem to us to have been the appropriate course in Parker v. Columbia Broadcasting System, supra. The Parker case came before the court without formal briefs. The only question considered as to . appealability was whether the order under appeal was a temporary restraining order or a preliminary injunction — not whether it was the kind of command that constituted an “injunction” within § 1292 (a) (1).
. For other types of suggestions of interest on behalf of the Department of State, see Clark v. Allen, 331 U.S. 503, 67 S.Ct. 1431, 91 L.Ed. 1633 (1947); Ivancevic v. Artukovic, 211 F.2d 565, 566, fn. 4 (9 Cir.), cert, denied, 348 U.S. 818, 75 S.Ct. 28, 99 L.Ed. 698 (1954); Pierre v. Eastern Air Lines, Inc., 152 F.Supp. 486 (D. N. J.1957); Note, Federal Intervention in Private Actions Involving tbe Public Interest, 65 Harv.L.Rev. 319 (1951); Bilder, The Office of the Legal Adviser, 56 Am.J.Int’l Law 633, 676-78 (1962).
. Although we sustain the power of the Attorney General to submit the State Department’s letter, the case raises a question, already mooted as to suggestions of sovereign immunity, see Cardozo, Sovereign Immunity: The Plaintiff Deserves a Day in Court, 67 Harv.L.Rev. 608, 617-18 (1954), whether the Department of State ought not adopt procedures — which could be quite informal — to assure a hearing of the other side before it moves into a case like this. Although a hearing is not required by statute, neither § 4 nor § 5 of the Administrative Procedure Act being applicable, the weight propeily given by the courts to representations from the Department of State would appear to make it desirable that, before deciding to interpose its views in a private litigation, the Department normally should hear why it ought not as well as why it ought. It seems not unlikely that if appellants had been given an opportunity to present their views, the Department might have concluded that, in the light of considerations which it has regarded as generally militating against its intervention in private litigation, well described in Bilder, supra, 56 Am.J.Int’l Law at 67S, the interests of the United States were not in such jeopardy as to warrant the action taken here, or, at least, that the Government should not indorse the full relief sought. However, the order to show cause should have alerted appellants to the likelihood of action by the Department of State, and there is nothing to indicate a request on their part for a conference with the Legal Adviser. See American Law Institute Restatement of Foreign Relations Law, Proposed Official Draft, Reporters’ Notes on § 74.
Question: Are there two issues in the case?
A. no
B. yes
Answer:
|
songer_crossapp
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there were cross appeals from the decision below to the court of appeals that were consolidated in the present case.
FEDERAL FORWARDING CO. et al. v. LANASA.
Circuit Court of Appeals, Fourth Circuit
April 12, 1929.
No. 2821.
J. Stuart Calloway and Washington Bowie, both of Baltimore, Md., for appellants.
Robert W. Williams, of Baltimore, Md. (Bigham, Englar, Jones & Houston, of New York City, Janney, Ober, Slingluff & Williams, of Baltimore, Md., and F. Herbert Prem, of New York City, on the brief), for appellee.
Before WADDILL and PARKER, Circuit Judges, and McDOWELL, District Judge.
PARKER, Circuit Judge.
This is an appeal from a decree in favor of the libelant, who was the charterer of the steamship Port Gaines, awarding damages against her owner for breach of the warranty of seaworthiness contained in the charter party. The vessel was chartered on August 27, 1925, for a period of 11 months, and was used by the charterer in the fruit trade between Jamaica and Baltimore. Her officers and crew were employed and paid by the owner, who agreed to maintain her in a seaworthy condition throughout the charter period. The charter party warranted that she was “tight, staunch, strong and in every way fitted for the service, * * * with full complement of officers, seamen, engineers, firemen, etc.,” and the excepting clause was as follows: “The act of God, the king’s enemies, fire, restraints of princes, rulers and people and all other dangers and accidents of the seas, rivers, machinery, boilers and steam navigation throughout this charter party always excepted.”
On the evening of March 31, 1926, after the vessel had completed loading at Port Antonio, Jamaica, and was preparing to sail for Baltimore, it was discovered that the impeller shaft of her centrifugal pump was broken. In fitting another shaft, so that she might proceed on her voyage, a day was lost in the harbor of Port Antonio, and this delay caused the damage to her cargo of bananas of which libelant complains. The evidence is that the break occurred without apparent eause, being due to a latent defeat or weakness in the metal of the impeller shaft, not discovered when the vessel was surveyed about two months before. There 'was no evidence of any external eause which could have resulted in the breaking of the shaft, either at Port Antonio or after the vessel had left Baltimore on the voyage in which the delay occurred.
We think that it is perfectly clear that the charter party did not constitute a demise of the vessel, but a contract of affreightment. The owner did not surrender control of her to the charterer, but through the officers and crew retained entire dominion over her. The charterer thus received merely the right to the services of the vessel, not the right of control over the vessel herself. The rule applicable in such a case is well stated in 24 R. G. L. 1095, as follows: “The terms of greatest significance in the determination as to whether a given charter amounts to a demise or is merely a contract of affreightment are those which relate to the master and crew. If they are appointed and paid by the owner, and are subject to his orders, the charter will ordinarily be construed as an affreightment contract, on the theory that through his master and crew the owner retains possession and control of the ship, oven though the directions on which the ship shall proceed are given by the charterer.” See, also, Now Orleans-Belize Royal Mail & Central American S. S. Co. v. U. S., 239 U. S. 202, 206, 36 S. Ct. 76, 60 L. Ed. 227; Shaw v. U. S., 93 U. S. 235, 23 L. Ed. 880; Multnomah County v. Willamette Towing Co., 49 Or. 204, 89 P. 389; and note in 5 Ann. Cas. at page 623, and cases cited.
And we think it equally clear that, as the vessel was operating under a time charter, which contemplated a number of voyages, the warranty of seaworthiness must be construed as requiring that the vessel be seaworthy at the inception of each and every voyage. Luckenbach v. McCahan Sugar Co., 248 U. S. 139, 150, 39 S. Ct. 53, 63 L. Ed. 170, 1 A. L. R. 1522. And, as she was engaged in the transportation of highly perishable freight, being seaworthy meant that there be nothing in her condition or equipment which would eause delay, once the perishable cargo was loaded; for the test of seaworthiness is the fitness of the vessel to carry the cargo which she has undertaken to transport. The Southwark, 191 U. S. 1, 24 S. Ct. 1, 48 L. Ed. 65; The Silvia, 171 U. S. 462, 19 S. Ct. 7, 43 L. Ed. 241; Bank Line v. Porter (C. C. A. 4th) 25 F.(2d) 843, 844; The Fort Morgan (C. C. A. 4th) 284 F. 1.
The evidence establishes that under this test the Fort Gaines was not seaworthy for tho service in which she was engaged. The weakness or defect of the impeller shaft, which was likely to canse, and did cause, it to break, was a defect in the machinery of the vessel, which was likely to result and did result in delay in the voyage, with consequent damage to the highly perishable cargo of bananas. And the fact that it was a latent and not a patent defect makes no difference, for the obligation of the owner under the warranty of seaworthiness is absolute. The Caledonia, 157 U. S. 124, 15 S. Ct. 537, 39 L. Ed. 644; The Carib Prince, 170 U. S. 655, 18 S. Ct. 753, 42 L. Ed. 1181. In The Caledonia, the Supreme Court, speaking through Chief Justice Fuller, quotes with approval the rule as stated by Chancellor Kent as follows:
“ ‘The ship must be fit and competent for the sort of cargo and the particular service in which she is engaged. If there should be a latent defect in the vessel, unknown to the owner and not discoverable upon examination, yet the better opinion is that the owner must answer for the damage caused by the defect. It is an implied warranty in the contract that the ship be sound for the voyage, and the owner, like a common carrier, is an insurer against everything but the excepted perils.’ 3 Kent, 205.”
Chief Justice Fuller also quotes with approval in that case the statement of the rule by Judge Brown in The Rover (D. C.) 33 F. 515, 516, as follows:
“This, warranty extends to latent defects not discoverable by prior examination. Either the ship or the freighter must bear such risks; under the warranty of seaworthiness, the law places this risk upon the ship and her owners.”
In the ease of The Caledonia there was a delay of a cattle ship due to the breaking of her propeller shaft at sea. The cause of the breaking was that the shaft had been weakened by the vessel’s having met with extraordinarily heavy seas on prior voyages. The court held that the loss was not within the exception of the bill of lading as to defects in machinery, on the ground that this exception did not apply to defects existing at the inception of the voyage. It was also held that the warranty as to' seaworthiness covered latent defects. On this point the court said:
“The proposition that the warranty of seaworthiness exists by implication in all contracts for sea carriage, we do not understand to be denied; but it is insisted that the warranty is not absolute, and does not cover latent defects not ordinarily susceptible of. detection. If this were so, the obligation resting on the shipowner would be, not that the ship should be fit, but, that he had honestly done his best to make her so. We cannot concur in this view. In our opinion, the shipowner’s undertaking is not merely that he will do and has done his best to make the ship fit, but that the ship is really fit to undergo the perils of the sea and other incidental risks to which she must be exposed in the course of the voyage; and, this being so, that undertaking is not discharged because the want of fitness is the result of latent defects. The necessity of this conclusion is . made obvious when we consider the settled rule in respect of insurance, for it is clear that the undertaking as to seaworthiness of the shipowner to the shipper is coextensive with that of the shipper to his insurer.”
In The Carib Prince, supra, injury occurred to a part of a cargo as the result of the giving way of rivets due to latent defects which arose during the construction of the vessel. The giving way of the rivets allowed water from the peak tank to escape into the cargo space. The Supreme Court held that the warranty of seaworthiness applied as against latent defects existing at the commencement of the voyage; that an injury due ‘to such defects was not within the protection of the excepting clause; and that the Harter Act did not operate to exempt the owner, who had used due diligence, from liability in such ease, as the unseaworthiness, which was the cause of the damage, could not be considered a fault or error in navigation, or in the management of the vessel, or as any of the other causes from liability for which the owner is exempted by section 3 of the Harter Act (46 USCA § 192). In that case there was express language in the bill of lading excepting damage caused by latent defects of the hull, machinery, etc.; but it was held that even this did not take the ease out of the rule laid down in The Caledonia. The court, speaking through Mr. Justice White, said:
“The fact that the exempting clause in the present case refers to latent defects, whilst that passed on in The Caledonia embraced defects generally, does not take this case out of the control of the general rule laid down in The Caledonia. The decision in The Caledonia was based, not on the particular character of the defects there referred to, but on the general ground that, unless there were express words to the contrary, the language of the exempting clause would not be held to apply to defects, whether patent or latent, existing when the voyage was commenced. In other words, that where the owner desires the exemption to cover a condition of unseaworthiness existing at the commencement of the voyage, he must unequivocally so contract.”
We think that this case falls squarely within the rule laid down in The Caledonia and The Carib Prince. Even if we assume, as contended by respondent, and as we think is correct, that the voyage commenced at Baltimore (The Buckingham [D. C.] 129 F. 975; Carver’s Carriage by Sea, § 148), nevertheless the unseaworthy condition due to the weak and defective impeller shaft evidently existed at that time. It is not shown that there was heavy weather upon the voyage to Jamaica, or that there was other external cause which could account for the weakening of the shaft; and consequently we must conclude that the latent defect existed when the voyage began. And this fact distinguishes the case at bar from The Curlew (C. C. A. 4th) 55 F. 1003. In that case Judge Hughes pointed out that there was no flaw in the ring which broke that could be detected in examining its broken pieces after the accident, and that the inference was reasonable that its breaking was due to some cause exterior to itself, and was therefore one of those accidents of the sea and of the machinery of the ship, from the consequences of whieh the ship was exempted by the charter party. In this ease we have carefully considered whether the breaking of the impeller shaft might not be considered an accident of machinery within the meaning of the excepting clause, but we do not think so. There is no explanation of its breaking, except that found in the evidence of the captain and the chief engineer, both of whom testified that in their opinion it was due to a hidden flaw in the metal, a latent defect.
The respondent seeks to draw a distinction between the absolute liability of a carrier under a bill of lading for the seaworthiness of the vessel and that of the owner under a time charter; but the distinction attempted to be drawn is of no importance in this ease. The owner here expressly warranted the seaworthiness of the vessel; and, as we have seen, this means its seaworthiness at the commencement of each and every voyage. The absolute liability of the owner morder such a warranty is well stated in Luckenbach v. McCahan Sugar Co., supra, 248 U. S. 139, 150, 39 S. Ct. 53, 63 L. Ed. 170, 1 A. L. R. 1522, where the question under consideration was the liability of the owner under the charter, not that of the charterer to shippers. Mr. Justice Brandéis, speaking for the court, said:
“The charter of the vessel states clearly that, the vessel ‘being, on her delivery, tight, staunch (and) strong/ the owners will ‘maintain her in a thoroughly efficient state in hull and machinery for and during the service’— not pay the expense of maintaining her. This duty to maintain the vessel in an efficient state is imposed by the contract, because a time charter, like a charter for a single voyage, is not a demise of the ship. In both, the charterer is without control over her repair and maintenance. In operations under each the charterer becomes liable to shippers without limitation for losses due to unseaworthiness discoverable by the exercise of due diligence on the part of the owners; and in each ease he requires for his protection a warranty, without limitation, of seaworthiness at the commencement of every voyage.”
The point is made by respondent that libelant has no interest in the case, because he has been paid by the insurers of the cargo for the loss which he sustained, and that therefore the libel should be dismissed. Apart from the fact that the underwriters have been made parties to the suit, the point is without merit; for the equities existing between libelant and the underwriters are no concern of respondent. The Propeller Monticello v. Mollison, 17 How. 152, 15 L. Ed. 68.
For the. reasons stated, the decree in favor of libelant is clearly correct, and same is accordingly affirmed.
Affirmed.
Question: Were there cross appeals from the decision below to the court of appeals that were consolidated in the present case?
A. No
B. Yes
C. Not ascertained
Answer:
|
songer_appel1_1_3
|
C
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "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.
FULLANA CONSTRUCTION COMPANY, Defendant, Appellant, v. Joseph F. GRASSE, Plaintiff, Appellee.
No. 5241.
United States Court of Appeals First Circuit.
March 20, 1958.
Jose Antonio Luina, Santurce, P. R., for appellant.
Orlando J. Antonsanti, San Juan, P. R., for appellee.
Before MAGRUDER, Chief Judge, and WOODBURY and STALEY, Circuit Judges.
PER CURIAM.
The appellee, as assignee of American Paint and Chemical Corporation, brought an action of contract in the United States District Court for the District of Puerto Rico against appellant, Fullana Construction Company, to recover the value of certain paint goods sold and delivered to said defendant.
The case was tried by the court without a jury. It appears from the judge’s full findings of fact that the paints were ordered from time to time between August, 1954, and October 8, 1955, by one Celestino Santos, a painter employed by the defendant. In each instance, the delivery orders and invoices specifically named the defendant as the purchaser, not Celestino Santos.
The initial deliveries of paint, on or about August 31, 1954, were made pursuant to written orders prepared by Cel-estino Santos, and signed by defendant’s treasurer. However, subsequent deliveries were made to defendant’s projects without any prior presentation of written orders for defendant’s treasurer to sign. This practice developed upon a representation by Celestino Santos that defendant’s treasurer could not always be found without unfortunate delay. In at least many of such instances, the written orders would be approved and signed by an authorized officer of defendant after the actual physical delivery of the paints. Whether or not such written approval was subsequently obtained, it is true that all the paints in question were actually used in low cost housing developments which the defendant was engaged in constructing.
Finally, on October 8, 1955, a letter was received by the seller from the defendant, instructing the seller not to make any further deliveries of paints to its several projects on the basis of orders from Mr. Santos; the letter went on'to state that thereafter orders would come on a regular Fullana Construction Company order form. This change in procedure was explained by the testimony of defendant’s treasurer as due to the fact that, after the date of the letter, defendant began accumulating paints in its own warehouse, dispatching the paints therefrom only on requisition from the field. But this change in procedure had nothing to do with paints delivered prior to that time.
Before October 8, 1955, the value of the goods which had already been sold and delivered and used by the defendant, as aforesaid, amounted to $10,645.55. From the practice above described, the district judge inferred as a fact that Santos was the duly authorized agent of the defendant up until the receipt of the letter of October 8, 1955, fully empowered, on behalf of the defendant, to order paints for the construction jobs. Accordingly, the district judge entered judgment for the plaintiff in the sum of $10,645.55, from which judgment defendant took this appeal.
We can find no substance to the points raised on appeal. The district judge’s findings of fact were well supported by the evidence, and on those findings the judgment for the plaintiff was inescapable.
A judgment will be entered affirming the judgment of the District Court.
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:
|
sc_respondent
|
057
|
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.
RUCKELSHAUS, ADMINISTRATOR, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY v. MONSANTO CO.
No. 83-196.
Argued February 27, 1984
Decided June 26, 1984
Deputy Solicitor General Wallace argued the cause for appellant. With him on the briefs were Solicitor General Lee, Acting Assistant Attorney General Liotta, Deputy Assistant Attorney General Walker, Jerrold J. Ganzfried, Raymond N. Zagone, Anne S. Almy, and John A. Bryson.
A. Raymond Randolph, Jr., argued the cause for appellee. With him on the briefs were David G. Norrell, Thomas O. Kuhns, W. Wayne Withers, Frederick A. Provorny, Gary S. Dyer, C. David Barrier, and Kenneth R. Heineman
Briefs of amici curiae urging reversal were filed for the American Association for the Advancement of Science et al. by Thomas O. McGarity; for the American Federation of Labor and Congress of Industrial Organizations et al. by Marsha S. Berzon, Michael Rubin, Laurence Gold, Albert H. Meyerhoff, and J. Albert Woll; for the Pesticide Producers Association et al. by David B. Weinberg and William R. Weissman; and for PPG Industries, Inc., by Thomas H. Truitt, DavidR. Berz, and Jeffrey F. Liss.
Briefs of amici curiae urging affirmance were filed for Abbott Laboratories et al. by Kenneth W. Weinstein and Lawrence S. Ebner; for the American Chemical Society et al. by William J. Butler, Jr., and Arthur D. McKey; for the American Patent Law Association, Inc., by Donald S. Chisum; for Avco Corp. by Alvin D. Shapiro; for Sathon, Inc., by Ralph E. Brown and Mark E. Singer; for SDS Biotech Corp. et al. by Harold Himmelman and Cynthia A. Lewis; and for Stauffer Chemical Co. by Lawrence S. Ebner, John T. Ronan III, and John W. Behan.
Justice Blackmun
delivered the opinion of the Court.
In this case, we are asked to review a United States District Court’s determination that several provisions of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 61 Stat. 163, as amended, 7 U. S. C. § 136 et seq., are unconstitutional. The provisions at issue authorize the Environmental Protection Agency (EPA) to use data submitted by an applicant for registration of a pesticide in evaluating the application of a subsequent applicant, and to disclose publicly some of the submitted data.
Over the past century, the use of pesticides to control weeds and minimize crop damage caused by insects, disease, and animals has become increasingly more important for American agriculture. See S. Rep. No. 95-334, p. 32 (1977); S. Rep. No. 92-838, pp. 3-4, 6-7 (1972); H. R. Rep. No. 92-511, pp. 3-7 (1971). While pesticide use has led to improvements in productivity, it has also led to increased risk of harm to humans and the environment. See S. Rep. No. 92-838, at 3-4, 6-7; H. R. Rep. No. 92-511, at 3-7. Although the Federal Government has regulated pesticide use for nearly 75 years, FIFRA was first adopted in 1947. 61 Stat. 163.
As first enacted, FIFRA was primarily a licensing and labeling statute. It required that all pesticides be registered with the Secretary of Agriculture prior to their sale in interstate or foreign commerce. §§ 3(a) and 4(a) of the 1947 Act, 61 Stat. 166-167. The 1947 legislation also contained general standards setting forth the types of information necessary for proper labeling of a registered pesticide, including directions for use; warnings to prevent harm to people, animals, and plants; and claims made about the efficacy of the product. §§2(u)(2) and 3(a)(3).
Upon request of the Secretary, an applicant was required to submit test data supporting the claims on the label, including the formula for the pesticide. §§ 4(a) and (b). The 1947 version of FIFRA specifically prohibited disclosure of “any information relative to formulas of products,” §§ 3(c)(4) and 8(c), but was silent with respect to the disclosure of any of the health and safety data submitted with an application.
In 1970, the Department of Agriculture’s FIFRA responsibilities were transferred to the then newly created Environmental Protection Agency, whose Administrator is the appellant in this case. See Reorganization Plan No. 3 of 1970, 35 Fed. Reg. 15623 (1970), 5 U. S. C. App., p. 1132.
Because of mounting public concern about the safety of pesticides and their effect on the environment and because of a growing perception that the existing legislation was not equal to the task of safeguarding the public interest, see S. Rep. No. 92-838, at 3-9; S. Rep. No. 92-970, p. 9 (1972); H. R. Rep. No. 92-511, at 5-13, Congress undertook a comprehensive revision of FIFRA through the adoption of the Federal Environmental Pesticide Control Act of 1972, 86 Stat. 973. The amendments transformed FIFRA from a labeling law into a comprehensive regulatory statute. H. R. Rep. No. 92-511, at 1. As amended, FIFRA regulated the use, as well as the sale and labeling, of pesticides; regulated pesticides produced and sold in both intrastate and interstate commerce; provided for review, cancellation, and suspension of registration; and gave EPA greater enforcement authority. Congress also added a new criterion for registration: that EPA determine that the pesticide will not cause “unreasonable adverse effects on the environment.” §§ 3(c)(5)(C) and (D), 86 Stat. 980-981.
For purposes of this litigation, the most significant of the 1972 amendments pertained to the pesticide-registration procedure and the public disclosure of information learned through that procedure. Congress added to FIFRA a new section governing public disclosure of data submitted in support of an application for registration. Under that section, the submitter of data could designate any portions of the submitted material it believed to be “trade secrets or commercial or financial information.” § 10(a), 86 Stat. 989. Another section prohibited EPA from publicly disclosing information which, in its judgment, contained or related to “trade secrets or commercial or financial information.” § 10(b). In the event that EPA disagreed with a submitter’s designation of certain information as “trade secrets or commercial or financial information” and proposed to disclose that information, the original submitter could institute a declaratory judgment action in federal district court. § 10(c).
The 1972 amendments also included a provision that allowed EPA to consider data submitted by one applicant for registration in support of another application pertaining to a similar chemical, provided the subsequent applicant offered to compensate the applicant who originally submitted the data. § 3(c)(1)(D). In effect, the provision instituted a mandatory data-licensing scheme. The amount of compensation was to be negotiated by the parties, or, in the event negotiations failed, was to be determined by EPA, subject to judicial review upon the instigation of the original data submitter. The scope of the 1972 data-consideration provision, however, was limited, for any data designated as “trade secrets or commercial or financial information” exempt from disclosure under § 10 could not be considered at all by EPA to support another registration application unless the original submitter consented. Ibid.
The 1972 amendments did not specify standards for the designation of submitted data as “trade secrets or commercial or financial information.” In addition, Congress failed to designate an effective date for the data-consideration and disclosure schemes. In 1975, Congress amended § 3(c)(1)(D) to provide that the data-consideration and data-disclosure provisions applied only to data submitted on or after January 1, 1970, 89 Stat. 755, but left the definitional question unanswered.
Much litigation centered around the definition of “trade secrets or commercial or financial information” for the purposes of the data-consideration and data-disclosure provisions of FIFRA. EPA maintained that the exemption from consideration or disclosure applied only to a narrow range of information, principally statements of formulae and manufacturing processes. In a series of lawsuits, however, data-submitting firms challenged EPA’s interpretation and obtained several decisions to the effect that the term “trade secrets” applied to any data, including health, safety, and environmental data, that met the definition of trade secrets set forth in Restatement of Torts §757 (1939). See, e. g., Mobay Chemical Cory. v. Costle, 447 F. Supp. 811 (WD Mo. 1978); Chevron Chemical Co. v. Costle, 443 F. Supp. 1024 (ND Cal. 1978). These decisions prevented EPA from disclosing much of the data on which it based its decision to register pesticides and from considering the data submitted by one applicant in reviewing the application of a later applicant. See S. Rep. No. 95-334, at 7; H. R. Rep. No. 95-663, p. 18. (1977).
Because of these and other problems with the regulatory scheme embodied in FIFRA as amended in 1972, see S. Rep. No. 95-334, at 2-5; H. R. Rep. No. 95-663, at 15-21; see generally EPA Office of Pesticide Programs, FIFRA: Impact on the Industry (1977), reprinted in S. Rep. No. 95-334, at 34-68, Congress enacted other amendments to FIFRA in 1978. These were effected by the Federal Pesticide Act of 1978, 92 Stat. 819. The new amendments included a series of revisions in the data-consideration and data-disclosure provisions of FIFRA’s §§3 and 10, 7 U. S. C. §§ 136a and 136h.
Under FIFRA, as amended in 1978, applicants are granted a 10-year period of exclusive use for data on new active ingredients contained in pesticides registered after September 30, 1978. § 3(c)(l)(D)(i). All other data submitted after December 31, 1969, may be cited and considered in support of another application for 15 years after the original submission if the applicant offers to compensate the original submitter. § 3(c)(l)(D)(ii). If the parties cannot agree on the amount of compensation, either may initiate a binding arbitration proceeding. The results of the arbitration proceeding are not subject to judicial review, absent fraud or misrepresentation. The same statute provides that an original submitter who refuses to participate in negotiations or in the arbitration proceeding forfeits his claim for compensation. Data that do not qualify for either the 10-year period of exclusive use or the 15-year period of compensation may be considered by EPA without limitation. § 3(c)(l)(D)(iii).
Also in 1978, Congress added a new subsection, § 10(d), 7 U. S. C. § 136h(d), that provides for disclosure of all health, safety, and environmental data to qualified requesters, notwithstanding the prohibition against disclosure of trade secrets contained in § 10(b). The provision, however, does not authorize disclosure of information that would reveal “manufacturing or quality control processes” or certain details about deliberately added inert ingredients unless “the Administrator has first determined that the disclosure is necessary to protect against an unreasonable risk of injury to health or the environment.” §§ 10(d)(1)(A) to (C). EPA may not disclose data to representatives of foreign or multinational pesticide companies unless the original submitter of the data consents to the disclosure. § 10(g). Another subsection establishes a criminal penalty for wrongful disclosure by a Government employee or contractor of confidential or trade secret data. § 10(f).
l — l HH
Appellee Monsanto Company (Monsanto) is an inventor, developer, and producer of various kinds of chemical products, including pesticides. Monsanto, headquartered in St. Louis County, Mo., sells in both domestic and foreign markets. It is one of a relatively small group of companies that invent and develop new active ingredients for pesticides and conduct most of the research and testing with respect to those ingredients.
These active ingredients are sometimes referred to as “manufacturing-use products” because they are not generally sold directly to users of pesticides. Rather, they must first be combined with “inert ingredients” — chemicals that dissolve, dilute, or stabilize the active components. The results of this process are sometimes called “end-use products,” and the firms that produce end-use products are called “formulators.” See the opinion of the District Court in this case, Monsanto Co. v. Acting Administrator, United States Environmental Protection Agency, 564 F. Supp. 552, 554 (ED Mo. 1983). A firm that produces an active ingredient may use it for incorporation into its own end-use products, may sell it to formulators, or may do both. Monsanto produces both active ingredients and end-use products. Ibid.
The District Court found that development of a potential commercial pesticide candidate typically requires the expenditure of $5 million to $15 million annually for several years. The development process may take between 14 and 22 years, and it is usually that long before a company can expect any return on its investment. Id., at 555. For every manufacturing-use pesticide the average company finally markets, it will have screened and tested 20,000 others. Monsanto has a significantly better-than-average success rate; it successfully markets 1 out of every 10,000 chemicals tested. Ibid.
Monsanto, like any other applicant for registration of a pesticide, must present research and test data supporting its application. The District Court found that Monsanto had incurred costs in excess of $23.6 million in developing the health, safety, and environmental data submitted by it under FIFRA. Id., at 560. The information submitted with an application usually has value to Monsanto beyond its instrumentality in gaining that particular application. Monsanto uses this information to develop additional end-use products and to expand the uses of its registered products. The information would also be valuable to Monsanto’s competitors. For that reason, Monsanto has instituted stringent security measures to ensure the secrecy of the data. Ibid.
It is this health, safety, and environmental data that Monsanto sought to protect by bringing this suit. The District Court found that much of these data “contai[n] or relat[e] to trade secrets as defined by the Restatement of Torts and Confidential, commercial information.” Id., at 562.
Monsanto brought suit in District Court, seeking injunc-tive and declaratory relief from the operation of the data-consideration provisions of FIFRA’s § 3(c)(1)(D), and the data-disclosure provisions of FIFRA’s § 10 and the related § 3(c)(2)(A). Monsanto alleged that all of the challenged provisions effected a “taking” of property without just compensation, in violation of the Fifth Amendment. In addition, Monsanto alleged that the data-consideration provisions violated the Amendment because they effected a taking of property for a private, rather than a public, purpose. Finally, Monsanto alleged that the arbitration scheme provided by § 3(c)(l)(D)(ii) violates the original submitter’s due process rights and constitutes an unconstitutional delegation of judicial power.
After a bench trial, the District Court concluded that Monsanto possessed property rights in its submitted data, specifically including the right to exclude others from the enjoyment of such data by preventing their unauthorized use and by prohibiting their disclosure. 564 F. Supp., at 566. The court found that the challenged data-consideration provisions “give Monsanto’s competitors a free ride at Monsanto’s expense.” Ibid. The District Court reasoned that § 3(c)(1)(D) appropriated Monsanto’s fundamental right to exclude, and that the effect of that appropriation is substantial. The court further found that Monsanto’s property was being appropriated for a private purpose and that this interference was much more significant than the public good that the appropriation might serve. 564 F. Supp., at 566-567.
The District Court also found that operation of the disclosure provisions of FIFRA constituted a taking of Monsanto’s property. The cost incurred by Monsanto when its property is “permanently committed to the public domain and thus effectively destroyed” was viewed by the District Court as significantly outweighing any benefit to the general public from having the ability to scrutinize the data, for the court seemed to believe that the general public could derive all the assurance it needed about the safety and effectiveness of a pesticide from EPA’s decision to register the product and to approve the label. Id., at 567, and n. 4.
After finding that the data-consideration provisions operated to effect a taking of property, the District Court found that the compulsory binding-arbitration scheme set forth in § 3(c)(l)(D)(ii) did not adequately provide compensation for the property taken. The court found the arbitration provision to be arbitrary and vague, reasoning that the statute does not give arbitrators guidance as to the factors that enter into the concept of just compensation, and that judicial review is foreclosed except in cases of fraud. 564 F. Supp., at 567. The District Court also found that the arbitration scheme was infirm because it did not meet the requirements of Art. Ill of the Constitution. Ibid. Finally, the court found that a remedy under the Tucker Act was not available for the deprivations of property effected by §§ 3 and 10. 564 F. Supp., at 567-568.
The District Court therefore declared §§ 3(c)(1)(D), 3(c)(2)(A), 10(b), and 10(d) of FIFRA, as amended by the Federal Pesticide Act of 1978, to be unconstitutional, and permanently enjoined EPA from implementing or enforcing those sections. See Amended Judgment, App. to Juris. Statement 41a.
We noted probable jurisdiction. 464 U. S. 890 (1983).
f — H > — 4 I — I
In deciding this case, we are faced with four questions: (1) Does Monsanto have a property interest protected by the Fifth Amendment’s Taking Clause in the health, safety, and environmental data it has submitted to EPA? (2) If so, does EPA’s use of the data to evaluate the applications of others or EPA’s disclosure of the data to qualified members of the public effect a taking of that property interest? (3) If there is a taking, is it a taking for a public use? (4) If there is a taking for a public use, does the statute adequately provide for just compensation?
For purposes of this case, EPA has stipulated that “Monsanto has certain property rights in its information, research and test data that it has submitted under FIFRA to EPA and its predecessor agencies which may be protected by
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_r_state
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "state governments, their agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
UNITED STATES of America ex rel. Shahid El Hussein MUHAMMAD o/c Maynard Prater, Relator-Appellant, v. Hon. Vincent R. MANCUSI, as Warden of Attica State Prison, Attica, New York, Respondent-Appellee.
No. 809, Docket 33951.
United States Court of Appeals, Second Circuit.
Argued May 25, 1970.
Decided Oct. 22, 1970.
Edmund R. Schroeder, Morton E. Grosz, Milton Adler, New York City, for appellant.
Brenda Soloff, Asst. Atty. Gen., Samuel A. Hirshowitz, First Asst. Atty. Gen., Louis J. Lefkowitz, Atty. Gen., for appellee.
Before WATERMAN, FRIENDLY and HAYS, Circuit Judges.
PER CURIAM:
The one issue presentéd by this appeal from the denial, without a hearing, of appellant’s petition for a writ of habeas corpus in the United States District Court for the Southern District of New York, Metzner, J., is whether an examination at the FBI headquarters in New York City of a briefcase and wallet which were in defendant’s possession at the scene and time of his arrest in the public lobby of a bank was unconstitutional as an “unreasonable search.”
Following a robbery of money orders from a camera store located in the Bronx, the FBI was informed by a bank employee that appellant was in a branch office of the bank and was seeking to cash suspect money orders. Two FBI agents went to the bank forthwith and, upon ascertaining that the money orders in question were ones taken in the camera store robbery, there arrested appellant, made a limited search of his person, and took from him a briefcase he had been carrying. Appellant was taken directly to FBI headquarters where he was questioned, and his personal effects, including the briefcase, were examined. The briefcase contained 44, and his wallet 4, of the stolen money orders.
At appellant’s trial in state court for the camera store robbery, the money orders discovered by the search at FBI headquarters were, over objection, introduced into evidence as those stolen from the camera store. Appellant was convicted and sentenced to serve a term of from 15 to 30 years in prison. After appealing his conviction without success to the state appellate courts certiorari review was denied by the United States Supreme Court, Muhammad v. New York, 392 U.S. 944, 88 S.Ct. 2288, 20 L.Ed.2d 1406 (1968).
Appellant recognizes that the warrant-less search of the briefcase and the seizure of the money orders would have been proper if the search had been conducted at the time of his arrest in the lobby of the bank, but he claims, relying upon the rule in Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964), reaffirmed in Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), that the Government was foreclosed from searching it and seizing its contents without a warrant after he and the briefcase had been removed from the scene of the arrest.
This contention is entirely frivolous. Nothing could be more consistent with a decent regard for the preservation of appellant’s right to human dignity than the act of the officers here in not publicly overhauling appellant's personal effects in the lobby of the bank. Officers may indeed promptly conduct more thorough searches of an arrested person and of the personal effects in his possession at the time of his arrest at a more convenient place than the spot of arrest. We have so held in the past subsequent to Preston, e. g., United States v. Frankenberry, 387 F.2d 337 (2 Cir. 1967); United States v. Caruso, 358 F.2d 184 (2 Cir.), cert. denied, 385 U.S. 862, 87 S.Ct. 116, 17 L.Ed.2d 88 (1966). And, in accord with an able opinion of Judge Coffin of the First Circuit, United States v. DeLeo, 422 F.2d 487, 491-493 (1 Cir.), cert. denied, 397 U.S. 1037, 90 S.Ct. 1355, 25 L.Ed.2d 648 (1970), demonstrating that the reasoning of the above cases, and numerous other cases like them, has not been overruled by Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), we now hold here, subsequent to Chimel.
Moreover, we do not find Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970) apposite. Here the challenged search is a search of a suspect’s person and of his personal effects in his immediate possession at the time of his arrest when there was probable cause to effect that arrest. The examination of appellant’s briefcase at the FBI headquarters presents no‘different constitutional issue than a search there of his suit pockets, or hatband, would present.
The order below is affirmed.
Question: What is the total number of respondents in the case that fall into the category "state governments, their agencies, and officials"? Answer with a number.
Answer:
|
songer_circuit
|
G
|
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. Joseph Earl DILTS and Larry E. Cravens, Defendants-Appellants.
Nos. 73-1827, 73-1828.
United States Court of Appeals, Seventh Circuit.
Argued April 18, 1974.
Decided July 9, 1974.
Warren Lupel, Chicago, 111., for def endants-appellants.
Donald B. Maekay, U. S. Atty., Springfield, 111., Max J. Lipkin, Asst. U. S. Atty., Peoria, 111., for plaintiff-appellee.
Before CUMMINGS, STEVENS and SPRECHER, Circuit Judges.
PER CURIAM.
,A jury found both appellants guilty of eight separate violations of 18 U.S.C. §§ 2314 and 2. The indictment charged the defendants with causing the interstate transportation of eight forged checks. Each check was purportedly drawn by the Safeco Insurance Company on the Boatmen’s National Bank of St. Louis, and made payable to John R. Stack; six of the checks were in the amount of $168.03 and two were for $987.72.
The evidence showed that the appellants, together with the government’s witness Baker, decided in December, 1972, to make some money by utilizing blank Safeco checks in the possession of Dilts. Checks were then cashed at eight different business establishments in the Southern District of Illinois. Four were cashed in.Peoria, two in Moline, and two in Pekin. It was stipulated that, had the government called him as a witness, John R. Stack would have testified that a Selective Service card and two Bradley University identification cards were stolen from his place of residence. The record also disclosed that documents answering this description were found in a search of Dilts’ residence.
Appellants advance four arguments for reversal; (1) that it was error to permit the prosecutor to use a misdemeanor conviction to impeach a defense witness; (2) that they were deprived of a fair trial by the judge’s cross-examination of that witness; (3) that the evidence described only one offense rather than eight separate offenses; and (4) that the prosecutor’s reference to the indictment of appellant Craven for another offense was reversible error.
I.
After having asked the witness Toland about his four felony convictions, the prosecutor asked whether he had been found guilty of disorderly conduct, a misdemeanor. It was error for the court to allow such a question, but it was unquestionably harmless.
While any recent felony conviction may be used to impeach a witness, in the case of misdemeanors, “most courts have . . . require[d] that . the offense ... be one involving ‘moral turpitude.’ ” McCormick, Evidence, § 43, at 85 (2d ed. 1972). The circuits are divided on the extent to which the rule should be followed; the Third Circuit applies the rule, chosen by the Advisory Committee on the Proposed Rules of Evidence for the Federal Courts, that misdemeanors must amount to crimen falsi. We need not decide whether to follow the rationale of the Third Circuit, for, even under the “moral turpitude” standard, the disorderly conduct conviction should not have been used to impeach the witness here. If selling amphetamines without prescriptions and obstructing police officers have not been considered to be misdemeanors involving moral turpitude, disorderly conduct is certainly not such a crime. It was error to allow the impeachment.
Nevertheless, it is clear that the error was harmless. Since the witness had already been impeached with four felony convictions, the introduction of a misdemeanor conviction which produced only a $40 fine was, at most, merely cumulative. Since the evidence of guilt is unusually strong, we have no doubt that the error was harmless under the test enunciated in Kotteakos v. United States, 328 U.S. 750, 764, 66 S.Ct. 1239, 1248, 90 L.Ed.2d 1557.
II.
Appellants argue that the extensive questioning of the witness Toland by the trial judge deprived them of a fair trial.
Toland shared an apartment with one Larry Baker during December, 1972, the month in which the check forgeries were alleged to have occurred. During that month, a party was held at the apartment; the appellants were among those present. Toland testified that Baker went into the bedroom and returned with a box containing a check protector and some papers. He then testified that Baker asked the appellants and their co-defendant at trial “if they wanted to get into this check thing with him, to see if they could make some money. And Larry and Earl denied it.”
On cross-examination, the prosecutor asked nothing about this party, choosing only to impeach the witness with his criminal record. The trial judge, however, sought to elicit from the witness the date of the party, presumably to see if it was before the 20th of December, the first of the dates named in the indictment. The witness testified that, although he could not specify the date, to the best of his knowledge it was in the second week of December, that is, between the 10th and 16th of the month. Thereafter, the judge continued to question the witness, in a manner the appellants not unfairly label cross-examination. In all, the judge’s questioning occupies eight pages of the transcript.
Although the duty of the trial judge to exercise his control of a trial in an impartial manner is beyond dispute, it is difficult “for an appellate court to determine from a reading of words spoken at trial whether questions by the judge had the effect of unfairly disparaging the defense.”
In United States v. Tobin, 426 F.2d 1279 (7th Cir. 1970), we held that the trial judge’s cross-examination of a critical defense witness required reversal; in that case, as Judge Hastings pointed out, the judge’s “line of questioning went to a critical element of the defense” and the “question of guilt [was] a close one.” Id. at 1282. In this case, however, we do not regard the question of guilt as close, and it is clear that the judge’s examination of Toland did not relate to one of the central questions before the jury. The precise date of the party at Toland’s apartment was less important to the defense than the testimony about what was said at the party. Moreover, even if the jury had believed that Toland was telling the truth about what the appellants said, that would not establish their innocence if the jury also believed the government’s testimony concerning the appellants’ actions. We are satisfied that the judge’s questioning related to a collateral matter, and even if it revealed a somewhat skeptical attitude toward the veracity of Toland, it does not warrant reversal.
III.
Appellants argue that the trial court erred in treating the negotiation of each check as a separate violation of § 2314.
Ever since the Supreme Court’s per curiam decision in Castle v. United States, 368 U.S. 13, 82 S.Ct. 123, 7 L.Ed.2d 75, it has been clear that a single transportation of several securities constitutes only one violation of § 2314. In the present case, however, each of the eight counts charged that a forged check was cashed at a different time and at a different place. Since each interstate transportation was therefore initiated at a different time and place, there is no reason to assume that all of the forged instruments traveled to the drawee bank in the same conveyance.
The circuits are divided on the question whether different violations of the statute are proven if the evidence merely establishes that the interstate transportation of different forged securities commenced at different business establishments. In Amer v. United States, 367 F.2d 803 (1966), the Eighth Circuit held that different negotiations were different violations of § 2314. In Gilin-sky v. United States, 368 F.2d 487 (1966), however, the Ninth Circuit set aside a conviction based on evidence that 'different forged checks, though cashed at different business establishments, had traveled in the same pouch from the State of Washington to Kentucky. The court concluded that “[c]hanee or circumstance . . . [came] to the aid of a wrongdoer . . . [because] the federal crime with which we are here concerned proscribes not the passing but rather the transportation of forged checks.” 368 F.2d at 490.
In this case there is no reason to assume that the different checks traveled across state lines in the same pouch. Moreover, we agree with the Eighth Circuit that “the units of criminal prosecution [should not be] made dependent upon the happenstance of bank transmission procedure . . . . ” Amer v. United States, supra, 367 F.2d at 805. In United States v. Driscoll, 454 F.2d 792, 801 (1972), the Fifth Circuit, although citing Gilinsky but not Amer, held that the number of offenses under § 2314 is governed by the number of instances of passing forged checks. In a lengthy analysis of the same issue, Judge Kaufman reached the same result in Ketchum v. United States, 327 F.Supp. 768, 773-776 (D.Md.1971).
If all of the instruments had been negotiated at the same time and place, it would be reasonable to infer that only one transportation would ensue and, therefore, that only one offense was committed. On the facts disclosed by this record, however, we hold that since the indictment alleged eight separate instances of negotiating forged securities, it alleged eight separate violations of § 2314.
IV.
The prosecutor commenced his cross-examination of the defendant Cravens by asking if he was under indictment for intimidating a witness who had testified in the government’s casein-chief. Defense counsel objected and the district court sustained the objection; the witness, perhaps not understanding the significance of the judge’s action, nevertheless answered in the affirmative. The court denied the defendants’ motion for a mistrial. No special curative instruction was either sought or given.
An indictment is a charge, nothing more. It is, therefore, plainly improper to bring to the jury’s attention that a witness has been indicted. Nevertheless, we are not persuaded that reversible error resulted from the question. The fact that the trial judge sustained an objection would tend to establish its impropriety in the jury’s mind. We cannot say that the perception of an experienced trial judge that the circumstances were not such as to warrant a mistrial was incorrect.
Our appraisal of the significance of the improper question is complicated by the oral argument which the Assistant United States Attorney presented before us. Going completely outside the record, counsel sought to justify his trial conduct by giving us an extended account of the other crimes for which appellants have been either indicted or convicted, and of which he personally believed them guilty. This argument was patently improper; the extent to which criminal defendants are charged with other illegal activity has no bearing on the merits of this proceeding.
This kind of argument is entirely inappropriate “from counsel who are engaged, with [us], in administering justice.” United States v. Ott, 489 F.2d 872, 874 n. 2 (7th Cir. 1973). It becomes neither this court nor the United States, whom counsel was representing. See Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314. We have previously felt compelled to criticize this Assistant United States Attorney for departing from the record. In view of this history, we have considered the need for an exercise of our supervisory power as a deterrent to deliberate prosecutorial misconduct. Cf., United States v. Trutenko, 490 F.2d 678, 681 (7th Cir. 1973). We have concluded, however, that since the flagrant misconduct occurred before us, rather than in the trial court, these judgments should not be reversed. We trust that we will not have to appraise the same issue in any future case.
The judgments are
Affirmed.
. 18 U.S.C. § 2314 provides, in pertinent part:
“Whoever, with unlawful or fraudulent intent, transports in interstate or foreign commerce any falsely made, forged, altered, or counterfeited securities or tax stamps, knowing the same to have been falsely made, forged, altered, or counterfeited
*6 % sis ¡k
“Shall be fined not more than $10,000 or imprisoned not more than ten years, or both.”
18 U.S.C. § 2 provides:
“(a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.
“(b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.”
Counts One and Two also charged a third defendant. He was tried and convicted at the same trial. He has been sentenced as a youthful offender and has not appealed.
. See United States v. McCarthy, 445 F.2d 587, 590-591 (7th Cir. 1971).
. For example, the Fifth and Sixth Circuits follow the rule as McCormick has enunciated it. See Myers v. United States, 377 F.2d 412, 423 (5th Cir. 1967) ; United States v. Conder, 423 F.2d 904, 911-912 (6th Cir. 1970). The Fourth and Tenth Circuits follow it except to the extent of permitting impeachment by petit larceny if it is a criminal case. See United States v. Pennix, 313 F.2d 524, 531 (4th Cir. 1963) ; Butler v. United States, 408 F.2d 1103, 1104 (10th Cir. 1969). The Ninth Circuit forbids impeachment by misdemeanors in any event. See Johnson v. United States, 424 F.2d 537 (1970).
. See Rule 609 and the Committee commentary.
. See United States v. Evans, 398 F.2d 159, 164 (1968). Cf. Gordon v. United States, 127 U.S.App.D.C. 343, 383 F.2d 936, 940 (1967) (Burger, J.) for a discussion of the reasons why impeachment of an accused who testifies ought to be only by those prior convictions bearing upon honesty and veracity. The “rule of thumb” proposed in that case was not adopted as a per se limitation on the district judges in this circuit. See United States v. Cox, 428 F.2d 683, 689 (1970) ; United States v. Escobedo, 430 F.2d 14 (1970). But see the concurring opinion of Judge Kiley in Escobedo, 430 F.2d at 21-22.
. See Myers v. United States, supra, and Johnson v. United States, supra.
. The Court there stated: “If, when all is said and done, the conviction is sure that the error did not influence the jury, or had but very slight effect, the verdict and the judgment should stand. . . . ”
. Tr. 198.
. See Quercia v. United States, 289 U.S. 466, 469-470, 53 S.Ct. 698, 77 L.Ed. 1321.
. United States v. Grunberger, 431 F.2d 1062, 1067 (2d Cir. 1970). We also agree with the passage from Judge Moore’s dissent in United States v. Guglielmini, 384 F.2d 602, 608 (2d Cir. 1967) quoted by Judge Waterman in Grunberger-. “[E]very judge lias his own individual manner of conducting a trial and, of necessity, must have great leeway in so doing. Even appellate decisions cannot reduce the judicial personality to a common colorless denominator.” Ibid.
. Although the appellants claim that error resulted when the district court sentenced them, the cases cited in their brief make clear that they are questioning indictment and prosecution for separate offenses as well. If the indictment was j)roper, as we understand the substance of the argument, no question concerning whether the court abused its discretion in sentencing arises.
. In Castle, the defendant carried five forged American Express Company money orders on Ids person on a trip from Indiana to Texas. The Court of Appeals had held that each forged money order constituted a separate offense under § 2314. See 287 F. 2d 657 (5th Cir. 1961). In its one paragraph opinion, the Supreme Court relied upon Bell v. United States, 349 U.S. 81, 75 S.Ct. 620, 99 L.Ed. 905.
. “By Mr. Bipkin :
Q Mr. Cravens, you are under indictment in this court, are you not, for attempting to intimidate Wasson so that he wouldn’t tell the truth at the last trial ?
MR. HAMM: If the Court please—
THE COURT: Objection will be sustained.
MR. I-IAMM: I am going to ask that a juror be withdrawn from the jury box.
THE COURT: Motion will be denied.
THE WITNESS : Yes, sir, I’m under the indictment.
MR. HAMM: Mr. Cravens, the objection was sustained.
THE WITNESS: Yes, thank you.” Tr. 246
. “A witness may not be asked if he has been accused or arrested for a crime, for the sufficient reason that it calls for hearing evidence, and because accusation carries no implication of guilt.” Coulston v. United States, 51 F.2d 178, 182 (10th Cir. 1931). “This rule is based upon a clear recognition of the fact that the probative value of such evidence is so overwhelmingly outweighed by its inevitable tendency to inflame and prejudice the jury against the defendant that total and complete exclusion is required in order that the right to trial by a fair and impartial jury may not be impaired.” United States v. Pennix, supra, n. 3, 313 F.2d at 529. Compare Ewing v. United States, 386 F.2d 10, 15 (9th Cir. 1967), in which the prosecution adduced facts showing the attempted bribery of a government witness by defendant, before trial. Even the proof of facts of misconduct, however, is not universally accepted. See McCormick, Evidence, § 42, at 82-83.
. Similarly, the fact that they have been convicted of other crimes subsequent to the trial in question is not relevant. The fairness of the trial is judged by the circumstances extant at the time of trial.
. See United States v. Hernandez, 486 F.2d 614, 618 (7th Cir. 1973).
. In United States v. Ott, supra, the prosecution had misrepresented a material fact to the district court and, on appeal, government counsel failed to bring the correct facts to our attention on his own initiative.
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_circuit
|
H
|
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.
Nancy ZECK, Appellant, v. UNITED STATES of America, Appellee. Albert ZECK, Appellant, v. UNITED STATES of America, Appellee.
Nos. 83-1554, 83-1555.
United States Court of Appeals, Eighth Circuit.
Submitted Oct. 14, 1983.
Decided Nov. 9, 1983.
Charles M. Thompson, May, Adam, Gerdes & Thompson, Pierre, S.D., Steven Z. Garris, Garris, Garris & Garris, P.C., Ann Arbor, Mich., for appellants.
Leslie C. Ohta, Civil Div., U.S. Dept. of Justice, Washington, D.C., Terry L. Pechota, Native American Rights Fund, Boulder, Colo., Philip N. Hogen, U.S. Atty., Jeffrey Axelrad, Director, Torts Branch, Leslie C. Ohta, Attys., J. Paul McGrath, Asst. Atty. Gen., U.S. Dept. of Justice, Washington, D.C., for appellee.
Before ROSS, McMILLIAN and BOWMAN, Circuit Judges.
PER CURIAM.
Appellant Albert Zeck brought this action against the United States under the provisions of the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671 et seq. (FTCA) and the National Swine Flu Immunization Program of 1976, 42 U.S.C. § 247b(k)(l)(A) et seq. (Swine Flu Act) alleging that he suffered a stroke resulting from receipt of the swine flu vaccine. Appellant Nancy Zeck filed an action under the FTCA and the Swine Flu Act for loss of consortium based upon the injury to her spouse. Following remand to the United States District Court, 559 F.Supp. 1345, for the District of South Dakota both actions were tried together before the Honorable Donald J. Porter. After a five day trial, the court rendered judgment for the United States. This appeal followed.
The district court found that the Zecks failed to carry their burden of showing a causal connection between the swine flu shot and Mr. Zeck’s stroke. The court held that the clear weight of the evidence supported the government’s position that Mr. Zeck’s symptoms were compatible with those seen in anyone suffering from a brain stem stroke. The court further held that there was scarcely any evidence in the record which would justify finding in favor of the Zecks. The court stated that to make such a finding it would be necessary to discount the evidence which portrayed Mr. Zeck as an individual who had a history of vascular disease in his family, smoked heavily, was under considerable stress, and was probably mildly hypertensive.
We have carefully studied the record, including the district court’s opinion, the briefs and the arguments of the parties to this action. We find that the judgment of the district court is based on findings of fact that are not clearly erroneous and no error of law appears therein. Accordingly, we affirm pursuant to Rule 14 of the rules of this court on the basis of Judge Porter’s opinion.
. On February 28, 1978, the Judicial Panel on Multidistrict Litigation ordered that all swine flu cases be transferred to the District of Columbia for coordinated and consolidated pretrial proceedings. In re Swine Flu Immunization Products Liability Litigation, 446 F.Supp. 244 (Jud.Pan.Mult.Lit. 1978).
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_respond1_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 respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to classify the scope of this business into one of the following categories: "local" (individual or family owned business, scope limited to single community; generally proprietors, who are not incorporated); "neither local nor national" (e.g., an electrical power company whose operations cover one-third of the state); "national or multi-national" (assume that insurance companies and railroads are national in scope); and "not ascertained".
NATIONAL LABOR RELATIONS BOARD, Petitioner, v. Samuel B. GASS et al., Respondents.
No. 6793.
United States Court of Appeals First Circuit.
Heard March 7, 1967.
Decided May 5, 1967.
Allison W. Brown, Jr., Washington, D. C., Atty., with whom Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and William J. Avrutis, Atty., Washington, D. C., were on brief, for petitioner.
Irving Isaacson, Lewiston, Me., for Samuel B. Gass, respondent.
Courts Oulahan, Washington, D. C., with whom Charles S. Rhyne, Alfred J. Tighe, Jr., Washington, D. C., Benjamin P. Lamberton, III, and Rhyne & Rhyne, Washington, D. C., were on brief, for Lipman Bros., Inc., et al., respondents.
Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.
McENTEE, Circuit Judge.
This is a petition to enforce an order of the National Labor Relations Board issued against the respondents, Gass and Lipman, based on Board findings that these respondents engaged in certain unfair labor practices. The case arises out of the alleged unlawful discharge of a long time Gass employee. From this charge other issues developed upon which the Board made additional unfair labor practice findings, all of which are hereinafter discussed.
The pertinent background facts are as follows. The Lipmans are in the poultry business with principal places of business in Augusta and Winslow, Maine. They raise, process and sell poultry on a large scale through the medium of seven corporations. These corporations are controlled by three brothers, Bernard, Frank and Harold Lipman. Respondent Samuel B. Gass, a Maine corporation (hereinafter Gass) is a trucker with a principal place of business in Augusta. It is a family corporation in which one Sam Gass is president and his wife is treasurer. Mrs. Gass is a sister of the Lip-man brothers. Actually Gass has only one customer — Lipman—and most of the time is engaged in hauling poultry feed from Lipman’s feed mill in Augusta to some 150 to 200 poultry farms within a general fifty mile radius where Lipman raises its chickens. Gass operates nine specially equipped delivery trucks and employs seven drivers, a mechanic and a mechanic-driver. From this business it grosses in excess of $100,000 a year.
Miville, the discharged employee in question, was one of these seven drivers. In August 1964 he and another driver succeeded in getting all nine Gass employees to sign union authorization cards. On the day that the last of the drivers signed up, (August 19), one Morgan, the superintendent of the Lipman feed mill in Augusta, heard about this union activity. He contacted Sam Gass and immediately tried to discourage it. The next day (August 20) the following occurrences took place. Early that morning Harold Lipman discharged Miville, ostensibly for other than union reasons. When Miville remarked that he was really being fired on account of his union activities, Harold replied “You didn’t have to sign the papers,” meaning the union papers. Then Harold asked Mi-ville how many Gass drivers had signed up with the union and when Miville told him they had signed up “one hundred per cent,” Harold Lipman angrily remarked “I’m taking the trucking outfit over.” After rebuking Miville he ordered him off the Lipman property. Also on that day Gass received written notice from the union stating that it represented a majority of the employees and demanding collective bargaining rights. Shortly afterwards Sam Gass showed this notice to one of the Lipmans. On this same morning Miville brought one Hastings, the president and business agent of the union, to the truck terminal to see Sam Gass about Miville’s job. Sam was not available at the time but they were confronted by Mrs. Gass who, when she learned who Hastings was, subjected him to a strong outburst of anti-union animus and ordered him off the premises. An hour or so later Miville telephoned Sam Gass to try to arrange a conference between him and Hastings. At that time Mrs. Gass broke in on the telephone conversation and again expressed strong antiunion feelings. At the end of this conversation when Mi-ville asked Sam Gass whether he (Mi-ville) was “all through” Sam replied “Lipman don’t want you on the farm. I have no more work for you.” That afternoon Sam Gass informed his truck drivers he was losing his business and that their employment would end as of the following day.
The next morning, Friday, August 21,' one of the Gass employees told Morgan he had heard that Sam was losing his business and asked what would happen if the drivers withdrew from the union. Shoirtly thereafter word came back through Morgan that if the drivers got together with Sam Gass before 5 o’clock that day and “get this straightened out” the Lipmans “would give him back his business.” Thereupon a hurried conference was called at which the truck drivers, Mr. and Mrs. Gass and Morgan, were present. As a result of this meeting the drivers agreed to withdraw from the union and Gass continued operating the business. That afternoon two drivers approached Sam Gass about Miville getting his job back now that they had withdrawn from the union. Sam stated he would do all in his power to have Mi-ville reinstated but added that he didn’t know if the Lipmans wanted Miville back.
The following Monday, August 24, Sam Gass offered Miville his job back “under the old conditions” but Miville replied that he would come back to work only if he “could talk freely with the boys about a union.” Sam said “under those circumstances I have no work for you” and hired a new driver who was there seeking employment at the time.
Some two weeks later Miville received a letter from Gass’ attorney stating he was authorized to offer him “immediate and unconditional reinstatement” to his job nothwithstanding he had twice refused reemployment. Upon receipt of this letter on Friday, September 10, Mi-ville went to the terminal and in the absence of Sam told Mrs. Gass he was reporting for work in accordance with the letter. She informed him that a truck would not be available until the following Monday, whereupon Miville left. In a matter of minutes Mrs. Gass appeared at the office doorway to the garage where Miville had stopped to visit and told him she wouldn’t have him or anyone else swearing or insulting her— and threatened to fire him then and there. Miville denied that he swore at or insulted Mrs. Gass. At any rate, the next day he received a telegram from Sam Gass discharging him for “insubordination and profanity to Mrs. Gass” on the previous day. At no time thereafter was Miville offered reinstatement in his job.
On the basis of the above evidence the Board found that the Lipmans were engaged in a single integrated enterprise; that Lipman and Gass were joint employers of Miville and as such discriminatorily discharged and refused to reinstate him in violation of section 8(a) (3) and (1) of the Act; that through respondents’ coercive interrogation and threats of going out of business the Gass drivers were coerced into abandoning their union membership in violation of said section 8(a) (1); and finally the Board found that the respondents refused to bargain with the union in violation of section 8(a) (5) and (1) of the Act. It also rejected the respondents’ contention that the Gass drivers are agricultural laborers and hence exempt from the Act.
Broadly, the respondents resist enforcement of the Board’s order because they contend that none of these findings are supported by substantial evidence. In particular, the respondents vehemently press their contentions that they did not employ and were not joint employers of Miville; that Lipman is not a single integrated enterprise and that the Gass drivers are agricultural laborers and by reason thereof are exempt under section 2(3) of the Act.
It is now so well settled as not to require citation of authority that this court’s function on a petition to enforce an N.L.R.B. order is merely to determine whether on the record as a whole there is sufficient evidence to support the Board’s findings. We think there is substantial evidence to support the Board’s findings. To begin with, we ■call attention to the fact that on a previous petition to enforce an order of the Board against the Lipmans, decided by this court some fifteen months ago, the Lipman corporations admitted and this court found that this same poultry operation was a single integrated enterprise. N. L. R. B. v. Lipman Brothers, Inc., 355 F.2d 15, 21 (1st Cir. 1966). There is no evidence before us of any change in the corporate set-up or modus operandi of this business in the relatively short period since this admission was made. Although this finding does not bind the respondent Gass, it not being a party to the earlier case, we see no reason why we cannot take judicial notice of this admission and of our findings based on it, as far as the respondent Lipman is concerned; and we do so notice this earlier finding. Quite apart from this admission in the earlier case, there is substantial evidence in the record before us that Lipman is a single integrated business enterprise. As above stated, the three Lipman brothers are still the only officers and directors of all seven corporations in question. Together these three brothers own the controlling interest in each of them. From an examination of the part these corporations play in the overall operation of this business, and from the division of responsibilities between the three Lipman brothers — apportioned without regard to corporate lines, it is clear that this is but one large integrated poultry business — not several businesses.S. ***
Also, we think there is substantial evidence in the record to support the Board’s finding that Lipman and Gass were joint employers of the Gass drivers and as such discriminatorily discharged and refused to reinstate Miville. It is evident that although Gass paid the drivers, Lipman held and exercised de facto control over Gass at least insofar as its drivers are concerned. The fact that Lipman could terminate its hauling agreement with Gass at will, plus the fact that Harold Lipman said he was going to take over the Gass trucking operation when he learned that all the Gass drivers had joined the union, demonstrates that Lipman was actually in complete control of the Gass trucking business. Furthermore, almost immediately after learning of the successful union effort led by Miville in signing up the drivers, Lipman embarked upon a campaign of harassment against them and against Miville in particular. This clearly showed antiunion animus on the part of Lipman. Morgan, the superintendent of its feed mill, was critical of the drivers’ actions in joining the union. Lip-man immediately declared the facilities of this mill “off limits” to Gass drivers, which restrictions were removed when the drivers renounced their recently acquired union membership. Finally, Gass and Lipman both “pulled the rug”, so to speak, on all the Gass drivers by threatening that Gass was then and there going to cease doing business, obviously because the Gass drivers joined the union. What better evidence is needed of anti-union animus and coercion?
It is also significant, we think, that Harold Lipman — not Sam Gass — discharged Miville and it was primarily Lipman’s opposition that kept this discharged employee from being reinstated even when Sam manifested a desire to rehire him. Moreover, the events immediately preceding the August 21 meeting at which the drivers agreed to withdraw from the union, further show that in fact Lipman was in control of the Gass trucking operation and for all practical purposes was a joint employer of these drivers. Lipman also directed their daily operations from the feed mill. It was only after the Lipmans had sent word that they would give back the business to Gass on the condition that the matter was “straightened out” that the union withdrawal meeting took place. Obviously the “straightening out” meant renunciation by the drivers of their union membership.
The Board could conclude very reasonably from the facts recited above that the renunciation demanded by Sam Gass and his wife was dictated by Lip-man. Such conduct is unlawful. N. L. R. B. v. Yale Manufacturing Company, 356 F.2d 69, 72 (1st Cir. 1966).
Without repeating the evidence previously mentioned, suffice it to say that we are also of the opinion there was ample evidence that Miville’s discharge was motivated by the fact that he was the prime mover in getting the drivers to join the union. We are convinced that his alleged use of vulgar or abusive language to Frank Lipman and to Mrs. Gass were mere pretexts and not the real cause for his discharge or for his failure to be reinstated. The substantial evidence points to Miville’s union interest and activity as the real reason behind both. Furthermore, we think that from her conduct, the Board could reasonably conclude that Mrs. Gass’ opposition to Mi-ville’s reemployment stemmed from her fear of renewed union activity. As we said in Lipman, supra “In evaluating these discharge situations the pivotal factor is motive” and “the mere existence of a valid ground for discharge is no defense to an unfair charge if such ground was a pretext and not the moving cause.”
Sam Gass’ refusal to talk with the union, Gass’ failure to acknowledge receipt of the union’s demand for collective bargaining and its refusal to contact or talk with the union, as well as the part both Lipman and Gass played in bringing about the drivers’ withdrawal from the union, certainly is sufficient to support a finding that the respondents refused to bargain in violation of section 8(a) (5) and (1) of the Act.
The respondents attack the credibility of some of the General Counsels’ witnesses. In this connection we point to what we said in N. L. R. B. v. Universal Packaging Corporation, 361 F.2d 384, 388 (1st Cir. 1966) “that questions of credibility are for the Board, subject to judicial review only when the Board oversteps the bounds of reason. We shall not substitute our judgment for that of the trial examiner who heard the testimony and observed the witnesses, nor for that of the Board with its vast experience in dealing with labor disputes.”
The contention that the Gass drivers were “agricultural laborers”— and hence not subject to the Act does not impress us. The Supreme Court has held that the definition of agriculture has two distinct branches. Primarily, it includes farming in all its branches, i. e., cultivation, tillage of the soil, dairying, etc. But it also has a broader meaning which “includes any practices, whether or not themselves farming practices, which are performed either by a farmer or on a farm, incidentally to or in conjunction with ‘such’ farming operations.” Farmers Reservoir & Irrigation Co. v. McComb, 337 U.S. 755, 763, 69 S.Ct. 1274, 1278, 93 L.Ed. 1672 (1949). Respondents do not contend that the work performed by the Gass drivers in this case is farming. They do insist, however, that the delivery of the poultry feed is in large part work performed on farms and is incidental to the raising of poultry. In disposing of this contention we need only to point out that in Bowie v. Gonzalez, 117 F.2d 11 (1st Cir. 1941), and later in Calaf v. Gonzalez, 127 F.2d 934 (1st Cir. 1942), we held that the transporting of sugar cane from farms to a sugar mill was incidental to the work of the mill. Similarly, we think the delivery of the poultry feed in this case is incidental to the work of the feed mill — rather than the farms. The mere fact that the success of raising the chickens depends to a great extent upon trucking poultry feed to these farms, or the further fact that this work is sometimes done by farm laborers, does not make these drivers agricultural laborers. It is significant that these drivers are not employed or paid by the farms nor are they under the control of the farmers. It would also seem that the delivery of poultry feed here is much like the delivery of water or electricity to farms. See Farmers Reservoir & Irrigation Co. v. McComb, supra. Surely no one would seriously contend that this makes employees of these companies, who go on the farms in connection with their jobs, agricultural laborers — however long they work there. Consequently, in our opinion the Board was amply justified in finding that the work of the Gass drivers was incidental to the operation of the feed mill rather than to the operation of any farmer or farm.
Moreover, although we do not decide the question, even if these deliveries were incidental to farming we doubt that the physical presence of the drivers on the farm premises, while such deliveries are being made, is the kind of activity that Congress intended would qualify them for this exemption.
Finally, on the record before us, we find no error in the scope of the Board’s order. The evidence was sufficient to warrant the finding that Gass and Lip-man were joint employers and therefore the order covering both is justified. We do not interpret this order as imposing any unwarranted hardship on the respondent Lipman. All other points raised by the respondents have been considered and found to be without merit.
A decree will be entered enforcing the order of the Board.
. Lipman owns ten of these farms. The rest are leased from farmers who are engaged by Lipman to raise the chickens as part of their lease arrangement. Lipman retains title to the chickens, supplies the feed, etc.
. Following the conversation with Sam Gass, Morgan told two of the drivers that Sam Gass knew what the employees were up to; that he (Morgan) thought they had jumped into the union too quickly and should have first talked it over with Sam Gass. Later that day signs were posted at the feed mill where the Gass drivers loaded up their trucks daily and while there used the rest room facilities and vending machines, that the mill facilities were now “off limits” to them.
. As Miville was about to start work, Sam Gass told him that Frank Lipman wanted him off the Lipman property and also wanted to see him that morning at the feed mill for using vulgar language to him a few days before in the presence of others. When Miville went to the mill looking for Frank, his brother Harold replied that he would take care of him and told him he was “all through.” The reason given to Miville for this action was “You’ve been shooting your mouth off at my chicken farmers and been fooling [with] women on the farms.”
. Truck Drivers Warehousemen and Helpers Union Local No. 340 affiliated with the International Brotherhood of Teamsters, etc.
. She stated “We don’t want to talk to no union man. We don’t want no union man around here.”
. Tlie business arrangement between Gass and Lipman was oral and could be can-celled at the will of the latter.
. At this meeting the employees told Mr. and Mrs. Gass that they had talked with Morgan and indicated they would like to straighten things out and get back to normal. Mr. and Mrs. Gass said that the drivers had to send the union a registered letter and a telegram signed by all of them, withdrawing from the union. A letter was then composed by one of the drivers with the help of Sam Gass and was signed by all the drivers and taken to the post office where it was registered and mailed. From there the drivers went to the telegraph office where each driver signed and sent a telegram to the union. This whole affair took about three hours working time but this loss of time was not deducted from the drivers’ pay.
. Later Morgan told one of the drivers that if they had not withdrawn from the union when they did, they would have been working for him the following Monday under far more restrictive rules relating to coffee breaks and other privileges previously extended to the Gass drivers at the feed mill.
. Five of the Lipman controlled corporations are engaged in the following activities which contribute directly to the final poultry product. Pinecrest Poultry Farms, Inc. hatches chickens and sells them to Lipman Poultry Farms, Inc., which grows these chickens and then sells them to Lipman Bros., Inc. The latter kills, dresses and sells the dressed poultry on the market and sells the byproducts to By-Products, Inc. This corporation processes these by-products and sells them to Samuel Lipman Sons, which uses them in making poultry feed which it sells to Lipman Poultry Farms, Inc., that in turn feeds it to the chickens being raised on the various farms.
Also, all three Lipman brothers are actively engaged in the day to day Lipman operations which are divided between them, as follows: Bernard has charge of sales; Frank supervises the feed mill and the raising of chickens and Harold looks after the rolling stock, plant maintenance and the production of the dressed poultry.
. Section 2(3) of the Act, 29 U.S.O. § 152(3) provides in pertinent part “The term ‘employee’ * * * shall not include any individual employed as an agricultural laborer * *
. The record shows that at the farms it takes the drivers from an hour to an hour and a half to discharge the load of feed into the poultry house storage bins.
. Respondents call our attention to Nix v. Farmers Mutual Exchange of Calhoun, 218 F.2d 642 (5th Cir. 1955) and Mitchell v. Georgia Broiler Supply, Incorporated, 186 F.Supp. 341 (N.D.Ga.1960). These cases are clearly distinguishable from the instant one on their facts and to the extent that Mitchell supports Gass we do not follow it.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business?
A. local
B. neither local nor national
C. national or multi-national
D. not ascertained
Answer:
|
sc_issuearea
|
C
|
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.
JENSEN, DIRECTOR, DEPARTMENT OF MOTOR VEHICLES OF NEBRASKA, et al. v. QUARING
No. 83-1944.
Argued January 7, 1985
Decided June 17, 1985
Ruth Anne E. Gaiter, Assistant Attorney General of Nebraska, argued the cause for petitioners. With her on the brief was Paul L. Douglas, Attorney General.
Thomas C. Lansworth argued the cause for respondent. With him on the brief were Burt Neubome and Charles S. Sims.
Marc D. Stem and Ronald A. Krnuss filed a brief for the American Jewish Congress et al. as amici curiae urging affirmance.
Solicitor General Lee, Deputy Solicitor General Getter, and Kathryn A. Oberly filed a brief for the United States as amicus curiae.
Per Curiam.
The judgment is affirmed by an equally divided Court.
Justice Powell took no part in the decision of this case.
Question: What is the issue area of the decision?
A. Criminal Procedure
B. Civil Rights
C. First Amendment
D. Due Process
E. Privacy
F. Attorneys
G. Unions
H. Economic Activity
I. Judicial Power
J. Federalism
K. Interstate Relations
L. Federal Taxation
M. Miscellaneous
N. Private Action
Answer:
|
songer_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.
THE DETROITER. THE FRANK A. LOWERY.
No. 263.
Circuit Court of Appeals, Second Circuit.
Feb. 10, 1936.
Lynch & Hagen, of New York City (Charles W. Hagen and Henry C. Eidenbach, both of New York City, of counsel), for appellant.
Macklin, Brown, Lenahan & Speer, of New York City (Richard F. Lenahan, of New York City, of counsel), for appellee The Frank A. Lowery.
Brown, Ely & Richards, of Buffalo, N. Y. (David S. Jackson, of Buffalo, N. Y., of counsel), for libelant.
Before L. HAND, SWAN, and CHASE, Circuit Judges.
L. HAND, Circuit Judge.
This is an appeal by the owner of the M. V. Detroiter, from a decree in the admiralty holding it solely liable for damage to a grain cargo, lifted by the canal barge John J. Pershing, from Buffalo, bound for New York in tow of the motor tug Frank A. Lowery, of which the appellee Frank A. Lowery was the owner and claimant. While in the Barge Canal in the neighborhood of Sprakers, N. Y., the Pershing went ashore, stove in her bottom, and flooded the grain; this was the loss complained of. The Lowery’s tow was made up in two sections, each consisting of three barges tandem, made fast close together, each section upon a hawser 300 feet long; the Pershing was the leading barge of the first section, followed by the Hollenbeck and the Craven. The Lowery insists that the Pershing took the strand because of suction from the Detroiter, which was passing too close and too fast, laden and also bound east. The Detroiter’s position is that the Lowery had got her tow too far to the north and out of the channel, and that the Pershing sheered into the bank or ran aground unaffected by the Detroiter’s passing. It is agreed that the Pershing, just at the moment when the Detroiter happened to be passing, did sheer to the left and push her nose into the bank to a distance of 33 feet from the shore just east of station No. 3170 on the canal. The judge decided that she had been within the channel, and that the Detroiter was moving too fast, and for this reason held her alone.
The first question is as to the position of the first section of the Lowery tow. Each of five witnesses on the tug or barges was positive that the distance between the vessel he chanced to be on and the shore of the canal was 35 feet; he was carefully, asked whether he meant the shore line and he expressly declared that he did. Lowery thought that he was about that distance offshore when the Detroiter passed the tug; Gregory, who was steering the Hollenbeck by a Gillies wheel, was very definite that this was the distance, when the Detroiter passed his barge; so was Smith on the Craven. In the rear section Coutant on the first barge, and Lee on the second, said that they were 35 feet offshore when the Detroiter passed their barges. The north side of the channel is not marked by buoys, as is the south; the only guides are two red lights on the north shore, said in the briefs to be 2,000 feet apart, between which the accident' happened. The shore line curves gently to the north away from the range of these two lights until at station No. 3170, where the Pershing went ashore, it is 98 feet away. It is of critical importance whether we take the testimony of the Lowery’s witnesses at its face, or whether we correct it, as Lowery and Smith corrected it when recalled upon rebuttal, so as to make the range and not the shore the place of reference for the distance given. This correction the judge accepted and his finding is of course persuasive, since he saw the witnesses. Moreover, the thing happened at night when estimates of distance, proverbially unreliable at any time, are especially illusory. Nevertheless the examination of all five of these witnesses was so expressly directed to the shore line and not to the range that we feel forced to assume that they meant what they said, for the later recantations are surely not convincing. One witness from the Detroiter also put the distance at the same figure, though it must be confessed that from where he was, he could not well have judged the tow’s position. We do not of course mean that we take the exact footage seriously; indeed, it was a suspicious circumstance that all the witnesses swore alike. We shall try to show that the first section must have been about 80 feet from shore, and while that does indeed considerable violence to the testimony, it does less than to make the distance 130 feet, which we must say if the range be taken as the line of reference. It must be remembered in any case that it was substantially impossible for the bargees, whatever may be said as to Lowery, to estimate on which side of an unmarked channel line the flotilla was moving.
The Pershing drew 10 feet; the tug 9%; the two other barges of the first section probably the same, though that does not appear in the testimony. We have depth contours for the canal at stations No. 3175 and No. 3170, 500 feet ap&rt. At the first station a depth of 10 feet is found at about 35 feet from shore and of 11 feet at about 40; at the second, 10 feet is found at 58 feet from shore and 11 feet at 80. Thus at station No. 3170 there is apparently a shoal which extends out some 40 feet into what would otherwise be a more or less uniform prism of the canal. If the Pershing was within 60 feet of the shore, she was therefore sure sooner or later to run aground head on; if she was within 80 feet, she would have less than twelve inches underfoot and according to several uncoutradicted witnesses she would then be liable to “dive,” that is, to take unaccountable sheers. Everybody agrees that she did sheer and that means some lateral movement. How much she turned no one can say; because though she sank at right angles to the channel, there was a current which might have moved her stern slowly while her nose alone was fast. We may, however, be certain that she did not go ashore head on, and this meant that she was more than 60 feet offshore. We have assumed that she was 80 feet off only because that at once accounts for all the facts and least wrenches the testimony; it puts her right side not f^r from the channel line, but her bottom over the shoal at station No. 3170. We can readily understand how she got into such a position; the tug had gone to the left to give the Detroiter a wider berth, and Gregory, at the wheel of the Hollenbeck, said that he moved over still farther; the hawser had gone slack and the section, having very little headway, was out of control for the moment. At a distance of 35 feet from shore there was usually enough water.
The Detroiter got consent to pass the tow shortly after passing a hydraulic dredge at about station No. 3205; she began to lap the rear section at station No. 3195. It is uncertain whether she was opposite the Craven or the Pershing, when the Pershing sheered; but whichever it was, her average speed had not been too great. If she was opposite the Craven, she had gone from station No. 3195 to a point 300 feet west of station No. 3170 or 2,200 feet, while the Craven had gone from a point 600 feet east of station No. 3195 to a point 300 feet west of station No. ' 3170, or 1,600 feet. As the tow’s speed was about a mile, her average speed had been a little less than 1.40 miles. If the Detroiter was opposite the Pershing, she had gone from station No. 3195 to station No. 3170, or 2,500 feet", while the tow had gone from a point 500 feet west of station No. 3195, to station No. 3170, or 2,000 feet. Her average speed had been about 1.25 miles. But as the judge very wisely observed this tells us nothing of her speed when passing the first section, and Anderson, the mate in command of the Detroiter at the time, testified before the inspectors that he passed the tow at two and a half to three miles an hour, though he attempted to recant at the trial. We think his first estimate was probably correct when he got opposite the first section, though not before. There was certainly something in the navigation of the Detroiter at that point which frightened that section just before the accident. One bargee swore that he shouted a warning; another heard the shout; and more important than this, the tug blew an alarm to the Detroiter! This we think must have been while she was passing the first section;' so Lowery said, and although two of the Detroiter’s crew swore that it was as she was passing the tug and after the Pershing had already gone ashore, that is most unlikely. In the first place, the danger was then past, for the damage was.done; and, if it be argued that the Lowery might nevertheless have wished to tell the Detroiter of the damage, the answer is that Anderson said that he had no intimation of anything untoward till he reached New York. We conclude that the alarm was given in an effort to reduce the speed of the passing boat; and we agree with the judge that when she came about abreast of the Craven (he put it a little earlier), she started ahead, thinking she was clear.
The distance between the two vessels at passing is in dispute, like nearly everything else in the case. There seems to be no doubt that the Detroiter passed the ‘rear section closer aboard than she did the first; she said that she kept within 15 or 18 feet of the marking buoys on the south side of the channel, and perhaps she did. If so, her left side was only 60 feet from the south line and there were 140 feet between her and the north line. Assuming that the Pershing was 80 feet offshore, as she was 20 feet abeam, the Detroiter gave her a berth of one hundred and forty, which might have been enough in ordinary circumstances. That is less than the berth she claims she gave, but a good' deal more than the tug allows. So much assumed, the most natural explanation of the accident is what the judge found, with the single exception of the position of the tow. With him we believe that the Detroiter, seeing herself with so ample a berth, put on speed supposing she could do so safely. In so doing she drew the water away from the ' Craven, which was in effect the stern of a single vessel 300 feet long. This single vessel being in shallow water, the effect of the suction was much exaggerated upon it; though the water was drawn down perhaps not more than 2 or 3 inches, it pressed strongly against the left side of the Craven and drew her in, pivoting the whole section on the Hollenbeck and making the Pershing sheer to the left and run aground about 35 feet from shore. We find both vessels at fault for this result: The Detroiter because although she was so far off, she hit up her speed without considering that the position of the tow made her especially vulnerable to suction; the tug, for letting the tow get out of the channel and into shallow water and thus become unduly sensitive to suction. The-whole thing was due to the shoal which extends out into the canal at station No. 3170; but both masters are charged with notice of such shoals, and while the Lowery took her chances in going in so far, the Detroiter ought to have considered that the Lowery was taking those chances, and ought not to have navigated as though the tow were in the channel, certain of enough water underfoot.
Decree modified to hold each claimant at fault and liable for one-half damages.
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_source
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the forum that heard this case immediately before the case came to the court of appeals.
Berlin L. LAWSON, Appellant, v. BURLINGTON INDUSTRIES, INC., Appellee.
No. 81-2192.
United States Court of Appeals, Fourth Circuit.
Argued April 1, 1982.
Decided July 22, 1982.
Certiorari Denied Oct. 18, 1982.
See 103 S.Ct. 257.
Jack E. Ruby, Winston Salem, N. C., for appellant.
William P. H. Cary, Greensboro, N. C. (Thornton H. Brooks, Kathrine A. McLendon, Brooks, Pierce, McLendon, Humphrey & Leonard, Greensboro, N. C., on brief), for appellee.
Before BUTZNER and SPROUSE, Circuit Judges, and KISER, District Judge.
Honorable Jackson L. Kiser, United States District Judge for the Western District of Virginia, sitting by designation.
SPROUSE, Circuit Judge:
Berlin L. Lawson brought this suit under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621 et seq., alleging that Burlington Industries, Inc. unlawfully terminated his employment and refused to transfer him to an acceptable position because of his age. The district court granted summary judgment for the defendant on the grounds that Lawson failed to file his discrimination charge within the statutory time period, and that no equitable justifications for tolling the statutory period existed. We affirm.
Lawson was first hired by Burlington in 1959, and in 1979 he was working at the transportation facility of Klopman Mills, a division of Burlington. On April 1,1979, all employees were informed that the facility was closing, that Burlington would attempt to find new positions for employees displaced by the closing, and that those employees not placed by June 30, 1979 would be terminated. Employees terminated because of the facility closing would have their benefits and company service credit restored if they were rehired within 270 days of their termination. Lawson’s final day of work was June 30, 1979, although he was given severance pay through December, 1979.
Shortly before his termination Lawson, then age 44, complained to Burlington officials that a younger co-worker, age 38, was being transferred to an available position elsewhere in the company while he was being laid off. Lawson had more service with the company and believed he was better qualified, so he concluded that age discrimination was the motive behind the decision to transfer the younger worker rather than himself.
Lawson closed his retirement and profit-sharing accounts with Burlington when he was terminated; he received a lump-sum distribution of cash and stock, plus his severance pay, on July 19, 1979. Burlington offered Lawson a clerical job in another city on or about October 1, 1979, but he refused the position because of the inadequate salary. He was then told by a company official that “maybe we’ll come up with something else ... if we do, we’ll be in touch.”
Lawson filed his age discrimination charge with the EEOC on February 5, 1980. He testified that he had considered filing the charge earlier, but had refrained because he hoped to be recalled. The EEOC charge dealt only with Burlington’s decision to lay off Lawson while transferring the younger employee. Lawson filed suit in district court in June, 1980, claiming that age discrimination was the motive behind both the layoff and the October offer of a clerical position, which Lawson construed as a refusal to rehire him.
Burlington moved to dismiss the complaint for lack of subject matter jurisdiction, Fed.R.Civ.P. 12(b)(1), or alternatively for summary judgment, Fed.R.Civ.P. 56, on the grounds that (1) Lawson had not filed his EEOC charge within 180 days after the alleged unlawful practice occurred and (2) his complaint was impermissibly broad as it raised issues not included in the EEOC charge. Following oral argument by both parties the district court granted summary judgment for the defendants, ruling that “[wjith respect to the layoff on June 30, 1979, his charge of discrimination was filed more than 180 days after such layoff, and with respect to the other acts of discrimination alleged in the complaint, no charge of discrimination had been filed, and more than 180 days have now expired. Plaintiff has not presented a justification for this failure, which is sufficient to entitle him to equitable relief.... ”
Lawson first contends that the district court erred in dismissing from his complaint those allegations which were not included in his February 5, 1980 EEOC charge. We disagree. Illegal layoff — the charge which appeared in the EEOC notice — does not encompass an allegation of illegal failure to rehire. It is well established that a layoff from employment constitutes a completed act at the time it occurred, Griffin v. Pacific Maritime Assoc., 478 F.2d 1118 (9th Cir.), cert. denied, 414 U.S. 859, 94 S.Ct. 69, 38 L.Ed.2d 109 (1973), and that an employer’s failure to recall or rehire does not constitute a continuing violation of the ADEA. Each alleged discriminatory recall constitutes a separate and completed act by the defendant, which triggers a new 180 day period. Morris v. Frank Ix & Sons, Inc., 486 F.Supp. 728 (W.D.Va.1980). As no EEOC charge relating to recall was filed within 180 days of October 1, 1979, the district court’s determination that Lawson failed to file within the statutory time period was correct.
Lawson next contends that the grant of summary judgment was improper because there exists a genuine issue of fact with respect to whether equitable tolling of the 180-day requirement occurred. Lawson had an opportunity at the hearing on Burlington’s motion for summary judgment to present those facts which he asserts should equitably toll the 180-day requirement. After hearing the evidence, the district court determined that no genuine issue of fact with respect to equitable tolling existed and that Burlington was entitled to judgment as a matter of law. We agree. Lawson maintains that equitable tolling is justified because his filing of EEOC charges was delayed by his expectation that he would be recalled to work. That expectation arose from three factors: (1) his 6-month severance pay from Burlington, (2) his right to full reinstatement within 270 days of layoff and (3) the offer of a position to him in October, 1979 and Burlington’s representation that he would be considered for future positions.
The thrust of Lawson’s contention is that the filing period should be equitably tolled because he believed Burlington would eventually find a position for him. However, the facts are uncontroverted that Burlington in no way misled Lawson or misrepresented his prospects for future employment. Lawson’s optimistic hope that he would be recalled within the 270-day period falls short of demonstrating the “reasonable reliance on the defendant’s conduct or representations” necessary to justify equitable tolling in this situation. See Naton v. Bank of California, 649 F.2d 691 (9th Cir. 1981); Wagner v. Sperry Univac, 458 F.Supp. 505 (E.D.Pa.1978), aff’d mem. 624 F.2d 1092 (3d Cir. 1980).
The grant of summary judgment for the defendant by the district court is, therefore, affirmed.
AFFIRMED.
. 29 U.S.C. § 626(d)(1) provides:
(d) No civil action may be commenced by an individual under this section until 60 days after a charge alleging unlawful discrimination has been filed with the [Equal Employment Opportunity Commission], Such a charge shall be filed—
(1) within 180 days after the alleged unlawful practice occurred....
. Cf. Zipes v. Transworld Airlines, - U.S. -, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982) (180-day time limit for filing charges under Title VII of the Civil Rights Act of 1964 is not a jurisdictional prerequisite to suit in a district court).
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:
|
sc_lcdispositiondirection
|
B
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine whether the decision of the court whose decision the Supreme Court reviewed was itself liberal or conservative. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. The lower court's decision direction is unspecifiable if the manner in which the Supreme Court took jurisdiction is original or certification; or if the direction of the Supreme Court's decision is unspecifiable and the main issue pertains to private law or interstate relations
SPALLONE v. UNITED STATES et al.
No. 88-854.
Argued October 2, 1989
Decided January 10, 1990
Rehnquist, C. J., delivered the opinion of the Court, in which White, O’Connor, Scalia, and Kennedy, JJ., joined. Brennan, J., filed a dissenting opinion, in which Marshall, Blackmun, and Stevens, JJ., joined, post, p. 281.
James D. Harmon, Jr., argued the cause for petitioners in all cases and filed briefs for petitioner in No. 88-856. With him on the briefs were Barry G. Saretsky, Martin S. Kaufman, Michael J. Eng, and Aaron F. Fishbein. Anthony J. Mercorella, James L. Fischer, Vincent R. Fontana, and Vincent R. Cappucci filed briefs for petitioner in No. 88-854. William Greenberg and Joseph Maria filed briefs for petitioners in No. 88-870. Rex E. Lee, Carter G. Phillips, Mark D. Hopson, Stanley R. Strauss, Michael W. Sculnick, and Paul W. Pickelle filed a brief for the city of Yonkers, respondent under this Court’s Rule 12.4, in support of petitioners.
Solicitor General Starr argued the cause for respondents in all cases. With him on the brief for the United States were Acting Assistant Attorney General Turner, Deputy Solicitor General Shapiro, Michael R. Lazerwitz, David K. Flynn, and Linda F. Thome. Grover G. Hankins filed a brief for respondents Yonkers Branch — National Association for the Advancement of Colored People et al.
Together with No. 88-856, Chema v. United States et al., and No. 88-870, Longo et al. v. United States et al., also on certiorari to the same court.
Steven R. Shapiro, Christopher A. Hansen, John A. Powell, Helen Hershkoff, and Arthur N. Eisenberg filed a brief for the American Civil Liberties Union et al. as amici curiae urging affirmance.
Henry Mark Holzer, Daniel J. Popeo, and Paul D. Kamenar filed a brief for the Yonkers Federation, Inc., as amicus curiae.
Chief Justice Rehnquist
delivered the opinion of the Court.
This action is the most recent episode of a lengthy lawsuit in which the city of Yonkers was held liable for intentionally enhancing racial segregation in housing in Yonkers. The issue here is whether it was a proper exercise of judicial power for the District Court to hold petitioners, four Yonkers city councilmembers, in contempt for refusing to vote in favor of legislation implementing a consent decree earlier approved by the city. We hold that in the circumstances of this action the District Court abused its discretion.
I
In 1980, the United States filed a complaint alleging, inter alia, that the two named defendants—the city of Yonkers and the Yonkers Community Development Agency—had intentionally engaged in a pattern and practice of housing discrimination, in violation of Title VIII of the Civil Rights Act of 1968, 82 Stat. 81, as amended, 42 U. S. C. §3601 et seq. (1982 ed.), and the Equal Protection Clause of the Fourteenth Amendment. The Government and plaintiff-intervenor National Association for the Advancement of Colored People (NAACP) asserted that the city had, over a period of three decades, selected sites for subsidized housing in order to perpetuate residential racial segregation. The plaintiffs’ theory was that the city had equated subsidized housing for families with minority housing, and thus disproportionately restricted new family housing projects to areas of the city—particularly southwest Yonkers—already predominately populated by minorities.
The District Court found the two named defendants liable, concluding that the segregative effect of the city’s actions had been “consistent and extreme,” and that “the desire to preserve existing patterns of segregation ha[d] been a significant factor in the sustained community opposition to subsidized housing in East Yonkers and other overwhelmingly white areas of the City.” United States v. Yonkers Bd. of Ed., 624 F. Supp. 1276, 1369-1371 (SDNY 1985). The District Court in its remedial decree enjoined “the City of Yonkers, its officers, agents, employees, successors and all persons in active concert or participation with any of them” from, inter alia, intentionally promoting racial residential segregation in Yonkers, taking any action intended to deny or make unavailable housing to any person on account of race or national origin, and from blocking or limiting the availability of public or subsidized housing in east or northwest Yonkers on the basis of race or national origin. United States v. Yonkers Bd. of Ed., 635 F. Supp. 1577 (SDNY 1986). Other parts of the remedial order were directed only to the city. They required affirmative steps to disperse public housing throughout Yonkers. Part IV of the order noted that the city previously had committed itself to provide acceptable sites for 200 units of public housing as a condition for receiving 1983 Community Development Block Grant funds from the Federal Government, but had failed to do so. Consequently, it required the city to designate sites for 200 units of public housing in east Yonkers, and to submit to the Department of Housing and Urban Development an acceptable Housing Assistance Plan for 1984-1985 and other documentation. Id., at 1580-1581. Part VI directed the city to develop by November 1986 a long-term plan “for the creation of additional subsidized family housing units ... in existing residential areas in east or northwest Yonkers.” Id., at 1582. The court did not mandate specific details of the plan such as how many subsidized units must be developed, where they should be constructed, or how the city should provide for the units.
Under the Charter of the city of Yonkers all legislative powers are vested in the city council, which consists of an elected mayor and six councilmembers, including petitioners. The city, for all practical purposes, therefore, acts through the city council when it comes to the enactment of legislation. Pending appeal of the District Court’s liability and remedial orders, however, the city did not comply with Parts IV and VI of the remedial order. The city failed to propose sites for the public housing, and in November 1986, informed the District Court that it would not present a long-term plan in compliance with Part VI. The United States and the NAACP then moved for an adjudication of civil contempt and the imposition of coercive sanctions, but the District Court declined to take that action. Instead, it secured an agreement from the city to appoint an outside housing adviser to identify sites for the 200 units of public housing and to draft a long-term plan.
In December 1987, the Court of Appeals for the Second Circuit affirmed the District Court’s judgment in all respects, United States v. Yonkers Bd. of Ed., 837 F. 2d 1181, and we subsequently denied certiorari, Yonkers Bd. of Ed. v. United States, 486 U. S. 1055 (1988). Shortly after the Court of Appeals’ decision, in January 1988, the parties agreed to a consent decree that set forth “certain actions which the City of Yonkers [would] take in connection with a consensual implementation of Parts IV and VI” of the housing remedy order. App. 216. The decree was approved by the city council in a 5-to-2 vote (petitioners Spallone and Chema voting no), and entered by the District Court as a consent judgment on January 28, 1988. Sections 12 through 18 of the decree established the framework for the long-term plan and are the underlying bases for the contempt orders at issue in this action. Perhaps most significant was § 17, in which the city agreed to adopt, within 90 days, legislation conditioning the construction of all multifamily housing on the inclusion of at least 20 percent assisted units, granting tax abatements and density bonuses to developers, and providing for zoning changes to allow the placement of housing developments.
For several more months, however, the city continued to delay action toward implementing the long-term plan. The city was loath to enact the plan because it wished to exhaust its remedies on appeal, but it had not obtained any stay of the District Court’s order. As a result of the city’s intransigence, the United States and the NAACP moved the court for the entry of a Long Term Plan Order based on a draft that had been prepared by the city’s lawyers during negotiations between January and April 1988. On June 13, following a hearing and changes in the draft, the District Court entered the Long Term Plan Order, which provided greater detail for the legislation prescribed by § 17 of the decree. After several weeks of further delay the court held a hearing on July 26, 1988, and entered an order requiring the city of Yonkers to enact, on or before August 1, 1988, the “legislative package” described in a section of the earlier consent decree; the second paragraph provided:
“It is further ORDERED that, in the event the City of Yonkers fails to enact the legislative package on or before August 1, 1988, the City of Yonkers shall be required to show cause at a hearing before this Court at 10:00 a.m. on August 2, 1988, why it should not be held in contempt, and each individual City Council member shall be required to show cause at a hearing before this court at 10:00 a.m. on August 2, 1988, why he should not be held in contempt.” App. 398.
Further provisions of the order specified escalating daily amounts of fines in the event of contempt, and provided that if the legislation were not enacted before August 10, 1988, any councilmember who remained in contempt should be committed to the custody of the United States Marshal for imprisonment. The specified daily fines for the city were $100 for the first day, to be doubled for each consecutive day of noncompliance; the specified daily fine for members of the city council was $500 per day.
Notwithstanding the threat of substantial sanctions, on August 1 the city council defeated a resolution of intent to adopt the legislative package, known as the Affordable Housing Ordinance, by a vote of 4 to 3 (petitioners constituting the majority). On August 2, the District Court held a hearing to afford the city and the councilmembers an opportunity to show cause why they should not be adjudicated in contempt. It rejected the city’s arguments, held the city in contempt, and imposed the coercive sanctions set forth in the July 26 order. After questioning the individual councilmembers as to the reasons for their negative votes, the court also held each of the petitioners in contempt and imposed sanctions. It refused to accept the contention that the proper subject of the contempt sanctions was the city of Yonkers alone, see id., at 461, and overruled the objection that the court lacked the power to direct councilmembers how to vote, because in light of the consent judgment, it thought the city council’s adoption of the Affordable Housing Ordinance would be “in the nature of a ministerial act.” Id., at 460.
On August 9, the Court of Appeals stayed the contempt sanctions pending appeal. Shortly thereafter, the court affirmed the adjudications of contempt against both the city and the councilmembers, but limited the fines against the city so that they would not exceed $1 million per day. United States v. Yonkers, 856 F. 2d 444 (CA2 1988). The Court of Appeals refused to accept the councilmembers’ argument that the District Court abused its discretion in selecting its method of enforcing the consent judgment. While recognizing that “a court is obliged to use the ‘least possible power adequate to the end proposed,’ ” id. at 454 (quoting Anderson v. Dunn, 6 Wheat. 204, 231 (1821)), it concluded that the District Court’s choice of coercive contempt sanctions against the councilmembers could not be an abuse of discretion, because the city council had approved the consent judgment and thereby agreed to implement the legislation described in § 17 of the decree. The Court of Appeals also rejected petitioners’ invocation of the federal common law of legislative immunity, see Tenney v. Brandhove, 341 U. S. 367 (1951), concluding that “[w]hatever the scope of local legislators’ immunity, it does not insulate them from compliance with a consent judgment to which their city has agreed and which has been approved by their legislative body.” 856 F. 2d, at 457. Finally, the court held that even if “the act of voting has sufficient expressive content to be accorded some First Amendment protection as symbolic speech, the public interest in obtaining compliance with federal court judgments that remedy constitutional violations unquestionably justifies whatever burden on expression has occurred.” Ibid.
Both the city and the councilmembers requested this Court to stay imposition of sanctions pending filing and disposition of petitions for certiorari. We granted a stay as to petitioners, but denied the city’s request. 487 U. S. 1251 (1988). With the city’s contempt sanction approaching $1 million per day, the city council finally enacted the Affordable Housing Ordinance on September 9, 1988, by a vote of 5 to 2, petitioners Spallone and Fagan voting no. Because the contempt orders raise important issues about the appropriate exercise of the federal judicial power against individual legislators, we granted certiorari, 489 U. S. 1064 (1989), and now reverse.
II
The issue before us is relatively narrow. There can be no question about the liability of the city of Yonkers for racial discrimination: the District Court imposed such liability on the city, its decision was affirmed in all respects by the Court of Appeals, and we denied certiorari. Nor do we have before us any question as to the District Court’s remedial order; the Court of Appeals found that it was within the bounds of proper discretion, United States v. Yonkers Bd. of Ed., 837 F. 2d, at 1236, and we denied certiorari. Our focus, then, is only on the District Court’s order of July 26 imposing contempt sanctions on the individual petitioners if they failed to vote in favor of the ordinance in question.
Petitioners contend that the District Court’s order violates their rights to freedom of speech under the First Amendment, and they also contend that they are entitled as legislators to absolute immunity for actions taken in discharge of their legislative responsibilities. We find it unnecessary to reach either of these questions, because we conclude that the portion of the District Court’s order of July 26 imposing contempt sanctions against petitioners if they failed to vote in favor of the court-proposed ordinance was an abuse of discretion under traditional equitable principles.
Before discussing the principles informing our conclusion, it is important to note the posture of the case before the District Court at the time it entered the order in question. Petitioners were members of the city council of the city of Yonkers, and if the city were to enact legislation it would have to be by their doing. But petitioners had never been made parties to the action, and the District Court’s order imposed liability only on the named defendants in the action — the city of Yonkers and the Yonkers Community Development Agency. The remedial order had enjoined the two named defendants, and — in the traditional language of a prohibitory decree — officers, agents, and others acting in concert with them from discriminating on the basis of race in connection with the furnishing of housing and from intentionally promoting racial residential segregation in Yonkers. The order had gone on to require extensive affirmative steps to disperse public housing throughout Yonkers, but those portions of the order were directed only against the city. There was no evidence taken at the hearing of July 26, 1988, and the court’s order of that date did not make petitioners parties to the action.
From the time of the entry of the remedial order in early 1986 until this Court denied certiorari in the case involving the merits of the litigation in June 1988, the city backed and filled in response to the court’s efforts to obtain compliance with the housing portions of the decree. It agreed to a consent decree and then sought unsuccessfully to have the decree vacated. During this period of time the city had a certain amount of bargaining power simply by virtue of the length of time it took the appellate process to run its course. Although the judgment against the city was not stayed, the District Court was sensibly interested in moving as rapidly as possible toward the construction of housing which would satisfy the remedial order, rather than simply forcing the city to enact legislation. The District Court realized that for such construction to begin pursuant to the remedial decree, not only must the city comply, but potential builders and developers must be willing to put up money for the construction. To the extent that the city took action voluntarily, without threatening to rescind the action if the District Court’s decision were reversed, construction could proceed before the appellate process had run its course.
All of this changed, however, in June 1988, when this Court denied certiorari and the District Court’s orders on the merits of the case became final. On July 26, the court heard the comments of counsel for the parties and entered the order upon which the contempt sanctions against the individual councilmembers were based.
At this stage of the case, the court contemplated various methods by which to ensure compliance with its remedial orders. It considered proceeding under Federal Rule of Civil Procedure 70, whereby a party who is ordered to perform an act but fails to do so is nonetheless “deemed” to have performed it. It also suggested the possible transference of functions relating to housing from the city council to a court-appointed affordable housing commission; the city opposed this method. Finally, it considered proceeding by way of sanctions for contempt to procure the enactment of the ordinance.
In selecting a means to enforce the consent judgment, the District Court was entitled to rely on the axiom that “courts have inherent power to enforce compliance with their lawful orders through civil contempt.” Shillitani v. United States, 384 U. S. 364, 370 (1966). When a district court’s order is necessary to remedy past discrimination, the court has an additional basis for the exercise of broad equitable powers. See Swann v. Charlotte-Mecklenburg Bd. of Ed., 402 U. S. 1, 15 (1971). But while “remedial powers of an equity court must be adequate to the task, . . . they are not unlimited.” Whitcomb v. Chavis, 403 U. S. 124, 161 (1971). “[T]he federal courts in devising a remedy must take into account the interests of state and local authorities in managing their own affairs, consistent with the Constitution.” Milliken v. Bradley, 433 U. S. 267, 280-281 (1977). And the use of the contempt power places an additional limitation on a district court’s discretion, for as the Court of Appeals recognized, “in selecting contempt sanctions, a court is obliged to use the ‘least possible power adequate to the end proposed.’ ” 856 F. 2d, at 454 (quoting Anderson v. Dunn, 6 Wheat., at 231).
Given that the city had entered a consent judgment committing itself to enact legislation implementing the long-term plan, we certainly cannot say it was an abuse of discretion for the District Court to have chosen contempt sanctions against the city, as opposed to petitioners, as a means of ensuring compliance. The city, as we have noted, was a party to the action from the beginning, had been found liable for numerous statutory and constitutional violations, and had been subjected to various elaborate remedial decrees which had been upheld on appeal. Petitioners, the individual city council-members, on the other hand, were not parties to the action, and they had not been found individually liable for any of the violations upon which the remedial decree was based. Although the injunctive portion of that decree was directed not only to the city but to “its officers, agents, employees, successors and all persons in active concert or participation with any of them,” App. 20, the remaining parts of the decree ordering affirmative steps were directed only to the city.
It was the city, in fact, which capitulated. After the Court of Appeals had briefly stayed the imposition of sanctions in August, and we granted a stay as to petitioners but denied it to the city in September, the city council on September 9,1988, finally enacted the Affordable Housing Ordinance by a vote of 5 to 2. While the District Court could not have been sure in late July that this would be the result, the city’s arguments against imposing sanctions on it pointed out the sort of pressure that such sanctions would place on the city. After just two weeks of fines, the city’s emergency financial plan required it to curtail sanitation services (resulting in uncollected garbage), eliminate part-time school crossing guards, close all public libraries and parks, and lay off approximately 447 employees. In the ensuing four weeks, the city would have been forced to lay off another 1,100 city employees. See N. Y. Times, Sept. 8,1988, p. Al, col. 4; N. Y. Times, Sept. 9, 1988, p. Al, col. 4.
Only eight months earlier, the District Court had secured compliance with an important remedial order through the threat of bankrupting fines against the city alone. After the city had delayed for several months the adoption of a 1987-1988 Housing Assistance Plan (HAP) vital to the public housing required by Part IV of the remedial order, the court ordered the city to carry out its obligation within two days. App. 176. The court set a schedule of contempt fines equal to that assessed for violation of the orders in this litigation and recognized that the consequence would be imminent bankruptcy for the city. Id., at 177-179. Later the same day, the city council agreed to support a resolution putting in place an effective HAP and reaffirming the commitment of Yonkers to accept funds to build the 200 units of public housing mandated by Part IV of the remedial order. Id., at 183.
The nub of the matter, then, is whether in the light of the reasonable probability that sanctions against the city would accomplish the desired result, it was within the court’s discretion to impose sanctions on petitioners as well under the circumstances of this case.
In Tenney v. Brandhove, 341 U. S. 367 (1951), we held that state legislators were absolutely privileged in their legislative acts in an action against them for damages. We applied this same doctrine of legislative immunity to regional legislatures in Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U. S. 391, 404-405 (1979), and to actions for both damages and injunctive relief in Supreme Court of Virginia v. Consumers Union of United States, Inc., 446 U. S. 719, 731-734 (1980). The holdings in these cases do not control the question whether local legislators such as petitioners should be immune from contempt sanctions imposed for failure to vote in favor of a particular legislative bill. But some of the same considerations on which the immunity doctrine is based must inform the District Court’s exercise of its discretion in a case such as this. “Freedom of speech and action in the legislature,” we observed, “was taken as a matter of course by those who severed the Colonies from the Crown and founded our Nation.” Tenney, supra, at 372.
In perhaps the earliest American case to consider the import of the legislative privilege, the Supreme Judicial Court of Massachusetts, interpreting a provision of the Massachusetts Constitution granting the rights of freedom of speech and debate to state legislators, recognized that “the privilege secured by it is not so much the privilege of the house as an organized body, as of each individual member composing it, who is entitled to this privilege, even against the declared will of the house. For he does not hold this privilege at the pleasure of the house; but derives it from the will of the people . . . .” Coffin v. Coffin, 4 Mass. 1, 27 (1808). This theme underlies our cases interpreting the Speech or Debate Clause and the federal common law of legislative immunity, where we have emphasized that any restriction on a legislator’s freedom undermines the “public good” by interfering with the rights of the people to representation in the democratic process. Lake Country Estates, supra, at 404-405; Tenney, supra, at 377. The District Court was quite sensitive to this fact; it observed:
“I know of no parallel for a court to say to an elected official, ‘You are in contempt of court and subject to personal fines and may eventually be subject to personal imprisonment because of a manner in which you cast a vote.’ I find that extraordinary.” App. 433.
Sanctions directed against the city for failure to take actions such as those required by the consent decree coerce the city legislators and, of course, restrict the freedom of those legislators to act in accordance with their current view of the city’s best interests. But we believe there are significant differences between the two types of fines. The imposition of sanctions on individual legislators is designed to cause them to vote, not with a view to the interest of their constituents or of the city, but with a view solely to their own personal interests. Even though an individual legislator took the extreme position — or felt that his constituents took the extreme position — that even a huge fine against the city was preferable to enacting the Affordable Housing Ordinance, monetary sanctions against him individually would motivate him to vote to enact the ordinance simply because he did not want to be out of pocket financially. Such fines thus encourage legislators, in effect, to declare that they favor an ordinance not in order to avoid bankrupting the city for which they legislate, but in order to avoid bankrupting themselves.
This sort of individual sanction effects a much greater perversion of the normal legislative process than does the imposition of sanctions on the city for the failure of these same legislators to enact an ordinance. In that case, the legislator is only encouraged to vote in favor of an ordinance that he would not otherwise favor by reason of the adverse sanctions imposed on the city. A councilman who felt that his constituents would rather have the city enact the Affordable Housing Ordinance than pay a “bankrupting fine” would be motivated to vote in favor of such an ordinance because the sanctions were a threat to the fiscal solvency of the city for whose welfare he was in part responsible. This is the sort of calculus in which legislators engage regularly.
We hold that the District Court, in view of the “extraordinary” nature of the imposition of sanctions against the individual councilmembers, should have proceeded with such contempt sanctions first against the city alone in order to secure compliance with the remedial order. Only if that approach failed to produce compliance within a reasonable time should the question of imposing contempt sanctions against petitioners even have been considered. “This limitation accords with the doctrine that a court must exercise ‘[t]he least possible power adequate to the end proposed.’ Anderson v. Dunn, 6 Wheat. 204, 231 (1821); In re Michael, 326 U. S. 224, 227 (1945).” Shillitani v. United States, 384 U. S., at 371.
The judgment of the Court of Appeals is
Reversed.
Sections 1 through 11 of the consent decree set forth actions that the city agreed to take in connection with the public housing obligations imposed by Part IV of the housing remedy order. As the Solicitor General emphasized at oral argument, neither those sections of the decree nor Part IV of the remedy order is at issue in this action.
The full text of § 17 provides that “[t]he City agrees to adopt, among other things, legislation (a) conditioning the construction of all multifamily housing (inclusive of projects for future construction currently in the planning stage but which will require zoning changes, variances, special exceptions, or other discretionary approvals from the City to begin construction) on the inclusion of at least 20 percent assisted units; (b) granting necessary tax abatements to housing developments constructed under the terms of the legislation referred to in clause (a); (c) granting density bonuses to such developers; (d) providing for zoning changes to allow the placement of such developments, provided, however, that such changes are not substantially inconsistent with the character of the area; and (e) other provisions upon which the parties may subsequently agree (including the use of the Industrial Development Authority as a development vehicle and the creation of a municipally-designated, independent not-for-profit Local Development Corporation) (collectively, the ‘Mandated Incentives’). The City agrees to implement a package of Mandated Incentives as promptly as practicable but, in no event, later than 90 days after the entry of this decree.”
The Government’s statement to the contrary in its brief, Brief for United States 23-24, is in error.
The Government distinguishes the instant sanctions from those threatened in January 1988, because in this litigation the city and the city council had indicated by the defeat of a resolution proposed by the court that it “would not ‘voluntarily adopt the legislation contemplated by the [court’s orders].’ ” Id., at 45 (quoting City of Yonkers Memorandum of Law in Opposition to Plaintiffs’ Proposed Contempt Order; see App. 351). Before the court threatened sanctions for refusal to adopt the 1987-1988 HAP, however, the city council had twice tabled an initiative to enact the HAP, id., at 173, and the court previously had been forced to “deem” HAP’s to have been submitted for two previous years. Id., at 174; Brief for United States 5, n. 7. Suffice it to say that the council’s conduct with regard to the HAP hardly suggested a willingness to comply “voluntarily.”
Question: What is the ideological direction of the decision reviewed by the Supreme Court?
A. Conservative
B. Liberal
C. Unspecifiable
Answer:
|
songer_appel1_1_2
|
D
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to classify the scope of this business into one of the following categories: "local" (individual or family owned business, scope limited to single community; generally proprietors, who are not incorporated); "neither local nor national" (e.g., an electrical power company whose operations cover one-third of the state); "national or multi-national" (assume that insurance companies and railroads are national in scope); and "not ascertained".
ROSENQUIST v. ISTHMIAN S. S. CO.
No. 247, Docket 22525.
United States Court of Appeals Second Circuit.
Argued May 5, 1953.
Decided June 25, 1953.
Kirlin, Campbell & Keating, New York City, for appellant; Walter X. Connor and Vernon Sims Jones, New York City, of counsel.
Sterling & Schwartz, New York City, for appellee; Marvin Schwartz and Betty H. Olchin, New York City, of counsel.
Before SWAN, Chief Judge, and L, HAND and AUGUSTUS N. HAND, Circuit Judges.
SWAN, Chief Judge.
This is an action brought by a seaman against the owner of the vessel on which he was employed, to recover damages for personal injuries (hernia sustained while at work aboard the ship), and also to recover maintenance and cure. The case was tried to a jury which returned a verdict for the plaintiff on both causes of action. From the resulting judgment the defendant has appealed.
With respect to the cause of action based on negligence the appellant’s primary contention is that the court erred in not granting the motion for a directed verdict. The plaintiff’s hernia was suffered when he and another seaman named Violente were moving a folded tarpaulin from a passageway in the aft peak house. The folded tarpaulin lay on the floor of the passageway and made a rectangular bundle about S feet long, 4 feet wide and 2 feet thick; it weighed about 200 pounds. Not having lashings about it, .it was flexible and consequently less easily handled than if it had been made rigid by lashings. The chief mate gave orders that the tarpaulin should be moved to the deck. This required moving it some 6 to 8 feet along the passageway and over the coaming, a little less than 2 feet high, at the exit to the deck. The plaintiff was the only witness who testified as to the accident which caused his hernia. He testified that he and Violente turned the tarpaulin bundle up on edge, pulled it along the floor of the passageway, and as they got near the coaming “we put our hands under it and lifted it up to the height of our waist, and we were facing each other, and the other seaman I guess he was turned around, he was too close to the coaming, see, and it came loose from his grip and the whole tarpaulin dropped, and I was lifting and holding it with my hand.” It was then that the plaintiff felt a very sharp pain, a lump “about the size of a golf ball” came out on his abdomen, and he became nauseated. He did no more heavy work during the remainder of the voyage. When the vessel reached Batavia he was examined by a doctor and was told he had a hernia. Although the chief mate gave the plaintiff and Violente orders to move the tarpaulin, he gave them no orders as to how they should do it. Lashings were available if they had wished to get them. The mate had declined, though requested by the plaintiff, to assign an additional seaman to- assist in the work. The case was submitted to the jury upon two possible bases for the claim of negligence. The first was whether the mate was negligent in having assigned only two men to do the job. The second was whether Violente was negligent in dropping his end of the tarpaulin bundle. The jury returned a general verdict so that it is impossible to know on which basis they found negligence. The appellant contends that on neither basis was the evidence sufficient.
As to the first ground of alleged negligence — failure of the mate to assign more than two men to the work — we think a jury question was presented. The plaintiff testified that he requested the mate to assign more men and the mate denied that such request was made. Concededly the mate did not order the plaintiff or Violente to pick up and carry the tarpaulin, and testified that he thought there was no occasion for them to do so. But he did not order them not to move it in that manner; and on cross-examination he said that if it was to be picked up and carried it would “be better practice to have more than two men.” This admission was enough to send to the jury the issue of negligence on the part of the mate.
On the other hand, we cannot think that the mere fact that Violente let slip his end of the tarpaulin bundle was evidence of negligence by him. To 'let his end drop to the floor, a distance of not more than three feet, was most unlikely to cause any injury to the plaintiff at the other end of the bundle. Even if it be assumed that the sudden drop added to the dead weight by imparting to the plaintiff’s end some of the energy of the falling end, tlic likelihood that this would put such a strain on the plaintiff as to result in injury seems to us too remote to require an ordinary seaman to anticipate it. The plaintiff testified that he could handle a hundred pounds without difficulty. While it may well be true that the plaintiff had a propensity to hernia because of bayonet wounds in bis abdomen suffered during war service at Guam, there is no suggestion that Violente knew of such wounds. This is not a case permitting application of the res ipsa loquitur doctrine. The situation is utterly different from that in Johnson v. United States, 333 U.S. 46, 68 S.Ct. 391, 92 L.Ed. 468, where a heavy block was dropped upon the deck where men were working. Any one who lets such a block fall must necessarily foresee the risk of injtiry. Negligence may be measured as a product of the gravity of the injury, if it occurs, multiplied by the factor of its probability. The chance that any serious danger would happen from dropping Violente’s end of the tarpaulin was substantially zero. Hence we cannot think that Violente was charged with any duty toward plaintiff to guard against letting slip his grip on the tarpaulin. Accordingly we hold that the court erred in submitting to the jury the issue of negligence by Violente. This was sufficiently called to the court’s attention by counsel’s statement that he understood that his motion for a directed verdict preserves his position with lxgard to the alleged negligence, “namely, that the mere fact that Violente dropped the canvas does not give anyone a right to infer that the dropping was negligence, or that his conduct was in any way negligent * * Judgment on the first cause of action must be reversed.
As to the second cause of action —for maintenance — little discussion is necessary. The amount was agreed upon in the sum of $324, if anything was recoverable, but the defendant contended that the plaintiff was barred from any recovery by reason of having broken bis warranty of fitness for sea service because he had a physical disability — propensity to hernia— which incapacitated him from performing heavy manual labor. He was given a physical examination by the defendant’s doctor before he was accepted as a member of the crew. As this court held in Ahmed v. United States, 2 Cir., 177 F.2d 898, such an examination should be proof of a seaman’s condition unless he conceals something which he knows to be relevant or which he can reasonably be charged with so knowing. The issue of such concealment was left to the jury under instructions to which no exceptions were taken. Without reciting the evidence concerning the plaintiff’s prior condition and his knowledge of it, it will suffice to say that the evidence was sufficiently ambiguous to present jury questions.
On the second cause of action the judgment is affirmed; on the first cause of action the judgment is reversed and the cause remanded.
. The court charged: “In this case there are two possible bases for the claim of negligence on the part of the defendant, acting through its officers or seamen. The first possible basis is the orders given by the Chief Mate with respect to the moving of the tarpaulin. The question is whether the Chief Mate was negligent in having only two men assigned to that job. In other words, was the Chief Mate exercising ordinary care in having two men move the tarpaulin, or in the exercise of ordinary eare should he have assigned more than two men to do this job. If you find that the Mate did not exercise ordinary - care, then the (462) defendant was negligent on this basis. But if you find that he did exercise ordinary care then the defendant was not negligent on this basis.
“The second possible basis for defendant’s negligence is the alleged dropping of an end of the tarpaulin by the seaman Violente. Xou should consider, especially in this connection, just how the tarpaulin was being moved and whether the way that Violente handled the tarpaulin created a risk of barm to the plaintiff which a reasonable and prudent person should have anticipated and guarded against in similar circumstances. If you find that the way Violente handled the tarpaulin created such a risk, then the defendant was negligent on this basis. But if you find that it did not create such a risk, the defendant was not negligent.
“If you do not find that the defendant was negligent on either basis, then your verdict must be for the defendant on the first cause of action.”
. “Q. Let me ask you this: Would you deem it advisable to have two men attempt to pick up a weight like this and carry it in the condition it was in the passageway, or would it be better practice to have more than two men? I am talking about picking it up. A. In the condition that it was in the passageway you say?
“Q. Xes. A. More than two men?
“Q. Yes. A. To piek it up and to carry it?
“Q. The answer is yes? You think it would bo better to have more than two men, is that right? A. Yes, sir. Excuse me.”
. See United States v. Carroll Towing Co., 2 Cir., 159 F.2d 169, 173; In re Spencer Kellogg & Sons, 2 Cir., 52 F.2d 129, 132, reversed on other grounds, sub.nom. Spencer Kellogg Co. v. Hicks, 285 U.S. 502. 52 S.Ct. 450, 76 L.Ed. 903; The Silver Palm, D.C.N.D.Cal., 13 F.Supp. 212, 215; The John Carroll, 2 Cir., 275 F. 302, 306 (“The care to be exercised must be in proportion to tho danger to be avoided”).
. “On the second cause of aetion, the plaintiff has the burden of proof to establish that he incurred a disability while he was in the service of the vessel, and the defendant has the burden to establish that the plaintiff's disability was, to a substantial extent, the result of a prior abnormal condition, and that the plaintiff knowingly concealed it from the defendant.
*****
If you should find that the plaintiff became disabled while in the service of the vessel, then you must permit recovery for maintenance, unless you find that his disability resulted to a substantial extent from a prior abnormal condition and that the plaintiff knowingly concealed that condition from the defendant.”
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_genresp1
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed respondent.
In The Matter of PERSPECTRON, INC., Bankrupt. Robert L. BALZANO, Trustee in Bankruptcy of Perspectron, Inc., Petitioner-Appellant, v. AERO-DYNE CORPORATION OF ILLINOIS, Respondent-Appellee, and United States of America, Reclamation Petitioner-Appellee.
No. 17199.
United States Court of Appeals, Seventh Circuit.
Feb. 12, 1970.
Anna R. Lavin, Chicago, 111., for appellant.
Thomas A. Foran, U. S. Atty., Richard A. Makarski, Asst. U. S. Atty., for reclamation-petitioner-appellee, John Peter Lulinski, Michael B. Nash, Asst. U. S. Attys., of counsel.
William B. Davenport, Robert E. Pfaff, Chicago, 111., for respondent-appellee, Aero-Dyne Corp., Jenner & Block, Chicago, 111., of counsel.
Before CASTLE, Chief Judge, and MAJOR and HASTINGS, Senior Circuit Judges.
MAJOR, Senior Circuit Judge.
The receiver for Perspectron, Inc., a bankrupt (Perspectron or the bankrupt), on July 28, 1966, filed a petition for a turn-over order, subsequently adopted by the bankruptcy trustee. The petition in substance alleged that on or about June 15, 1966, equipment and material of a value of approximately $150,000 was transferred from Perspectron to AeroDyne Corporation of Illinois (AeroDyne) without consideration, for the purpose of delaying and defrauding creditors of the bankrupt.
Aero-Dyne by answer denied the allegations of the petition and alleged that it was not subject to the summary jurisdiction of the court; that the United States owned the property in question and that Aero-Dyne held it on behalf of the United States, pursuant to a contract dated June 9, 1965, under which Aero-Dyne was the prime contractor; that the government contract provided that title to the property in question was in the United States; that the contract had been incorporated in AeroDyne’s purchase order forming a subcontract with the bankrupt, and that the latter’s work on the contract as a subcontractor had been terminated by Aero-Dyne upon the bankrupt’s acknowledgment that it could not perform. It was further alleged that upon such termination the property was delivered to Aero-Dyne in order that work on the contract might be completed, and that Aero-Dyne had paid to the bankrupt all money received by it from the United States as progress payments on the government contract.
On September 8, 1966, the United States intervened and filed an answer, and on September 12, an amended answer, to the turn-over petition. In both it asserted ownership of the property in question. The amended answer challenged the summary jurisdiction of the court.
The referee held that he had summary jurisdiction of both the government and Aero-Dyne and, after a hearing, entered his order on March 27, 1967, by which it was determined that the claim of the trustee to the property involved and removed from the premises of the bankrupt by Aero-Dyne was superior to the claim of title of the United States. Both Aero-Dyne and the United States petitioned for review of the referee’s order. The district court granted such request, considered the . evidence adduced before the referee and, with the acquiescence of all parties, permitted further testimony.
On July 12, 1968, the court rendered its memorandum of decision and order, holding that real and substantial claims were advanced by Aero-Dyne and the United States which preclude the exercise of summary jurisdiction. The court concluded:
“ * * * the order of the Referee finding that summary jurisdiction existed, entered without the required findings of fact and conclusions of law, and the order of the Referee finding that the Trustee’s title to the property was superior to that of the United States, entered without jurisdiction, must be and hereby are reversed and this summary proceeding must be and is dismissed.”
From this order of dismissal the trustee appeals, and presents the issues for decision as:
“1. Did not the District Court err, on a Petition for Review, in preempting the Bankruptcy Court entirely for failure to make Findings of Fact, instead of remanding the matter with instructions to make the required findings ?
“2. Was Aero-Dyne Corporation (disdaining any right or title in itself) a ‘person aggrieved’ so as to qualify for the right of review under Section 39(c) of the Bankruptcy Act?
“3. Did the United States waive any challenge to the Summary Jurisdiction of the Bankruptcy Court?
“4. Could title to Perspectron Corporation’s inventory vest in the United States by virtue of the contract between Aero-Dyne and the government?”
In our view, the only serious question here is whether the bankruptcy court had summary jurisdiction of Aero-Dyne and the government.. If this issue be decided adversely to the trustee, any other issues are of no consequence.
The district court stated in its memorandum :
“The parties have agreed that only two questions are presented for review: First, whether the court has summary jurisdiction, and, second, whether the United States has title to -the property in question. Although the questions are somewhat interrelated in that the substantiality of the United States’ claim to title determines the existence of summary jurisdiction, the court would have no occasion to decide the second if summary jurisdiction is lacking.”
As noted, the district court reversed the referee’s conclusion that the trustee’s title to the involved property was superior to that of the United States, solely on the basis that the court was without summary jurisdiction. It follows that if the decision of the district court is affirmed, it will be without prejudice to the right of the trustee to seek relief in any appropriate plenary proceeding.
The trustee argues that findings of fact were not made by the referee and the court was without authority to reverse, but should have remanded the cause for the purpose of making such findings.
General Order 47 in Bankruptcy provides :
“Unless otherwise directed in the order of reference the report of a referee or of a special master shall set forth his findings of fact and conclusions of law, and the judge shall accept his findings of fact unless clearly erroneous. The judge after hearing may adopt the report or may modify it or may reject it in whole or in part or may receive further evidence or may recommit it with instructions.”
A reading of this order makes it plain that the court is vested with a wide discretion. The trustee on brief, referring to this order, states:
“However, it is impossible for a District Court to exercise that power when it cannot understand from the absence of findings how the Referee gave effect to the important questions before him. This is essential to the office of review.”
Without expressly so stating, it seems to be implicit in this argument that the court was without jurisdiction to take any action other than to remand the case to the referee for the purpose of making findings. We think the contention must be rejected. There can hardly be doubt but that the court had jurisdiction of the parties and the subject matter, and the power to proceed, particularly under the circumstances now to be related.
The record reveals that preliminary to the hearing by the district court there was a lengthy colloquy as to the issue for decision and the procedure to be followed, participated in by the court and counsel for all the parties. Mr. Davenport, attorney for Aero-Dyne, suggested that the first issue to be determined was whether the bankruptcy court had summary jurisdiction. The court inquired, “Is there any objection to my taking this over in the light of Mr. Davenport’s statement?” Mr. Simon, general counsel for the trustee, responded, “No. I think your Honor should. We would like to dispose of this case and this would be the most expeditious way to do it.” In the colloquy Mr. Simon further stated, “The reason I said you should hear it is to expedite the proceedings * * Later, in a revealing statement, Mr. Mackey, special counsel for the trustee, expressly conceded that the issue of summary jurisdiction must first be decided.
Thereupon, with the acquiescence of counsel for all parties, the district court announced that the sole issue to be tried was whether the referee had summary jurisdiction. The case was tried on this issue and decided adversely to the trustee. Insofar as we can discern from the record, neither the trustee nor any other party at any time suggested that the court was without jurisdiction or power in the matter. This issue apparently is raised here for the first time.
The cases cited by the trustee on this point are not controlling. Generally they involve the failure of a lower court to make findings which an appellate court can review. In such eases, the reviewing court is not authorized to hear additional testimony but is restricted to the findings made by the lower court. In contrast, the district court in reviewing a decision of a referee is specifically authorized to hear additional testimony. Moreover, in the instant situation counsel for all parties, including those for the trustee, expressly acquiesced in the procedure followed by the court. In our view, the trustee’s complaint on this score is without merit.
Notwithstanding the posture in which the case was presented to the district court, the trustee argues here as it did before the referee, that the United States waived any right which it had to a plenary proceeding, citing O’Dell v. United States, 10 Cir., 326 F.2d 451, 455; Commercial Discount Co. v. Rutledge, 10 Cir., 297 F.2d 370, 373; Inter-State National Bank of Kansas City v. Luther, Trustee, 10 Cir., 221 F.2d 382; Reconstruction Finance Corp. v. Riverview State Bank, 10 Cir., 217 F.2d 455, 459, and James Talcott, Inc. v. Glavin, 3 Cir., 104 F.2d 851, 853. An examination of these cases and others discloses that they are of little aid to the trustee’s contention because of different factual situations.
In the instant situation, the United States on September 8, 1966, filed an answer to the receiver’s petition for turn-over which made no objection to the summary jurisdiction of the bankruptcy court. On the same date, however, in open court it objected to summary jurisdiction and asked leave to amend its pleading. The government on brief states that the referee orally gave the United States leave to amend its pleading within five days. In any event, within the five-day period, the United States filed its amended answer in which it objected to the summary jurisdiction. On October 3, 1966, the referee ruled that he had jurisdiction of both the government and Aero-Dyne.
Section 2(a) (7) of the Bankruptcy Act (11 U.S.C.A. 11(a) (7) ) provides in part as follows:
“ * * * and where in a controversy arising in a proceeding under this title an adverse party does not interpose objection to the summary jurisdiction of the court of bankruptcy, by answer or motion filed before the expiration of the time prescribed by law or rule of court or fixed or extended by order of court for the filing of an answer to the petition, motion or other pleading to which he is adverse, he shall be deemed to have consented to such jurisdiction * *
We think the government cannot “be deemed to have consented” to summary jurisdiction. Its amended answer, either with or without the consent of the court, was filed within the time prescribed by Rule 15(a), Federal Rules of Civil Procedure. Moreover, all parties had notice on the day the government’s original answer was filed that it would challenge the summary jurisdiction of the court.
In Gill v. Phillips, 5 Cir., 337 F.2d 258, the court held that the referee had erroneously determined that the party involved had consented to summary jurisdiction, and stated (page 262):
“Perhaps it is appropriate to note at the outset that consent to summary jurisdiction is not lightly to be inferred. As this Court has emphasized before, the admittedly desirable end of expeditious administration of bankrupt estates should not be allowed effectively to eliminate the protection afforded litigants by the traditional safeguards of a plenary suit, with its right to trial by jury and cross-examination of witnesses. See, e.g., Fox Jewelry Co. v. Lee, 264 F.2d 720 (5 Cir.1959); Cf. Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 79 S.Ct. 948, 3 L.Ed.2d 988 (1959). Therefore, we approach the issue of consent to summary jurisdiction with a certain degree of circumspection.
“We do not view any of Gill’s appearances in the bankruptcy proceedings as evidencing a willingness on his part that the bankruptcy court decide the preference and fraudulent conveyance issues in summary proceedings. Consent should.be inferred only from a clear manifestation by the adverse party that he is submitting a particular issue to the summary jurisdiction of the referee for determination.”
The trustee’s contentions that AeroDyne was not a “person aggrieved” under See. 39(c) of the Bankruptcy Act (Title 11 U.S.C.A. See. 67(e)), and that the United States did not have a real and substantial claim to title to the property which authorized them to maintain a petition for review, are based upon an intermingled state of facts which were developed at length by the parties in the court below. Even though we are not called upon to decide the merits of the contentions thus made, some statement of the facts appears to be essential.
On June 9, 1964, Aero-Dyne entered into a contract with the United States government for 76 recorder reproducers known as AN/PNH-4. This contract incorporated a progress payments clause in conformity with an Armed Service Procurement Regulation which provided in part as follows:
“Progress payments shall be made to the Contractor as work progresses, from time to time upon request, in amounts approved by the Contracting Officer upon the following terms and conditions:
“(a) Computation of Amounts. (1) Unless a smaller amount is requested, each progress payment shall be (i) 70 percent of the amount of the Contractor’s total cost incurred under this contract plus (ii) the amount of progress payments to subcontractors as provided in (j) below, all less the sum of previous progress payments. ******
“(d) Title. Immediately, upon the date of this contract, title to all parts; materials; inventories; work in progress; special tooling as defined in the clause of this contract entitled ‘Special Tooling’; nondurable (i.e., noncapital) tools, jigs, dies, fixtures, molds, patterns, taps, gauges, test equipment, and other similar manufacturing aids not included within the definition of special tooling in such ‘Special Tooling’ clause; and drawings and technical data (to the extent delivery thereof to the Government is required by other provisions of this contract); theretofore acquired or produced by the Contractor and allocated or properly chargeable to this contract under sound and generally accepted accounting principles and practices shall forthwith vest in the Government; and title to all like property thereafter acquired or produced by the Contractor and allocated or properly chargeable to this contract as aforesaid shall forthwith vest in the Government upon said acquisition, production or allocation. Notwithstanding that title to property is in the Government through the operation of this clause, the handling and disposition of such property shall be determined by the applicable provisions of this contract such as: the Default clause and paragraph (h) of this clause; Termination for Convenience of the clause; and the Special Tooling clause.
******
“(j) Progress Payments to Subcontractors.
(1) The amount mentioned in item (a) (i) to (ii) above shall be the sum of (i) all the progress payments made by the Contractor to his subcontractors and remaining unliquidated, and (ii) unpaid billings for progress payments to subcontractors which have been approved for current payment in the ordinary course of business, when under subcontracts which conform to (2) below.
(2) Subcontracts on which progress payments to subcontractors may be included in the base for progress payments pursuant to paragraph (a) of this clause are limited to those subcontracts in which there is expected to be a long ‘lead time,’ approximately six months or more between the beginning of work and the first delivery, containing subcontract progress payment provisions which (i) are substantially similar to and as favorable to the Government as this ‘Progress Payments’ clause, no more favorable to the subcontractor than this clause is to the contractor and on a basis of not more than 70 percent of total costs or 85 percent of direct labor and material costs (except that these percentages may be 75 percent of total costs or 90 percent of direct labor and material costs for those subcontractors which are small business concerns), and (ii) make all rights of the subcontractor with respect to all property to which the Government has title under the subcontract subordinate to the rights of the Government to require delivery of such property to it in the event of default by the Contractor under this contract or in the event of the bankruptcy or insolvency of the subcontractor.” (Emphasis supplied.)
On August 31, 1964, Aero-Dyne issued its purchase order No. 3033 to Perspeetron, covering all of the work required to be done under the government contract. Robert Moffat, president of Perspectron, signed an acceptance of the purchase order under date of September 2, 1964, and at numerous times subsequently signed similar orders referred to as the subcontracts between Aero-Dyne and Perspectron. These subcontracts among other things provided:
“All other terms and conditions of [the Government Contract], which is attached herewith and expressly made a part hereof, shall be complied with.”
During the period beginning May 25, 1965 and ending March 3, 1966, Perspectron by its officers prepared eighteen requests, in the joint names of AeroDyne and Perspectron, for progress payments under the government contract. Perspectron submitted said progress payment applications through AeroDyne to the contracting officer at Fort Meade, Md. The government made progress payments to Aero-Dyne on the government contract, which in turn remitted them in exact amount by its check to Perspectron, with accompanying government voucher setting forth the government contract number and the progress payment number. Perspectron received $152,278.80 in progress payments under the government contract, on requests prepared by Perspectron.
Moffat testified on behalf of the government before the referee that in early April 1966, he had a conversation with Harry Reagan, a representative of the National Security Agency, Fort Meade, Md., and liaison man between the agency and any contractor associated with the PNH-4. In that conversation Reagan was assured that Perspectroti’s progress payments were in keeping with what its books reflected. The inventory of parts acquired by Perspectron was charged to the government contract during the period covered by the progress payments' requests.
William Hriszko, an official of Perspectron, testified that it was “very definitely a part of the procedure” at Perspectron to have each purchase order relative to a government contract contain on its face the relevant contract number. All parts ordered by Perspectron for the government contract were built to government specifications. Upon receipt of material from" a vendor at Perspectron’s receiving section, the parts were counted, allocated against their respective contract and placed in a hold area preparatory to inspection. They were then moved over to inspection and put in a hold area where, upon successful completion of quality control requirements they were released to production control, and from that point were put in a bonded stock area. Shipments received at Perspectron were packaged in various types of receptacles and properly identified with the part number in question and with the relative contract involved, with its appropriate nomenclature, in the instant situation the PNH-4. In the bonded stock area, all contracts were segregated under a numerical control system, under project numbers, and only that material relevant to each contract was contained in a specific area.
Edward J. Babecki, a government representative, was stationed at Perspectron as an inspector from May 1964 to the first week of March 1966. His testimony was similar to that of Hriszko as to the manner in which parts received by Perspectron were segregated so as to be identified with the various government contracts.
On May 25, 1966, Aero-Dyne by telegram notified Perspectron that because of its default, it was cancelling the balance of order No. 3033, dated August 31, 1964. The telegram in part stated:
“All material components, sub assemblies, work in process covered by progress payments one through 18 inclusive and all government tooling and equipment furnished under contract DA18-119-AMC-0919(X) shall be prepared for immediate shipment and delivery to Aero-Dyne Corp. * *
On June 5, 1966, Perspectron by its officers replied by letter to this telegram, in part as follows:
“It has been determined by the officers and directors of Perspectron, Inc. that a financial reorganization of said company is required. To do so in the most timely and orderly fashion and with the best interest of the government in mind, it has been agreed that all requirements on subject will be performed by Aero-Dyne Corporation, the prime Contractor.
“As a result, the inventory as it now exists, at Perspectron, Inc. will be transferred to Aero-Dyne. Said company in turn will procure the balance of the material required for use in fabrication of the equipments to be furnished under subject contract. It should be emphasized that the technical and administrative personnel employed by Perspectron will be available to Aero-Dyne at all times during the course of the contract. This will undoubtedly alleviate any problem areas which might arise in these specific areas.”
Hriszko testified that the parts pertaining to the government contract were removed from the premises of Perspeetron during the period of from about June 7 or 8 to June 11, 1966, and that to his knowledge no parts were removed which had not been identified to the government contract. Moffat testified that the items removed “were already designated” and “set aside.” The government contract was performed by Aero-Dyne, and the required units were eventually shipped to the government.
In view of the limited nature of the issues for decision, we deem it unnecessary to pursue further the facts as they pertain to the rights of the parties under the government’s contract with Aero-Dyne or the latter’s subcontract with Perspectron. Neither do we think it necessary to cite or discuss the numerous cases called to our attention which deal with pertinent principles of law. Two of such cases will suffice. In re Process-Manz Press, Inc., 7 Cir., 369 F.2d 513, a recent decision of this court, and Goggin et al. v. Consolidated Liquidating Corp. et. al., 190 F.2d 553 (CA-9).
In Process-Manz, this court reversed the district court, which had sustained the referee in holding that he had summary jurisdiction. In doing so we stated (page 516):
“The bankruptcy court is without summary jurisdiction to determine a claim without the claimant’s consent where it is necessary to weigh the force of opposing credible evidence on a substantial and controverted issue of controlling fact. In re Kansas City Journal-Post Co., [8 Cir.] 144 F.2d [808] at 815. A claim is substantial if it ‘ “discloses a contested matter of right, involving some fair doubt and reasonable room for controversy,” * * * in matters either of fact or law; and is not to be held merely colorable unless the preliminary inquiry shows it is so unsubstantial and obviously insufficient, either in fact or law, as to be plainly without color of merit, and a mere pretense.’ Harrison v. Chamberlin, 271 U.S. [191] at 195, 46 S.Ct. [467] at 469 [70 L.Ed. 897].”
Goggin on its facts and reasoning supports the claims of the United States and Aero-Dyne that they are entitled to have their rights adjudicated in a plenary hearing. In that case a referee found that he had summary jurisdiction to order the turn-over of certain funds held by Consolidated which were alleged to be owed to the bankrupt. The United States Maritime Commission had notified Consolidated prior to the bankruptcy, pursuant to the provisions of the Anti-Kickback Act, to withhold monies claimed to be due the bankrupt. There, as here, the government had intervened. The district court, on review, reversed the referee. In affirming, the court of appeals stated (page 554):
“The district court on proceedings to review held that the claim which the United States was making on Consolidated was substantial, not merely colorable, hence both those parties were entitled to have their rights adjudicated in a plenary suit.”
The district court in the instant case in its memorandum opinion stated:
“Since serious questions of fact and law determine the title question, real and substantial claims are advanced by Aero-Dyne Corporation and the United States which preclude the exercise of summary jurisdiction in this case.”
With this conclusion we agree.
The order appealed from is
Affirmed.
. In fact, the trustee, after obtaining leave from the referee, instituted on September 6, 1968 a plenary proceeding against Aero-D.vne and others, seeking damages for alleged wrongful removal of the property which is the subject matter of the instant case.
. “The Court: What I was concerned about was whether the issue was before me and the matter of whether or not the bankruptcy court has summary jurisdiction is something I must decide. Isn’t that right?
Mr. Mackey: It is, your Honor.
The Court: If I decide that the bankruptcy court does not have summary jurisdiction—
Mr. Mackey: Have you decided that it does not? No, sir.
The Court: I say if I were to decide.
Mr. Mackey: Oh, if you were. Excuse me, your Honor.
The Court: If I were, then—
Mr. Mackey: Then that would end it.
The Court: The trustee would be left to his plenary suit, isn’t that right?
Mr. Mackey: Yes, it is, your Honor.
The Court: To be filed in this court or elsewhere.
Mr. Mackey: Correct, your Honor.”
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_respond2_7_5
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine 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).
Dowell E. PATTERSON, Executor of the Estate of Harman H. Wynkoop, deceased, Appellant, v. Ernest WYNKOOP and Frances M. Wyn-koop, his wife, Appellees.
No. 7477.
United States Court of Appeals Tenth Circuit.
March 16, 1964.
Melvin D. Rueckhaus, of Rueckhaus & Brown, Albuquerque, N. M., for appellant.
James L. Dow, Carlsbad, N. M., for appellees.
Before MURRAH, Chief Judge, and BREITENSTEIN and HILL, Circuit Judges.
MURRAH, Chief Judge.
This is an appeal from a judgment of the New Mexico Court, dismissing a diversity action by appellant, a Colorado domiciliary executor, against the New Mexico ancillary administrator and his wife, in their individual capacities. The suit sought an accounting and judgment for money entrusted to them by the testator during his lifetime. The trial Court’s order of dismissal apparently rests upon the ground that the ancillary administrator was the real party in interest in a suit to enforce an accounting, even against himself; and, that in any event, the New Mexico Probate Court, with exclusive jurisdiction of the Harman H. Wynkoop estate in New Mexico, was the proper forum in which to bring the administrator to account for any money due the estate. We agree that the action was properly dismissed, as not being maintainable in the federal court.
New Mexico authorizes a foreign executor or administrator for sue or be sued in its courts in his representative capacity, “in like manner and under like restrictions as a nonresident * * 31-2-9, N.M.S.1953. And, where ancillary letters testamentary or of administration have been issued out of any New Mexico probate court, in accordance with applicable statutes, such executor or administrator may sue or be sued in any court in the State, in his representative capacity. See: 31-2-5, N.M.S.1953. But, the law of New Mexico also explicitly provides that the probate court shall have “exclusive original jurisdiction,” to hear and determine all controversies “respecting the duties, accounts and settlements of executors, administrators and guardians * * 16-4-10, N.M.S.1953. The statutes also provide that they shall be under bond (31-2-2, N.M.S.1953) with the duty to “make and file with the clerk of the probate court an inventory under oath of all real and personal property of the decedent which shall come to their knowledge or possession.” 31-3-2, N.M.S.1953. They are also required to render timely accounts, showing the condition of the estate, its debts and assets. See: 31-12-1, N.M.S.1953.
The trial Court found, and it is not disputed, that appellee, Ernest Wyn-koop, is the duly qualified and acting ancillary administrator of the Harman H. Wynkoop estate, under an order of the Probate Court of Bernalillo County, New Mexico. That court thereupon became vested with exclusive original jurisdiction to hear and determine all matters respecting the duties of the ancillary administrator to account for assets of the estate within his knowledge or possession. The foreign domiciliary executor apparently attempts to avoid the exclusive jurisdiction of the New Mexico probate court, by directing his claim against the appellees, in their individual capacities. It may be conceded that in the absence of ancillary administration, or in the event of issuance of ancillary letters testamentary to the appellant, as foreign executor (i. e., see: 31-2-2, Ibid.), he could have brought a plenary action against the appellees for collection of the debt as an asset of the estate. Cf. Duehay v. Acacia Mut. Life Ins. Co., 70 App.D.C. 245, 105 F.2d 768, 124 A.L.R. 1268. But, upon issuance of ancillary letters of administration to the appellee, Ernest Wynkoop, he was under statutory duty to fully account for all assets of the estate in his possession— whether in his representative or individual capacity. Being under a fiducial duty to account to the Probate Court for his personal indebtedness to the estate, he cannot be made to account in another forum. And, the appellant’s recourse is in the Probate Court, with the right of appeal to the State district court — not in this independent diversity suit, to sequester an asset of the estate. See: 16-4-10, supra; and McBeath v. Champion, 55 N.M. 114, 227 P.2d 625.
The judgment is affirmed.
Question: This question concerns the second listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". 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_treat
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the disposition by the court of appeals of the decision of the court or agency below; i.e., how the decision below is "treated" by the appeals court. That is, the basic outcome of the case for the litigants, indicating whether the appellant or respondent "won" in the court of appeals.
WILLIS et al. v. ANA MARIA SUGAR CO. et al.
Circuit Court of Appeals, First Circuit.
December 27, 1927.
No. 2148.
Limitation of actions <®^44(6) — Action of re-vindication by heirs of deceased wife dying intestate in Porto Rico to recover realty held barred by limitation.
Action of revindication by heirs of deceased wife, who died intestate in 187G in Porto Rico, to recover real estate, held barred by limitations.
In Error to the District Court of the United States for the District of Porto Rico; Wells, Judge.
Action at law by Royall H. Willis and others against the Ana Maria Sugar Company and others. Judgment for defendants, and plaintiffs bring error.
Affirmed.
Francis H. Dexter, of San Juan, Porto Rico, for plaintiffs in error.
Henry G. Molina, of San Juan, Porto Rico, for Ana Maria Sugar Co. and succession of Valdes.
Juan de Guzman Benitez, of San Juan, Porto Rico, and Ramon Siaca and Nelson Gammans, both of New York City, for Ban-co Territorial y Agrícola de Puerto Rico.
Before BINGHAM, JOHNSON, and ANDERSON, Circuit Judges.
ANDERSON, Circuit Judge.
This suit, filed March 11, 1925, is a real action — re-vindication. The two plaintiffs together seek to recover an undivided half interest in a sugar plantation of some 300 acres called Carmelita, near Mayaguez, and also $10,000 a year from May 28,1906, as rents and profits. Jury was waived. At the close of the plaintiff’s evidence the court granted the defendant’s motion for a nonsuit, subject to plaintiff’s exception. The ease comes here on a writ of error, with a single assignment, challenging that ruling.
Plaintiffs ground their case on the alleged right of heirs of Sarah Jane Cuebas, who died intestate at Mayaguez on October 11, 1876, to an undivided half interest in Carmelita, as community property. The chief defenses — sustained by the court below — ara prescription and lack of any evidence of any community property in Carmelita when Mrs. Cuebas died. The controlling facts are as follows:
Prior to 1867, Filipo Cuebas, a Spanish subject, native in Porto Rico, became domiciled in the state of New York, and on October 27, 1867, was there married by Henry Ward Beecher to Sarah Jane Willis. On March 18, 1869, Cuebas became an American citizen. On November 25, 1875, in London, ho traded for Carmelita, with Moses, Levy & Co., assuming underlying mortgages of 45,000 pesos and agreeing to pay £13,000, secured By a mortgage of Carmelita to the vendors, and payable, £1,000 on February 28, 1876, the balance in installments of £2,000 and £3,000 in the years 1879 to 1883, inclusive. Nothing was paid at the time of the trade. The first installment of £1,000 was not paid until September, 1877, nearly a year after the death of his wife. When and how the balance of the purchase price was paid, the record does not show. It does appear that by November 6, 1883, Cuebas’ debt to Moses, Levy & Co. had been reduced to 30,-000 pesos, then made payable in installments; also that Cuebas had paid off one of the underlying liens assumed, of 13,000 pesos, by conveying on December 21, 1875, 50 cuerdas to Carbonell, the lien creditor. There is no evidence that, when Sarah. Jane died, any property, ganancial or other, had been invested either by Cuebas or his wife in Carmelita.
It is also plain that, after his wife’s death, Cuebas dealt with this property as his own, making payment of the purchase price from his own resources, or from those derived from his second wife, Josepha Padilla, whom he married on June 19, 1879. Josepha died on September 11, 1901, about six years before Cuebas’ death. There is nothing in this record to indicate a settlement of her rights in the ganancial partnership. But we find it unnecessary to deal with that aspect of the defendant’s contentions. There is neither evidence, nor presumption, that the full purchase price was not, in some form and at some time, paid by Cuebas.
The instrument or deed under which Cuebas took title from Moses, Levy & Co. on November 25, 1875, was not inscribed in. the registry until May 30, 1892. That deed describes Cuebas as married, but does not give his wife’s name. On June 3,1896, Cuebas mortgaged Carmelita to the defendant Banco Territorial y Agricola (herein called the Bank) to secure 20,000 pesos, to be amortized in 30 years by the payment of 57,-501.60 pesos. In this mortgage, duly recorded, Cuebas stated that he was the sole owner of Carmelita, was married, but did not mention the name of his wife. On April 2,1901, a new mortgage, also duly recorded, was given by Cuebas to the Bank for $14,900, described as the unpaid balance due upon the previous mortgage of June 3, 1896, but covering accrued and unpaid interest and charges, to an aggregate of $47,300. In this mortgage, also, Cuebas is described as married, but no name of his wife appears.
On May 3, 1904, the Bank began in the district court of Mayaguez foreclosure proceedings for nonpayment of. this mortgage of April 2, 1901. The property was, under court order, sold at public auction on October 31, 1904, and bought in by the Bank for $19,300.79. The marshal’s certificate of such sale, which was subject to redemption within one year, was-duly recorded on November 29, 1904.
On February 15, 1905, on motion of the Bank, the court appointed a receiver who then took possession (ousting Cuebas), and who put the Bank into actual possession on October 5, 1905. Cuebas did not redeem within the prescribed year, which ended October 31, 1905. Thereafter confirmatory instruments were executed and recorded. Cuebas’ possession of the premises ended on February 15, 1905, more than 20 years before this suit was brought.
The Bank subsequently leased the property to one Valdez, with an option to purchase. Valdez bought the property in 1912, and sold it to the present owner, the Sugar Company, in 1913. These transactions were evidenced by appropriate instruments duly recorded.
We assume, but without deciding, that the rights of the heirs of Sarah Jane Cuebas were, on her death on October 11, 1876, determinable under the community property law of Porto Rico, and not under the laws of New York. But both-husband and wife were citizens of the United States; they were married in the United States, and in the deed of Carmelita of November 25, 1875, Cuebas is described as then resident in the United States. Possibly the evidence warrants an inference that before his wife’s death in October, 1876, Cuebas had changed his domicile to Mayaguez, where he was born. Cf. Bartholomew v. Allen, 24 P. R. 347; Cothran v. Registrar of Arecibo, 25 P. R. 602.
When (if ever) the rights of Sarah Jane’s heirs accrued (on October 11, 1876) no ganancial or other property had gone from either husband or wife into Carmelita. The court below was correct in so holding. But if the heirs of Sarah Jane ever had any arguable right in Carmelita, it is plainly barred by prescription both under the 30-year provision (Civil Code, §§' 1860, 1864), and under the 20-year provision (sections 1851, 1853, 1858).
Statutes of limitation (prescription) are provisions necessary for peace and security in property rights. They rest on sound principles of justice and public policy, like the analogous equitable doctrine of laches. They must be enforced fairly and effectively.
Plaintiff’s counsel asserts: “Upon the death of Sarah Jane Willis the conjugal society was terminated, the powers of the husband over the ganancial portion of the wife ceased, and her half interest (gananciales) passed immediately to her heirs, by operation of law.” And he cites Capo v. Fernandez, 27 P. R. 656, Santini v. Diaz San Miguel, 27 P. R. 746, and Hernandez v. Heirs of Cordova, 32 P. R. 274, as conclusive authority for his proposition that, immediately on Sarah Jane’s death in October, 1876, her heirs could have maintained revindication, the present action, now brought by persons who have acquired the rights of those heirs. This brings his contention clearly within the rule laid down in section 1870: “The time for the prescription of all kinds of actions, when there is no special provision to the contrary, shall ho counted from the day on which they could have been instituted.” Section 1866 does not create an exception to this rule; it simply prevents prescription against “the action to demand the division of the inheritance” (partition) among coheirs. This ease is an action to establish a right to an undivided half interest, and its legal incidents — rents and profits — not for partition. Cf. De Castro v. Echarri, 20 Phil. 23; Bargayo v. Camumot, 4 Phil. 857; 1 Cyc. 1080. This real action (revindication) was prescribed in October, 1906, under the 3Q-year provision.
It is also clear that plaintiff’s alleged right of action is barred under the 20-year provision in Civil Code, §§ 1851, 1853, 1858; and that the Bank and its successors in title were bona fide purchasers and possessors within the meaning of sections 436, 437. Fernandez v. Ojeda, 266 U. S. 144, 45 S. Ct. 52, 69 L. Ed. 209.
The Bank’s rights as bona fide mortgagee go back to June, 1896, when it loaned 20,000 pesos "on a mortgage from Cuebas, describing him as married, and without the slightest notice, actual or constructive, that his living wife was not the only wife he ever had. As purchaser at the foreclosure of this mortgage, the Bank’s rights accrued as of a date not later than Eebruary 15, 1905, when the Bank took possession through a receiver under a title acquired in good faith. It is unnecessary to determine whether the 20 years began to run on February 15, 1905, or on some earlier date. The fact that Cuebas had a right (which he did not exercise) to redeem within a year from October 31, 1904, did not operate to keep the title open to attack by strangers to the whole mortgage transaction.
Plaintiffs’ learned counsel apparently realized the unsoundness of his clients’ highly technical claims in this property, and has therefore been constrained to resort to lengthy, repeated and entirely groundless contentions of intentional fraud, both by Cuebas and the Bank, against the heirs of Sarah Jane Willis. It is enough to say that, on careful examination and consideration of his brief of over 100 pages and of the very long record we find no support whatever for any contention of fraud, concealment, or unfair dealing of any kind, by any one, with relation to any rights, actual or theoretical, that the heirs of Sarah Jane Cuebas had in this property.
The judgment of the District Court is affirmed, with costs to the defendants in error.
Question: What is the disposition by the court of appeals of the decision of the court or agency below?
A. stay, petition, or motion granted
B. affirmed; or affirmed and petition denied
C. reversed (include reversed & vacated)
D. reversed and remanded (or just remanded)
E. vacated and remanded (also set aside & remanded; modified and remanded)
F. affirmed in part and reversed in part (or modified or affirmed and modified)
G. affirmed in part, reversed in part, and remanded; affirmed in part, vacated in part, and remanded
H. vacated
I. petition denied or appeal dismissed
J. certification to another court
K. not ascertained
Answer:
|
sc_authoritydecision
|
D
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the bases on which the Supreme Court rested its decision with regard to the legal provision that the Court considered in the case. Consider "judicial review (national level)" if the majority determined the constitutionality of some action taken by some unit or official of the federal government, including an interstate compact. Consider "judicial review (state level)" if the majority determined the constitutionality of some action taken by some unit or official of a state or local government. Consider "statutory construction" for cases where the majority interpret a federal statute, treaty, or court rule; if the Court interprets a federal statute governing the powers or jurisdiction of a federal court; if the Court construes a state law as incompatible with a federal law; or if an administrative official interprets a federal statute. Do not consider "statutory construction" where an administrative agency or official acts "pursuant to" a statute, unless the Court interprets the statute to determine if administrative action is proper. Consider "interpretation of administrative regulation or rule, or executive order" if the majority treats federal administrative action in arriving at its decision.Consider "diversity jurisdiction" if the majority said in approximately so many words that under its diversity jurisdiction it is interpreting state law. Consider "federal common law" if the majority indicate that it used a judge-made "doctrine" or "rule; if the Court without more merely specifies the disposition the Court has made of the case and cites one or more of its own previously decided cases unless the citation is qualified by the word "see."; if the case concerns admiralty or maritime law, or some other aspect of the law of nations other than a treaty; if the case concerns the retroactive application of a constitutional provision or a previous decision of the Court; if the case concerns an exclusionary rule, the harmless error rule (though not the statute), the abstention doctrine, comity, res judicata, or collateral estoppel; or if the case concerns a "rule" or "doctrine" that is not specified as related to or connected with a constitutional or statutory provision. Consider "Supreme Court supervision of lower federal or state courts or original jurisdiction" otherwise (i.e., the residual code); for issues pertaining to non-statutorily based Judicial Power topics; for cases arising under the Court's original jurisdiction; in cases in which the Court denied or dismissed the petition for review or where the decision of a lower court is affirmed by a tie vote; or in workers' compensation litigation involving statutory interpretation and, in addition, a discussion of jury determination and/or the sufficiency of the evidence.
UNITED STATES v. WIESENFELD WAREHOUSE CO.
No. 92.
Argued January 16, 1964.
Decided February 17, 1964.
Louis F. Claiborne argued the cause for the United States. With him on the brief were Solicitor General Cox, Assistant Attorney General Miller, Beatrice Rosenberg and William W. Goodrich.
James S. Taylor argued the cause for appellee. With him on the brief was Clarence G. Ashby.
Mr. Justice Stewart
delivered the opinion of the Court.
Section 301 (k) of the Federal Food, Drug, and Cosmetic Act prohibits the “alteration, mutilation, destruction, obliteration, or removal of the whole or any part of the labeling of, or the doing of any other act with respect to, a food, drug, device, or cosmetic, if such act is done while such article is held for sale . . . after shipment in interstate commerce and results in such article being adulterated or misbranded.” Section 402 of the Act provides, among other things, that “[a] food shall be deemed to be adulterated — (a) ... (3) if it consists in whole or in part of any filthy, putrid, or decomposed substance, or if it is otherwise unfit for food; or (4) if it has been prepared, packed, or held under insanitary conditions whereby it may have become contaminated with filth, or whereby it may have been rendered injurious to health . ...” The question presented by this appeal is whether a criminal information which alleges the holding of food by a public storage warehouseman (after interstate shipment and before ultimate sale) under insanitary conditions in a building accessible to rodents, birds and insects, where it may have become contaminated with filth, charges an offense under § 301 (k).
The Government filed a criminal information containing allegations to this effect in the District Court for the Middle District of Florida, charging the appellee, a public storage warehouseman, with violations of § 301 (k). The court construed § 301 (k) as not applying to the mere act of “holding” goods, and dismissed the information for failure to allege an offense under the statute. 217 F. Supp. 638, 639. The order of dismissal was appealed by the Government under the Criminal Appeals Act, which gives this Court jurisdiction to review on direct appeal a judgment dismissing an information on the basis of a “construction of the statute upon which the . . . information is founded.” We noted probable jurisdiction. 373 U. S. 921. For the reasons which follow, we reverse the judgment of the District Court.
In arriving at its construction of the statute, the District Court reasoned that § 301 (k) “as it is presently written, is too vague and indefinite to apply to the mere act of ‘holding’ goods.” 217 F. Supp., at 639. Accordingly, “in an effort to uphold the statute as constitutional,” the court applied the rule of ejusdem generis to limit the words “the doing of any other act” in § 301 (k) to acts of “the same general nature” as those specifically enumerated in the subsection, i. e., acts relating to the alteration, mutilation, destruction, obliteration, or removal of the labeling of articles. Ibid. We find such reliance on the rule of ejusdem generis misplaced; its application to § 301 (k) is contrary to both the text and legislative history of the subsection, and unnecessary to a constitutionally permissible construction of the statute.
The language of § 301 (k) unambiguously defines two distinct offenses with respect to food held for sale after interstate shipment. As originally enacted in 1938, the subsection prohibited “[t]he alteration, mutilation, destruction, obliteration, or removal” of the label, or “the doing of any other act” with respect to the product which “results in such article being misbranded.” The section was amended in 1948 to prohibit additionally “the doing of any other act” with respect to the product which “results in such article being adulterated.” The acts specifically enumerated in the original enactment relate to the offense of misbranding through labeling or the lack thereof. The separate offense of adulteration, on the other hand, is concerned solely with deterioration or contamination of the commodity itself. For the most part, acts resulting in misbranding and acts resulting in adulteration are wholly distinct. Consequently, since the enumerated label-defacing offenses bear no textual or logical relation to the scope of the general language condemning acts of product adulteration, application of the rule of ejusdem generis to limit the words “the doing of any other act” resulting in product adulteration in § 301 (k) to acts of the same general character as those specifically enumerated with respect to misbranding is wholly inappropriate.
Moreover, the legislative history makes plain that no such application of the rule was intended. As the House Committee Report on the proposed 1948 amendment unequivocally stated:
“It seems clear that under the subsection as now in force the rule of ejusdem generis would not apply in interpreting the words ‘or the doing of any other act . . . ,’ and it is even more clear that this rule will not apply in the interpretation of the subsection as amended by this bill.”
It is equally clear from this legislative history that Congress intended to proscribe the particular conduct charged in the information filed below — the holding of food under insanitary conditions whereby it may have become contaminated. The House Committee Report noted that the amended section would “penalize, among other acts resulting in adulteration or misbranding, the act of holding articles under insanitary conditions whereby they may become contaminated with filth or rendered injurious to health,” and emphasized that the Committee intended the amendments to be applied to their fullest constitutional limits.
Congress chose statutory language appropriate to effectuate this purpose. Section 301 (k), as amended, prohibits “any . . . act” which results in adulteration of the product. And food is adulterated if it “has been prepared, packed, or held under insanitary conditions whereby it may have become contaminated with filth.” This language defines with particularity an explicit standard of conduct. Section 301 (k), read together with the definition of food adulteration contained in §402 (a)(4), therefore, gives ample warning that the “holding” or storing of food under insanitary conditions whereby it may have become contaminated is prohibited.
It is settled law in the area of food and drug regulation that a guilty intent is not always a prerequisite to the imposition of criminal sanctions. Food and drug legislation, concerned as it is with protecting the lives and health of human beings, under circumstances in which they might be unable to protect themselves, often “dispenses with the conventional requirement for criminal conduct — awareness of some wrongdoing. In the interest of the larger good it puts the burden of acting at hazard upon a person otherwise innocent but standing in responsible relation to a public danger. United States v. Balint, 258 U. S. 250.” United States v. Dotterweich, 320 U. S. 277, 281.
It is argued, nevertheless, that the Government in this case is seeking to impose criminal sanctions upon one “who is, by the very nature of his business powerless” to protect against this kind of contamination, however high the standard of care exercised. Whatever the truth of this claim, it involves factual proof to be raised defensively at a trial on the merits. We are here concerned only with the construction of the statute as it relates to the sufficiency of the information, and not with the scope and reach of the statute as applied to such facts as may be developed by evidence adduced at a trial.
Finally, the appellee attempts to uphold the dismissal of the information on a ground not relied on by the District Court. The appellee says that it was a bailee of the food, not a seller, and that it was not holding the food for sale within the meaning of § 301 (k). Both the language and the purpose of the statute refute this construction. The language of § 301 (k) does not limit its application to one holding title to the goods, and since the danger to the public from insanitary storage of food is the same regardless of the proprietary status of the person storing it, the purpose of the legislation — to safeguard the consumer from the time the food is introduced into the channels of interstate commerce to the point that it is delivered to the ultimate consumer — would be substantially thwarted by such an unwarranted reading of the statutory language. United States v. Kocmond, 200 F. 2d 370, 372; cf. United States v. Sullivan, 332 U. S. 689, 696; United States v. Dotterweich, 320 U. S. 277, 282.
Accordingly, we hold that a criminal information charging a public storage warehouseman with holding food (after interstate shipment and before ultimate sale) under insanitary conditions whereby it may have become contaminated with filth, charges an offense under § 301 (k) of the Federal Food, Drug, and Cosmetic Act. The order of the District Court dismissing the information is therefore reversed and the case is remanded to that court for further proceedings consistent with this opinion.
Reversed and remanded.
52 Stat. 1040, 21 U. S. C. § 331 (k).
52 Stat. 1040, 21 U. S. C. §§342 (a)(3) and (4).
The information was in six counts, the counts differing only with respect to the particular shipment or product involved. Each count charged that appellee had received an article of food which had been shipped in interstate commerce, and that while this food was being held for sale, appellee caused it to be held in a building accessible to rodents, birds, and insects, thus exposing it to contamination, and thereby adulterating the food within the meaning of § 402 (a) of the Act, 21 U. S. C. § 342 (a), in that the food consisted in part of a filthy substance, to wit, rodent excreta, insect larvae, etc., and in that it was held under insanitary conditions whereby it might have become contaminated with filth.
“An appeal may be taken by and on behalf of the United States from the district courts direct to the Supreme Court of the United States in all criminal cases in the following instances:
“From a decision or judgment setting aside, or dismissing any indictment or information, or any count thereof, where such decision or judgment is based upon the invalidity or construction of the statute upon which the indictment or information is founded. . . .” 62 Stat. 844, 18 U. S. C. § 3731.
52 Stat. 1042, 21 U. S. C. § 331 (k). See United States v. Sullivan, 332 U. S. 689.
62 Stat. 582, 21 U. S. C. § 331 (k).
The House Committee concerned with the proposed amendment to § 301 (k) was aware of this textual problem.
“The present section 301 (k) forbids, first, certain acts with respect to the labeling of an article, and, second, ‘any other act with respect to’ the article itself which results in its being misbranded. . . . [Adulteration more often occurs as a result of acts done to or with respect to the article itself. Since the section already contains the broad phrase ‘any other act with respect to’ the article, and since this phrase is not limited by the preceding enumeration of forbidden acts with respect to the labeling, there is no need in making it applicable to adulteration, to change the existing statutory language in this regard.” H. R. Rep. No. 807, 80th Cong., 1st Sess., p. 3.
Id., at pp. 3-4.
Id., at p. 6. During the Senate hearings on the amendment, the Associate Commissioner of Food and Drugs explained that “under the bill as enacted here, if there was a definite showing of violation on the part of the warehouse which had this material stored, a prosecution of them criminally for doing the act of holding under these insanitary conditions, which result in adulteration could ensue.” Hearing before a Subcommittee of the Committee on Interstate and Foreign Commerce, United States Senate, on S. 1190 and H. R. 4071, 80th Cong., 2d Sess., April 17, 1948.
See note 2, supra.
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_treat
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the disposition by the court of appeals of the decision of the court or agency below; i.e., how the decision below is "treated" by the appeals court. That is, the basic outcome of the case for the litigants, indicating whether the appellant or respondent "won" in the court of appeals.
In re COLUMBIA DATA PRODUCTS, INC., Debtor. Richard E. LOWRY, Trustee, Plaintiff-Appellant, v. SECURITY PACIFIC BUSINESS CREDIT, INC., Defendant-Appellee.
No. 89-2710.
United States Court of Appeals, Fourth Circuit.
Argued Oct. 30, 1989.
Decided Dec. 15, 1989.
James Paul Koch, Baltimore, Md., for plaintiff-appellant.
Stuart Michael Widman (Much Shelist Freed Denenberg Ament & Eiger, P.C., Chicago, Ill., on brief), for defendant-appel-lee.
Before WINTER and WILKINS, Circuit Judges, and MOTZ, United States District Judge for the District of Maryland, sitting by designation.
WILKINS, Circuit Judge:
The trustee in bankruptcy, Richard E. Lowry, appeals the decision of the district court, 99 B.R. 682, affirming summary judgment granted by the bankruptcy court in favor of Security Pacific Business Credit, Inc. (Security Pacific). The trustee contends that section 550(a)(1) of the Bankruptcy Code, 11 U.S.C.A. § 550(a)(1) (West 1979 & Supp.1989), entitles him to recover certain funds from Security Pacific that were transferred from the debtor, Columbia Data Products, Inc. (CDP), to Logan Circuits, Inc. (Logan), which Logan subsequently transferred to Security Pacific. He also contends that there were material issues of fact making summary judgment inappropriate. We affirm.
I.
In 1983, after Logan executed a Revolving Credit Note, Security Pacific gave value by making loans and extending credit to Logan in the amount of $2,320,000 and in return received a security interest in Logan’s accounts receivable. The note required Logan to establish a special depository account at United Jersey Bank (United Jersey) into which Logan was to deposit all of its accounts receivable collections. United Jersey was directed to make withdrawals from this account and transfer the funds by wire to Security Pacific.
Logan was a creditor of CDP. On August 15, 1984, CDP entered into a Standby Extension Agreement with several creditors, including Logan, that established a Suppliers’ Committee (the Committee) to receive payments from CDP and redistribute the funds to CDP’s creditors. On March 4, 1985, within 90 days of filing its bankruptcy petition, CDP transferred $50,-000 to the Committee. On the same date, the Committee transferred $38,300 to Logan. On April 18, 1985, CDP transferred an additional $50,000 to the Committee. The following day, Logan received a check from the Committee for $35,000. These checks from the Committee, totaling $73,-300, were deposited by Logan into the account at United Jersey and the funds subsequently were transferred to Security Pacific. On May 3, 1985, CDP filed a voluntary petition for bankruptcy under Chapter 11 which it subsequently converted to a Chapter 7 petition.
The trustee sought to recover the $73,-300 from Security Pacific by filing a complaint to recover preferential transfers. Security Pacific and the trustee filed a motion and cross-motion for summary judgment. The bankruptcy court granted Security Pacific's motion and the district court affirmed.
II.
The trustee contends that Security Pacific was either the initial transferee or the entity for whose benefit the transfer was made and, therefore, he is entitled to recover preferential transfers from Security Pacific under section 550(a) of the Bankruptcy Code that provides in part:
Except as otherwise provided in this section, to the extent that a transfer is avoided under section 544, 545, 547, 548, 549, 553(b), or 724(a) of this title, the trustee may recover, for the benefit of the estate, the property transferred, or, if the court so orders, the value of such property, from—
(1) The initial transferee of such transfer or the entity for whose benefit such transfer was made....
11 U.S.C.A. § 550(a)(1) (West 1979 & Supp. 1989). The trustee contends that the funds are recoverable from Security Pacific because neither the Committee nor Logan was the initial transferee.
We have previously held that the initial transferee is not always the initial recipient. See In re Harbour, 845 F.2d 1254, 1257 (4th Cir.1988). Thus, Security Pacific is not foreclosed from initial transferee status merely because the funds transferred by CDP went to the Committee and to Logan before Security Pacific received them. And a party cannot be an initial transferee if he is a mere conduit for the party who had a direct business relationship with the debtor. In re Fabric Buys of Jericho, Inc., 33 B.R. 334, 337 (Bankr.S.D.N.Y.1983). In Fabric Buys the bankruptcy court held that an attorney who collected money from a settlement, deposited the proceeds in escrow, and then disbursed them to a client was a mere conduit and not an initial transferee. Id. at 336-37. Here, the Committee received funds from CDP and transferred them to the various creditors of CDP. Although the creditors who formed the Committee had a direct business relationship with CDP, the Committee did not. Rather, the Committee was a conduit, not the initial transferee, through which CDP’s creditors received payment.
Unlike the Committee, Logan had a direct business relationship with CDP and was a creditor of CDP. It supplied CDP with computer components, and the transfers from CDP to Logan (by way of the Committee) were payments for the components. When a creditor receives money from its debtor to pay a debt, the creditor is not a mere conduit. See In re Chase & Sanborn Corp., 848 F.2d 1196, 1200 (11th Cir.1988). Moreover, in Fabric Buys the court found that the initial recipient was a conduit because the funds ultimately went to the party with whom the debtor had a business relationship. Fabric Buys, 33 B.R. at 337. Here, Security Pacific did not have a business relationship with CDP.
The trustee argues that Logan could not be the initial transferee because it had assigned to Security Pacific the funds paid by CDP to satisfy an account receivable. However, the cases cited by the trustee to support this position are readily distinguishable for they involve assignments in which the debtor paid the third party directly or the third party guaranteed a loan from the creditor to the bankrupt debtor. See In re Mill Street, Inc., 96 B.R. 268 (9th Cir. BAP 1989) (collection agent could be initial transferee to the extent it had no obligation to turn over the portion of collections representing its fee); In re Jameson’s Foods, Inc., 35 B.R. 433 (Bankr.D.S.C.1983) (Small Business Administration (SBA) was initial transferee where it received transfer of funds from debtor’s bank account after SBA indemnified creditor on loan which SBA had guaranteed); In re Bagwell, 29 B.R. 461 (Bankr.D.Or.1983) (bank was initial transferee where supplier assigned accounts receivable to the bank and the bank received payment directly from debtor). Security Pacific did not receive payments directly from CDP nor did it guarantee CDP’s payment to Logan. Security Pacific was not the initial transferee simply because of the assignment agreement entered into with Logan.
Likewise, the existence of the assignment agreement does not establish that Security Pacific was the entity for whose benefit the transfer was made. To the contrary, as the Seventh Circuit has recognized, “a subsequent transferee cannot be the ‘entity for whose benefit’ the original transfer was made.” Bonded Financial Services, Inc. v. European American Bank, 838 F.2d 890, 895 (7th Cir.1988). Rather, the entity for whose benefit the transfer is made “is a guarantor or debt- or — someone who receives the benefit but not the money.” Id. When a debtor pays a creditor to satisfy a debt guaranteed by a third party, the creditor is the initial transferee and the guarantor, who is no longer liable for the debt, is the entity for whose benefit the transfer is made. Id.
The trustee also contends that because Logan did not exercise dominion and control over the transfers, it cannot be the initial transferee and, thus, Security Pacific must be the initial transferee. See Bonded Financial, 838 F.2d at 893 (initial transferee must be able to use the money for its own purposes or exercise dominion and control over it). The trustee’s reliance on Bonded Financial is misplaced. Although Logan agreed to deposit the funds received from CDP (by way of the Committee) in the United Jersey account for ultimate transfer to Security Pacific, Logan used the funds for its own purpose — to reduce its debt to Security Pacific. The fact that Logan could not have used the funds for other purposes does not affect this critical factor.
Because Logan, not Security Pacific, had the direct business relationship with CDP and because Logan used the funds for its own purpose, we affirm the holding of the district court that Security Pacific was not the initial transferee of the transfer from CDP. Because our review of the record reveals that no material issue of fact existed, summary judgment was properly granted.
AFFIRMED.
Question: What is the disposition by the court of appeals of the decision of the court or agency below?
A. stay, petition, or motion granted
B. affirmed; or affirmed and petition denied
C. reversed (include reversed & vacated)
D. reversed and remanded (or just remanded)
E. vacated and remanded (also set aside & remanded; modified and remanded)
F. affirmed in part and reversed in part (or modified or affirmed and modified)
G. affirmed in part, reversed in part, and remanded; affirmed in part, vacated in part, and remanded
H. vacated
I. petition denied or appeal dismissed
J. certification to another court
K. not ascertained
Answer:
|
songer_state
|
08
|
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".
Annette HEYMAN, Individually, et al., Plaintiffs-Appellees, v. Robert S. KLINE et al., Defendants-Appellants.
Nos. 1057-1060, Dockets 35418, 35419, 35625, 35626.
United States Court of Appeals, Second Circuit.
Argued July 15, 1971.
Decided Jan. 3, 1972.
As Amended on Rehearing March 2, 1972.
Oakes, Circuit Judge, dissented and filed opinion.
Jon O. Newman, Hartford, Conn., for plaintiffs-appellees.
J. Daniel Sagarin, Bridgeport, Conn., for plaintiffs-appellees on petition for rehearing.
John R. Bush, of Macfarlane, Ferguson, Allison & Kelly, Tampa, Fla., and William B. Rush, of Pullman, Comley, Bradley & Reeves, Bridgeport, Conn., for defendants-appellants.
Before FRIENDLY, Chief Judge, and LUMBARD and OAKES, Circuit Judges.
LUMBARD, Circuit Judge:
Robert Kline appeals from a judgment of the District Court for Connecticut which held that defendant Kline, a citizen of Florida, had breached his employment contracts with plaintiffs, all citizens of Connecticut, and that a July 16, 1968, assignment to Kline, among others, by Annette Heyman of an option in a piece of Tampa, Florida, real estate never became effective. The court awarded plaintiffs $40,452.58 damages for breach of the employment contracts, declared that Kline was entitled to no interest in the Tampa real estate either under the July 16 assignment or as consideration for his employment services, and enjoined him from bringing any suits or making any claims regarding the property.
Kline and his attorneys, Harvey B. Oshins and John R. Bush, also appeal from that part of the court’s judgment holding them in contempt for filing suit in the Hillsborough County Court of Florida to determine title to the Tampa land after the district court had issued a temporary restraining order (TRO) enjoining such a suit.
We hold that Kline was improperly denied a jury trial on the questions of whether he had breached his employment contracts and whether he was entitled to punitive damages as a result of Mrs. Heyman’s alleged breach of her fiduciary relationship with him. The judgment that Kline had no interest in the Tampa real estate also is reversed inasmuch as its determination will depend upon questions first passed upon by the jury.
The facts of this case, undisputed except where otherwise noted are as follows:
Robert Kline was employed by Lazarus Heyman, Mrs. Heyman’s husband and testator, pursuant to a written contract of March 31, 1968. The contract provided that Kline would work exclusively for Heyman in the development of real estate, particularly a 73-acre parcel of Tampa, Florida land on which Heyman had an option. In consideration for his services, Kline was to receive $20,000 per year, and a bonus if Heyman determined that one was appropriate. Kline was entitled to use the bonus money to invest as a partner to the extent of 15% in any of Heyman’s real estate ventures.
In May, 1968, Lazarus Heyman died. Shortly thereafter, Kline and Mrs. Hey-man orally agreed to continue Kline’s employment contract. On June 15, 1968, and again on July 15, 1968, Mrs. Hey-man, as executrix of her husband’s estate, paid $5,000 to renew the option on the Tampa, Florida, land. On the advice of tax counsel, Mrs. Heyman, as executrix, executed an assignment of the option to herself, to her son, Samuel, to her daughter, Abigail, and to Kline on July 16, 1968. Mrs. Heyman signed only the ribbon copy which was given to Samuel to hold for her. Both Mrs. Hey-man and Samuel testified that the assignment was never delivered to Kline, but that he found it going through office files. Kline testified that Samuel gave him a copy of the assignment when he returned from a business trip. Judge Timbers accepted the Heymans’ version of the events and found that requisite legal delivery of the assignment had never in fact been made and thus that the assignment was ineffective.
Kline continued to work for Mrs. Hey-man under the oral agreement until September 9, 1968, when they signed a new written agreement. The agreement provided that Kline would work as a developer of real estate for the Hey-mans and would have the right to participate in any real estate ventures entered into by the Heymans to the extent of 15%. The contract also recited that it was “understood” that Kline had “opted to participate to the extent of 15% in our Tampa venture” and that, “[a]s a 15% partner,” he would be liable for his proportional share of the expenses. In accordance with his arrangement with the Heymans concerning the sharing of expenses associated with the acquisition of the Tampa land, Kline made several payments through December 1968 which totalled $13,591.62.
In August 1968, Mrs. Heyman exercised the option and the closing took place on December 9, 1968. According to Kline’s brief, his interest “would have amounted to $600,000.00 to $1,000,000.00 less his 15% share of principal and costs.”
In January 1969, Annette Heyman discharged Kline for alleged breaches of his employment contract. At trial Judge Timbers found, after hearing disputed evidence, that Kline had committed “numerous material” breaches of his employment contracts: e. g., submitting fraudulent expense vouchers; performing real estate services for persons other than the Heymans in violation of the exclusivity provision of the contract; accepting a kickback from one of the tenants.
On appeal, Kline argues that the district court erroneously denied his timely filed written demand, under Rule 38, F.R.Civ.P., for a jury trial on all issues so triable. We agree. Kline was denied a jury trial despite his demand therefor, because the district judge found that he had waived his right to jury trial by his counsel’s actions at a pretrial conference. In our view, the record does not show any waiver of Kline’s right to jury trial.
On February 12, 1970, approximately 13 months after Kline had been discharged, Annette Heyman filed suit in the District of Connecticut seeking damages for Kline’s breach of contract and asking for injunctive and declaratory relief to the effect that Kline had no interest in the Tampa property. At the same time, to bar Kline from initiating any legal proceedings with respect to the land, the plaintiff moved for a TRO which Judge Timbers signed that day. No notice of this application was given to the defendant or his counsel and Mrs. Heyman’s counsel merely asserted in the application that notice should not be required because “to do so would permit the immediate and irreparable injury, loss and damage to plaintiff Annette Heyman described in the verified complaint. ,” After Judge Timbers signed the TRO at 4:00 p. m. it was personally served on Kline at 11:.30 that night in Largo, Florida.
On February 13, 1970, Kline filed a quiet title suit in the County Court of Hillsborough County, Florida, alleging his 15% interest in the 73-aere tract in Tampa.
On February 20, 1970, counsel for both parties appeared before Judge Blu-menfeld in Bridgeport. Thomas J. Dolan, Esq., appeared specially for Kline and filed a motion to dismiss the complaint for lack of jurisdiction. It was agreed by counsel that the ruling on that motion and the hearing on the plaintiff’s motion for a preliminary injunction should be postponed until February 24 when they could be heard by Judge Timbers who had issued the TRO. It was also agreed that the TRO would remain in effect until then.
On February 24, 1970, counsel for Mrs. Heyman filed a motion charging Kline, his New York counsel, Harvey B. Oshins, and his Florida counsel, John R. Bush, with contempt, alleging that the TRO had been violated when Kline’s lawsuit was filed in Florida. The hearing of this motion and of the other pending applications were postponed until March 3, 1970 by agreement of counsel.
On March 3, 1970, Judge Timbers heard Kline’s motion to dismiss and later denied it with an opinion filed March 19, 1970. Hearings on the motions for a preliminary injunction and for judgments of civil contempt were postponed until March 25, 1970, Kline’s counsel consenting to continuance of the TRO.
On March 25, Judge Timbers held an extended conference with counsel in his chambers in order to schedule the hearings on the motion for a preliminary injunction and the motion to adjudge Kline and his attorneys in contempt. Neither party was present. Mrs. Heyman was represented by her attorneys, Jacob D. Zeldes and John R. Needle, and Kline by his attorney, Thomas J. Dolan. After some discussion, Judge Timbers suggested that the parties agree to the use of the Rule 65(a) (2), F.R.Civ.P., procedure by which trial on the merits could be consolidated with the hearing for a preliminary injunction. He also suggested that the contempt motion be heard on the same date. During this discussion, which was concerned solely with the mechanics of scheduling, the following colloquy took place:
Judge Timbers: ....
And I would say that I would hope to handle it myself, simply because I have been familiar with it and I have had it up to this point and it would probably save some time.
But I have in mind that I could handle this case in the third floor courtroom, being a non jury case, and I will try to keep myself open to handle it if counsel could agree on that date.
But I think I might also say, if there is agreement on a day and we set it firmly, I will insist we go forward; and I think it really should be a peremptory assignment, barring illness on the part of counsel or the judge.
Mr. Zeldes (for plaintiff): Is that satisfactory to you, that date? [Pause] I think it may squeeze me, Your Honor.
Mr. Dolan (for defendant): I am quite certain it is, your Honor. I don’t have my client here. I would have to call him.
But I see that this would have to take precedence over anything that he will have on his schedule.
Mr. Dolan, for the defendant Kline, also pointed out that he would have to file an answer and a “cross-complaint” seeking relief against the plaintiff. It was agreed that the answer and counterclaim would be filed by April 2, the plaintiff would close the pleadings by April 9 and that all discovery was to be completed by April 20. Judge Timbers then set the case for April 27, 1970.
On March 31, 1970, Kline filed his' answer and counterclaim. Specifically, he sought damages for breach- of his employment contract with Annette Heyman, punitive damages for her breaching the contract and excluding Kline from an interest in the Tampa land and, on the basis of the employment contracts and the July 16 assignment of the option, he requested various forms of equitable relief with a view to establishing his interest in the Tampa land. The answer and counterclaim were accompanied by a written demand for a jury . trial.
Mrs. Heyman then moved to strike the demand for a jury and, after argument on April 20, Judge Timbers granted the motion. In striking the demand he said, “[I]f there had been any basis for claiming a jury trial, it seems to me then to [March 25] and there was the time say so. If you are talking about Rule 65 you are talking about equitable proceedings. . . . [T]here was — to me anyway — -a clean and unequivocal agreement to try this case to the Court without a jury as to all issues.”
We disagree. “Maintenance of the jury as a fact-finding body is of such importance and occupies so firm a place in our history and jurisprudence that any seeming curtailment of the right to a jury trial should be scrutinized with the utmost care.” Dimick v. Schiedt, 293 U.S. 474, 486, 55 S.Ct. 296, 301, 79 L.Ed. 603 (1935). “[T]he right of jury trial is fundamental, [and] courts [must] indulge every reasonable presumption against waiver.” Aetna Insurance Co. v. Kennedy, 301 U.S. 389, 393, 57 S.Ct. 809, 812, 81 L.Ed. 1177 (1937). The Federal Rules of Civil Procedure have worked out a careful scheme by which defendants may waive their right to jury trial: jury trial is waived if no party has demanded a jury once ten days have passed from the filing of the final pleading. Rule 38, F.R.Civ.P. At the time of the March 25 conference, Kline still had not filed his answer. Accordingly, he was entitled to demand a jury trial unless he himself had waived the right or his attorney had waived the right after being authorized by Kline to do so. It is clear that no such waiver occurred.
Though Judge Timbers had noted in passing that this was a “non jury trial,” the attorneys did not affirmatively agree to this suggestion and they may well have understood it to refer only to the hearing on the preliminary injunction. Moreover, Kline was in Florida, as he had been during most of the preliminary stages of the case, and not in the judge’s chambers, when Judge Timbers made his statement. Kline’s only appearance prior to April 27 was at the March 3 hearing. Thus his attorney’s failure to object to the judge’s statement was done without Kline’s knowledge, and in a setting where it was not unreasonable to believe that all that the judge would pass upon was the demand for a preliminary injunction.
The right to jury trial is too important, see Ross v. Bernhard, 396 U.S. 531, 90 S.Ct. 733, 24 L.Ed.2d 729 (1970); Dairy Queen, Inc. v. Wood, 369 U.S. 469, 82 S.Ct. 894, 8 L.Ed.2d 44 (1962); Beacon Theatres, Inc. v. West-over, 359 U.S. 500, 79 S.Ct. 948, 3 L.Ed. 2d 988 (1959); and Lumbard, Trial by Jury and Speedy Justice, 28 Wash. & Lee L.Rev. 309, 311-13 (1971), and the usual procedure for waiver of the right too clearly set out by the Civil Rules for courts to find a knowing and voluntary relinquishment of the right in a doubtful situation. The failure of Kline’s counsel to respond to an offhand remark by Judge Timbers during the scheduling of a hearing for a preliminary injunction when Kline had yet to file his answer, and there was still time before a jury demand had to be made, cannot fairly be construed to evidence any intent to waive Kline’s right to jury trial. We would fail to recognize the important place of the civil jury in the pantheon of our liberties were we to hold its use so easily lost. Waiver, prior to the time for demanding jury trial has begun, should be based on nothing less than an affirmative representation by the party himself, or by his duly authorized counsel, on representation to the court that the matter has been discussed with the client and that the client has determined not to exercise his right to jury trial. In the absence of such affirmative action by Kline or his attorney, and in view of Kline’s timely filed demand, we hold that it was error for the district judge to deny Kline a jury trial on the contract issues.
Moreover, as Kline had yet to file his answer and counterclaims, the nature of all the issues in the case could not have been known at the time of the March 25 conference. Kline was entitled to a jury trial on his counterclaim which alleged that Mrs. Heyman had breached the employment contract by discharging him without cause as well as on his claim for punitive damages. See Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 79 S.Ct. 948, 3 L.Ed.2d 988 (1959).
We note that the district judge evidently thought that “if you are talking about Rule 65 proceedings, you are talking about equitable proceedings,” and therefore there is no right to jury trial. But though Rule 65(a) (2) does deal with the consolidation of a hearing for a preliminary injunction with trial on the merits, the rule specifically states “This subdivision (a) (2) shall be so construed and applied as to save the parties any rights they may have to trial by jury.” Agreement to a consolidation of trial on the merits with a hearing for a preliminary injunction by itself in no way amounts to a waiver of the right to jury trial.
We must consider, then, to what extent the district court’s determinations here are infected by its erroneous denial of a jury trial. The constitutional guarantee of jury trial extends, of course, only to claims for legal relief; equitable claims are properly tried only to a judge. It is now fundamental, though, that when legal and equitable claims are tried together, common questions of fact must be decided by the jury in order to preserve the integrity of the seventh amendment guarantee. E. g., Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 510-511, 79 S.Ct. 948, 3 L.Ed.2d 988 (1959); Dairy Queen, Inc. v. Wood, 369 U.S. 469, 472-473, 82 S.Ct. 894, 8 L.Ed.2d 44 (1962). The Court’s concern in these cases has been the res judicata or collateral estoppel effect of a prior determination of an equitable claim upon questions common to a legal claim.
On this appeal, however, Mrs. Hey-man has specifically stated that in the event this court finds error in the district court’s denial of Kline’s demand for a jury trial, she agrees to waive all collateral estoppel effect of the district judge’s determination of the equitable claims with respect to the legal claims which must be retried. Thus, we might remand only the legal claims, letting the equitable claims stand. De novo consideration of all relevant facts on the legal claims could then be had and no infringement upon the seventh amendment guarantee arguably would result from permitting the determination of the equitable claims to stand. While such reasoning is perhaps constitutionally sound, we nevertheless consider appel-lees’ waiver inadequate to permit us to remand only the legal claims under the employment contracts.
In waiving the collateral estoppel effect of the determination of the equitable claims, Mrs. Heyman can dispose of only her own interest. But among other things, the doctrine of collateral estoppel rests “firmly on the need to avoid conflicting adjudications (involving the same parties). ... If possible, the same parties should not be subject to conflicting determinations on the same point, both of which are binding.” Armstrong v. United States, 354 F.2d 274, 290-291, 173 Ct.Cl. 944 (1965). See also Technograph Printed Circuits, Ltd. v. United States, 372 F.2d 969, 977, 178 Ct.Cl. 543 (1967). In this respect, Kline has a substantial interest in the collateral estoppel effect of the determination of the equitable claims under the employment contracts; yet, he has not entered any waiver. And even putting aside whatever interest Kline may have, this court, in furtherance of its responsibility to preserve the integrity of the judicial process, has a substantial concern in the consistent determination of any particular question. Were we to remand only the legal claims, we would create a situation ripe with the possibility of inconsistent determinations of the same question. Consequently, we conclude that all claims and counterclaims — both legal and equitable— must be remanded for retrial.
Upon retrial, the jury’s verdict will control whether Mrs. Heyman is entitled to any equitable and declaratory relief. The declaratory relief requested — that Kline has no interest in the Tampa parcel — is much like the equitable remedies of cancellation and rescission and its disposition by the court will depend in part on the jury’s determination of whether Kline breached his employment contracts and in part on the jury’s determination of whether the July 16 assignment was effective. As for Kline’s claims under his employment contract with Mrs. Heyman, the equitable counterclaims will have to await the jury’s determination of whether he breached his contract; the counterclaim for damages will be directly passed upon by the jury.
The district court held Kline and his attorneys in civil contempt for violating the TRO of February 12, 1970 forbidding them to institute proceedings with respect to the Florida land in any other court. In our view, the injunction was erroneously issued, see infra, and since, unlike convictions for criminal contempt, judgments of civil contempt fall when the order underlying them is vacated, the civil contempt must be reversed. United States v. United Mine Workers of America, 330 U.S. 258, 294-295, 67 S.Ct. 677, 91 L.Ed. 884 (1947); Cliett v. Hammonds, 305 F.2d 565, 570 (5th Cir. 1962).
Federal courts and state courts are courts of overlapping jurisdiction and, generally, one will not enjoin proceedings in another. Kline v. Burke Construction Co., 260 U.S. 226, 43 S.Ct. 79, 67 L.Ed. 226 (1922). A recognized exception is when one court, adjudicating an in rem proceeding in which it must assert control over the res in order to have jurisdiction, enjoins another court seeking control over the same res. 28 U.S.C. § 2283; see Penn General Casualty Co. v. Pennsylvania ex rel. Schnader, 294 U.S. 189, 55 S.Ct. 386, 79 L.Ed. 850 (1935). Here, however, the federal court proceeding was in personam, and its jurisdiction was based on the diversity of citizenship of the parties, not on its control of the res — the 73-acre tract of land in Tampa, Florida. Since the court did not need to issue the TRO to protect its jurisdiction, see United States v. Klein, 303 U.S. 276, 58 S.Ct. 536, 82 L.Ed. 840 (1938), the TRO should not have issued and the contempt findings based upon it must be vacated.
Reversed.
. After the court’s order liad issued plaintiff began a contempt proceeding by serving an order to show cause why Kline and his wife .Teanne Kline should not be held in contempt for failure to comply with the court’s judgment. Kline had purported to assign one-half of his interest in the land to Mrs. Kline in August 3969. Kline appeared in the proceeding and executed a quitclaim deed suggested by the court and plaintiff withdrew her application for a contempt order against him.
Mrs. Kline, who was never a party to this proceeding, appeared specially and presented the defense that the district court lacked jurisdiction over her in both the plenary action and the contempt proceeding. The court held that it did have jurisdiction and a final judgment of contempt was entered against her.
This court reversed, holding that Mrs. Kline was neither a “nominee" of Kline nor in “active concert or participation with him,” see Rule 65(d), F.R.Civ.P., and that the district court lacked jurisdiction over her. Heyman v. Kline, 444 F.2d 65 (2d Cir. 1971).
. There is considerable doubt that the plaintiff made an adequate showing under Buie 65(b) of the Federal Buies of Civil Procedure to justify the granting of the TBO without notice. The only allegation in the complaint that supported the TBO was that “ [ d] efendant’s threatened conduct . . . may prevent plaintiff Annette Heyman and her tenant from obtaining financing for the proposed shopping center and cause plaintiff Annette Heyman’s tenant to terminate said lease . . . .” It is unlikely in the extreme that any such dire consequences would have resulted from the short delay needed to notify Kline or his attorney so that they might be heard on the application for a TBO. Moreover, Mrs. Heyman’s attorney made no certification to the court of “reasons supporting his claim that notice should not be required.” The fact that Kline was served in Florida less than eight hours after the TBO was signed and filed in Bridgeport would seem to indicate that notice could in fact have been given him. Buie 65(b) (2), F.B.Civ.P.
. Kline advances that contention in this court, arguing that Mrs. Heyman has really brought a quiet title suit regarding Florida land in a Connecticut court. A quiet title proceeding, of course, takes place only in the state of the res. Huntington v. Attrill, 146 U.S. 657, 669, 13 S.Ct. 224, 36 L.Ed. 1123 (1892). However, Kline’s argument founders on the case of Massie v. Watts, 10 U.S. (6 Crunch) 148, 3 B.Ed. 181 (1810). There Chief Justice Marshall distinguished between a quiet title proceeding and a case in which the relief requested might affect title, but title is dependent on the construction of a contract between two parties. In the latter case, a court of equity could take jurisdiction over the parties and order any necessary equitable relief. See United States v. Ross, 302 F.2d 831 (2d Cir. 1962).
. Rule 65(a) (2) provides:
Consolidation of Hearing with Trial on Merits. Before or after the commencement of the hearing of an application for a preliminary injunction, the court may, order the trial of the action on the merits to be advanced and consolidated with the hearing of the application. Even when this consolidation is not ordered, any evidence received upon an application for a preliminary injunction which would be admissible upon the trial on the merits becomes part of the record on the trial and need not be repeated upon the trial. This subdivision (a) (2) shall be so construed and applied as to save to the parties any rights they may have to trial by jury.
. Kline’s answer in which lie demanded a jury trial was sworn to by him in Florida on March 27, 1970. It appears to have been prepared by his Florida attorney, John R. Bush. Kline’s Connecticut attorney, Thomas J. Dolan, withdrew on April 8, and was replaced by William B. Rush who had filed appearance on April 1st. The appellee’s brief argues that this change of counsel was made to avoid the alleged March 25 “waiver” of jury trial by counsel on behalf of Kline. It is noteworthy that Mrs. Heyman also changed counsel after the March 25 conference. Jon O. Newman appeared on April 2, 1970 in place of Jacob D. Zeldes.
In any event, we hold that short of a party’s consent, or authorization of counsel to consent, there could be no effective waiver except by operation of Rule 38, F.R.Civ.P.
. Rule 38 provides :
(b) Any party may demand a trial by jury of any issue triable of right by a jury by serving upon the other parties a demand therefor in writing at any time after the commencement of the action and not later than 10 days after the service of the last pleading directed to such issue. Such demand may be indorsed upon a pleading of the party.
(d) The failure of a party to serve a demand as required by this rule and to file it as required by Rule 5(d) constitutes a waiver by him of trial by jury. A demand for trial by jury made as herein jjrovided may not be withdrawn without the consent of the parties.
. On February 20, 1970, well before the answer was due on March 4, 1970, Kline had moved to dismiss the complaint. Judge Timbers did not file his ruling on this till March 18. Accordingly Kline’s answer was not due till March 28. Rule 12(a), F.R.Civ.P. Meanwhile, on March 25, the court liad extended Kline’s time to file until April 2, 1970.
. Accord, Bruce v. Bohanon, 436 F.2d 733 (10th Cir. 1970), cert. denied Marathon Oil Co. v. Bruce, 403 U.S. 918, 91 S.Ct. 2227, 29 L.Ed.2d 694 (1971). See Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 510, 79 S.Ct. 948, 956, 3 L.Ed.2d 988 (1959) (Trial court’s discretion to try-equitable issue just to the court must be “very narrowly limited and must, wherever possible, be exercised to preserve jury trial”).
. Of course, had the district court honored the demand, it is more likely that the court would first have heard the application for preliminary relief and would then have set the jury issues for a trial at some later time.
. Under Connecticut law, breach of contract warrants the cancellation of Kline’s interest in the land. Benassi v. Harris, 147 Conn. 451, 162 A.2d 521 (1960); Caramini v. Tegulias, 121 Conn. 548, 186 A. 482 (1936).
Question: In what state or territory was the case first heard?
01. not
02. Alabama
03. Alaska
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. Florida
11. Georgia
12. Hawaii
13. Idaho
14. Illinois
15. Indiana
16. Iowa
17. Kansas
18. Kentucky
19. Louisiana
20. Maine
21. Maryland
22. Massachussets
23. Michigan
24. Minnesota
25. Mississippi
26. Missouri
27. Montana
28. Nebraska
29. Nevada
30. New
31. New
32. New
33. New
34. North
35. North
36. Ohio
37. Oklahoma
38. Oregon
39. Pennsylvania
40. Rhode
41. South
42. South
43. Tennessee
44. Texas
45. Utah
46. Vermont
47. Virginia
48. Washington
49. West
50. Wisconsin
51. Wyoming
52. Virgin
53. Puerto
54. District
55. Guam
56. not
57. Panama
Answer:
|
songer_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.
William M. BOYER v. COMMISSIONER OF INTERNAL REVENUE, Appellant.
No. 83-1522.
United States Court of Appeals, District of Columbia Circuit.
Argued Feb. 10, 1984.
Decided April 10, 1984.
Stanley S. Shaw, Jr., Atty., Dept, of Justice, Washington, D.C., of the bar of the Supreme Court of Ohio, pro hac vice, by special leave of court, with whom Glenn L. Archer, Jr., Asst. Atty. Gen., and Michael L. Paup, Atty., Dept, of Justice, Washington, D.C., were on the brief, for appellant. •
William M. Boyer filed a brief pro se for appellee.
Before WRIGHT and SCALIA, Circuit Judges, and MacKINNON, Senior Circuit Judge.
Opinion for the court PER CURIAM.
PER CURIAM:
In our judgment, the sole issue in this case is whether a temporary order for support under Section 32 of Chapter 209 of the Massachusetts laws, Mass.Gen.Laws Ann. ch. 209, § 32 (West 1976), effects a legal separation between husband and wife “under a decree of * * * separate maintenance” for federal income tax purposes, see Internal Revenue Code (IRC) § 153, 26 U.S.C. § 153 (1982), and thereby allows a taxpayer to claim a marital status of “single.” The Tax Court held that such an order under Section 32 entitled taxpayer William M. Boyer to claim a marital status of single for 1976. He was thus found eligible to claim for that year the 50 percent maximum tax rate on earned income in IRC § 1348, 26 U.S.C. § 1348 (1976), repealed by Section 101(c)(1) of the Economic Recovery Tax Act of 1981, Pub.L. No. 97-34, 95 Stat. 172 (1981). See Boyer v. Commissioner, 79 T.C. 143 (1982), Appendix (App.) 4. We reverse.
I. Background
When 1976 began William and Marjorie Boyer were husband and wife, domiciled together in Lynnfield Township, Essex County, Massachusetts. On April 13, 1976 William Boyer filed for divorce in the Probate Court of Essex County on the ground of irretrievable breakdown in the marriage. He filed under Chapter 208 of the Massachusetts laws, which governs divorce proceedings. See Complaint for Divorce, App. 31. On April 23, 1976 Marjorie Boyer filed in the Probate Court a complaint for separate maintenance under Chapter 209. The complaint alleged that the Boyers lived apart because William was guilty of cruel and inhumane treatment against Marjorie. She requested that the court prohibit William from restraining her liberty, order William to pay suitable support, and establish that she had justifiable cause for living apart from him. See Complaint for Separate Maintenance, App. 34. On May 3, 1976 Marjorie moved for an order for temporary support and for a temporary restraining order prohibiting William from restraining her liberty and from entering the former marital domicile. See Motion for Temporary Support, App. 35; Motion for Temporary Restraining Order, App. 36. On May 6,1976 the court granted the relief requested in the May 3rd motions “pending a hearing on the merits or until further order of the Court * * See Temporary Order, App. 37 (herein referred to as “May 6th order”). The court did not, however, decide whether Marjorie had justifiable cause to live apart from William. Two years later, on July 18, 1978, Marjorie, in a separate divorce action, received a decree of divorce nisi. By its terms this decree was to become final six months after issuance, but Marjorie later moved (for undisclosed reasons) that the decree not be made final.
Taxpayer William Boyer elected the marital status of “single” when he filed his 1976 tax return. The primary tax consequence of Boyer’s claimed “single” status involved the applicability of the 50 percent maximum tax on earned income in effect for tax year 1976 according to the provisions of former Section 1348' of the IRC. The benefit of the 50 percent maximum rate was available to individuals who filed as single and to married persons who filed joint returns. Congress required married persons to file a joint return to prevent manipulation of the maximum tax. See H.R.Rep. No. 91-413, Pt. 1, 91st Cong., 1st Sess. 209 (1969). Application of the 50 percent maximum tax meant a saving for William Boyer of $48,997.19 in 1976 as compared to what he would have paid if ineligible for the maximum tax.
The Internal Revenue Service contested Boyer’s claim of eligibility for the 50 percent maximum tax on the ground that Boyer was not “single” for tax purposes in 1976. Because Boyer could not file as “single” and did not file a joint return with his spouse, IRS claimed, he did not qualify for the 50 percent maximum tax under Section 1348(c). Rules for determination of Boyer’s marital status are set forth in Section 153 of IRC, which in relevant part for 1976 provided:
§ 153. Determination of marital status
For purposes of this part—
(1) The determination of whether an individual is married shall be made as of the close of his taxable year; except that if his spouse dies during his taxable year such determination shall be made as of the time of such death; and
(2) An individual legally separated from his spouse under a decree of divorce or of separate maintenance shall not be considered as married.
26 U.S.C. § 153 (1970 ed. applicable to tax year 1976), language repealed for tax years beginning after December 31, 1976 by the Tax Reform Act of1976, Pub.L. No. 94-455, 90 Stat. 1520. Since Boyer was not divorced as of December 31, 1976 — the close of his taxable year — his status for tax purposes would be “single” only if he was “legally separated from his spouse under a decree of * * * separate maintenance” as of that date. IRS contended that the May 6, 1976 order of temporary support pursuant to Section 32 of Chapter 209 of the Massachusetts laws was not a decree of separate maintenance that effectuated a legal separation. IRS recomputed Boyer’s tax on the basis of the filing status “married, filing separately” and assessed approximately $50,000 in additional liability for 1976.
Boyer challenged IRS in the Tax Court and won. Boyer v. Commissioner, supra, 79 T.C. 143, App. 4. The court held that Boyer could claim the marital status of single for 1976 because the May 6th order was a “decree * * * of separate maintenance” that effected a legal separation. Drawing from prior Tax Court precedent, the court held that a court order for separate maintenance that affects marital status is a “decree of * * * separate maintenance” for purposes of the IRC. 79 T.C. at 148-149, App. 12 (citing Boettiger v. Commissioner, 31 T.C. 477, 484 (1958); Dunn v. Commissioner, 70 T.C. 361, 368 (1978)). Whether an order of separate maintenance affects marital status is, according to the court, determined by reference to state law. 79 T.C. at 147, App. 10. As the court read Massachusetts law, an order of separate maintenance pursuant to Section 32 of Chapter 209 did affect marital status. To support this view the court relied on DeMarzo v. Vena, 330 Mass. 118, 111 N.E.2d 797 (1953), which stated that an order under Section 32 “comprehend[s] a modification of the incidents of the status of marriage * * *.” 111 N.E.2d at 800. Since the May 6th order of temporary support was an order under Section 32, the Tax Court held that it amounted to a “decree of * * * separate maintenance” that effected a legal separation for federal tax purposes. The court thus upheld Boyer’s claim of “single” status for 1976 and consequent eligibility for the 50 percent maximum tax.
II. Analysis
The sole issue for us on this appeal is whether Boyer can properly claim a marital status of single for the tax year 1976. We hold that he cannot. Though the Tax Court was correct in its general approach of looking to the state law of the marital domicile to determine marital status for federal tax purposes, see Boyter v. Commissioner, 668 F.2d 1382, 1384 (4th Cir. 1981), a misapprehension of the nature of the proper inquiry into state law and of the effect of the May 6th order under Massachusetts law led the court to an erroneous appraisal of Boyer’s marital status.
In finding the May 6th order determinative of Boyer’s marital status, the court held that any order of separate maintenance that had the additional consequence of affecting marital status — as determined by reference to the law of the state of marital domicile — was a decree that effected a legal separation for purposes of marital status under federal law. This rule the court drew from a statement in Boettiger v. Commissioner, supra, that where an order of separate maintenance “only effectuated the wife’s right to support, and [did] not affect their marital status in any other way, there was no legal separation * * 31 T.C. at 484 (internal quotation marks omitted). The Tax Court here reasoned that if a maintenance order that had no additional effects on marital status did not effect a legal separation under Section 153, then a maintenance order that did additionally affect marital status would effect a legal separation under Section 153. Since the DeMarzo court seemed to hold that an order under Section 32 affected marital status in Massachusetts, the court concluded that the May 6th order under Section 32 effected a legal separation under federal law.
Though the Boettiger decision is indisputably correct, the court in this case misstepped in assuming that the obverse of the Boettiger holding was equally valid. Such a reading is not logically compelled and is unsupported by any precedent. More importantly, the phrase that the Tax Court seized on as an interpretation of federal law was made in the context of the Boettiger court’s discussion of whether a separate maintenance order constituted a legal separation under the state law of New Jersey, and thus carries no weight as an indicator of the meaning of the federal statutory language “legally separated under a decree of * * * separate maintenance.” 26 U.S.C. § 153 (1970 ed.). In determining whether a party is legally separated for purposes of this section the proper inquiry is not whether a state order of separate maintenance affects marriage status under applicable state law; rather the proper inquiry is whether an order of separate maintenance affects marriage status in such a way that it is deemed a legal separation under applicable state law. See Capodanno v. Commissioner, 602 F.2d 64, 67 (3d Cir.1979); Seaman v. Commissioner, 479 F.2d 336, 338 (9th Cir.1973) (“since a California interlocutory [divorce] decree does not dissolve the marriage, the spouses are still married for federal tax purposes”). In other words, a party must be legally separated under state law in order to be eligible to file as single for federal income tax purposes.
Applying these principles, there can be little question that the May 6th order did not effect a legal separation under the law of Massachusetts. The order is expressly denominated “Temporary Order,” see Temporary Order, JA 37, and was issued “[p]ending a hearing on the merits or until further order of the Court.” Id. The order was, moreover, made in response to motions for “temporary support” and for a “temporary restraining order.” Authoritative exposition of Massachusetts law by the Supreme Judicial Court of Massachusetts holds that “[a] separate support proceeding [under Section 32 of Chapter 209] is designed to secure the ‘temporary support’ of a wife; the decree does not create a judicial separation, nor establish a permanent status for the future.” Gould v. Gould, 359 Mass. 29, 32, 267 N.E.2d 652, 655 (1971); accord Meyer v. Meyer, 335 Mass. 293, 296, 139 N.E.2d 709, 712 (1957).
Properly understood, Demarzo v. Vena, supra, on which the Tax Court relied, is not to the contrary. In that case the court did not evaluate the effect of a Temporary Order of support such as the May 6th order at issue here. In the practice of probate courts in Massachusetts, such Temporary Orders of support are — as in the present case — issued on Form 401, which makes clear the interlocutory nature of the order. Permanent decrees are entered on forms such as Form 402. See Appendix to this opinion for samples of both these forms. The court in DeMarzo evaluated the effect of a decree of the Massachusetts Probate Court that the husband was living apart from his wife for justifiable cause. Such an order would today appear enterable under item 2 on Form 402. It is in any case more final and more disruptive of the marriage than the Form 401 order at issue here. In our view, the latter clearly does not effect a legal separation. Moreover, any force that the DeMarzo dictum might have had is significantly blunted by the later statements of the Supreme Judicial Court of Massachusetts in Gould, supra, and Meyer, supra, that decrees under Section 32 do not effect a legal separation. Thus the May 6th order did not amount to a legal separation under the law of Massachusetts.
III. Conclusion
Because taxpayer Boyer’s claim of “single” status depends entirely on the construction given the May 6th order, we must reverse the Tax Court’s determination that Boyer had properly filed as single for the tax year 1976. He was not “legally separated under a decree of * * * separate maintenance” on December 31st of that year for purposes of Section 153 of the IRC, 26 U.S.C. § 153, because the May 6th order did not effect a legal separation under Massachusetts law. We therefore hold that he could not claim a marital status of “single” for that year. Accordingly, Boyer’s proper filing status for 1976 was “married, filing separately” and he was ineligible for the benefit of the 50 percent maximum tax and all other benefits appurtenant to “single” status for that year.
Reversed.
APPENDIX
Appendix op Forms
. Section 32 of Chapter 209 provided in relevant portion during 1976:
If a husband fails, without justifiable cause, to provide suitable support for his wife, or deserts her, or if the wife has justifiable cause for living apart from her husband, or if the husband is deserted by his wife or has justifiable cause for living apart from his wife, whether or not he or she is actually living apart, the probate court may, upon his or her complaint, or if he or she is incompetent due to mental illness or mental retardation upon complaint of the guardian or next friend, prohibit the husband or wife from imposing any restraint on the personal liberty of the other during such time as the court by its order may direct or until further order of the court thereon and upon the complaint of any such party or guardian of a minor made in accordance with the Massachusetts Rules of Civil Procedure the court may make further orders relative to the support of the wife and the care, custody and maintenance of their minor children, may determine with which of their parents the children or any of them shall remain and may, from time to time, upon similar complaint revise and alter such judgment or make a new order or judgment as the circumstances of the parents or the benefit of the children may require.
Mass.Gen.Laws Ann. ch. 209, § 32 (West 1976).
. The Tax Court applied § 143 of IRC, 26 U.S.C. § 143, to determine Boyer’s marital status for tax year 1976. As we have noted in text, technically § 153 governs Boyer’s status for 1976. The language of § 153 was repealed for tax years beginning after December 31, 1976 because it was recognized that the identical language of § 143 served all functions that § 153 otherwise served. Section 153 now reads: "For determination of marital status, see section 143.” 26 U.S.C. § 153(5) (1982).
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_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.
HUNT v. STANDARD BRANDS, Inc.
No. 6528.
Circuit Court of Appeals, Sixth Circuit.
June 8, 1934.
Rehearing Denied Oct. 9, 1934.
Charles P. Taft, 2d, and Edw. P. Moulinier, both of Cincinnati, Ohio, for appellant.
Joseph S. Graydon and Gregor B. Moorxnann, both of Cincinnati, Ohio (Joseph II. Head and Maxwell & Ramsey, all of Cincinnati, Ohio, on the brief), for appellee.
Before MOORMAN, HICKS, and SIMONS, Circuit Judges.
PER CURIAM.
Action by appellant, Hunt, receiver for Roberts & Hall, stockbrokers, to recover-damages of appellee, Standard Brands, Inc., for the conversion of two stock certificates of the Fldschmann Company, each for 100 shares. The ease was tried to a jury.
Appellant took no exception to the court’s charge and made no motion for a directed verdict. The jury returned a verdict for defendant.
Appellant entered a motion for a new trial upon the grounds that the verdict (1) was contrary to law; (2) was not, sustained by any substantial evidence; and (3) was contrary to the weight of the evidence. This motion was overruled and judgment was entered dismissing the action. He excepted and appealed, assigning as error that the verdict and judgment are contrary to the law and are not sustained by any substantial evidence. To be technically correct the assignment should have been that upon the undisputed evidence appellant was unquestionably entitled to a verdict as a matter of law; but, treating it as adequate, the question whether the evidence required a verdict for appellant is not reviewable in the absence of a motion by him for a directed verdict at the close of all the evidence. Sun Pub. Co. v. Lake Erie Asphalt Block Co., 157 F. 80, 82 (C. C. A. 6); Cleveland & Western Coal Co. v. Main Island Creek Coal Co., 297 F. 60, 62 (C. C. A. 6); Kalloch v. Hoagland, 239 F. 252, 253 (C. C. A. 6); Hessig-Ellis Drug Co. v. Grinnell Lithographing Co., 33 F.(2d) 449 (C. C. A. 6); Chesapeake & O. R. Co. v. Lushbaugh, 17 F.(2d) 986 (C. C.A. 6).
It is contended that the court abused its discretion in overruling the motion for a new trial because the evidence not only preponderated against the verdict but failed substantially to support it and there was therefore no basis for judgment. This complaint was not assigned as error and appellant is not entitled as a matter of right to have it considered. Kalloch v. Hoagland, supra; Rule 11 of this court.
This court may, however, waive the rule and determine whether the action on the motion constituted “plain error,” but the order, in any event, is not reviewable further than to determine whether there was 'a clear abuse of discretion. Hines v. Smith, 270 F. 132 (C. C. A. 6); Parker v. Elgin, 5 F.(2d) 562, 564 (C. C. A. 6); Kos v. Baltimore & Ohio R. Co., 28 F.(2d) 872 (C. C. A. 6); National Surety Co. v. Jean, 61 F.(2d) 197, 198 (C. C. A. 6); Pugh v. Bluff City Excursion Co., 177 F. 399 (C. C. A. 6). It is not apparent from the record that there was an abuse of discretion in the denial of the motion. Upon the single point whether the certificates were owned by Roberts & Hall at the time of the alleged conversion, we think that the court might justifiably have concluded that although the evidence (which we do not here analyze but 'which we have examined) might have permitted a verdict for appellant, it did not absolutely require it, that the issue was one peculiarly for the consideration of the jury upon the law as given in the charge.
The judgment of the District Court is affirmed.
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_casetyp1_7-2
|
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 "economic activity and regulation".
TRAVELERS INSURANCE COMPANY, Plaintiff-Appellant, v. Donald H. BULLINGTON d/b/a Bullington Farms, Defendant-Appellee, TRAVELERS INSURANCE COMPANY, Plaintiff-Appellant, v. John T. BULLINGTON, d/b/a Bullington Farms, Defendant-Appellee.
No. 88-8549.
United States Court of Appeals, Eleventh Circuit.
July 21, 1989.
Fife M. Whiteside, P.C., Columbus, Ga., for defendant-appellee.
C. Edward Dobbs, Rufus T. Dorsey, IV, Parker, Hudson, Rainer and Dobbs, Atlanta, Ga., for plaintiff-appellant.
Before KRAVITCH and COX, Circuit Judges, and MORGAN, Senior Circuit Judge.
KRAVITCH, Circuit Judge:
This is an appeal by Travelers Insurance Co. from an order affirming the bankruptcy court’s confirmation of plan under Chapter 12 (Family Farmer) of the bankruptcy code. 89 B.R. 1010. We affirm.
The Bullingtons were brothers who, together with their now-deceased father, operated their individual farms in a constructive partnership. Because of this the bankruptcy court effectively consolidated their individual petitions for Chapter 12 bankruptcy and their virtually identical reorganization plans are treated as one. [hereinafter the “plan”]
In February of 1985 the Bullingtons took out a mortgage from appellant on certain of their farm properties. It was a balloon-type mortgage under which the Bullingtons received $520,000 and were to pay interest (but no principal) in semi-annual installments for the first four years, and then the entire amount of the principal would be due in February of 1990. The interest rate was fixed at 12V2% for the first year; the rate then floated at one point above an index of AAA corporate bonds. The mortgage was secured by land and certain fixtures (pumps, motors, etc.). The Bullingtons used the funds from the mortgage loan in their farming operations.
In November of 1986 Congress enacted Chapter 12 of the bankruptcy code to provide special relief for family farmers.
In January, 1987 the Bullingtons petitioned for bankruptcy under Chapter 12. As of the date of the petition, the Bulling-tons’ debt to Travelers Insurance was $645,929.77, with interest accruing at $300 per day. The value of the land that secured the Travelers loan was stipulated to be $475,000.
The plan, submitted by the Bullingtons and approved over the objections of Travelers, split Travelers claim into two parts: a secured claim of $475,000 (the stipulated value of the collateral) and an unsecured claim of $170,000 representing the remainder. The plan converted the five-year floating-rate mortgage into a $475,000 thirty-year fixed-rate mortgage. The court set the interest rate on the mortgage at 10.75%. The unsecured claim of $170,000 would be treated as any unsecured claim: the Debtors’ entire disposable income (if any) would be used over the four-year term of the plan to pay each unsecured claim on a pro rata basis. At the end of the four years of the plan, any part of the unsecured debt that had not been paid off would be discharged.
Travelers appealed the bankruptcy court’s order to the district court raising, inter alia, statutory and constitutional issues. The district court affirmed and this appeal ensued. We address each issue in turn.
Unlike Chapter 11, secured creditors in Chapter 12 do not “vote” on a plan. Instead, section 1225 provides that the bankruptcy court “shall” approve the plan if one of three conditions are met in the plan:
with respect to each allowed secured claim provided for by the plan—
(A) the holder of such claim has accepted the plan;
(B) (i) the plan provides that the holder of such claim retain the lien securing such claim; and
(ii) the value, as of the effective date of the plan, of property to be distributed by the trustee or the debtor under the plan on account of such claim is not less that the allowed amount of such claim; or
(C)the debtor surrenders the property securing such claim to such holder;
Because Travelers did not accept the plan, section 1225(a)(5)(A) does not apply. Under § 1225(a)(5)(C) the court may also approve a plan if the debtor surrenders the property subject to the lien, i.e., forfeits the land. Here debtors have not done so, thus our focus is on section 1225(a)(5)(B).
Travelers does not suggest that the plan fails under section 1225(a)(5)(B)(i), which requires that the plan give the creditor a lien in the amount of his secured claim. The allowed secured claim here is $475,000 (the stipulated value of the property) and the plan gives a lien in that amount, so this requirement is satisfied.
Travelers argues, however, that the plan fails to meet the requirements of section 1225(a)(5)(B)(ii) because it stretches out the payments for thirty years and because Travelers does not receive sufficient “value” under the plan.
1. Does 11 US. C. § 1225 prohibit a thirty-year payout to an objecting secured creditor?
Travelers first objection is that the plan’s thirty-year mortgage violates section 1225(a)(5)(B)(ii). Travelers reasons as follows: section 1225(a)(5)(B)(ii) requires that the value of the property distributed under the plan be not less than the allowed amount of the claim, and that it be distributed “under the plan.” Yet section 1222(c) provides that — subject to only two exceptions — payments under a plan may never exceed five years. Thus, Travelers suggests that because the thirty-year rescheduled mortgage is longer than five years, the plan violates the code.
Travelers argument is colorable, but it ignores the two express exceptions to section 1222(c) that permit payments to exceed five years. Section 1222(c) provides as follows:
Except as provided in subsections (b)(5) and (b)(9), the plan may not provide for payments over a period that is longer than three years unless the court for cause approves a longer period, but the court may not approve a period that is longer than five years.
Section 1222(b)(5), the first exception to the section 1222(c) five-year limit, permits a debtor to reinstate an old debt (cure default), and is not applicable to this appeal. Section 1222(b)(9), however, has direct bearing on this case:
[the plan may] provide for payment of allowed secured claims consistent with section 1225(a)(5) of this title, over a period exceeding the period permitted under section 1222(c).
Thus, section 1222(b)(9), as an express exception to the section 1222(c) five-year limit, permits payments under a plan to extend over five years, but only when “consistent with section 1225(a)(5).”
We find section 1222(b)(9) explicit and dispositive of Travelers’ objection: a plan may provide for a payout period greater than five years, provided that it is “consistent with section 1225(a)(5).” Travelers’ argument that payments under a plan can never exceed five years would render section 1222(b)(9) a nullity. Thus, the mere fact that the plan provides for a thirty-year payment of Travelers’ allowed secured claim does not violate section 1225.
2. Does the plan provide a present “value” to the creditor not less than the allowed amount of such claim” as section 1225(a)(5)(B)(ii) requires?
Travelers next argues that the plan does not give it the full value of its allowed secured claim as § 1225(a)(5)(B)(ii) requires. Travelers frames this objection in two ways. First, Travelers stresses that to satisfy this section it must receive value equal to its allowed secured claim “under the plan.” Arguing that under the plan means the same as “during the plan,” Travelers concludes that the four-year length of the plan that the bankruptcy court confirmed is the proper time frame in which to apply the section 1225(a)(5)(B)(ii) “value” test, i.e., Travelers would have us total up the payments it is to receive over these four years, and if that amount is less than the $475,000 amount of its allowed secured loan, then the plan fails.
This objection need not detain us long. Section 1225(a)(5)(B)(ii) explicitly directs that the “value” is to be determined “as of the effective date of the plan.” (emphasis added) Under this section, therefore, we do not total the payments received “during the plan.” Instead, the test is simply whether, as of the effective date of the plan, the present value of the property distributed — i.e., the new thirty-year mortgage — is equal to or greater than the amount of the allowed secured claim.
In addition to its argument that the value it receives under section 1225(a)(5)(B)(ii) must be within the term of the plan, Travelers also argues that the thirty-year mortgage itself is not of sufficient value.
Travelers frames this issue in terms of burdens of proof. Travelers asserts that there is insufficient proof to show that a thirty-year 10.75% mortgage is of a value not less than the allowed secured claim of 475,000. From a pure finance perspective, all Travelers seems to be saying is that the term of the mortgage is too long and/or the interest rate is too low.
The debtors presented to the district court a chart of then-current interest rate returns, which tends to support a finding that a 10.75% interest rate on a thirty-year mortgage is within the range of market rates. Travelers, on the other hand, presented no objective evidence to demonstrate that the term or interest rate of the mortgage was such that its present value did not equal or exceed $475,000.
Travelers put on a witness who testified that Travelers itself would never lend for a period longer than twenty years, and if it did it would be at a somewhat higher rate of interest. Yet this testimony regarding Travelers’ subjective valuation does not sufficiently undermine the bankruptcy courts’ implicit factual finding that the present value of the mortgage as of the effective date of the plan was not less than the value of the allowed secured claim.
“Value” must be determined objectively. Simply because a creditor subjectively would not extend a mortgage on the same terms does not mean that objectively the mortgage does not have a given value. Given that Travelers has pointed to no record evidence to show that the 10.75% interest rate does give the mortgage a present value of $475,000, while the debtors’ chart does tend to support that interest rate, the bankruptcy court’s finding that the thirty-year mortgage at 10.75% annual interest rate has a present value not less than the $475,000 value of Travelers’ allowed secured claim is supported by sufficient evidence.
3. Did the debtors prove the feasibility of the plan as § 1225(a)(6) requires?
Travelers also argues that the debtors failed to demonstrate that the plan was feasible, as section 1225(a)(6) requires.
Travelers attacks the bankruptcy court’s finding that the plan was feasible by making essentially evidentiary objections. The main objection is that the court apparently relied upon computer projections based on underlying data that has been lost. The debtors gave historical data concerning their farming operations to a government agency (Georgia Extension Service or “GES”) which used this information as well as other information from its own data collection efforts and developed a computer projection of the farms’ yield. Unfortunately, the debtors’ farm data was destroyed in a fire. Travelers, therefore, argues that the GES projections are unreliable hearsay because we can no longer examine the underlying data.
Evidentiary questions such as this are left to the discretion of the bankruptcy court. Thus, we apply an abuse of discretion standard to the court's decision to admit the GES projections.
Because the fire destroyed the Bulling-tons’ farm data there is no question that the Bullingtons were not able to produce the data. The court admitted the GES projections as opinion of the debtor. The court has such power under rule 701 (opinion testimony by lay witness). We cannot say that the court’s decision to admit the projections as opinion testimony was an abuse of discretion.
Given that there was no evidence that the debtors’ plan was not feasible, and given that the GES projections support the conclusion that the plan was feasible, we cannot say that the court erred in determining under section 1225(a)(6) that the plan was feasible.
4. Does Chapter 12 constitute an unconstitutional taking of property without due process?
No circuit has yet addressed the constitutionality of Chapter 12 of the bankruptcy code. The courts that have addressed it have found no unconstitutional taking of property. We conclude that the operation of Chapter 12 of the Bankruptcy Code does not operate as an unconstitutional taking of appellant’s property.
To put the takings issue in perspective, it is useful to consider the differing treatment of unsecured and secured claims. When the debtors petitioned for bankruptcy they owed Travelers $645,000 but their collateral was worth only $475,000. Under section 506, Travelers’ claim was split into a secured claim in the amount of their collateral, and an unsecured claim for the remainder.
As we discussed above, section 1225(a)(5) permitted the court to confirm the plan over the objections of Travelers provided that the value of the new mortgage Travelers received under the plan was not less than the amount of its allowed secured claim — i.e., the $475,000 value of the collateral. Because we affirm the finding that the new mortgage Travelers received under the plan satisfied the requirements of section 1225(a)(5), there is no taking of property with respect to the value of the collateral. The 10.75% interest will adequately compensate Travelers for the longer term of the mortgage.
The plan provided for the debtors to devote for four years all of their disposable income to the satisfaction of the unsecured claims. If we assume arguendo that the debtors have no disposable income for the four years of the plan, it may be that the entire $170,000 amount that Travelers’s loan was undersecured will be discharged. Where Travelers once had a security interest it may conceivably end up with nothing. Thus, our takings analysis focuses solely on the amount that the original debt was undersecured.
It is undisputed that the takings clause of the fifth amendment protects certain of the rights of secured creditors. See Louisville Joint Stock Land Bank v. Radford, 295 U.S. 555, 55 S.Ct. 854, 79 L.Ed. 1593 (1935) (Frazier-Lemke Act). However, as the Court has observed in Wright v. Union Central Life Insurance Co., 311 U.S. 273, 61 S.Ct. 196, 85 L.Ed. 184 (1940), “[these] safeguards were provided to protect the rights of secured creditors ... to the extent of the value of the property. There is no constitutional claim of the creditor to more than that.” 311 U.S. at 278, 61 S.Ct. at 199-200. A recent pronouncement of the Court in a closely related area of bankruptcy law reflects the same view. See United Savings Ass’n of Texas v. Timbers of Inwood Forest Assocs., Ltd., 484 U.S. 365, 108 S.Ct. 626, 630, 98 L.Ed.2d 740 (1988) (construing section 506(a) “value of such creditor’s interest” as “value of the collateral”).
In light of the principle that the takings clause of the fifth amendment protects the secured creditor only to the extent of the value of the collateral, section 1225 withstands appellant s constitutional challenge. Section 1225(a)(5) ensures that the creditor receives value not less than the amount of his allowed secured claim, i.e., the value of the collateral.
5. Does Chapter 12 apply retroactively?
Travelers also makes an argument that Chapter 12 should not apply to obligations existing before Congress enacted Chapter 12. Although we will not automatically give bankruptcy laws retroactive effect, United States v. Security Industrial Bank, 459 U.S. 70, 82, 103 S.Ct. 407, 414, 74 L.Ed.2d 235 (1982), where it is clear from the language or legislative history of a statute that Congress intended the law to apply retroactively then we must follow Congress’s intent.
We have no doubt that Congress intended the provisions of Chapter 12 to apply to debts incurred before its enactment. Although Chapter 12 does not explicitly state that it is to be applied retroactively, any contrary view would render Chapter 12 a triviality. Chapter 12 was enacted as an emergency response to a then-existing farm debt crisis. As Judge Rosenbaum has noted:
Congress intended the family farmer provisions to be novel, but short-lived. The statute by its terms expires after only seven years. 28 U.S.C. § 581 note. The short lifetime of Chapter 12 suited Congress’ desire to ‘evaluate both whether the chapter is serving its purpose and whether there is a continuing need for a special chapter for the family farmer.’ H.R.Conf.R. at 48, USCCAN at 5249. Common sense suggests Congress was mindful of the farmer’ existing loans when it set the seven year limitation.
Dahlke v. Doering, 94 B.R. 569 (D.Minn.1989).
Accordingly, we reject appellants’ statutory and constitutional challenges, and AFFIRM the order of the district court affirm-mg the bankruptcy court s confirmation of the debtors’ plan for reorganization.
. In the course of the proceedings the plan was amended slightly, but none of the amendments have anything to do with this appeal.
. Section 1225 provides in part:
(a) Except as provided in subsection (b), the court shall confirm a plan if—
(1) the plan complies with the provisions of this chapter and with the other applicable provisions of this title;
(2) any fee, charge, or amount required under chapter 123 of title 28, or by the plan, to be paid before confirmation, has been paid;
(3) the plan has been proposed in good faith and not by any means forbidden by law;
(4) the value, as of the effective date of the plan, of property to be distributed under the plan on account of each allowed unsecured claim is not less than the amount that would be paid on such claim if the estate of the debtor were liquidated under chapter 7 of this title on such date
. The plan does call for the debtors to surrender the personal property collateral, but does not provide for them to forfeit the real property.
. Two district courts have addressed this issue, and in well-reasoned opinions have upheld Chapter 12 against constitutional challenges. See Dahlke v. Doering, 94 B.R. 569 (D.C.Minn.1989); Albaugh v. Terrell, 93 B.R. 115 (E.D.Mich.1988).
. § 506. Determination of secured status
(a) An allowed claim of a creditor secured by a lien on property in which the estate has an interest, or that is subject to setoff under section 553 of this title, is a secured claim to the extent of the value of such creditor’s interest in the estate’s interest in such property, or to the extent of the amount subject to setoff, as the case may be, and is an unsecured claim to the extent that the value of such creditor’s interest or the amount so subject to setoff is less than the amount of such allowed claim. Such value shall be determined in light of the purpose of the valuation and of the proposed disposition or use of such property, and in conjunction with any hearing on such disposition or use or on a plan affecting such creditor’s interest.
(b) To the extent that an allowed secured claim is secured by property the value of which, after any recovery under subsection (c) of this section, is greater than the amount of such claim, there shall be allowed to the holder of such claim, interest on such claim, and any reasonable fees, costs, or charges provided for under the agreement under which such claim arose.
(c) The trustee may recover from property securing an allowed secured claim the reasonable, necessary costs and expenses of preserving, or disposing of, such property to the extent of any benefit to the holder of such claim.
(d) To the extent that a lien secures a claim against the debtor that is not an allowed secured claim, such lien is void, unless—
(d)(1) such claim was disallowed only under section 502(b)(5) or 502(e) of this title; or
(d)(2) such claim is not an allowed secured claim due only to the failure of any entity to file a proof of such claim under section 501 of this title.
. "[T]he famous statement that the bankruptcy power is subject to the fifth amendment must be taken to mean nothing more than that the fifth amendment, through either the due process clause or the takings clause, is the constitutional foundation for the proposition that statutes that retroactively disrupt settled expectations may be subject to particularly attentive judicial scrutiny.” James S. Rogers, The Impairment of Secured Creditors' Rights in Reorganization: A Study of the Relationship Between the Fifth Amendment and the Bankruptcy Clause, 96 Harv.L.Rev. 973, 985 (1983).
. Such a rule is fully consistent with common sense. Had Travelers foreclosed on the farm property all it could have obtained would be the $475,000 stipulated value. Under Chapter 12, the reason Travelers may not recover the remaining amount of their claim is because the claim was undersecured.
Question: What is the specific issue in the case within the general category of "economic activity and regulation"?
A. taxes, patents, copyright
B. torts
C. commercial disputes
D. bankruptcy, antitrust, securities
E. misc economic regulation and benefits
F. property disputes
G. other
Answer:
|
songer_applfrom
|
J
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court).
Norman DODD and Aaron M. Sargent, Trustees under Joint Venture Agreement of Pioche Mines Consolidated, Inc., Appellants, v. PIOCHE MINES CONSOLIDATED, INC., Helen Dolman, Shareholders of said Corporation, and Fidelity-Philadelphia Trust Company, Appellees.
No. 17519.
United States Court of Appeals Ninth Circuit.
Sept. 24, 1962.
Ernest S. Brown and Jack I. Mc-Auliffe, Reno, Nev., for appellant.
T. David Horton, Francis T. Cornish, Berkeley, Cal., Roscoe H. Wilkes, Pioche, Nev., and Harold M. Morse, Las Vegas, Nev., for appellee Pioche Mines Consolidated, Inc.
Sullivan, Roche, Johnson & Farraher, San Francisco, Cal., and Alvin N. Wart-man, Las Vegas, Nev., for appellee Helen Dolman.
William J. Forman, Reno, Nev., George H. Johnston and Willard P. Norberg, San Francisco, Cal., Woodbum, Forman, Wedge, Blakey & Folsom, Reno, Nev., Morgan, Lewis & Bockius, Philadelphia, Pa., and Ackerman, Johnston, Johnston & Mathews, San Francisco, Cal., for ap-pellee Fidelity-Philadelphia Trust Co.
Before HAMLEY and DUNIWAY, Circuit Judges, and TAYLOR, District Judge.
PER CURIAM.
Appellants Norman Dodd and Aaron M. Sargent, two of three trustees named in a joint venture agreement with Ap-pellee Pioche Mines Consolidated, Inc., have appealed to this Court from an Order of the trial court denying their motion to be substituted as counter-claimants in this litigation.
In reaching our decision here we are assuming, without deciding, that the order denying the motion for substitution is appealable.
The substitution or joinder of Appellants as counterclaimants rested in the discretion of the district court and was not mandatory. Rule 25(c), Federal Rules of Civil Procedure, 28 U.S.C.A.; Virginia Land Co. v. Miami Shipbuilding Corp., 201 F.2d 506 (5th Cir.1953); Sun-Maid Raisin Growers of California v. California Packing Corporation, 273 F.2d 282 (9th Cir.1959).
On an examination of the record we are satisfied that the district court did not abuse its discretion in denying the motion of Appellants.
Affirmed.
Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)?
A. Trial (either jury or bench trial)
B. Injunction or denial of injunction or stay of injunction
C. Summary judgment or denial of summary judgment
D. Guilty plea or denial of motion to withdraw plea
E. Dismissal (include dismissal of petition for habeas corpus)
F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict)
G. Appeal of post settlement orders
H. Not a final judgment: interlocutory appeal
I. Not a final judgment: mandamus
J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment
K. Does not fit any of the above categories, but opinion mentions a "trial judge"
L. Not applicable (e.g., decision below was by a federal administrative agency, tax court)
Answer:
|
songer_geniss
|
G
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous".
John M. LEE et al., Appellants, v. FLINTKOTE COMPANY.
No. 77-1355.
United States Court of Appeals, District of Columbia Circuit.
Argued Dec. 6, 1977.
Decided Jan. 11, 1979.
Coleman R. Rosenfield, Fort Lauderdale, Fla., of the bar of the Supreme Court of Florida, pro hac vice, by special leave of Court, which whom Michael D. Hausfeld, Washington, D. C., was on the brief, for appellants. Jerry S. Cohen, Washington, D. C., also entered an appearance for appellants.
Jay F. Gordon, New York City, with whom George Berger, New York City, was on the brief, for appellee.
Before BAZELON, LEVENTHAL and ROBINSON, Circuit Judges.
Opinion for the Court filed by Circuit Judge SPOTTSWOOD W. ROBINSON, III.
SPOTTSWOOD W. ROBINSON, III, Circuit Judge.
This appeal emanates from a summary judgment rejecting a claim of intentional interference by a third party with contractual relations subsisting between franchisees of retail paneling stores and their franchisor. The pivotal issue is whether the franchise contracts conferred upon the franchisees the exclusive right to sell the franchisor’s products within the territories respectively franchised. A subsidiary question is whether the agreements were ambiguous on that score and thus opened the door to introduction of extrinsic evidence purporting to reflect the parties’ intentions. We answer both questions in the negative and accordingly affirm.
I. BACKGROUND
Appellants are owners and operators of individually-franchised retail outlets in the Washington-Baltimore area known as Ply*Gem paneling centers. They obtained their franchises between 1969 and 1974 through essentially similar contracts made with a unit of a corporate group which we shall refer to as Ply*Gem. Appellants as-serf that by the terms of the franchise agreements, Ply*Gem guaranteed each franchisee the exclusive right to sell Ply*Gem paneling and related products within two and one-half miles of the location of his paneling center.
In March, 1976, by virtue of a contract with Ply* Gem, the Flintkote Company became the general distributor of Ply*Gem products. *Appellants claim that Flintkote thereby gained, and began exercising, authority to sell Ply*Gem products to other retail dealers in their exclusive areas. For this they sued Flintkote for damages, alleging that it entered into the agreement “with full knowledge of the contracts between [appellants] and PLY*GEM Companies, and with the intent to injure, destroy and otherwise interfere with the due prosecution of [appellants’] businesses. »
Finding no ambiguity in the franchise agreements — which contained an express merger clause — the District Court rejected appellants’ contention that by virtue of the contracts they acquired the sole right to sell Ply* Gem products within their stores’ territories. Rather, the court held, such exclusivity as was conferred was simply the right to be the only “Ply*Gem outlet within a two and one-half mile radius.” The court further held that extra-contractual evidence proffered by appellants in an effort to support their position was either irrelevant or barred by the parol evidence rule. Since, in its view, appellants did not possess exclusive selling rights under their franchise agreements, the court concluded that Flintkote was not interfering with their business relations with Ply*Gem, and it granted Flintkote’s motion for summary judgment.
Appellants assert that the franchise agreements, properly construed, endow them with the exclusive right to sell Ply*Gem products within their designated territories. Alternatively, they contend that the contractual language was at least ambiguous, that the evidence they unsuccessfully sought to introduce was admissible to clarify its meaning, and consequently that the case was not in a posture permitting summary judgment. We disagree with appellants on all counts.
II. THE CHOICE OF LAW
This litigation is maintainable in the federal courts because the parties are of diverse citizenship. With federal jurisdiction so based, we normally would first determine the applicable local law. All of the franchise agreements, however, expressly state that they are to be interpreted conformably to the law of New York. Whether such a provision is operative in a federal court action founded on diversity depends upon the conflict of laws principles of the jurisdiction in which the court sits.
At no time during the course of this litigation have the parties briefed the choice of law question. Nor have they, either in the District Court or here, relied upon the law of New York or of any other jurisdiction in particular as the sole source of controlling precedent. The District Court apparently assumed that District of Columbia law governed the issues presented, and with that the litigants seem perfectly content. Our initial concern is whether we ourselves should take a different tack.
We were confronted with this problem once before. The occasion was presented in 1961 when an appellant who at the trial level relied on District of Columbia caselaw complained on appeal that Ohio law should have been applied. After an extensive review of the authorities, we disagreed:
[Ojrderly administration of justice suggests that plaintiff should not at this late stage be allowed to rely on the law of another jurisdiction. While this court recognizes its power to take judicial notice of applicable state law, or to remand for its application, nothing in this record suggests that it is appropriate to do so in order to avoid injustice or to promote the ends of justice. We conclude, therefore, that the trial court was not bound to notice and apply the law of Ohio or Maryland statutory law when appellant not only failed to rely on either but affirmatively argued the law of the District.
Four years later, the District of Columbia Court of Appeals endorsed this approach.
These decisions, pronounced when both courts shaped the evolving common law of the District of Columbia, chart the course we must pursue here. The rule they established, whether viewed as purely procedural in nature or as the expression of a conflict of laws policy of the District, dictates recourse to District law. We believe, moreover, that sound judicial administration and the potential unfairness of invoking a body of foreign law that neither side has considered applicable strongly support that approach here. We turn, then, to identify the principles relevant to the issues before us.
III. THE PAROL EVIDENCE RULE AND THE “PLAIN MEANING” RULE
The District of Columbia recognizes both the parol evidence rule and its relative, the “plain meaning” canon of contract interpretation. The District Court felt that consideration of minutes of a 1968 management meeting of Ply*Gem featuring promotional techniques — prior to execution of any of appellants’ franchise agreements — was barred by the parol evidence rule. A segment of those minutes captioned, “In Answer to Questions Posed by Potential Franchisees,” reads:
Q. 26. WHY DO I NEED YOU? I CAN OPEN A PANELING STORE AND BUY THROUGH OTHER PANEL DISTRIBUTORS WITHOUT GIVING YOU $10,000. ******
In addition, you receive the exclusive rights within your area to the Ply*Gem name and their products. . . ,
Insofar as these minutes may have been offered to show an antecedent compact or understanding varying or supplementing the terms of the franchise agreements, the District Court correctly rejected them. The franchise contracts state unequivocally that they embody the final and exclusive understanding of the parties, and District law gives full effect to that stipulation.
On the other hand, the minutes conceivably could evidence custom and practice in the paneling industry, and that, in turn, arguably could indicate in some degree the parties’ intentions when they entered into the contracts in question. Strictly speaking, the parol evidence rule does not bar extra-contractual evidence of meanings assigned the terms of an agreement; that is the function of the plain meaning rule, which prohibits consideration of extrinsic evidence of intent when the contract is unequivocal.
Speaking to the role of ambiguity in this connection, we have summarized the District of Columbia law in this manner:
Construction of unambiguous features of a written contract is a problem for the court, not the jury. Put another way, the legal effect of reasonably clear terms of a contract is a question of law for judges. The admissibility of extrinsic evidence, and possible need for the jury to assess it, depend upon the existence of an ambiguity in the contract. Only if its meaning is dubious, and the evidence of the parties’ intention is uncertain or conflicting, is there appropriate occasion to seek the conclusion of jurors as to what was in mind. Moreover, the question whether the contract is ambiguous or not is one of law to be determined by the court.
With these principles in mind, we turn to the franchise agreements in suit.
IV. THE FRANCHISE AGREEMENTS
In the federal courts, a party moving for summary judgment bears the burden of establishing the absence of any issue of material fact. This principle obtains although the movant would not have the burden of proof at trial. Moreover, the party opposing summary judgment need not present any evidentiary matter unless the movant has made a prima facie showing that the case is completely free from any significant question of fact. The movant thus faces a formidable task, but we think it was accomplished here.
We must, at the outset, agree with Flintkote that if Ply*Gem’s promise not to approve a “licensed location” within two and a half miles of a franchise’s store was intended as a grant of exclusive selling rights within that area, it was most awkwardly put. We are skeptical, too, that so important a feature of the franchise agreement would be so infelizcitously phrased by those as astute as businessmen generally are. Our role on this appeal, however, is not to construe the franchise contract but to determine whether it so lucidly fails to confer an exclusive right to sell as to foreclose consideration of evidence beyond its four corners.
By the law of the District of Columbia, a contract is ambiguous when it is “reasonably susceptible of different constructions or interpretations.” Indeed, essentially that standard for determining ambiguity appears to be in fairly general use by American courts. The question at this point, then, is whether the franchise agreements in suit can reasonably be given more than one meaning with respect to exclusivity or non-exclusivity of the franchisee’s right to sell Ply* Gem products within his territory. We conclude that it cannot.
The franchise contracts confer upon the franchisee “the right to open and operate one retail store for the sale and distribution of building materials and allied products under the trade and service names and marks, including PLY*GEM PANELING CENTERS, owned by” Ply*Gem. To this grant the contracts specifically tie the right to use the Ply* Gem name and marks, as well as entitlement to designated franchisor-supplied services. The franchisees’ retail stores are thus portrayed as specially endowed and supported outlets of the Ply* Gem line of products.
Appellants point, however, to the one and only passage in the franchise agreements connoting any sort of exclusivity. That is a provision stating that “[o]nce a particular site or location” for a franchised store “has been approved, [Ply*Gem] shall not approve another licensed location within a radius of two and one-half (2V2) miles of such location, without the consent of the” franchisee. The argument is that the prohibition on “another license location” bars any and all sales of Ply* Gem products within the designated area by anyone other than the franchisee.
Whatever appeal this claim may superficially engender evaporates when the expression “another licensed location” is viewed in its contractual context. Within a single paragraph, the franchise agreements do three things. First, they “license” the operation of a retail store, and thrice denominate the franchise a “license.” Second, they erect a procedure by which the “location” of a franchised retail store is to be fixed, and make plain that the “location” spoken of is the physical situs of the store. Third, the franchise contracts then impose the ban on “another license location” within the radius specified, and we see nothing to which the interdiction could plausibly refer save an additional franchise retail outlet for the Ply* Gem line. Put slightly differently, the contractual language makes it well nigh obvious that what is forbidden is some other (“another”) franchised (“licensed”) site (“location”) for a retail store — the only thing the Ply* Gem companies franchise— within the proscribed area. As the District Court stated:
It is clear to this Court that the only exclusive right granted in the franchise agreement is the right of the franchisee to operate an exclusive Ply*Gem outlet within a two and one-half mile radius. There is no provision which even arguably gives the operator the right to be the exclusive seller of Ply*Gem products, either to contractors or to retail customers in general, in that territory. Nothing in the contract would preclude Ply*Gem or its distributor from selling Ply*Gem products to other retailers in the territory, as long as those retailers did not operate Ply*Gem outlets. .
The conclusion set forth above extinguishes [appellants’] claim: If [appellants] had no exclusive selling rights under the contracts], then there were no such rights with which Flintkote could have interfered.
This interpretation hardly does violence to the franchise contracts taken as a whole. For a consideration of $10,000 and a promise to remit royalty payments of five percent of weekly gross receipts, the franchisee acquired the right to operate a Ply*Gem paneling center, complete with trademarks and trade names, a guaranteed source of supply, and various forms of business support by the franchisor. Customers would be attracted to the paneling center rather than to other nearby stores that might also carry Ply* Gem products by the completeness of the center’s inventory, assistance by trained sales personnel and the lure of the franchisor’s advertising for the benefit of the franchisees. With these advantages inuring to the licensed Ply*Gem outlets, the franchise agreements, though lacking a provision conferring exclusive selling rights, could not seriously be viewed as empty business transactions.
We are mindful that our present call is not to construe the franchise agreements, but simply to determine whether the written language is amenable to more than one reading. We realize, too, that the language might conceivably be strained to connote the grant of an exclusive agency to sell within the franchisee’s territory. Neither of these considerations, however, alters our conclusion. We adhere to the accepted test for ambiguity and, looking solely at the pertinent contractual language and undertaking only to determine whether it is “reasonably susceptible of different constructions or interpretations,” hold that it does not.
Since the franchise agreements do not so much as ambiguously portend an exclusive right to sell Ply*Gem products, there is nothing that Flintkote’s marketing operations could have treaded on. It follows that the District Court’s ruling excluding extrinsic evidence and awarding summary judgment to Flintkote was eminently correct, and that judgment is accordingly
Affirmed.
. Lee v. Flintkote Co., No. 76-1491 (D.D.C. Feb. 25, 1977) (unreported), Joint Appendix (J.App.) 108-113.
. There are several interrelated Ply*Gem corporations. See Lee v. Ply*Gem Indus., Inc., 193 U.S.App.D.C. -,-- n. 1, 593 F.2d 1266, 1267 n. 1 (1979). The parties usually refer to them collectively as “the Ply*Gem companies.” Since corporate distinctions are unimportant to the issues on this appeal, we adopt the shorter collective designation “Ply*Gem” in the interest of simplicity.
. The provisions upon which appellants predicate this position are reproduced in text infra at note 47, and are discussed in Part IV infra.
. J.App. 26-34. Flintkote maintains a marketing organization, and the Ply*Gem-Flintkote agreement contemplated that Flintkote would distribute Ply*Gem products in areas served by Flintkote’s supply centers. J.App. 26. The term of the contract was eighteen months, with automatic year-to-year renewal in the absence of notice of termination. J.App. 29. Previously, the area distributor for appellants was Ply*Gem of Laurel, Inc., one of the corporate group. Complaint Exhibit (Ex.) 1 at 1.
. Complaint 11 7, J.App. 10.
. “This agreement constitutes the entire understanding of the parties hereto, and no representations, inducements, promises or agreements, oral or otherwise, not embodied herein shall be of any force and effect.” Complaint, Ex. 1 at 12, H 16.
. Lee v. Flintkote Co., supra note 1, at 2-6, J.App. 109-113.
. Id. at 3, J.App. 110.
. Appellants submitted to the District Court several documents purportedly reflecting the parties’ expectations as to the level of business the franchisees could expect from contractors. The District Court deemed this evidence irrelevant to the issue of exclusivity. Id. at 2, J.App. 111. Appellants also tendered the minutes of a Ply*Gem management meeting held in December 1968. Admission of these, the court held, was barred by the parol evidence rule. See Part III infra. In this court, appellants specifically question only the propriety of excluding the minutes. Brief for Appellants at 13-14.
. Lee v. Flintkote Co., supra note 1, at 5, J.App. 112.
. Id. at 6, J.App. 113.
. Appellants also urge that their own motion for summary judgment should have been granted. This argument becomes meritless in light of our holding, see Part IV infra, that an essential element of their claim — the existence of a contract granting them exclusive selling rights — is lacking. See Alfred A. Altimont, Inc. v. Chatelain, Samperton & Nolan, 374 A.2d 284, 288 (D.C.App.1977); Hunter Vending Co. v. D. C. Vending Co., 345 A.2d 142, 143 (D.C.App.1975).
. 28 U.S.C. § 1332 (1976).
. We do not mean to imply that application of District of Columbia law is mandated by Erie R. R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). In the first place, Congress, when enacting the District of Columbia Court Reform and Criminal Procedure Act of 1970, Pub.L.No.91-358, 84 Stat. 473 (1970), did not amend the Rules of Decision Act, 28 U.S.C. § 1652 (1976), to include the District of Columbia within its ambit. Had Congress wished the Rules of Decision Act to govern in situations such as the one before us, it could easily have revised the act after the fashion of 28 U.S.C. § 1332(d) (1976), which denominates the District of Columbia a “state” for purposes of diversity jurisdiction. See Palmore v. United States, 411 U.S. 389, 395, 93 S.Ct. 1670, 1675, 36 L.Ed.2d 342, 350 (1973) (“[w]e are entitled to assume that in amending § 1257 [of Title 28], Congress legislated with care, and that had Congress intended to equate the District code and state statutes for the purposes of § 1257, it would have said so expressly, and not left the matter to mere implication”). Secondly, the constitutional considerations discussed in Erie R. R. v. Tompkins, supra, 304 U.S. at 78, 58 S. Ct. at 822, 82 L.Ed. at 1194 (“Congress has no power to declare substantive rules of common law applicable in a State whether they be local in their nature or ‘general’ . . .”) have no force in this context, for the District, unlike the states, has no reserved power to be guaranteed by the Tenth Amendment. Cf. Hepburn v. Ellzey, 6 U.S. (2 Cranch) 445, 452-453, 2 L.Ed. 332, 335 (1805).
Nevertheless, we have in past diversity cases looked to the District of Columbia’s courts to provide the applicable choice of law principles and substantive rules of decision. See Semler v. Psychiatric Inst., 188 U.S.App.D.C. 41, 45-50, 575 F.2d 922, 926-931 (1978); cf. Blair v. Prudential Ins. Co., 153 U.S.App.D.C. 281, 472 F.2d 1356 (1972). That seems proper because the Court Reform Act made the District of Columbia Court of Appeals the “highest court” of the District, and thus the principal arbiter of District law:
The highest court of the District of Columbia is the District of Columbia Court of Appeals. Final judgments and decrees of the District of Columbia Court of Appeals are reviewable by the Supreme Court of the United States in accordance with section 1257 of title 28, United States Code.
D.C.Code § 11-102 (1973). Indeed, were we not to yield a measure of deference to the District of Columbia Court of Appeals, two courts — neither of which could review the other’s decisions — would engage independently in the process of formulating the local law of the District. That would subvert the dual aims of Erie: discouraging forum shopping and promoting uniformity within any given jurisdiction on matters of local substantive law. Erie R. R. v. Tompkins, supra, 304 U.S. at 74—77, 58 S.Ct. at 820-822, 82 L.Ed. at 1192-1193. As we have heretofore observed, “it would be unfair for the character or result of a litigation materially to differ because the suit had been brought in a federal court.” Walko Corp. v. Burger Chef Sys., Inc., 180 U.S.App.D.C. 306, 312, 554 F.2d 1165, 1171 (1977), quoting Hanna v. Plumer, 380 U.S. 460, 467, 85 S.Ct. 1136, 1141, 14 L.Ed.2d 8, 14 (1975). See Williams, District of Columbia Reorganization, 1970, 59 Geo.L.J. 477, 494-495 (1971); Note, An Erie Doctrine for the District of Columbia, 62 Geo.L.J. 963 (1974).
. “This agreement has been prepared and negotiated within the State of New York and shall not take effect until it has been approved and accepted by Licensor in the State of New York. The agreement shall be enforced, construed and interpreted in accordance with the laws of the State of New York. . . . ” Complaint, Ex. 1 at 12, 1] 17(a).
. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941).
An intriguing question we do not reach is whether the District of Columbia courts would invoke judge-made choice of law principles or, rather, the Uniform Commercial Code’s conflicts of laws provision in passing on the effectiveness of the parties’ stipulation as to the applicable law. D.C.Code § 28.1-105(1) (1973) reads:
Except as provided hereafter in this section, when a transaction bears a reasonable relation to the District and also to a state or nation the parties may agree that the law either of the District or of such state or nation shall govern their rights and duties. Failing such agreement this subtitle applies to transactions bearing on appropriate relation to the District.
There appears to have been no occasion for consideration of the efficacy of a choice of law contractual provision in District of Columbia decisionmaking, which incorporates an interest-analysis approach in cases bereft of such a specification. See, e. g., Fox-Greenwald Sheet Metal Co. v. Markowitz Bros., Inc., 147 U.S.App.D.C. 14, 21-22, 452 F.2d 1346, 1353-1354 (1971); Fowler v. A. & A. Co., 262 A.2d 344, 348 (D.C.App.1970); McCrossin v. Hicks Chevrolet, Inc., 248 A.2d 917, 921 (D.C.App.1969); Milhollin, The New Choice of Law in the District of Columbia, 24 Cath.U.L.Rev. 448 (1975).
Determination of the applicability of § 28:1-105(1) here would involve a decision on whether the Uniform Commercial Code extends to franchise contracts. In general, Article 2 of the Code applies to “transactions in goods,” not merely sales. D.C.Code, § 28:2-102 (1973). With scant discussion of this initial problem, some courts have applied the Code to franchise agreements. E. g., Ashland Oil, Inc. v. Donahue, W.Va., 223 S.E.2d 433 (1976), noted, 55 Tex.L.Rev. 541 (1977). Others have ignored the Code in franchise cases. E. g., Bak-A-Lum Corp. of America v. Alcoa Bldg. Prods., Inc., 69 N.J. 123, 351 A.2d 349 (1976). For reasons subsequently expressed, see notes 17-19 infra and accompanying text, we decline to reach the intractable quasi-Erie problem of predicting how the District of Columbia courts would resolve this controversy.
. Appellee recognizes the problem but informs us that the applicable legal principles are common to the law of all parties’ home jurisdictions with the result that the conflict of laws question is academic. Brief for Appellee at 12-14 (unnumbered footnote).
. The court relied on Hunter v. D. C. Vending Co., supra note 12. Lee v. Flintkote Co., supra note 1, at 4 n. 4, J.App. 111.
. Jannenga v. Nationwide Life Ins. Co., 109 U.S.App.D.C. 385, 388, 288 F.2d 169, 172 (1961).
. Young v. State Farm Mut. Auto. Ins. Co., 213 A.2d 890 (D.C.App.1965). See also Montgomery Federal Savings & Loan Ass’n v. Baer, 308 A.2d 768, 777 (D.C.App. 1973).
. Prior to the District of Columbia Court Reform and Criminal Procedure Act of 1970, Pub. L.No.91-358, 84 Stat. 473 (1970); this court administered the local as well as the federal law. As one commentator has noted, “[t]he Court Reorganization Act itself ... is not designed to affect directly the existing body of legal precedent in the District of Columbia.” Williams, District of Columbia Court Reorganization, 1970, 59 Geo.L.J. 483, 493 (1971).
. See generally Utility Control Corp. v. Prince William Constr. Co., 558 F.2d 716, 720 (4th Cir. 1977); Fitzsimmons v. Best, 528 F.2d 692, 694 (7th Cir. 1976).
. See note 16 supra and accompanying text.
. Professor Brainerd Currie searchingly analyzed this issue and thought the course we take today advisable. Currie, On the Displacement of the Law of the Forum, 58 Colum.L.Rev. 964 (1958).
. Boomhower, Inc. v. Lavine, 151 F.Supp. 563, 567 (D.D.C.1955); Tonn v. Philco Corp., 241 A.2d 442, 445 (D.C.App.1968); Kinney v. McNabb, 44 App.D.C. 340, 343 (1916). See also D.C.Code, § 28:2-202 (1973). “ ‘[T]he parol evidence rule requires that “[w]hen two parties have made a contract and have expressed it in a writing to which they have both assented as the complete and accurate integration of that contract, evidence, whether parol or otherwise, of antecedent understandings and negotiations will not be admitted for the purpose of varying or contradicting the writing.” ’ The consequences which the law attaches to a written contract are as much a part of it as the terms it sets forth, and the legal effect of the contract can no more be changed or modified by parol evidence than it could have had it been made express. The law ascribes to the contractual obligation of two or more a joint character unless the contract makes evident an intention that a several performance is to be indulged. That legal incident of the option in suit cannot be abrogated by recourse to evidence extrinsic to the contract.” Clayman v. Goodman Properties, Inc., 171 U.S.App.D.C. 88, 95, 518 F.2d 1026, 1033 (1973), quoting Murray v. Lichtman, 119 U.S.App.D.C. 250, 252, 339 F.2d 749, 751 (1964), in turn quoting 3 Corbin, Contracts § 573 (1960) (footnotes omitted).
. 1901 Wyoming Ave. Coop. Assoc. v. Lee, 345 A.2d 456, 461 (D.C.App.1975); Burbridge v. Howard Univ., 305 A.2d 245, 247 (D.C.App.1973); Minmar Builders, Inc. v. Beltway Excavators, Inc., 246 A.2d 784, 786 (D.C.App.1968); see text infra at notes 32-33. See also E. P. Hinkel & Co., Inc. v. Manhattan Co., 165 U.S. App.D.C. 140, 144, 506 F.2d 201, 205 (1974).
. J.App. 104.
. See note 6 supra.
. See cases cited supra note 25.
. The relevance of this possible custom is not vitiated by the fact that only one of the appellant-franchisees attended the management meeting. Lee v. Flintkote Co., supra note 1, at 5 & n. 5, J.App. 112. See, e. g., 1901 Wyoming Ave. Coop. Assoc. v. Lee, supra note 26, 345 A.2d at 461 (“[w]here the court is faced with an integrated agreement which contains ambiguous terms, the standard of interpretation is ‘what a reasonable person in the position of the parties would have thought it meant,’ ” quoting Minmar Builders, Inc. v. Beltway Excavators, Inc., supra note 26, 246 A.2d at 786; “[t]he presumption is that the reasonable person knows all the circumstances before and contemporaneous with the making of the integration. The reasonable person is also bound by all usages — habitual and customary practices — which either party knows or has reason to know.” Id. at 461 — 462 (footnotes omitted)). See also D.C.Code, § 28:2-202(a) (1973).
. See 1901 Wyoming Ave. Coop. Assoc. v. Lee, supra note 26, 345 A.2d at 461—462; J. Calamari & J. Perillo, Contracts 98-131 (2d ed. 1977); L. Simpson, Contracts 204-208 (2d ed. 1965).
. See note 26 supra and accompanying text.
. Clayman v. Goodman Properties, Inc., supra note 25, 171 U.S.App.D.C. at 96, 518 F.2d at 1034 (1973) (footnotes omitted).
. E. g., Gray v. Greyhound Lines, East, 178 U.S.App.D.C. 91, 96, 545 F.2d 169, 174 (1976); United States v. General Motors Corp., 171 U.S.App.D.C. 27, 48-49, 518 F.2d 420, 441-442 (1975).
. United States v. General Motors Corp., supra note 34, 171 U.S.App.D.C. at 48, 518 F.2d at 441; Franklin Nat’l Bank v. L. B. Meadows & Co., 318 F.Supp. 1339, 1343 (E.D.N.Y.1970); 6 J. Moore, Federal Practice ¶ 56.15[3] (2d ed. 1948).
. United States v. General Motors Corp., supra note 34, 171 U.S.App.D.C. at 48, 518 F.2d at 441; Bloomgarden v. Coyer, 156 U.S.App.D.C. 109, 114-115, 479 F.2d 201, 206-207 (1973).
. The restrictive view of the summary judgment device summarized in text has been criticized as contrary to the salutary function of the procedure: to determine early on if
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:
|
sc_lcdisposition
|
F
|
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.
CITY OF DALLAS et al. v. STANGLIN, individually and dba TWILIGHT SKATING RINK
No. 87-1848.
Argued March 1, 1989
Decided April 3, 1989
Rehnquist, C. J., delivered the opinion of the Court, in which Brennan, White, Marshall, O’Connor, Scalia, and Kennedy, JJ., joined. Stevens, J., filed an opinion concurring in the judgment, in which Black-mun, J., joined, post, p. 28.
Craig Hopkins argued the cause for petitioners. With him on the briefs were Analeslie Muncy and Kenneth C. Dippel.
Daniel J. Sheehan, Jr., argued the cause and filed a brief for respondent.
Briefs of amici curiae urging reversal were filed for the National Institute of Municipal Officers by William I. Thornton, Jr., Frank B. Gummey III, William H. Taube, Roy D. Bates, Robert J. Alfton, James K. Baker, Robert J. Mangier, Neal E. McNeill, Dante R. Pellegrini, Clifford D. Pierce, Jr., Benjamin L. Brown, and Charles S. Rhyne; and for the United States Conference of Mayors et al. by Benna Ruth Solomon.
Chief Justice Rehnquist
delivered the opinion of the Court.
Petitioner city of Dallas adopted an ordinance restricting admission to certain dance halls to persons between the ages of 14 and 18. Respondent, the owner of one of these “teenage” dance halls, sued to contest the constitutional validity of the ordinance. The Texas Court of Appeals held that the ordinance violated the First Amendment right of persons between the ages of 14 and 18 to associate with persons outside that age group. We now reverse, holding that the First Amendment secures no such right.
In 1985, in response to requests for dance halls open only to teenagers, the city of Dallas authorized the licensing of “Class E” dance halls. The purpose of the ordinance was to provide a place where teenagers could socialize with each other, but not be subject to the potentially detrimental influences of older teenagers and young adults. The provision of the ordinance at issue here, Dallas City Code § 14-8.1 (1985), restricts the ages of admission to Class E dance halls to persons between the ages of 14 and 18. This provision, as enacted, restricted admission to those between 14 and 17, but it was subsequently amended to include 18-year-olds. Parents, guardians, law enforcement, and dance-hall personnel are excepted from the ordinance’s age restriction. The ordinance also limits the hours of operation of Class E dance halls to between 1 p.m. and midnight daily when school is not in session. § 14 — 5(d)(2).
Respondent operates the Twilight Skating Rink in Dallas and obtained a license for a Class E dance hall. He divided the floor of his roller-skating rink into two sections with moveable plastic cones or pylons. On one side of the pylons, persons between the ages of 14 and 18 dance, while on the other side, persons of all ages skate to the same music — usually soul and “funk” music played by a disc jockey. No age or hour restrictions are applicable to the skating rink. Respondent does not serve alcohol on the premises, and security personnel are present. The Twilight does not have a selective admissions policy. It charges between $3.50 and $5 per person for admission to the dance hall and between $2.50 and $5 per person for admission to the skating rink. Most of the patrons are strangers to each other, and the establishment serves as many as 1,000 customers per night.
Respondent sued in the District Court of Dallas County to enjoin enforcement of the age and hour restrictions of the ordinance. He contended that the ordinance violated substantive due process and equal protection under the United States and Texas Constitutions, and that it unconstitutionally infringed the rights of persons between the ages of 14 and 17 (now 18) to associate with persons outside that age bracket. The trial court upheld the ordinance, finding that it was rationally related to the city’s legitimate interest in ensuring the safety and welfare of children.
The Texas Court of Appeals upheld the ordinance’s time restriction, but it struck down the age restriction. 744 S. W. 2d 165 (1987). The Court of Appeals held that the age restriction violated the First Amendment associational rights of minors. To support a restriction on the fundamental right of “social association,” the court said that “the legislative body must show a compelling interest,” and the regulation “must be accomplished by the least restrictive means.” Id., at 168. The court recognized the city’s interest in “protecting] minors from detrimental, corrupting influences,” ibid., but held that the “City’s stated purposes . . . may be achieved in ways that are less intrusive on minors’ freedom to associate,” id., at 169. The Court of Appeals stated that “[a] child’s right of association may not be abridged simply on the premise that he ‘might’ associate with those who would persuade him into bad habits,” and that “neither the activity of dancing per se, nor association of children aged fourteen through eighteen with persons of other ages in the context of dancing renders such children peculiarly vulnerable to the evils that defendant City seeks to prevent.” Ibid. We granted certiorari, 488 U. S. 815 (1988), and now reverse.
The dispositive question in this case is the level of judicial “scrutiny” to be applied to the city’s ordinance. Unless laws “create suspect classifications or impinge upon constitutionally protected rights,” San Antonio Independent School Dist. v. Rodriguez, 411 U. S. 1, 40 (1973), it need only be shown that they bear “some rational relationship to a legitimate state purpose,” id., at 44. Respondent does not contend that dance-hall patrons are a “suspect classification,” but he does urge that the ordinance in question interferes with associational rights of such patrons guaranteed by the First Amendment.
While the First Amendment does not in terms protect a “right of association,” our cases have recognized that it embraces such a right in certain circumstances. In Roberts v. United States Jaycees, 468 U. S. 609 (1984), we noted two different sorts of “freedom of association” that are protected by the United States Constitution:
“Our decisions have referred to constitutionally protected ‘freedom of association’ in two distinct senses. In one line of decisions, the Court has concluded that choices to enter into and maintain certain intimate human relationships must be secured against undue intrusion by the State because of the role of such relationships in safeguarding the individual freedom that is central to our constitutional scheme. In this respect, freedom of association receives protection as a fundamental element of personal liberty. In another set of decisions, the Court has recognized a right to associate for the purpose of engaging in those activities protected by the First Amendment — speech, assembly, petition for the redress of grievances, and the exercise of religion.” Id., at 617-618.
It is clear beyond cavil that dance-hall patrons, who may number 1,000 on any given night, are not engaged in the sort of “intimate human relationships” referred to in Roberts. The Texas Court of Appeals, however, thought that such patrons were engaged in a form of expressive activity that was protected by the First Amendment. We disagree.
The Dallas ordinance restricts attendance at Class E dance halls to minors between the ages of 14 and 18 and certain excepted adults. It thus limits the minors’ ability to dance with adults who may not attend, and it limits the opportunity of such adults to dance with minors. These opportunities might be described as “associational” in common parlance, but they simply do not involve the sort of expressive association that the First Amendment has been held to protect. The hundreds of teenagers who congregate each night at this particular dance hall are not members of any organized association; they are patrons of the same business establishment. Most are strangers to one another, and the dance hall admits all who are willing to pay the admission fee. There is no suggestion that these patrons “take positions on public questions” or perform any of the other similar activities described in Board of Directors of Rotary International v. Rotary Club of Duarte, 481 U. S. 537, 548 (1987).
The cases cited in Roberts recognize that “freedom of speech” means more than simply the right to talk and to write. It is possible to find some kernel of expression in almost every activity a person undertakes — for example, walking down the street or meeting one’s friends at a shopping mall — but such a kernel is not sufficient to bring the activity within the protection of the First Amendment. We think the activity of these dance-hall patrons — coming together to engage in recreational dancing — is not protected by the First Amendment. Thus this activity qualifies neither as a form of “intimate association” nor as a form of “expressive association” as those terms were described in Roberts.
Unlike the Court of Appeals, we do not think the Constitution recognizes a generalized right of “social association” that includes chance encounters in dance halls. The Court of Appeals relied, mistakenly we think, on a statement from our opinion in Griswold v. Connecticut, 381 U. S. 479, 483 (1965), that “[t]he right to freely associate is not limited to ‘political’ assemblies, but includes those that ‘pertain to the social, legal, and economic benefit’ of our citizens.” 744 S. W. 2d, at 168, quoting Griswold v. Connecticut, supra, at 483. But the quoted language from Griswold recognizes nothing more than that the right of expressive association extends to groups organized to engage in speech that does not pertain directly to politics.
The Dallas ordinance, therefore, implicates no suspect class and impinges on no constitutionally protected right. The question remaining is whether the classification engaged in by the city survives “rational-basis” scrutiny under the Equal Protection Clause. The city has chosen to impose a rule that separates 14- to 18-year-olds from what may be the corrupting influences of older teenagers and young adults. Ray Couch, an urban planner for the city’s Department of Planning and Development, testified:
“ ‘[0]lder kids [whom the ordinance prohibits from entering Class E dance halls] can access drugs and alcohol, and they have more mature sexual attitudes, more liberal sexual attitudes in general. . . . And we’re concerned about mixing up these [older] individuals with youngsters that [sic] have not fully matured.’” 744 S. W. 2d, at 168, n. 3.
A Dallas police officer, Wesley Michael, testified that the age restriction was intended to discourage juvenile crime.
Respondent claims that this restriction “has no real connection with the City’s stated interests and objectives.” Brief for Respondent 13. Except for saloons and teenage dance halls, respondent argues, teenagers and adults in Dallas may associate with each other, including at the skating area of the Twilight Skating Rink. Id., at 14. Respondent also states, as did the court below, that the city can achieve its objectives through increased supervision, education, and prosecution of those who corrupt minors. Id., at 15.
We think respondent’s arguments misapprehend the nature of rational-basis scrutiny, which is the most relaxed and tolerant form of judicial scrutiny under the Equal Protection Clause. In Dandridge v. Williams, 397 U. S. 471 (1970), in rejecting the claim that Maryland welfare legislation violated the Equal Protection Clause, the Court said:
“[A] State does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect. If the classification has some ‘reasonable basis,’ it does not offend the Constitution simply because the classification ‘is not made with mathematical nicety or because in practice it results in some inequality.’ Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61, 78.
‘The problems of government are practical ones and may justify, if they do not require, rough accommodations — illogical, it may be, and unscientific.’ Metropolis Theatre Co. v. City of Chicago, 228 U. S. 61, 69-70. . . .
“. . . [The rational-basis standard] is true to the principle that the Fourteenth Amendment gives the federal courts no power to impose upon the States their views of what constitutes wise economic or social policy.” Id., at 485-486 (footnote omitted).
We think that similar considerations support the age restriction at issue here. As we said in New Orleans v. Dukes, 427 U. S. 297, 303-304 (1976): “[I]n the local economic sphere, it is only the invidious discrimination, the wholly arbitrary act, which cannot stand consistently with the Fourteenth Amendment.” See also United States Railroad Retirement Board v. Fritz, 449 U. S. 166, 177 (1980). The city could reasonably conclude, as Couch stated, that teenagers might be susceptible to corrupting influences if permitted, unaccompanied by their parents, to frequent a dance hall with older persons. See 7 E. McQuillin, Law of Municipal Corporations §24.210 (3d ed. 1981) (“Public dance halls have been regarded as being in that category of businesses and vocations having potential evil consequences”). The city could properly conclude that limiting dance-hall contacts between juveniles and adults would make less likely illicit or undesirable juvenile involvement with alcohol, illegal drugs, and promiscuous sex. It is true that the city allows teenagers and adults to roller-skate together, but skating involves less physical contact than dancing. The differences between the two activities may not be striking, but differentiation need not be striking in order to survive rational-basis scrutiny.
We hold that the Dallas ordinance does not infringe on any constitutionally protected right of association, and that a rational relationship exists between the age restriction for Class E dance halls and the city’s interest in promoting the welfare of teenagers. The judgment of the Court of Appeals is therefore reversed, and the cause is remanded for further proceedings not inconsistent with this opinion.
It is so ordered.
Dallas also licenses Class A, B, and C dance halls, which differ in the number of days per week dancing is permitted; Class D is for dance instruction. Persons under 17 must be accompanied by a parent for admission to Class A, B, and C dance halls. Dallas City Code §§ 14-1, 14-8 (1985-1986). A dance-hall license is not needed if the dance is at any of the following locations: a private residence from which the general public is excluded; a place owned by the federal, state, or local government; a public or private elementary school, secondary school, college, or university; a place owned by a religious organization; or a private club. Ibid.
Section 14-8.1 of the Dallas City Code provides:
“(a) No person under the age of 14 years or over the age of 18 years may enter a Class E dance hall.
“(b) A person commits an offense if he is over the age of 18 years and:
“(1) enters a Class E dance hall; or
“(2) for the purposes of gaining admittance into a Class E dance hall, he falsely represents himself to be:
“(A) of an age from 14 years through 18 years;
“(B) a licensee or an employee of the dance hall;
“(C) a parent or guardian of a person inside the dance hall;
“(D) a governmental employee in the performance of his duties.
“(c) A licensee or an employee of a Class E dance hall commits an offense if he knowingly allows a person to enter or remain on the premises of a dance hall who is:
“(1) under the age of 14 years; or
“(2) over the age of 18 years.
“(d) It is a defense to prosecution under Subsections (b)(1) and (c)(2) that the person is:
“(1) a licensee or employee of a dance hall;
“(2) a parent or guardian of a person inside the dance hall; or
“(3) a governmental employee in the performance of his duties.”
The Court of Appeals held that respondent had standing to assert the associational rights of the teenage patrons of his establishment. 744 S. W. 2d 165, 168 (1987). That issue has not been raised before us.
The Court considered similar factors in Prince v. Massachusetts, 321 U. S. 158 (1944), where it upheld, over claims of infringement on religious freedom and equal protection, a statute prohibiting children under 12 from selling newspapers on the street. After noting that the statute would have been invalid if applied to adults, the Court said:
“The state’s authority over children’s activities is broader than over like actions of adults. This is peculiarly true of public activities and in matters of employment. . . . Among evils most appropriate for such action are the crippling effects of child employment, more especially in public places, and the possible harms arising from other activities subject to all the diverse influences of the street. It is too late now to doubt that legislation appropriately designed to reach such evils is within the state’s police power.” Id., at 168-169 (footnotes omitted).
See also Bellotti v. Baird, 443 U. S. 622, 635 (1979) (plurality opinion), quoting McKeiver v. Pennsylvania, 403 U. S. 528, 550 (plurality opinion) (“State is entitled to adjust its legal system to account for children’s vulnerability and their need for ‘concern, . . . sympathy, and . . . paternal attention’ ”); Ginsberg v. New York, 390 U. S. 629 (1968) (upholding right of State to prohibit sale of “girlie” magazines to minors).'
Question: What treatment did the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed?
A. stay, petition, or motion granted
B. affirmed
C. reversed
D. reversed and remanded
E. vacated and remanded
F. affirmed and reversed (or vacated) in part
G. affirmed and reversed (or vacated) in part and remanded
H. vacated
I. petition denied or appeal dismissed
J. modify
K. remand
L. unusual disposition
Answer:
|
songer_r_fiduc
|
99
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "fiduciaries". 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.
NATIONAL BRICK & SUPPLY COMPANY, Inc., a corporation, et al., Appellants, v. William E. BAYLOR et al., Trustees of Mount Joy Baptist Church, Appellees. Abraham GRUNSTEIN, Abraham Fix, and Louis Nadelman, Partners, t/a Columbia Building Products Company, Appellants, v. William E. BAYLOR et al., Trastees of Mount Joy Baptist Church, Appellees.
Nos. 16338, 16339.
United States Court of Appeals District of Columbia Circuit.
Argued Oct. 23, 1961.
Decided Feb. 1, 1962.
Mr. Mark P. Friedlander, Washington, D. C., with whom Messrs. Mark P. Fried-lander, Jr., and Blaine P. Friedlander, Washington, D. C., were on the brief for appellant National Brick & Supply Co., Inc., in No. 16338, argued for all appellants in both cases.
Mr. George H. Windsor, Washington, D. C., with whom Mr. George E. C. Hayes, Washington, D. C., was on the brief, for appellees.
Mr. George Greenberg, Washington, D. C., was on the brief for appellants in No. 16339.
Mr. Dexter M. Kohn, Washington, D. C., was on the brief for appellant Hudson Supply & Equipment Co., in No. 16338.
Before Edgerton, Bazelon and Bastían, Circuit Judges.
EDGERTON, Circuit Judge.
Areawide Building Corporation contracted with appellees, the trustees of Mount Joy Baptist Church, to make alterations and additions to the church building, payment to be made in installments as the work progressed. Areawide abandoned the work after several payments had been made. Article 10 of the contract provided: “Should the Contractor neglect to prosecute the work properly, or fail to perform any provision of the contract, the Owner, after seven days’ written notice to the Contractor, may. without prejudice to any other remedy he may have, * * * terminate the contract and take possession of all materials, tools, and appliances and finish the work by such means as he sees fit, and if the unpaid balance of the contract price exceeds the expense of finishing the work, such excess shall be paid to the Contractor * * Not long after the church learned that Areawide had abandoned the work, the church exercised its right to terminate the contract.
Appellants are subcontractors suing to enforce mechanic’s liens. They filed these liens within three months after Areawide abandoned the work and are entitled to share in any sums the church may owe Areawide, the prime contractor. D.C.Code § 38-103 (1961). The District Court ruled that the church’s expense of finishing the work exceeded the balance due from the church to the prime contractor and therefore appellants could not enforce their liens.
After Areawide abandoned the work, but before the church learned that fact and terminated the contract, one Bortolussi, a subcontractor trading as Washington Heating & Plumbing Company, who had nearly completed his work and received most of his pay, filed a mechanic’s lien for the value of radiation equipment in place. He afterwards removed the equipment.
The removal was tortious. Bortolussi was chargeable with notice of the terms of the contract between Area-wide and the church. That contract cannot be thought to authorize either the contractor or a subcontractor to remove and not replace materials, particularly when, as in this case, the “trim-draw” progress payment had been made in reliance on the presence of the equipment. By filing a lien, Bortolussi recognized the church’s superior right to immediate possession. He testified that he removed the equipment with Areawide’s permission. But this is not here material, because Areawide could not bind the church.
The church was entitled to require Bortolussi to replace what he had wrongfully removed or pay damages. Instead of demanding that he do so, the church made a new contract with him by which it undertook to pay him and did pay him for replacing the equipment. There is no showing that he was insolvent or that, for any reason, the church could not have enforced its rights against him if it had tried to do so. In the absence of some such showing, the amount that the church paid Bortolussi for doing what he was already bound to do should not be regarded as a part, because it was not a reasonably necessary part, of “the expense of finishing the work”. The church is therefore not entitled, as against the appellant lien holders, to deduct the amount in question from the unpaid balance due from the church to Areawide. It results that there is a balance in which appellants are entitled to share. D.C.Code § 38-106 makes it the owner’s duty to retain for subcontractors who have filed liens, payments that become due to the contractor. Under the lien law, appellant subcontractors are entitled to the benefit of the contract between Areawide and the church. Cf. Riggs Fire Ins. Co. v. Shedd, 16 App.D.C. 150, 158 (1900).
The District Court rightly held that the lienors were not entitled to satisfy their liens out of sums which the church paid Areawide before the liens were filed and before the church learned that Areawide had abandoned the contract.
The judgment is vacated and the case remanded to the District Court for further proceedings consistent with this opinion.
Vacated and remanded.
. He later released this lien. He after-wards filed a second lien which the District Court found untimely. No appeal was taken from that decision.
. The equipment seems to have been subject to a conditional sales contract between Bortolussi and his supplier.
. D.C.Code § 38-107 (1961) entitles subcontractors to demand from the owner a statement of the terms of the prime contract. “The subcontractor should acquaint himself with the terms and conditions of the building contract. * * * In the absence of anything to the contrary, we must assume that the plaintiff possessed this information.” Winter v. Hazen-Latimer Co., 42 App.D.C. 469, 474 (1914).
. D.C.Code § 38-101 (1961).
. Cf. Carey v. Cyr, 150 Me. 405, 113 A.2d 614 (1955); Van Winkle v. Crowell, 146 U.S. 42, 50-51, 13 S.Ct. 18, 36 L.Ed. 880 (1892).
. The District Court said “This contract was not for work which had already been performed * * But this is contradicted by the court’s earlier finding that “Bartolussi removed certain materials, some of which had been installed, from the job site” and by the record. The new contract was to finish the job, which involved not only new work but also replacing the materials which had been installed and afterwards removed.
Question: What is the total number of respondents in the case that fall into the category "fiduciaries"? Answer with a number.
Answer:
|
songer_civproc1
|
0
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited federal rule of civil procedure in the headnotes to this case. Answer "0" if no federal rules of civil procedure are cited. For ties, code the first rule cited.
MARTIN v. UNITED STATES.
No. 5762.
Circuit Court of Appeals, Fourth Circuit.
July 7, 1948.
Robert S. Martin, pro se.
Walter H. Hood, Asst. U. S. Atty., of Greenville, S. C. (Oscar H. Doyle, U. S. Atty., of Anderson, S. C., on the brief), for appellee.
Before PARKER and DOBIE, Circuit Judges, and WEBB, District Judge.
PER CURIAM.
This is an appeal from an order denying a motion to vacate a judgment and sentence and issue a writ of habeas corpus. Appellant complains that he was not indicted for the offense for which he was sentenced and that counsel was not assigned him. It appears from the record of proceedings in the court below, however, that he was clearly informed in open court of the nature of the charge against him, which was violation of the motor vehicle theft act, and that he thereupon stated that he did not wish the court to appoint a lawyer for him and that he wished to waive indictment and plead guilty on an information charging the crime. The record leaves no doubt that he thoroughly understood what he was doing, that his rights were carefully explained to him and that he freely and voluntarily waived counsel and indictment. The application to vacate the judgment and sentence and issue a writ of habeas corpus was pioperly denied.
Affirmed.
Question: What is the most frequently cited federal rule of civil procedure in the headnotes to this case? Answer with a number.
Answer:
|
songer_counsel2
|
F
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
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
Arthur Frederick GOODE, Jr., Individually and as next friend acting on behalf of Arthur Frederick Goode, III, Petitioner-Appellant, v. Louie L. WAINWRIGHT, Secretary of Corrections, Dept. of Corrections of the State of Florida, et al., Respondents-Appellees.
No. 84-3224.
United States Court of Appeals, Eleventh Circuit.
April 4, 1984.
Sanford Bohrer, Charles Senatore, Miami, Fla., for petitioner-appellant.
Charles Corees, Jr., Asst. Atty. Gen., Tampa, Fla., for respondents-appellees.
Before GODBOLD, Chief Judge, and RO-NEY and TJOFLAT, Circuit Judges.
BY THE COURT:
Petitioner Arthur Frederick Goode, III, through his father and next friend, is a Florida prisoner under sentence of death for killing a ten-year-old boy. For the previous history of this case see Goode v. Wainwright, 704 F.2d 593 (11th Cir.1983); Wainwright v. Goode, - U.S. -, 104 S.Ct. 378, 78 L.Ed.2d 187 (1983); Goode v. Wainwright, 725 F.2d 106 (11th Cir.1984).
In our 1984 opinion we affirmed the denial of the writ. Then, pursuant to Florida Statute 922.07, the governor of Florida entered an executive order appointing a commission of three psychiatrists to examine Goode. The members of the commission advised the governor that, based upon their examination, Goode (in the language of the statute) understood the nature and the effect of the death penalty and why it was to be imposed upon him. Thereafter, on March 6, the governor signed a warrant directing the execution of Goode; execution is scheduled for April 5, 1984.
On March 30, 1984 Goode filed a petition for Writ of Habeas Corpus in the Supreme Court of Florida, and that court entered its opinion and decision April 2. Goode raised two issues for the first time: (1) that he is presently insane and that it violates the Constitution to execute an insane person, and (2) that Florida Statute 922.07 denies him procedural due process. The Florida Supreme Court rejected both issues on the merits.
On April 3 petitioner filed in the United States District Court, M.D. Florida, a petition for the writ of habeas corpus, raising only the two issues that had been raised in the Florida Supreme Court. The district court, without a hearing but with a lengthy opinion, denied the writ April 4, 1984. The court denied a certificate of probable cause and denied a stay of execution.
The matter is now before this court on notice of appeal, application for CPC, and motion for stay of execution and for emergency relief.
The second claim, the attack on the Florida statute, is made on procedural due process grounds. We hold that the statute meets minimum standards required by procedural due process. Solesbee v. Balkcom, 339 U.S. 9, 70 S.Ct. 457, 94 L.Ed. 604 (1950); see also Caritativo v. California, 357 U.S. 549, 78 S.Ct. 1263, 2 L.Ed.2d 1531 (1958).
The first claim is rooted in substantive due process and the eighth amendment. In its opinion of April 2 the Florida Supreme Court held that in Florida an insane person cannot be executed. There has been no conclusive determination whether there is such a constitutional entitlement under federal law. Assuming that there is such a right, we agree with the district court that petitioner is barred from raising it in this case because of abuse of the writ. Woodard v. Hutchins, — U.S.-, 104 S.Ct. 752, 78 L.Ed.2d 541 (1984); Rule 9(b) foil. 28 U.S.C. § 2254.
In his first federal habeas case Goode contended that he was not competent to stand trial or to waive trial counsel. This court rejected both contentions. 704 F.2d at 596-99. Petitioner asserts that his substantive due process/eighth amendment claim is a newly ripened claim that could not be presented until the governor had gone through the § 922.07 procedures. This theory assumes that the issue of insanity vel non barring execution is dependent upon the governor’s implementation of the statutory procedures of § 922.07. This is not so. If Goode contended, on substantive due process and eighth amendment grounds, that he could not be executed because of post-conviction insanity, he was free to assert this contention in state and federal courts from the time that the state court sentenced him to death; thereby he could secure an orderly determination of his then current mental condition. Certainly he could have raised the issue when the governor signed his first execution warrant in 1982. Goode has made no such contention in his state merits appeal, in his state collateral attack on his conviction, or in his first federal habeas case.
If the substantive due process/eighth amendment issue of alleged insanity barring execution had been timely raised and determined in court, circumstances might thereafter have changed, and an updated determination of competency might thereafter have been made based on a showing of changed conditions. But this does not mean that post-conviction insanity could be held back as an issue until the eve of execution and then raised for the first time.
The motion for certificate of probable cause is DENIED. The motion for stay is DENIED.
. Gray v. Lucas, 710 F.2d 1048 (5th Cir.1983), cert. denied, — U.S. -, 104 S.Ct. 211, 77 L.Ed.2d 1453 (1984).
. There has been no authoritative determination of the standards for insanity that bar execution. Gray v. Lucas, supra.
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_respond1_1_2
|
D
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to classify the scope of this business into one of the following categories: "local" (individual or family owned business, scope limited to single community; generally proprietors, who are not incorporated); "neither local nor national" (e.g., an electrical power company whose operations cover one-third of the state); "national or multi-national" (assume that insurance companies and railroads are national in scope); and "not ascertained".
EUREKA CO. et al. v. HENNEY MOTOR CO.
No. 6313.
Circuit Court of Appeals, Third Circuit.
Aug. 3, 1937.
Hugh M. Morris, of Wilmington, Del., C. E. Sheldon, of Sterling, 111., and Toulmin & Toulmin, of Dayton, Ohio (Hugh M. Morris, of Wilmington, Del., C. E. Sheldon. of Sterling, 111., H. A. Toulmin and H. A. Toulmin, Jr., both of Dayton, Ohio, of counsel), for appellants.
Russell Wiles and George A. Chritton, both of Chicago, 111., Charles H. Green, of Freeport, 111., and William G. Mahaffy, of Wilmington, Del. (Chritton, Wiles, Davies, Hirschl & Dawson, of Chicágo, 111., of counsel), for appellee.
Before BUFFINGTON and BIGGS, Circuit Judges, and DICKINSON, District Judge.
Rehearing denied Oct. 19, 1937.
BUFFINGTON, Circuit Judge.
This case concerns burial hearses having a movable casket table adapted to being projected laterally outside a side door of a hearse so as to receive a coffin and thereafter to be turned back into a longitudinal position in the hearse. It will be seen that the hearse could in this way stand sideways along a curb and not at right angles and stop traffic. This structure was embodied in patent No. 1,721,391, granted July 16, 1929, to Heise. Subsequently one Henney acquired an exclusive license of the patent to make, use, and sell the patented hearse. Thereafter he granted a sublicense to the Eureka Company, the plaintiff. It brought the present suit against the Henney Motor Company, which had acquired Henney’s right to the patent, charging unfair competition and praying an injunction restraining defendants from making alleged misstatements as to plaintiff’s interest in the patent. On final hearing, the court below, in an opinion reported in (D.C.) 14 F.Supp. 764, 766, dismissed the bill. Thereafter Eureka took this appeal. Reference to such opinion obviates restatement of the voluminous proofs and contentions of the parties.
In the final analysis the case narrows to the issue stated by the lower court in its opinion as follows: “Can Eureka sell Heise parts or tables to hearse manufacturers separate and apart from finished hearses ? The real controversy between the parties hinges upon the answer to that-question. If Eureka can sell such separate parts, then its nonexclusive license was not forfeited and the alleged acts of unfair competition on the part of defendant are not justified. On the other hand, if Eureka cannot sell such separate parts its non-exclusive license was forfeited and the advertisements and statements of defendant may be justified.”
On the hearing before us both parties ask us to determine this question and end the controversy. The pertinent provisions of the sublicense to Eureka are as follows: “The Licensor hereby grants to the Licensee a nonexclusive license to make in its principal place of business wherever situated, and at no other place or places and to use and sell in the United States and throughout the world hearses and other vehicles embodying the inventions disclosed or claimed in said above identified applications for letters patent. * * * said grant to be subject to the following terms and conditions. * * * The Licensee agrees to keep accurate books of account showing dates of shipment or delivery of each and every side loading hearse (or assembly of principal parts used in making hearses) shipped or delivered by Licensee during the term of this agreement, said books to clearly show the name and address of each customer and the serial number of each hearse shipped to each customer. * * * Licensee agrees to use its best efforts to promote the sale of side loading hearses. Should Licensee during any calendar year during the term of this agreement fail to manufacture and sell a minimum of Twenty hearses embodying side loading features, it is agreed that said failure of Licensee to so manufacture and sell shall automatically terminate this agreement.”
After argument and full consideration of the terms of the sublicense, we are of opinion Eureka had no right to sell Heise parts or tables to hearse manufacturers separate and apart from finished hearses and, so holding, the decree of the court dismissing the bill, on account of our so construing the sublicense, is affirmed.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business?
A. local
B. neither local nor national
C. national or multi-national
D. not ascertained
Answer:
|
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.