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songer_appel1_7_5
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A
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine which of these categories best describes the income of the litigant. Consider the following categories: "not ascertained", "poor + wards of state" (e.g., patients at state mental hospital; not prisoner unless specific indication that poor), "presumed poor" (e.g., migrant farm worker), "presumed wealthy" (e.g., high status job - like medical doctors, executives of corporations that are national in scope, professional athletes in the NBA or NFL; upper 1/5 of income bracket), "clear indication of wealth in opinion", "other - above poverty line but not clearly wealthy" (e.g., public school teachers, federal government employees)." Note that "poor" means below the federal poverty line; e.g., welfare or food stamp recipients. There must be some specific indication in the opinion that you can point to before anyone is classified anything other than "not ascertained". Prisoners filing "pro se" were classified as poor, but litigants in civil cases who proceed pro se were not presumed to be poor. Wealth obtained from the crime at issue in a criminal case was not counted when determining the wealth of the criminal defendant (e.g., drug dealers).
UNITED STATES of America, Plaintiff-Appellee, v. Elias MARTINEZ, Defendant-Appellant.
No. 79-5558.
United States Court of Appeals, Fifth Circuit.
Nov. 13, 1980.
David Bruce Neeley, McAllen, Tex., for defendant-appellant.
James R. Gough, Jr., Asst. U. S. Atty., Houston, Tex., for plaintiff-appellee.
Before THORNBERRY, GEE and REAVLEY, Circuit Judges.
GEE, Circuit Judge:
Defendant Elias Martinez appeals his criminal conviction on the ground that he was denied effective assistance of counsel. Martinez was tried on seven counts of distributing or conspiring to distribute heroin in violation of 21 U.S.C. §§ 841(a)(1), 846, and he was represented by retained counsel, Matias Morin. Among the witnesses against Martinez was Alonso Quintanilla, Jr., who figured in three of the counts upon which Martinez was tried. Quintanilla had previously been convicted on a heroin charge arising out of the same transaction as underlay one of the counts against Martinez, and the government had dismissed another charge against Quintanilla that involved the same events as another of Martinez’ counts. The attorney who represented Quintanilla on these matters was also Matias Morin.
As Martinez’ trial was about to begin, Morin observed that Quintanilla was in the courtroom as a witness for the prosecution, which was a surprise to him because Quintanilla’s name had not been on a list of government witnesses that the prosecution had provided him. As soon as the court convened, Morin informed the judge that he had previously represented Quintanilla on charges related to the defendant’s, that he would feel uncomfortable cross examining Quintanilla because to do so thoroughly would require him to broach matters that Quintanilla had told him in confidence, and that this discomfort might impair his effectiveness in representing Martinez. The court, however, instructed Morin to proceed to trial and to question Quintanilla vigorously because the charges against Quintanilla had been resolved and Morin’s representation of him completed and thus Morin had no conflict of interest that might impair his representation of Martinez. Morin complied with the court’s directive and, at the appropriate time, cross examined Quintanilla. Martinez was convicted on all seven counts and was given concurrent sentences for each of ten years imprisonment followed by four years special probation. We find that the defendant’s convictions on some of the seven counts cannot stand.
The rule in this circuit is clear: if a criminal defendant is represented at trial by an attorney, either appointed or retained, who labors under an actual, and not merely a potential, conflict of interest, the defendant has been denied effective assistance of counsel as a matter of law; and, unless he has knowingly and intelligently waived his sixth amendment right to conflict-free representation, reversal is automatic. No prejudice need be shown. Stephens v. United States, 595 F.2d 1066 (5th Cir. 1979); Zuck v. Alabama, 588 F.2d 436 (5th Cir.), cert. denied, 444 U.S. 833, 100 S.Ct. 63, 62 L.Ed.2d 42 (1979); United States v. Alvarez, 580 F.2d 1251 (5th Cir. 1978). Although we have previously applied this rule where a defendant’s attorney concurrently represented a prosecution witness at trial, Stephen, supra; Alvarez, supra, we apparently have not yet applied it where the attorney only previously represented such a witness. We do so now, however, on the facts of the present case.
The defendant’s attorney informed the court that effective representation of his client would compel him to .violate confidences that had been entrusted to him by his prior client and that he was reluctant to do so. By his own admission, therefore, Morin perceived-and rightly so-that he had a duty to Quintanilla to preserve the latter’s confidential communications; and he felt that this duty, coupled with his commitment to Martinez to serve “as a vigorous advocate having the single aim of acquittal by all means fair and honorable,” Porter v. United States, 298 F.2d 461, 463 (5th Cir. 1962), presented him with an actual conflict of interest. Since Morin explained his predicament to the court as soon as he became aware of it and not, for example, in a belated motion for mistrial after he had already cross examined his former client, see United States v. Cochran, 499 F.2d 380 (5th Cir. 1974), cert. denied, 419 U.S. 1124, 95 S.Ct. 810, 42 L.Ed.2d 825 (1975), we have no reason to doubt his sincerity. The record of Morin’s cross examination of Quintanilla, moreover, strongly suggests that Morin-torn between conflicting duties-in fact found it necessary to trench upon the confidential relationship between himself and Quintanilla. While the record thus appears to disclose that Morin in fact interrogated Quintanilla quite vigorously for the benefit of Martinez, we cannot be sure that, because he failed to pull some punches, he refrained from pulling others. And even could we be sure, our precedents establish that a lack of actual prejudice is irrelevant if an actual conflict of interest obtains.
We conclude, therefore, that Martinez did not receive effective assistance of counsel with regard to the cross examination of Quintanilla. It is clear, moreover, that Martinez did not waive his right to such assistance:
In order for a defendant effectively to waive his right to conflict-free counsel, the trial judge should affirmatively participate in the waiver decision by eliciting a statement in narrative form from the defendant indicating that he fully understands the nature of the situation and has knowingly and intelligently made the decision to proceed with the challenged counsel. United States v. Garcia, 517 F.2d 272 (5th Cir. 1975); see also Gray v. Estelle, 574 F.2d 209, 213 (5th Cir. 1978); United States v. Mahar, 550 F.2d 1005 (5th Cir. 1978).
Alvarez, 580 F.2d at 1260; see Zuck, 588 F.2d at 440. Not only does the record fail to show that the trial judge addressed the defendant at all on the subject of waiver, but, since Morin’s discussion with the judge was a bench conference, the record does not even support an inference that the defendant was aware that his attorney believed himself plagued by a conflict of interest.
While we find that Martinez’ sixth amendment right was violated and that that right was not waived, we do not find that the violation infected the entire trial. Martinez’ counsel was constitutionally ineffective only with regard to his cross examination of Quintanilla, and Quintanilla’s testimony was conceivably relevant to three counts only of those on which Martinez was tried. We therefore reverse the defendant’s conviction on those counts but on those alone.
AFFIRMED in part, REVERSED in part.
. Consider, for example, the following passages of their dialogue:
Q [by Morin] Let’s go on to these other three ounces that you delivered in September. Didn’t you at one time tell me you got these three ounces from a man in Reynosa?
A [by Quintanilla] No.
Q Did you ever tell me where you got these three ounces?
A No, just now.
Q This is the very first time you told me where you got these three ounces, is that correct?
A Yes.
Q Let me ask you, didn’t you at one time give me a written statement telling me where you got those three ounces?
A Yes, I had given a writ, but the owner had not signed as to who those ounces belonged to.
Q What did you state in that written statement you gave me?
A I don’t remember any more.
Q Do you remember anything?
A No.
Q Do you remember mentioning any names?
A Yes, I do remember a name, but I don’t remember the name of the man who went to buy from me at the house.
Q What’s that name?
A I don’t remember.
Q Do you remember anything else you mentioned in that statement?
Q Let me ask you, did you mention this man’s (indicating [Martinez]) name in that statement?
A No. But you know who it was.
Q His name wasn’t there?
A It wasn’t. But you knew who was there.
Q Where did you sell these three ounces?
A On Tower Road.
Q Who lives there at that place?
A It was a friend who lived there. The place where I made the deal was at the house of one of his brothers.
Q Who was your friend?
A His name is Roberto, but I don’t remember his last name.
Q Robert Valdez, would that refresh your memory?
A Yes.
. All of the cases that have been brought to our attention in which this court did not find ineffective assistance of counsel where a defense attorney had previously represented a witness, Haggard v. Alabama, 550 F.2d 1019 (5th Cir. 1977); United States v. James, 505 F.2d 898 (5th Cir.), cert. denied, 421 U.S. 1000, 95 S.Ct. 2397, 44 L.Ed.2d 667 (1975); United States v. Cochran, 499 F.2d 380 (5th Cir. 1974), cert. denied, 419 U.S. 1124, 95 S.Ct. 810, 42 L.Ed.2d 825 (1975); Nelson v. United States, 415 F.2d 483 (5th Cir. 1969), cert. denied, 396 U.S. 1060, 90 S.Ct. 751, 24 L.Ed.2d 754 (1970); Harrison v. United States, 387 F.2d 614 (5th Cir. 1968), are easily distinguishable. All were decided prior to United States v. Alvarez, 580 F.2d 1251 (5th Cir. 1978), which relying on Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978), held that if a defendant’s attorney had an actual conflict of interest, no prejudice need be shown, and all rested at least in part on the absence of prejudice to the defendant. In all of the cases except Haggard, moreover, the attorney had represented the witnesses on charges unrelated to those for which the defendant was tried.
. The affected counts are those numbered one, six, and seven in the indictment.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Which of these categories best describes the income of the litigant?
A. not ascertained
B. poor + wards of state
C. presumed poor
D. presumed wealthy
E. clear indication of wealth in opinion
F. other - above poverty line but not clearly wealthy
Answer:
|
songer_genresp2
|
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.
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.
Richard L. MITCHELL, Jr., Plaintiff-Appellant, v. LOS ANGELES COMMUNITY COLLEGE DISTRICT; Leslie Koltai; Virginia F. Mulrooney; Kenneth S. Washington; Catherine Close; Walter C. MacIntosh; Rodney A. Patterson, Defendants-Appellees.
Nos. 87-6553, 87-6618.
United States Court of Appeals, Ninth Circuit.
Submitted on Briefs Aug. 5, 1988.
Decided by Memorandum Aug. 17, 1988.
Redesignated as Opinion Nov. 8, 1988.
As Amended Jan. 11, 1989.
Richard L. Mitchell, Jr., Los Angeles, Cal., for plaintiff-appellant.
Warren S. Kinsler, Los Angeles Community College Dist., and Thomas Scheerer, Deputy Atty. Gen., Los Angeles, Cal., for defendants-appellees.
Before KOELSCH, FARRIS and WIGGINS, Circuit Judges.
The panel finds this case appropriate for submission without oral argument pursuant to Ninth Circuit Rule 34-4 and Fed.R.App.P. 34(a).
WIGGINS, Circuit Judge:
Richard Mitchell appeals from the district court’s grant of summary judgment to the defendants. The appellant brought a complaint alleging employment discrimination based on age, sex and race. The complaint raised claims under 42 U.S.C. §§ 1981, 1983 and 1985; 29 U.S.C. §§ 621-34 (Age Discrimination in Employment Act) (ADEA); 42 U.S.C. § 2000e-2000e-17 (Equal Employment Opportunities) (Title VII); for declaratory and injunctive relief and pendent state claims. The district court found that the appellant’s 1981, 1983 and 1985 claims, as well as his ADEA and Title VII claims, were barred by the statute of limitations. Alternatively, the court found that the appellant had failed to raise a genuine issue of material fact to support his allegations of discrimination. The court also found that the defendant Los Angeles Community College District (district) and the individual defendants, enjoyed eleventh amendment immunity from damages or in-junctive relief. Further, the court held that the plaintiff’s state based constitutional and statutory claims were time barred under California law. We AFFIRM.
FACTS
The appellant, a 56 year old black male, was a teacher in various capacities in Los Angeles public schools and at various community colleges in the appellee’s community college district. In October, 1981, Mitchell filed applications with the district for the positions of assistant dean and dean. The district maintained a “pool” of eligible candidates for these positions at the various Los Angeles community colleges. Members of the pool were eligible for these positions as they became open. Pool members did not have to reapply for these positions as they became available. In 1983, the appellant also applied for the position of Senior Director of Occupational and Technical Education with the district. This position was specially advertised and was not filled from a pool.
None of the application materials used by the district revealed an applicant’s race to those making hiring decisions. Since 1983, these materials also do not reveal an applicant’s age. Mitchell became eligible for various assistant dean and dean positions but was never offered a position. He was not recommended for hire after he filed a discrimination claim against the district, but the defendant responsible for not recommending him was unaware of his action. Only four applicants were reviewed for the Senior Director position. An internal policy required that five people be interviewed for the position by a selection committee; but, instead of readvertising the position, the district interviewed all of the applicants including Mitchell. All members of the selection committee rated him as below average in “knowledge of the area of the position” and quality and amount of relevant experience. The committee rated the successful candidate, a white woman, as “far above average” in these and all other categories of evaluation.
PROCEEDINGS
Early in 1984, the appellant filed a complaint against the district with the U.S. Department of Education Office for Civil Rights (OCR) alleging discrimination on the basis of race, sex and age in the district’s Senior Director decision. Because the complaint alleged employment discrimination, the filing with the OCR was deemed to be a simultaneous filing with the Equal Employment Opportunity Commission (EEOC). During the same time period, Mitchell also pursued internal remedies with the district as well as filing a charge with the state Department of Fair Employment and Housing (DFEH). The DFEH informed Mitchell that, pursuant to an agreement between the EEOC and the DFEH, it would defer its investigation to the EEOC. The EEOC, in turn, deferred its investigation to the OCR.
On November 7,1984, the OCR issued its findings and determination. It concluded that Mitchell was not selected because he lacked the necessary qualifications for the Senior Director position and not because of his race, sex or age. The OCR also found insufficient statistical evidence to conclude that there was a pattern and practice of discrimination on the basis of sex, race or age in the district’s hiring for administrative positions. On March 15, 1985, the EEOC issued a “Right to Sue” notice to Mitchell. He received it on March 19,1985.
On July 17, 1986, Mitchell filed this action in state court. Apparently, all of the defendants except for appellee Catherine Close were properly served. The defendants removed the case to federal court. On March 19, 1987, a default was entered against Close. On April 27, 1987, the district court found good cause to set aside the default because Close was never properly served. On February 9, 1987, all the defendants moved for summary judgment. On September 30, 1987, the court granted summary judgment to all defendants on all claims.
The district court found that the defendants did not discriminate against the plaintiff on the basis of race, age or sex, nor did they deprive him of due process. Relying on Wilson v. Garcia, 471 U.S. 261, 280, 105 S.Ct. 1938, 1949, 85 L.Ed.2d 254 (1985) the court determined that a one year statute of limitations applied to Mitchell’s 42 U.S.C. §§ 1981, 1983 and 1985 claims. Thus, any claims arising before July 17, 1985, were time barred. The court found these to include all claims relating to the district’s hiring decisions regarding the Senior Director position, the retaliation claims, and the claims that the district failed to properly investigate Mitchell’s internal claim. The court also found that the plaintiff’s ADEA and Title YII claims were barred because he failed to bring this action within 90 days of the EEOC’s “Right to Sue” notice. Alternatively, the court found that the appellant had failed to make out a prima facie Title VII employment discrimination claim under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03, 93 S.Ct. 1817, 1824-25, 36 L.Ed.2d 668 (1973), because the undisputed evidence showed that Mitchell was not qualified for the Senior Director position. The court also found no evidence of discrimination on the basis of age. As to the assistant dean and dean positions, the court found no evidence that the appellant was not hired in retaliation for filing his various complaints because the person responsible for the hiring decision was unaware of them.
The court also found that the district was an agency of the state and thus enjoyed eleventh amendment immunity from Mitchell's suit in damages and his request for injunctive relief. The court further found that all the facts alleged in the plaintiff's complaint related to actions by the individual defendants in their official capacities, acting within the course and scope of their employment. Therefore, the court found that they shared the district's eleventh amendment immunity. Alternatively, as employees performing discretionary functions, the court found these defendants to possess a qualified good faith immunity from the appellant's suit based on Harlow v. Fitzgerald, 457 U.S. 800, 817-19, 102 S.Ct. 2727, 2737-39, 73 L.Ed.2d 396 (1982). The court held that all the plaintiff's state claims were time barred under California law. The court awarded no attorney's fees to the defendants. The appellant timely appealed. We have jurisdiction under 28 U.S.C. § 1291.
DISCUSSION
A grant of summary judgment is reviewed de novo. Darring v. Kincheloe, 783 F.2d 874, 876 (9th Cir.1986).
I. Eleventh Amendment Immunity.
Under the eleventh amendment, agencies of the state are immune from private damage actions or suits for injunc-tive relief brought in federal court. Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 100, 104 S.Ct. 900, 907, 79 L.Ed.2d 67 (1984) (eleventh amendment proscribes suit against state agencies "regardless of the nature of the relief sought"); Alabama v. Pugh, 438 U.S. 781, 98 S.Ct. 3057, 57 L.Ed.2d 1114 (1978) (per curiam). To determine whether a governmental agency is an arm of the state, the following factors must be examined: whether a money judgment would be satisfied out of state funds, whether the entity performs central governmental functions, whether the entity may sue or be sued, whether the entity has the power to take property in its own name or only the name of the state, and the corporate status of the entity. Jackson v. Hayakawa, 682 F.2d 1344, 1350 (9th Cir.1982). To determine these factors, the court looks to the way state law treats the entity. Mount Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.s. 274, 280, 97 S.Ct. 568, 572, 50 L.Ed.2d 471 (1977); Rutledge v. Arizona Bd. of Regents, 660 F.2d 1345, 1349 (9th Cir.1981), aff'd. sub nom. Kush v. Rutledge, 460 U.S. 719, 103 S.Ct. 1483, 75 L.Ed.2d 413 (1983).
California cases demonstrate that California state colleges and universities are "dependent instrumentalities of the state." Hayakawa, 682 F.2d at 1350 (citing Slivkoff v. California State Univ. and Colleges, 69 Cal.App.3d 394, 400, 137 Cal.Rptr. 920, 924 (1977) ("California state universities and colleges are subject to full legislative control") and Poschman v. Dumke, 31 Cal.App.3d 932, 942, 107 Cal.Rptr. 596, 603 (1973) ("The Trustees of California State Colleges are a state agency created by the Legislature")). As the district court noted, the district's budget is made up of funds received from the state's general fund pursuant to a state calculated formula. In addition, some fees charged by the district's colleges go to the state. We hold that, under California law, the district is a state entity that possesses eleventh amendment immunity from the appellant's section 1981, 1983 and 1985 claims in damages and for injunctive relief. Likewise, the individual defendants share in the district's eleventh amendment immunity because they were sued in their official capacities. Such suits "are, in essence, actions against the governmental entity of which the officer is an agent." Hayakawa, 68 F.2d at 1350; see Monell v. New York City Dept. of Social Servs., 436 U.S. 658, 690 n 55, 98 S.Ct. 2018, 2035 n. 55, 56 L.Ed.2d 61 (1978).
II. ADEA and Title VIL
42 U.S.C. § 2000e-5(f)(1) (Civil a tion by Commission, Attorney General, o person aggrieved) requires that an aggriev ed party bring suit in court within 90 day of receipt of a "Right to Sue" notice. Th 90 day requirement is mandatory and juris dictional. Wong v. Bon Marche, 508 F.2 1249, 1251 (9th Cir.1975) (per curiam). Th appellant filed this suit raising these claim one year and five months after receipt o his "Right to Sue" notice, well after the 9( day period. We hold that the appellant i~ thus barred from raising his Title VII claim The appellant's ADEA claim is similarl3 time barred because he failed to bring suil within two years of the date his cause oi action accrued. 29 U.S.C. § 626(e)(1).
III. State claims.
Cal.Civ.Proc.Code § 340(1) (WesI Supp.1988) and Cal.Gov.Code § 12960 (Pro cedure for prevention and elimination ol unlawful employment practices) (Wesi 1980) both require that actions challenging such allegedly unlawful employment prac. tices be brought within one year of the practice complained of. The last actions at issue by the district occurred in 1983 or 1984. The appellant brought this action in July of 1986. We hold that the appellant's state claims are thus time barred.
IV. Default.
The district court set aside the clerk of court's entry of default against appellee ClOse. A district court's decision to enter or set aside a default is reviewed for an abuse of discretion. Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir.1980). The court found that Close had never been properly served by the appellant. Apparently, the appellant assumed that service on the district was sufficient to serve Close. Close, however, is not an employee of the district. Rather, she is a state employee who works for the state community college board in Sacramento. Also, Close was not represented by the same counsel as were the rest of the defendants. It was not an abuse of discretion to set aside the default on these grounds.
V. Attorneys' Fees-Cross Appeal.
The defendants moved for an award of attorneys' fees under 42 U.S.C. § 1988. The district court denied the appellant's application for attorneys' fees. Attorneys' fees decisions under section 1988 are reviewed for an abuse of discretion. Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 1941, 76 L.Ed.2d 40 (1983); Hardin v. White Mountain Apache Tribe, 779 F.2d 476, 480 (9th Cir.1985).
In a civil rights case, fees may be awarded against an unsuccessful plaintiff only if his action is "meritless in the sense that it is groundless or without foundation." Hughes v. Rowe, 449 U.S. 5, 14, 101 S.Ct. 173, 178, 66 L.Ed.2d 163 (1980); Dooley v. Reiss, 736 F.2d 1392, 1396 (9th Cir.), cert. denied, 469 U.S. 1038, 105 S.Ct. 518, 83 L.Ed.2d 407 (1984). The appellees heatedly assert that Mitchell's cause of action is meritless and he brought it for vexatious purposes. Their contention is cast more as a quest for sanctions under Fed.R.Civ.P. 11 than a request for attorneys' fees under section 1988. Only in exceptional cases should defendants be awarded attorneys' fees in civil rights cases. See Mitchell v. Los Angeles County Superintendent of Schools, 805 F.2d 844, 848 (9th Cir.1986), cert. denied, - U.S. -, 108 S.Ct. 168, 98 L.Ed.2d 122 (1987) (same plaintiff). Though Dr. Mitchell ultimately did not prevail in his case, we hold that the district court did not abuse its discretion by denying the defendants attorneys' fees.
CONCLUSION
For the reasons stated above we AFFIRM.
. On June 17, 1985, the appellant filed another complaint with the EEOC alleging that he was rejected for the assistant dean and dean positions in retaliation for his previous complaints. This charge is still pending before the EEOC. The DFEH again has deferred investigation to the EEOC and informed the appellant on July 17, 1985, that he had one year from that date to file a private civil suit in state court.
Question: What is the nature of the second listed respondent whose detailed code is not identical to the code for the first listed respondent?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_applfrom
|
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).
QUINN, County Assessor, et al. v. AERO SERVICES, Inc.
No. 11907.
United States Court of Appeals Ninth Circuit.
Jan. 24, 1949.
Rehearing Denied March 14, 1919.
Harold W. Kennedy, County Counsel, and Andrew O. Porter and James A. Co-bey, Deputies County Counsel, Los Angeles County, all of Los Angeles, Cal., for appellant.
Francis B. Cobb, -of Los Angeles, Cal., for appellee.
Before STEPHENS, HEALY and BONE, Circuit Judges.
STEPHENS, Circuit Judge.
Quinn and Byram, County Tax Officers, appeal from the order of the bankruptcy court affirming its jurisdiction under Section 64, sub. a of the Bankruptcy Act, 60 Stat. 330, 11 U.S.C.A. § 104, sub. a(4), to redetermine the assessed valuation made by the County Board of Equalization of the bankrupt’s personalty for county property tax purposes. The bankruptcy court was entertaining a petition for the reorganization of Aero Services, Inc., under the bankruptcy law. For convenience, we sometimes refer to petitioner as “Aero” and, notwithstanding a petitioner in a reorganization proceeding is not strictly speaking a bankrupt, we sometimes refer to petitioner herein as the “bankrupt”.
Aero Services, Inc., owned the taxed personalty and also certain .real property, all situated in the county of Los Angeles, on the first Monday in March which is the tax and lien date in California. Calif.Rev. & Tax Code, Sections 405, 2192, 117, 2189. A verified declaration of the property for tax purposes was made and filed with the County Assessor on May 14, 1946, showing the estimated taxable value of the personalty as of the first Monday in March, 1946. Soon thereafter and prior to the first Monday in July, 1946, the County Assessor fixed the value of the personalty at the estimated figure of the declaration, $355,710.
Aero Services, Inc. initiated the reorganization proceedings on June 3, 1946, by filing its petition under Section 322 of Chapter XI of the Bankruptcy Act, 11 U.S.C.A. § 722. Aero was authorized to retain possession of the property. On July 1, 1946, the County Board of Equalization commenced its review of all assessments within the county for purposes of correcting any errors of the County Assessor and for purposes of equalizing the assessments. Neither Aero nor anyone for Aero took advantage of the law giving the owner of property the right to file an application, or appear at the public hearings before the Board to request a reduction in or a redetermination as to the personalty assessment. A tax bill was sent Aero based upon the assessment and the tax, in accord therewith, became due on November 1, 1946, and delinquent on December 5, 1946. On December 6, 1946, Aero filed a petition praying that an .order be made requiring the County Assessor and the County Tax Collector to show cause why the bankruptcy court should not redetermine the tax assessment value of the personalty, claiming the assessment to be grossly excessive.' The order issued and the county officers responded by objecting
to the jurisdiction of the bankruptcy court. The referee, after a hearing, overruled the objections and the bankruptcy court affirmed the order.
The issue is whether the bankruptcy court had' jurisdiction to redetermine the assessed valuation of the bankrupt’s personalty for county tax purposes and to fix the tax accordingly.
The bankruptcy court resolved the issue of its jurisdiction in the affirmative, upon its interpretation of Section 64, sub. a(4) of the Bankruptcy Act, 11 U.S.C.A. § 104, sub. a(4), which we quote in part: “* * * In case any question arises as to the amount or legality of any taxes, such question shall be heard and determined by the court”.
The court cited Lyford v. City of New York, 2 Cir., 137 F.2d 782, 786, in which the judge discusses Arkansas Corporation
Commission v. Thompson, 313 U.S. 132, 61 S.Ct. 888, 85 L.Ed. 1244, and states that in his opinion the effect of the Arkansas-Thompson case is to “restrict the court to* finding if the tax is legally due and to deny it power to review the action of a quasi-judicial taxing body [emphasis ours] in setting, after due hearing, a valuation of property for tax purposes.” The bankruptcy court felt that the real basis of the Arkansas-Thompson decision was that the Arkansas commission, with the bankruptcy trustee participating in the proceeding, acted in a quasi-judicial capacity in settling the tax. The trustee not having appealed, and the state tax proceedings having been concluded prior to the bankruptcy, the determination had become res judicata. In re Monongahela Rye Liquors, Inc., et al., 3 Cir., 141 F.2d 864, was relied upon.
The court, in our case, concluded [75 F. Supp. 347, 353] : “In the instant case the time for objection to the assessmént before the Board of Equalization had not expired at the time of' the within bankruptcy proceeding. There had been no hearing, finding or final order on the tax at the time of bankruptcy and it therefore appears that the determination of the amount of tax may be had in those pending bankruptcy proceedings, and accordingly this Court determines that the objection to the jurisdiction should be overruled.”
It is implicit in the bankruptcy court’s comment upon the Arkansas-Thompson case that that court was of the opinion that some phase of an adversary appellate hearing must have been held, with the taxpayer participating, before the bankruptcy court is precluded from exercising the power to reassess the property and finally fix a tax. That is, res judicata depends upon the participation of the taxpayer in a hearing before the Board of Equalization or at least this is so when the bankruptcy proceedings have been initiated before the assessment .has been finally determined by the Board.
Appellant thinks the Arkansas-Thompson case cannot be construed so broadly. He thinks the point controlling in the cited case is that an assessment is res judicata after a judicial review of the administrative act, whether or not the taxpayer has actually appeared, if, in fact, there is provision in the law for such review and the taxpayer has had a full right to appear and participate in such review. If by choice he does not avail himself of it, the assessment is final. We think the latter construction the correct one under Arkansas v. Thompson, supra, and as well, Gardner, Trustee, v. State of New Jersey, 329 U.S. 565, at 578, 579, 67 S.Ct. 467, 91 L.Ed. 504.
In our opinion, the applicable procedure adopted for assessment of property taxes in California constitutes a quasi-j udicial determination. The assessment procedure functions from March to July and in .some cases into August. Between the first Mondays in the months of March and July the County Assessor is required to ascertain and assess all taxable property within his jurisdiction as of the first Monday in March. Sec. 405. Between the first Monday in March and the last Monday in June each taxpayer is required to file with the County Assessor a verified declaration of his taxable property. Sec. 441. In addition, the County Assessor is authorized to subpoena and examine any taxpayer with respect to any statement disclosing taxable property. Sec. 454. Upon completion of the assessment roll on or before the first Monday in July, by the assessor, he delivers it to the County Board of Equalization. Secs. 616, 617. The County Board of Equalization, upon receipt of the roll, gives legal notice by publication of the roll’s completion and the time at which the board will meet to equalize assessments. Sec. 1601. Taxpayers desiring changes in their assessments must, either in person or by an agent, file verified written applications for such changes, setting forth the supporting facts. Applicants may be present at stated hearing and must be examined under oath by the Board concerning the value of their property, if they so desire. Secs. 1607, 1608. The Board may, in the course of its hearing of any application, subpoena witnesses and take evidence and the Assessor and his deputies must be present to present evidence as needed. Secs. 1609, 1610. The session of the Board commences on the first Monday in July and continues not later than the third Monday in July. Sec. 1603. For the purpose of equalizing assessments the Board may increase or decrease individual assessments. Sec. 1605. Following the close of the Board’s session the corrected assessment roll is delivered to the County Auditor for totaling of the valuations thereon. Secs. 1614, 1646.
We think the procedure just outlined provides for a valid and constitutional determination, quasi-judicial in nature, whether or not the taxpayer petitions for a redetermination and whether or not he appears. We also think the fact that the reorganization proceeding antedated the Board of Equalization’s hearings is of no consequence. See Hagar v. Reclamation Dist. No. 108, 111 U.S. 701, 710, 4 S.Ct. 663, 28 L.Ed. 569. The bankruptcy court in its opinion correctly stated the law, though it did not follow it, where it said: “The minimum requirement apparently would be a determination by a quasi-judicial body in conjunction with a quasi-judicial hearing, or at least the right to such hearing.” See Commonwealth of Pennsylvania v. Aylward, 8 Cir., 154 F.2d 714; Luce v. City of San Diego, 198 Cal. 405, 245 P, 196; Dawson v. Los Angeles County, 15 Cal.2d 77, 81, 98 P.2d 495. The facts present a situation comparable to a judgment by default, one which is a proper basis for a plea of res judicata and estoppel. In re Jacobson’s Guardianship, 30 Cal.2d 326, 334, 182 P.2d 545; Fitzgerald v. Herzer, 78 Cal.App.2d 127, 131, 132, 177 P.2d 364,
In People v. Goldtree, 44 Cal. 323, 325, the court holds that “ * * * The Board of Equalization, in passing on the question whether an assessment is too high or too low, acts in a judicial capacity, and its decision is an adjudication, and as clearly so as a judgment for the recovery of a tax * * * In Los Angeles Gas & Electric Co. v. County of Los Angeles, 162 Cal. 164, 121 P. 384, 386, 9 A.L.R. 1277, the function of the Board is again discussed: “ * * * Upon such hearing, it is the duty of such board to determine the value of the property under consideration for assessment purposes upon such basis as is used in regard to other property, so as to make all the assessments as equal and fair as is practicable. In discharging these duties, the board is exercising judicial functions, and its decision as to the value of the property and the fairness of the assessment, so far as amount is concerned, constitutes an independent and conclusive judgment of the tribunal created by law for the determination of that question, which abrogates and takes the place of the judgment of the assessor, upon that question. * * * ”
When the Board, sitting as a Board of Equalization, determined the assessment in question, it became final and conclusive. The recent case of Universal Consolidated Oil Co. et al. v. Byram, County Tax Collector, 25 Cal.2d 353, 362, 153 P.2d 746, 751, supports this view: “* * * As appears from the numerous authorities cited in the forepart of this opinion, the respective county board of equalization is the fact-finding body designated by law to remedy excessive assessments (Cal.Const, art. XIII, § 9), and when that tribunal, after due hearing and within the limits of reasonable discretion, makes its findings on the facts, such decision is final and conclusive. * * * ” And in Los Angeles Gas & Electric Co. v. County of Los Angeles, supra, “ * * * The law necessarily leaves the determination of the question of fact of value to certain officers, and when it appoints tribunals for that purpose, as in this state primarily the assessor, and, for purpose of review, the board of supervisors, acting as a county board of equalization, the conclusion of those tribunals on such a question of fact constitutes a judgment that is not collaterally assailable in the courts. This is the universal rule, and it has been so held in this state.”
It is suggested that our case is ruled by State of New Jersey v. Anderson, 203 U.S. 483, 27 S.Ct. 137, 51 L.Ed. 284, but the difference which is pointed out in our quotation from the Arkansas-Thompson case in note 1 applies to our case as well. That is, in Arkansas-Thompson and our case there is provision for a quasi-judicial hearing whereas in New Jersey v. Anderson there is not. See In re Ingersoll Co., 10 Cir., 148 F.2d 282.
The bankruptcy court erred in not dismissing the petition for redetermination, and the proceeding is remanded with instruction to dismiss the petition for redetermination in accord with this opinion.
Reversed and remanded.
Arkansas Corporation Commissioner, et al. v. Thompson, Trustee, 313 U.S. 132, 61 S.Ct. 888, 891, 85 L.Ed. 1244, concerned the matter of taxes of a railroad under reorganization as provided for in § 77, Bankruptcy Act of 1933, 11 U.S. C.A. § 205. No appeal, as provided for by tile state statute, was taken to the state court and time for appeal lapsed. The bankruptcy court was then petitioned to redetermino the assessment under authority of § 64, sub. a (4) Bankruptcy Act. In the course of the court’s opinion it is said: “ * * * indicates that taxpayers in bankruptcy or reorganization are intended to have the extraordinary privilege of two separate trials, one state and one federal, on an identical issue of controverted fact — the value of the property taxed. Manifestly, whether or not taxes are ‘legally due and owing’ to a state depends upon the valid laws of that state. Ad valorem taxes depends upon a determination of value. The governmental function of fixing the value for tax purposes has rarely, if ever, been a judicial function. Tlie ‘legality’ of the action of Arkansas in entrusting the determination of value to its Corporation Commission is not challenged here, as of course it could not be. If the Commission properly found the value of the property, the ‘amount’ of the taxes is not in question. For it is not asserted that the Commission made an improper arithmetical computation in applying the legal tax rate to the determined property value. It is in this respect, as well as with regard to the dissimilar duties and functions of the state administrative agencies involved, that this case differs from that of [State of] New Jersey v. Anderson, 203 U.S. 483, 27 S.Ct. 137, 141, 51 L.Ed. 284, upon which the trustee here strongly relies.” See also Gardner, Trustee, v. State of New Jersey, 329 U.S. 565, 67 S.Ct. 467, 91 L.Ed. 504, and Kelly v. United States, 9 Cir., 90 F.2d 73, 76.
Quoting from 141 F.2d at page 868 of the In re Monongahela case: “The view we take of the decision in the Thompson case is that where, after a hearing, a quasi-judicial body, thereunto duly empowered, determines the amount of a tax due, with the right on the part of the taxpayer to a judicial review of the determination, all conformable with the requirements of due process, such determination, upon becoming final by operation of law, is conclusive upon a court of bankruptcy save for mathematical error in tht, computation of amount of the tax or legal error in its assessment. * * * The question in any instance, therefore, is whether the circumstances necessary to justify an exorcise of bankruptcy’s power to redetermine a tax claim are present. We think they are in the instant case. The taxpayer having failed to file a return, the tax assessments against it were based upon estimated ‘settlements’ arbitrarily mad#* by the State’s* Department of Revenue without hearing the taxpayer. The pertinent Pennsylvania statute, viz., the Fiscal Code of 1929, P.L. 343, as amended by the Act of February 2, 1937, P.L. 3, 72 P.S. §§ 1-1804, provides that, in case a taxpayer fails to file timely a report necessary to enable the Department of Revenue to settle a tax, the Department may make an estimated settlement wherein a fifty per cent penalty is included (§ 804). From any estimated settlement no right to review or appeal is allowed. * * * For the most part, the tax claims in the instant case are based upon such estimated settlements. We think it is plain that the referee’s hearing and determination of the amount of tax actually due did not involve a second trial of a controverted fact, such as the exercise' of the power en tailed in the Thompson- ease. We are, therefore, of the opinion that, under the circumstances tere shown, the rule of the Anderson case is applicable and that the referee’s redetermination of the Commonwealth’s tax claims was a justifiable exercise of bankruptcy’s power.”
All statutory citations by numbers only are to the California Revenue and Taxation Code.
Question: What is the 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_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.
Robert H. HERNDON, Plaintiff-Appellant, v. The CITY OF MASSILLON et al., Defendants-Appellees.
No. 79-3458.
United States Court of Appeals, Sixth Circuit.
Argued Dec. 19, 1980.
Decided Jan. 26, 1981.
Rehearing Denied Feb. 27, 1981.
Robert H. Herndon, pro se.
Michael F. Vaccaro, Massillon, Ohio, Gene Barnhart, Randolph L. Snow, Black, McCuskey, Sauers & Arbaugh, Dale T. Evans, Asst. Prosecuting Atty., Canton, Ohio, Lawrence J. Whitney, Akron, Ohio, Sanders J. Mestel, Canton, Ohio, for different defendants-appellees.
Before JONES, Circuit Judge, PECK, Senior Circuit Judge, and NIXON , District Judge.
Honorable John T. Nixon, United States District Court for the Middle District of Tennessee, sitting by designation.
PER CURIAM.
Plaintiff Robert H. Herndon brought an action under 42 U.S.C. § 1983, alleging that defendants, acting under color of state law, knowingly submitted false information to the Common Pleas Court of Stark County, Ohio, for the purpose of obtaining a search warrant of Herndon’s place of business. After a verdict was directed in favor of two of the defendants, the case against defendant Bruce A. Wilson was submitted to a jury.
During the course of deliberations, the jury asked the court to repeat its instructions to the jury. The court reporter was apparently unable to reproduce the original instructions, at least at that time. Therefore, with the consent of the parties, or at least without objection of either party, the district judge gave the jury new instructions. Unknown to both the court and the parties, this second set of instructions was not recorded by the court reporter.
Herndon filed a notice of appeal with this Court, but did not avail himself of Fed.R. App.Pro. 10(c), whereby he might have prepared and submitted a statement of the unrecorded proceedings to the district court for settlement and inclusion in the record on appeal. The district court, noting that the plaintiff had failed to act under Rule 10(c), prepared a statement of the charges given to the jury the second time, based on the judge’s recollection. This statement was then certified to this Court.
On appeal, Herndon makes two assignments of error, each directed at the state of the record concerning the second jury instruction. He alleges no specific error in the instructions as they were given to the jury, either initially or upon the jury’s request for a repetition of the instructions. Herndon’s first argument is that his right to appeal is made illusory where there is no record sufficient to permit an examination for error. He concludes that the absence of a record so insulates errors that a new trial is required to insure the proper administration of justice.
In Illinois Central Railroad Co. v. Riley, 392 F.2d 787 (6th Cir. 1968), this Court addressed the question of the proper relief where a trial court’s jury instructions were unrecorded. In that case, plaintiffs failed to submit a statement reconstructing the unrecorded instructions, as they were permitted to do under Fed.R.Civ.Pro. 75(c), the predecessor to Fed.R.App.Pro. 10(c). We affirmed the judgment against those plaintiffs, holding that their failure to avail themselves of the procedure designed to reconstruct unrecorded proceedings left them with no objection based on the missing record. This general proposition has been affirmed by other Circuit Courts. E. g., United States v. Mills, 597 F.2d 693 (9th Cir. 1979); Stout v. Jefferson County Bd. of Educ., 489 F.2d 97 (5th Cir. 1974); Hydramotive Manufacturing Corp. v. SEC, 355 F.2d 179 (10th Cir. 1966); Murphy v. St. Paul Fire & Marine Insurance Co., 314 F.2d 30 (5th Cir.), cert. denied, 375 U.S. 906, 84 S.Ct. 197, 11 L.Ed.2d 146 (1963). The clear lesson of these cases is that a party may not seek a new trial simply because matters occurring in the district court are not reflected in the transcript. Rather, that party must at least attempt to cure the defect by reconstructing the record as provided by Fed.R.App.Pro. 10(c). In certain cases this effort may unavoidably fall short of the precision necessary for a record amenable to review, and a new trial may be necessary. E. g., United States v. Knox, 456 F.2d 1024 (8th Cir. 1972). However, a new trial is not appropriate where the lack of a record is the only error charged and where the appellant made no effort to reconstruct the missing record nor to give any cause for that failing. Accordingly, Herndon’s first assignment of error must fail.
Herndon’s second argument is that it was error for the district court to certify its version of the unrecorded proceedings to this Court. Herndon argues that this version of the instructions serves only to further prejudice his rights on appeal by substituting a carefully considered set of instructions, created expressly for review on appeal, for the instructions as they were actually given.
Whether the district judge’s recollection of the unrecorded jury instructions could be properly considered on appeal in the absence of any Rule 10(c) statement of proceedings by Herndon is an issue that we need not reach. That question has no relevance to our conclusion that the fact that the jury instructions were not recorded does not in and of itself constitute reversible error. Furthermore, Herndon has not alleged any error, or indeed insufficiency of any kind, in the instructions given to the jury. Therefore, we have no occasion to consider the trial judge’s reconstruction of the second jury instruction.
For the reasons set forth above, the judgment of the district court is affirmed.
Question: What is the total number of respondents in the case that fall into the category "private business and its executives"? Answer with a number.
Answer:
|
songer_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.
RUSSELL, State Treasurer of Nevada, et al. v. DETRICK, Insurance Commissioner of California, et al.
Circuit Court of Appeals, Ninth Circuit.
December 5, 1927.
No. 5236.
1. Courts <§=493 (3) — Pending suit in state court held not to exclude jurisdiction of federal court of suit by others, not parties to state suit, relating to same subject-matter, but not affecting possession.
Makers of notes and mortgages to corporation brought suit in state court against said corporation and another, to which they had been assigned for cancellation of the securities for fraud. The assignee had deposited the instruments with the state treasurer, as required by law in its business of insurance. The state court appointed receivers for the corporations witii power to exercise control over “Their rights” in the instruments, but leaving possession in the state treasurer until further order. Held, that such suit did not exclude jurisdiction of a federal court to entertain a suit by others, not parties to the state suit, but claiming an interest in the securities, to determine their lights.
2. Courts <§=508(2) — Federal court held without jurisdiction to enjoin further prosecution of pending suit to cancel securities in state court (Jud. Code, § 265 [28 USCA § 379]).
A federal court held prohibited by Judicial Code, § 265 (28 USCA § 379), from enjoining further prosecution of a pending suit in a state court for cancellation of securities.
Appeal from the District Court- of the United States for the District of Nevada; Edward S. Barrington, Judge.
Suit in equity by Charles S." Detrick, as Insurance Commissioner of the State of California, and others, against George B. Russell, as State Treasurer of the State of Nevada, and others.. Defendants appeal from an order granting a preliminary injunction.
Reversed.
This is an appeal from an order of the court below granting a temporary injunction. The effect of the injunction was to. stay proceedings which had been begun in a state court of the state of Nevada. On November 4, 1926, the appellants, Matzdorf and wife, brought a suit in that court against the National Land Valley Guaranty Company, the National' Land Insurance Company, and the Title & Trust Company of Nevada, all corporations of that state, apd also against the state treasurer of the state of Nevada, for the cancellation of a note for $20,000, of date December 19, 1925, and the trust deed securing the same, made by the Matzdórfs in 'favor of the National Land Valley Guaranty Company, and by the latter assigned to the National Land Insurance Company, on the ground that the note and trust deed were procured through fraudulent misrepresentations made by certain . agents of the National. Land' Valley Guaranty Company. 'Upon the commencement of the suit, the state court appointed a receiver. of the property of the two lastripmed corporations. On November 18,1926, the .receiver, under order of said court, took over the custody and control of all the assets in the state of Nevada belonging to said two ebrporations, but 'the : order provided in terms that the authority of the receiver was to “include the exercise and control of .any arid all • rights 'which -said defendants may have under,' by virtue o'f, or relative to the contract, note/'mortgage, or trust deed involved in the,, action. Said .'note, mortgage, or trust deed, however, being subject, until the final determination of the action, to the custody of the state treasurer of the state of Nevada.” On 'January 11, .1927, 19 similar actions were commenced .in-said state court against the same defendants, by others’ of the appellants herein, whose notes and securities given to the National Land Valley Guaranty Company had been assigned to the insurance company.
In' the present suit, which was brought in the eou£t below, the appellees sought .to enjoin each of The appellants, who were plaintiffs ..in .the .said actions in the state court, from taking any steps or proceedings looking tó "the ‘ eariéellatiori ’ of ' said np,tes. ’ or trust deeds, and soúght tó restrain th’é strife treasurer, both as an individual and as an officer of the state of Nevada, from surrendering any of said securities to any of his eodefendants until the further order of the court.
The insurance commissioner of California, with whom joined two policy holders, were the plaintiffs. The complaint alleged that the National Land Insurance Company of Nevada was organized with authority to issue policies on land values and. receive premiums therefor; that it applied to the insurance commissioner of California for a license to issue its policies of insurance in that state, and represented to said commissioner that it had complied with the laws of Nevada by depositing securities with the secretary of state of that state, the same being the securities which are the subject of the present litigation; that, relying on such representation, the insurance commissioner granted such license to do business in and to issue policies in ’the state of California, and in pursuance thereof the said insurance company issued, various policies on land values in California -to the amount of $1,000,-000; and that in conducting said business it incurred in California a debt of $25,000, which is still unpaid. '
The complaint further alleged that the notes and securities issued by the individual appellants herein, Matzdorf and others; while they amounted in the aggregate to $205,000, had an actual value of not more than $115,000, and that the makers of said instruments now threaten to take steps to cancel all said notes and securities, and to require the state treasurer of Nevada to surrender the same for cancellation, although they were all well aware at the time thereof that the application of the insurance company to do business in California was based upon its representation to the insurance commissioner of that state that it had said securities on deposit in the office of the state treasurer of Nevada. The temporary injunction enjoined and restrained all the appellants herein from canceling any of the notes, mortgages, or securities described in the bill, and from taking any steps or proceedings looking to a cancellation of the same, until.the further order of said district court. Subsequently the appellant Russell, as state treasurer of Nevada, was substituted for Malley, who held that office at the commencement of the proceedings.
M. A. Diskin, Atty. Gen., of Nevada, for appellant Russell.
Charlés-Lee Horsey, of-Las Vegas, Nev. and Brown & Belford, and George S. Brown, all1-of - Reno; 'Nev.'j -for -other-appellants,'
U. S. Webb, Atty. Gen. of California, and. John II. Riordan, Asst. Atty. Gen. of California (Lyon, Fleming & Robbins and David R. Rubin, all of Los Angeles, Cal., of counsel), for appellees.
Before GILBERT, RUDKIN, and DIE-. TRICH, Circuit Judges.
GILBERT, Circuit Judge
(after stating the facts as above). The appellants contend that the injunction order is violative of the settled rule that the tribunal ■where jurisdiction first attaches holds it to the exclusion of all other courts until its duty is fully performed and the jurisdiction involved is exhausted, and that, where a court of competent jurisdiction has taken property into its possession through its officers, the property is withdrawn from the jurisdiction of all other ■ courts, and the latter are without power to render any judgment which invades or disturbs the possession of the property while it is in the custody of the court which has seized it. The situation presented to the court below was this: The appellants here had suits pending in the state court, the purpose of which was to cancel notes and securities held by the insurance company, and which presented controversies wholly between the plaintiffs therein, who were the makers of those instruments, and the defendants therein, who were the payees and owners thereof. Subsequently the appellees brought a suit in the court below to assert the rights which they had in those notes and securities and to prevent the cancellation thereof. They had the right to bring an original suit for that purpose, for they were not parties to the suits in the state court, nor were their rights in litigation or represented therein.
It is clear, we think, that the pendency of the suits in the state court to determine the validity of the securities and the rights of the parties in those controversies did not deprive the court below of jurisdiction to entertain a suit against those who were the parties plaintiff in those suits to determine the appellees’ rights in and to the same securities, the latter suit not being one that disturbed the custody of property of which the state court had acquired jurisdiction. It would seem from the record that the securities were not in the actual custody of the state court. They had been deposited with the state treasurer, as required by law, to qualify the holder thereof to issue policies of insurance upon land values. The corporation defendants in the suits in the state court had thereby parted' with possession and control over the same, and the order appointing the receiver, while it directed him to take possession and control of the properties of the two corporations, and gave him the exercise and control of any and all rights which they had in those instruments, ordered that, until the final determination of the suit, they should remain in the custody of the state treasurer.
“The rule that where the same matter is brought before courts of concurrent jurisdiction, the one first obtaining jurisdiction will retain it until the controversy is determined, to the entire exclusion of the other, and will maintain and protect its jurisdiction by an appropriate injunction, is confined in its operation to instances where both suits are substantially the same, that is to say, where there is substantial identity in the interests represented, in the rights asserted and in the purposes sought.” Pacific Live Stock Co. v. Oregon Water Bd., 241 U. S. 440, 447, 36 S. Ct. 637, 641 (60 L. Ed. 1084).
But, if it were conceded that the state court acquired, by its receivership, jurisdiction over the property, so as to withdraw it from the jurisdiction of a federal court in the same territory (Palmer v. Texas, 212 U. S. 118, 29 S. Ct. 230, 53 L. Ed. 435), it does not follow that the relief which the appellees seek in the court below is beyond the" jurisdiction of that court, or, will necessarily invade or disturb the jurisdiction of the state court. The court below had no right to abdicate its own jurisdiction. It had the power to hear and determine any question and grant any relief concerning interests in the property not conflicting with the possession, so long as the state court should retain possession. The objection on account of the receivership cannot prevail to prevent proceedings in the court below, so far as it can go without interfering with the receivership. Watson v. Jones, 15 Wall. 679, 20 L. Ed. 666; Mercantile Trust Co. v. Lamoille Val. R. Co., 16 Blatchf. 324, Fed. Cas. No. 9432.
The question remains whether the injunction was forbidden by section 265 of the Judicial Code (28 USCA § 379), which, prohibits the issuance of a writ of injunction by any court of the United States to stay proceedings in any court of a state, except in bankruptcy eases. The appellees ■contend that the present case is not governed by that section- for the reason that the injunction runs not against the state court, = but. against the plaintiffs-iii the actions in that court. But violation of the section is not thus avoided. Essanay Film Co. v. Kane, 258 U. S. 358, 42 S. Ct. 318, 66 L. Ed. 658; Peck v. Jenness, 7 How. 612, 625, 12 L. Ed. 841. It is true that the prohibition of injunction is not universal in its scope. It does not forbid a federal court to enjoin attempts to impair its own jurisdiction by proceedings in a state court (French v. Hay, 22 Wall. 250, note, 22 L. Ed. 857), or to issue injunction where there is an entire lack of jurisdiction in the state court (Simon v. Southern Railway Co., 236 U. S. 115, 35 S. Ct. 255, 59 L. Ed. 492), or to enjoin the enforcement of a judgment subject to attack as having been obtained through fraud (Marshall v. Holmes, 141 U. S. 589, 12 S. Ct. 62, 35 L. Ed. 870), or a judgment, the enforcement of which would be contrary to recognized principles of equity and the standards of good conscience (Wells Fargo & Co. v. Taylor, 254 U. S. 175, 183, 41 S. Ct. 93, 65 L. Ed. 205); or to enforce an unconscionable judgment fraudulently obtained (Ex parte Simon, 208 U. S. 144, 28 S. Ct. 238, 52 L. Ed. 429).
But the present case does not belong in the class of any of the recognized exceptions. It is an injunction against the plaintiffs in a state court, enjoining them against taking further steps in the prosecution of suits to cancel securities, and it is issued on behalf of plaintiffs in a federal court, not parties to the suits in the state court, to defeat cancellation of the securities and protect their own interest therein. We think the injunction comes clearly within the prohibition of section 265. Essanay Eilm Co. v. Kane, supra.
The argument that, if the suits in the state court are permitted to be prosecuted to judgment before the suit in the federal court can be adjudicated, the latter adjudication will be made futile, is answered in Kline v. Burke Const. Co., 260 U. S. 226, 233, 43 S. Ct. 79, 67 L. Ed. 226, 24 A. L. R. 1077, where it. is pointed out that the jurisdiction of a federal court, having been conferred by act of Congress, may be taken away in whole or in part hy a later act of Congress, such as the prohibition of injunction expressed in section 265. But that section does not deprive a District Court of jurisdiction otherwise conferred by the federal statutes. It merely goes to the question of equity in the particular ease presented, leaving the eourt to determine whether the ease is one in which injunctive relief is prohibited. ' Woodmen of the World v. O’Neill, 266 U. S. 292, 298, 45 S. Ct. 49, 69 L. Ed. 293; Smith v. Apple, 264 U. S. 274, 277, 44 S. Ct. 311, 68 L. Ed. 678.
We hold that it is prohibited here. The injunction order is reversed.
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_majvotes
|
3
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the number of judges who voted in favor of the disposition favored by the majority. Judges who concurred in the outcome but wrote a separate concurring opinion are counted as part of the majority. For most cases this variable takes the value "2" or "3." However, for cases decided en banc the value may be as high as 15. Note: in the typical case, a list of the judges who heard the case is printed immediately before the opinion. If there is no indication that any of the judges dissented and no indication that one or more of the judges did not participate in the final decision, then all of the judges listed as participating in the decision are assumed to have cast votes with the majority. The number of majority votes recorded includes district judges or other judges sitting by designation who participated on the appeals court panel. If there is an indication that a judge heard argument in the case but did not participate in the final opinion (e.g., the judge died before the decision was reached), that judge is not counted in the number of majority votes.
Philip KRUPP et al., Plaintiffs, Appellants, v. FEDERAL HOUSING ADMINISTRATION, Defendant, Appellee.
No. 5732.
United States Court of Appeals First Circuit.
Jan. 16, 1961.
George H. Foley, Boston, Mass., with whom Blair L. Perry and Hale & Dorr, Boston, Mass., were on brief, for appellants.
James W. Noonan, Asst. U. S. Atty., Boston, Mass., with whom Elliot L. Richardson, U. S. Atty., Boston, Mass., was on brief, for appellee.
Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges.
ALDRICH, Circuit Judge.
In several national publications in June 1957 the defendant-appellee, the Federal Housing Administration, advertised for sale a garden-type apartment project called Gateway Apartments located in Springfield, Massachusetts. The so-called “Prospectus and Request for Offers” contained information as to the number of units and garages, rental rates, percentage of apartment occupancy, and expenses. In particular it stated that the property included 100 garages, and gave the going rent as four dollars per unit. Plaintiff-appellant Krupp, in response to the prospectus, and after inspecting the property, submitted a bid. The bid was accepted and the property acquired by the second plaintiff, Krupp’s nominee. Plaintiffs thereafter sued for breach of warranty and for deceit on the basis of the prospectus and the contract, in which the prospectus was incorporated. The defendant filed a motion for summary judgment with an accompanying affidavit. Plaintiffs filed an affidavit in opposition. The defendant’s motion was granted and plaintiffs appeal.
The so-called garages were in fact groups of carports with continuous roofs. Each roof was supported at intervals by walls or by lally columns. Between each set of supports there were two numbers, indicating a double stall. In point of fact, dual occupancy by standard-sized cars resulted in so. close a fit that none of the doors of either car could be opened. The defendant concedes that from a practical standpoint there were only one-half as many rentable garages as was stated. Plaintiffs deny that they knew this fact until title had passed, and claim that they were misled to their damage.
The issue was well summarized by the district court. “[Plaintiffs] say that they contracted to buy 192 apartments and 100 garages and actually received 192 apartments and 50 garages. However, plaintiffs did not contract to buy 192 apartments and 100 garages as such. They agreed to buy a specific piece of real estate, the Gateway Apartments, as a single unit. This specific piece of property is exactly what was conveyed. They received the exact physical property they agreed to buy. If they were misled by their reliance on any statement of FHA as to the number of garage units it contained, this is the risk which they knew or should have known they were taking because the prospectus clearly warned them that the sale was being made in those terms.”
In this suit brought against an agency of the federal government the court correctly ruled that federal law governed. See S. R. A., Inc. v. State of Minnesota, 1946, 327 U.S. 558, 564, 66 S.Ct. 749, 90 L.Ed. 851; Clearfield Trust Co. v. United States, 1943, 318 U.S. 363, 366, 63 S.Ct. 573, 87 L.Ed. 838; New York, N. H. & H. R. R. v. Reconstruction Finance Corp., 2 Cir., 1950, 180 F.2d 241, 244 & note 4. Moreover, this is not one of those cases in which it seems appropriate to draw on local law, as the advantages of uniformity in determining the Administrator’s liability resulting from the disposition of property on a nation-wide scale are apparent. See Clearfield Trust Co. v. United States, supra, 318 U.S. at page 367, 63 S.Ct. at page 575. But we do not think it follows, as the court concluded and defendant maintains here, that the contract must be read strictly in favor of the FHA. On the contrary, the government’s contractual liability must be decided in the same manner as that of a private party in the same circumstances. S. R. A., Inc. v. State of Minnesota, supra, 327 U.S. at page 564, 66 S.Ct. at page 753; United States v. Utah, etc., Stage Co., 1905, 199 U.S. 414, 423, 26 S.Ct. 69, 50 L.Ed. 251; Cooke v. United States, 1875, 91 U.S. 389, 396, 23 L.Ed. 237; The Century Indemnity Co. v. United States, 1956, 99 U.S.App.D.C. 19, 236 F.2d 752, 756; cf. Clearfield Trust Co. v. United States, supra, 318 U.S. at page 369, 63 S.Ct. at page 576.
The first question is whether the statement that there were 100 garages was, standing alone, a representation in the nature of a warranty, or a mere estimate. The defendant cites authority to the effect that descriptions of quantity, particularly in government “surplus sales,” are understood as only the latter. Maguire & Co. v. United States, 1927, 273 U.S. 67, 47 S.Ct. 274, 71 L.Ed. 540; Lipshitz & Cohen v. United States, 1925, 269 U.S. 90, 46 S.Ct. 45, 70 L.Ed. 175. We doubt whether the sale of a single piece of real estate by the FHA, whose regular business must necessarily include disposing of property, is in the category of a surplus sale. But, more important, the proper test is not surplus versus some other kind of sale, but the more general one of how it is reasonable, under all of the circumstances, to understand what is, arguably, an affirmation of fact. While the nature of the sale is no doubt included among the relevant factors, so also are the definiteness of the language used and the apparent ability, or inability, of the seller to ascertain the actual facts. There is a wide, obvious difference, for example, between the government’s statement of the “approximate” total weight of surplus junk metal located at a number of forts (Lipshitz & Cohen v. United States, supra), and the fiat statement that a certain structure has rentable garage space for 100 cars. We cannot regard the latter on its face as anything but a positive statement of known fact.
The government points out that the prospectus (and agreement of sale) provided, “Those interested are expected to acquaint themselves with the property and to develop their own expectations as to rental income, operating expenses, etc.” In borderline cases an invitation to inspect may be one of the material considerations in deciding whether a particular statement was an affirmation of fact or only an estimate. See Maguire & Co. v. United States, supra; 1 Willis-ton Sales, § 208 (rev. ed. 1948). But where the nature of the statement is clear, such invitation does not relieve the defendant. In United States v. Utah, etc., Stage Co., supra, 199 U.S. at pages 424-425, 26 S.Ct. at page 73, the court said,
“[T]he government, in its advertisement, had positively stated the number of stations at two. The contractor had a right to presume that the government knew how many stations were to be served; it was a fact peculiarly within the knowledge of the government agents, and upon which, in the advertisement, it spoke with certainty. We do not think, when the statement was thus unequivocal, and the document was prepared for the guidance of bidders for government service, that the general statement that the contractor must investigate for himself, and of non-responsibility for mistakes, would require an independent investigation of a fact which the government had left in no doubt.”
See also Hollerbach v. United States, 1914, 233 U.S. 165, 34 S.Ct. 553, 58 L.Ed. 898. The present case falls in this category.
There remain certain express disclaimer provisions, immediately preceding the invitation to inspect just quoted. “The purchaser will be expected to accept the property in its present condition without warranty by FHA as to physical condition. * * * Information provided herein is all to be made available by FHA and is furnished without responsibility on the part of FHA.” This language, also, was carried over into the contract of purchase. Having in mind that these provisions are to be construed against the defendant which drafted them, see, e. g., Reconstruction Finance Corp. v. Sullivan Mining Co., 9 Cir., 1956, 230 F.2d 247, 250, and having also in mind that all provisions in an agreement, including disclaimers, are to be limited or construed, if possible, to avoid conflict with other provisions, see, e. g., Fairbanks, Morse & Co. v. Consolidated Fisheries Co., 3 Cir., 1951, 190 F.2d 817, 821-822, we do not believe that the disclaimers go far enough. The excluded “warranty * * * as to physical condition” in its more natural sense means a warranty as to state of repair, or condition at the moment. Complete non-existence is a difference in kind, not in degree, and is not within this phraseology. Again, the provision that information “is all to be made available by FHA and is furnished without responsibility on the part of FHA,” followed by a caution that bidders are to develop their own expectations, seems more naturally to be addressed to additional information which would be useful in predicting the earning potential of the property. Stronger language — and cases cited by defendant show that such is easily devised — , or strong circumstances, are required to strike from consideration and render meaningless the fundamental, basic description of the property.
The district court appeared to have some feeling that disclaimer provisions in a government contract were to be more favorably construed because “imposed to protect the public treasury.” When the government goes into the market place it must go as everyone else. The public treasury may be protected by conditions imposed by Congress, or by lawful regulations, Federal Crop Ins. Corp. v. Merrill, 1947, 332 U.S. 380, 385, 68 S.Ct. 1, 92 L.Ed. 10, but if the matter is left to contractual provisions and to the courts, all parties there must stand alike. We cannot recognize one rule for the government, and another for private litigants. Cases supra.
It is unnecessary to consider the plaintiffs’ claim for deceit, or the government’s special defenses thereto.
Judgment will be entered vacating the judgment of the District Court and remanding the case for further proceedings not inconsistent herewith. Appellants’ motion for costs is denied. Ewing v. Gardner, 1951, 341 U.S. 321, 71 S.Ct. 684, 95 L.Ed. 968.
. Apparently the numbers ran 1-96, or 1-98, rather than 1-100, but this relatively minor discrepancy is of no present moment.
. Were it only an estimate, the cas.es indicate that even estimates must be made in good faith. See, e. g„ Lipshitz & Cohen v. United States, supra, 269 U.S. at page 92, 46 S.Ct. at page 46; United States v. Silverton, 1 Cir., 1952, 200 F. 2d 824, 828. Having in mind that this is a motion for summary judgment, on this record we could not say the government was unaware of the usable number.
. A plaintiff may not assert such a breach of warranty when he was aware of the true facts from the beginning. See Mottram v. United States, 1926, 271 U.S. 15, 48 S.Ct. 386, 70 L.Ed. 803; Anthony M. Meyerstein, Inc. v. United States, 1956, 137 F.Supp. 427, 431, 133 Ct.Cl. 694. It may be that in the proper circumstances a plaintiff will also be charged with knowledge of facts which an investigation would or should have disclosed. See Mottram v. United States, supra; cf. Shappirio v. Goldberg, 1904, 192 U.S. 232, 241, 24 S.Ct. 259, 48 L. Ed. 419; Mabardy v. McHugh, 1909, 202 Mass. 148, 151, 88 N.E. 894, 23 L.R.A., N.S., 487. But cf. Yorke v. Taylor, 1955, 332 Mass. 368, 372-374, 124 N.E.2d 912. However, on the present record we cannot rule as matter of law that plaintiffs knew, or must be taken as knowing, that the width of these carports was Inadequate.
. The defendant emphasizes the previous word “herein,” (see supra). This clause is badly drawn and points in two directions. It is not for defendant to select wbicb it likes better.
Question: What is the number of judges who voted in favor of the disposition favored by the majority?
Answer:
|
sc_casesourcestate
|
48
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state or territory of the court whose decision the Supreme Court reviewed.
HUNT v. McNAIR, GOVERNOR OF SOUTH CAROLINA, et al.
No. 71-1523.
Argued February 21, 1973 —
Decided June 25, 1973
Powell, J., delivered the opinion of the Court, in which Burger, C. J., and Stewart, White, BlackmuN, and Rehnquist, JJ., joined. BreNnan, J., filed a dissenting opinion, in which Douglas and Marshall, JJ., joined, post, p. 749.
■ Robert McC. Figg, Jr., argued the cause for appellant. With him on the brief was Thomas B. Bryant, Jr.
Huger Sinkler argued the cause for appellees. With him on the brief were Daniel R. McLeod, Attorney General of South Carolina, and Theodore B. Guerard
George F. Kugler, Jr., Attorney General, Stephen Skillman, Assistant Attorney General, and Charles R. Parker and Lewis M. Popper, Deputy Attorneys General, filed a brief for the State of New Jersey as amicus curiae urging affirmance.
Me. Justice Powell
delivered the opinion of the Court.
Appellant, a South Carolina taxpayer, brought this action to challenge the South Carolina Educational Facilities Authority Act (the Act), S. C. Code Ann. § 22-41 et seq. (Supp. 1971), as violative of the Establishment Clause of the First Amendment insofar as it authorizes a proposed financing transaction involving the issuance of revenue bonds for the benefit of the Baptist College at Charleston (the College). The trial court’s denial of relief was affirmed by the Supreme Court of South Carolina. 255 S. C. 71, 177 S. E. 2d 362 (1970). This Court vacated the judgment and remanded the case for reconsideration in light of the intervening decisions in Lemon v. Kurtzman, Earley v. DiCenso, and Robinson v. DiCenso, 403 U. S. 602 (1971); and Tilton v. Richardson, 403 U. S. 672 (1971). 403 U. S. 945 (1971). On remand, the Supreme Court of South Carolina adhered to its earlier position. 258 S. C. 97, 187 S. E. 2d 645 (1972). We affirm.
I
We begin by setting out the general structure of the Act. The Act established an Educational Facilities Authority (the Authority), the purpose of which is “to assist institutions for higher education in the construction, financing and refinancing of projects . . . ,” S. C. Code Ann. § 22-41.4 (Supp. 1971), primarily through the issuance of revenue bonds. Under the terms of the Act, a project may encompass buildings, facilities, site preparation, and related items, but may not include
“any facility used or to be used for sectarian instruction or as a place of religious worship nor any facility which is used or to be used primarily in connection with any part of the program of a school or department of divinity for any religious denomination.” S. C. Code Ann. § 22-41.2 (b) (Supp. 1971).
Correspondingly, the Authority is accorded certain powers over the project, including the powers to determine the fees to be charged for the use of the project and to establish regulations for its use. See infra, at 747-749.
While revenue bonds to be used in connection with a project are issued by the Authority, the Act is quite explicit that the bonds shall not be obligations of the State, directly or indirectly:
“Revenue bonds issued under the provisions of this chapter shall not be deemed to constitute a debt or liability of the State or of any political subdivision thereof or a pledge of the faith and credit of the State or of any such political subdivision, but shall be payable solely from the funds herein provided therefor from revenues. All such revenue bonds shall contain on the face thereof a statement to the effect that neither the State of South Carolina nor the Authority shall be obligated to pay the same or the interest thereon except from revenues of the project or the portion thereof for which they are issued and that neither the faith and credit nor the taxing power of the State of South Carolina or of any political subdivision thereof is pledged to the payment of the principal of or the interest on such bonds. The issuance of revenue bonds under the provisions of this chapter shall not directly or indirectly or contingently obligate the State or any political subdivision thereof to levy or to pledge any form of taxation whatever therefor or to make any appropriation for their payment.” S. C. Code Ann. §22-41.10 (Supp. 1971).
Moreover, since all of the expenses of the Authority must be paid from the revenues of the various projects in which it participates, S. C. Code Ann. § 22-41.5 (Supp. 1971), none of the general revenues of South Carolina is used to support a project.
On January 6, 1970, the College submitted to the Authority for preliminary approval an application for the issuance of revenue bonds. Under the proposal, the Authority would issue the bonds and make the proceeds available to the College for use in connection with a portion of its campus to be designated a project (the Project) within the meaning of. the Act. In return, the College would convey the Project, without cost, to the Authority, which would then lease the property so conveyed back to the College. After payment in full of the bonds, the Project would be reconveyed to the College. The Authority granted preliminary approval on January 16, 1970, 255 S. C., at 76, 177 S. E. 2d, at 365.
In its present form, the application requests the issuance of revenue bonds totaling $1,250,000, of which $1,050,000 would be applied to refund short-term financing of capital improvements and $200,000 would be applied to the completion of dining hall facilities. The advantage of financing educational institutions through a state-created authority derives from relevant provisions of federal and South Carolina state income tax laws which provide in effect that the interest on such bonds is not subject to income taxation. The income-tax-exempt status of the interest enables the Authority, as an instrumentality of the State, to market the bonds at a significantly lower rate of interest than the educational institution would be forced to pay if it borrowed the money by conventional private financing.
Because the College’s application to the Authority was a preliminary one, the details of the financing arrangement have not yet been fully worked out. But Rules and Regulations adopted by the Authority govern certain of its aspects. See Jurisdictional Statement, Appendix C, pp. 47-51. Every lease agreement between the Authority and an institution must contain a' clause
“obligating the Institution that neither the leased land, nor the facility located thereon, shall be used for sectarian instruction or as a place of religious worship, or in connection with any part of the program of a school or department of divinity of any religious denomination.” 258 S. C., at 101, 187 S. E. 2d, at 647.
To insure that this covenant is honored, each lease agreement must allow the Authority to conduct inspections, and any reconveyance to the College must contain a restriction against use for sectarian purposes. The Rules further provide that simultaneously with the execution of the lease agreement, the Authority and the trustee bank would enter into a Trust Indenture which would create, for the benefit of the bondholders, a foreclosable mortgage lien on the Project property including a mortgage on the “right, title and interest of the Authority in and to the Lease Agreement.” Jurisdictional Statement, Appendix C, p. 50.
Our consideration of appellant’s Establishment Clause claim extends only to the proposal as approved preliminarily with such additions as are contemplated by the Act, the Rules, and the decisions of the courts below.
II
As we reaffirm today in Committee for Public Education & Religious Liberty v. Nyquist, post, p. 756, the principles which govern our consideration of challenges to statutes as violative of the Establishment Clause are three:
“First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion . . . ; finally, the statute must not foster 'an excessive government entanglement with religion.’ ” Lemon v. Kurtzman, 403 U. S., at 612-613.
With full recognition that these are no more than helpful signposts, we consider the present statute and the proposed transaction in terms of the three “tests”: purpose, effect, and entanglement.
A
The purpose of the statute is manifestly a secular one. The benefits of the Act are available to all institutions of higher education in South Carolina, whether or not having a religious affiliation. While a legislature’s declaration of purpose may not always be a fair guide to its true intent, appellant makes no suggestion that the introductory paragraph of the Act represents anything other than a good-faith statement of purpose:
“It is hereby declared that for the benefit of the people of the State, the increase of their commerce, welfare and prosperity and the improvement of their health and living conditions it is essential that this and future generations of youth be given the fullest opportunity to learn and to develop their intellectual and mental capacities; that it is essential that institutions for higher education within the State be provided with appropriate additional means to assist such youth in achieving the required levels of learning and development of their intellectual and mental capacities; and that it is the purpose of this chapter to provide a measure of assistance and an alternative method to enable institutions for higher education in the State to provide the facilities and structures which are sorely needed to accomplish the purposes of this chapter, all to the public benefit and good, to the extent and manner provided herein.” S. C. Code Ann. § 22.41 (Supp.1971).
The College and other private institutions of higher education provide these benefits to the State. As of the academic year 1969-1970, there were 1,548 students enrolled in the College, in addition to approximately 600 night students. Of these students, 95% are residents of South Carolina who are thereby receiving a college education without financial support from the State of South Carolina.
B
To identify “primary effect,” we narrow our focus from the statute as a whole to the only transaction presently before us. Whatever may be its initial appeal, the proposition that the Establishment Clause prohibits any program which in some manner aids an institution with a religious affiliation has consistently been rejected. E. g., Bradfield v. Roberts, 175 U. S. 291 (1899); Walz v. Tax Comm’n, 397 U. S. 664 (1970); Tilton v. Richardson, 403 U. S. 672 (1971). Stated another way, the Court has not accepted the recurrent argument that all aid is forbidden because aid to one aspect of an institution frees it to spend its other resources on religious ends.
Aid normally may be thought to have a primary effect of advancing religion when it flows to an institution in which religion is so pervasive that a substantial portion of its functions are subsumed in the religious mission or when it funds a specifically religious activity in an otherwise substantially secular setting. In Tilton v. Richardson, supra, the Court refused to strike down a direct federal grant to four colleges and universities in Connecticut. Mr. Chief Justice Burger, for the plurality, concluded that despite some institutional rhetoric, none of the four colleges was pervasively sectarian, but held open that possibility for future cases:
“Individual projects can be properly evaluated if and when challenges arise with respect to particular recipients and some evidence is then presented to show that the institution does in fact possess these characteristics.” Id., at 682.
Appellant has introduced no evidence in the present case placing the College in such a category. It is true that the members of the College Board of Trustees are elected by the South Carolina Baptist Convention, that the approval of the Convention is required for certain financial transactions, and that the charter of the College may be amended only by the Convention. But it was likewise true of the institutions involved in Tilton that they were “governed by Catholic religious organizations.” Id., at 686. What little there is in the record concerning the College establishes that there are no religious qualifications for faculty membership or student admission, and that only 60% of the College student body is Baptist, a percentage roughly equivalent to the percentage of Baptists in that area of South Carolina. 255 S. C., at 85, 177 S. E. 2d, at 369. On the record in this case there is no basis to conclude that the College’s operations are oriented significantly towards sectarian rather than secular education.
Nor can we conclude that the proposed transaction will place the Authority in the position of providing aid to the religious as opposed to the secular activities of the College. The scope of the Authority’s power to assist institutions of higher education extends only to “projects,” and the Act specifically states that a project “shall not include” any buildings or facilities used for religious purposes. In the absence of evidence to the contrary, we must assume that all of the proposed financing and refinancing relates to buildings and facilities within a properly delimited project. It is not at all clear from the record that the portion of the campus to be conveyed by the College to the Authority and leased back is the same as that being financed, but in any event it too must be part of the Project and subject to the same prohibition against use for religious purposes. In addition, as we have indicated, every lease agreement must contain a clause forbidding religious use and another allowing inspections to enforce the agreement. For these reasons, we are satisfied that implementation of the proposal will not have the primary effect of advancing or inhibiting religion.
C
The final question posed by this case is whether under the arrangement there would be an unconstitutional degree of entanglement between the State and the College. Appellant argues that the Authority would become involved in the operation of the College both by inspecting the project to insure that it is not being used for religious purposes and by participating in the management decisions of the College.
The Court’s opinion in Lemon and the plurality opinion in Tilton are grounded on the proposition that the degree of entanglement arising from inspection of facilities as to use varies in large measure with the extent to which religion permeates the institution. In finding excessive entanglement, the Court in Lemon relied on the “substantial religious character of these church-related” elementary schools. 403 U. S., at 616. Mr. Chief Justice Burger’s opinion for the plurality in Tilton placed considerable emphasis on the fact that the federal aid there approved would be spent in a college setting:
“Since religious indoctrination is not a substantial purpose or activity of these church-related colleges and universities, there is less likelihood than in primary and secondary schools that religion will permeate the area of secular education.” 403 U. S., at 687.
Although Mr. Justice White saw no such clear distinction, he concurred in the judgment, stating:
“It is enough for me that . . . the Federal Government [is] financing a separable secular function of overriding importance in order to sustain the legislation here challenged.” 403 U. S., at 664.
A majority of the Court in Tilton, then, concluded that on the facts of that case inspection as to use did not threaten excessive entanglement. As we have indicated above, there is no evidence here to demonstrate that the College is any more an instrument of religious indoctrination than were the colleges and universities involved in Tilton.
A closer issue under our precedents is presented by the contention that the Authority could become deeply involved in the day-to-day financial and policy decisions of the College. The Authority is empowered by the Act:
“(g) [generally, to fix and revise from time to time and charge and collect rates, rents, fees and charges for the use of and for the services furnished or to be furnished by a project or any portion thereof and to contract with any person, partnership, association or corporation or other body public or private in respect thereof;
“(h) [t] o establish rules and regulations for the use of a project or any portion thereof and to designate a participating institution for higher education as its agent to establish rules and regulations for the use of a project undertaken for such participating institution for higher education. . . S. C. Code Ann. §22-41.4 (Supp. 1971).
These powers are sweeping ones, and were there a realistic likelihood that they would be exercised in their full detail, the entanglement problems with the proposed transaction would not be insignificant.
As the South Carolina Supreme Court pointed out, 258 S. C., at 107, 187 S. E. 2d, at 651, the Act was patterned closely after the South Carolina Industrial Revenue Bond Act, and perhaps for this reason appears to confer unnecessarily broad power and responsibility on the Authority. The opinion of that court, however, reflects a narrow interpretation of the practical operation of these powers:
“Counsel for plaintiff argues that the broad language of the Act causes the State, of necessity, to become excessively involved in the operation, management and administration of the College. We do not so construe the Act. . . . [T]he basic function of the Authority is to see . . . that fees are charged sufficient to meet the bond payments.” Id., at 108, 187 S. E. 2d, at 651.
As we read the College’s proposal, the Lease Agreement between the Authority and the College will place on the College the responsibility for making the detailed decisions regarding the government of the campus and the fees to be charged for particular services. Specifically, the proposal states that the Lease Agreement
“will unconditionally obligate the College (a) to pay sufficient rentals to meet the principal and interest requirements as they become due on such bonds, [and] (b) to impose an adequate schedule of charges and fees in order to provide adequate revenues with which to operate and maintain the said facilities and to make the rental payments . . . .” App. 18.
In short, under the proposed Lease Agreement, neither the Authority nor a trustee bank would be justified in taking action unless the College fails to make the prescribed rental payments or otherwise defaults in its obligations. Only if the College refused to meet rental payments or was unable to do so would the Authority or the trustee be obligated to take further action. In that event, the Authority or trustee might either foreclose on the mortgage or take a hand in the setting of rules, charges, and fees. It may be argued that only the former would be consistent with the Establishment Clause, but we do not now have that situation before us.
Ill
This case comes to us as an action for injunctive and declaratory relief to test the constitutionality of the Act as applied to a proposed — rather than an actual— issuance of revenue bonds. The specific provisions of the Act under which the bonds will be issued, the Rules and Regulations of the Authority, and the College’s proposal — all as interpreted by the South Carolina Supreme Court — confine the scope of the assistance to the secular aspects of this liberal arts college and do not foreshadow excessive entanglement between the State and religion. Accordingly, we affirm the holding of the court below that the Act is constitutional as interpreted and applied in this case.
Affirmed.
At various points during this litigation, appellant has made reference to the Free Exercise Clause of the First Amendment, but has made no arguments specifically addressed to violations of that Clause except insofar as this Court’s approach to cases involving the Religion Clauses represents an interaction of the two Clauses.
As originally submitted by the College and approved by the Authority, the proposal called for the issuance of “not exceeding $3,500,000 of revenue bonds . . . .” 255 S. C. 71, 75, 177 S. E. 2d 362, 364. As indicated by a stipulation of counsel in this Court, the College subsequently secured a bank loan in the amount of $2,500000 and now proposes the issuance of only $1,250,000 in revenue bonds under the Act, the proceeds to be used:
“(i) to repay in full the College’s Current Fund for the balance (approximately $250,000) advanced to the College’s Plant Fund as aforesaid; (ii) to refund outstanding short-term loans in the amount of $800,000 whose proceeds were to pay off indebtedness incurred for capital improvements, and (iii) to finance the completion of the dining hall facilities at a cost of approximately $200,000.” App. 49. (Emphasis in original.)
Gross income for federal income tax purposes does not include interest on “the obligations of a State, a Territory; or a possession of the United States, or any political subdivision of any of the foregoing . . . .” 26 U. S. C. §103 (a)(1). For state income tax purposes, gross income does not include interest “upon obligations of the United States or its possessions or of this State or any political subdivision thereof S. C. Code Ann. § 65-253 (4) (Supp. 1971).
Rule 4 relating to the Lease Agreement provides in part that:
“If the Lease Agreement contains a provision permitting the Institution to repurchase the project upon payment of the bonds, then in such instance the Lease Agreement shall provide that the Deed of reconveyance from the Authority to the Institution shall be made subject to the condition that so long as the Institution, or any voluntary grantee of the Institution, shall own the leased premises, or any part thereof, that no facility thereon, financed in whole or in part with the proceeds of the bonds, shall be used for sectarian instruction or as a place of religious worship, or used in connection with any part of the program of a school or department of divinity of any religious denomination.” 258 S. C. 97, 101-102, 187 S. E. 2d 645, 647-648.
The Rule goes on to allow the institution to remove this option in the case of involuntary sales:
“The condition may provide, at the option of the Institution, that if the leased premises shall become the subject of an involuntary judicial sale, as a result of any foreclosure of any mortgage, or sale pursuant to any order of any court, that the title to be vested in any purchaser at such judicial sale, other than the Institution, shall be in fee simple and shall be free of the condition applicable to the Institution or any voluntary grantee thereof.” 258 S. C., at 102, 187 S. E. 2d, at 648. See n. 6, infra.
In Board of Education v. Allen, 392 U. S. 236 (1968), this Court commented on the importance of the role of private education in this country:
“Underlying these cases, and underlying also the legislative judgments that have preceded the court decisions, has been a recognition that private education has played and is playing a significant and valuable role in raising national levels of knowledge, competence, and experience.” Id., at 247.
Appellant also takes issue with the Authority’s rule allowing a purchaser at an involuntary sale to take title free of restrictions as to religious use. See n. 4, supra. Appellant’s reliance on Tilton v. Richardson, 403 U. S. 672 (1971), in this respect is misplaced. There, the Court struck down a provision under which the church-related colleges would have unrestricted use of a federally financed project after 20 years. In the present case, by contrast, the restriction against religious use is lifted, not as to the institution seeking the assistance of the Authority nor as to voluntary transferees, but only as to a purchaser at a judicial sale. Because some other religious institution bidding for the property at a judicial sale could purchase the property only by outbidding all other prospective purchasers, there is only a speculative possibility that the absence of a use limitation would ever afford aid to religion. Even in such an event, the acquiring religious institution presumably would have had to pay the then fair value of the property.
The “state aid” involved in this case is of a very special sort. We have here no expenditure of public funds, either by grant or loan, no reimbursement by a State for expenditures made by a parochial school or college, and no extending or committing of a State’s credit. Rather, the only state aid consists, not of financial assistance directly or indirectly which would implicate public funds or credit, but the creation of an instrumentality (the Authority) through which educational institutions may borrow funds on the basis of their own credit and the security of their own property upon more favorable interest terms than otherwise would be available. The Supreme Court of New Jersey characterized the assistance rendered an educational institution under an act generally similar to the South Carolina Act as merely being a "governmental service.” Clayton v. Kervick, 56 N. J. 523, 530-531, 267 A. 2d 503, 506-507 (1970). The South Carolina Supreme Court, in the opinion below, described the role of the State as that of a “mere conduit.” 258 S. C., at 107, 187 S. E. 2d, at 650. Because we conclude that the primary effect of the assistance afforded here is neither to advance nor to inhibit religion under Lemon and Tilton, we need not decide whether, as appellees argue, Brief for Appellees 14, the importance of the tax exemption in the South Carolina scheme brings the present case under Walz v. Tax Comm’n, 397 U. S. 664 (1970), where this Court upheld a local property tax exemption which included religious institutions.
Although the record in this case is abbreviated and not free from ambiguity, the burden rests on appellant to show the extent to which the College is church related, cf. Board of Education v. Allen, 392 U. S., at 248, and he has failed to show more than a formalistic church relationship. As Tilton established, formal denominational control over a liberal arts college does not render all aid to the institution a violation of the Establishment Clause. So far as the record here is concerned, there is no showing that the College places any special emphasis on Baptist denominational or any other sectarian type of education. As noted above, both the faculty and the student body are open to persons of any (or no) religious affiliation.
Question: What is the state of the court whose decision the Supreme Court reviewed?
01. Alabama
02. Alaska
03. American Samoa
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. District of Columbia
11. Federated States of Micronesia
12. Florida
13. Georgia
14. Guam
15. Hawaii
16. Idaho
17. Illinois
18. Indiana
19. Iowa
20. Kansas
21. Kentucky
22. Louisiana
23. Maine
24. Marshall Islands
25. Maryland
26. Massachusetts
27. Michigan
28. Minnesota
29. Mississippi
30. Missouri
31. Montana
32. Nebraska
33. Nevada
34. New Hampshire
35. New Jersey
36. New Mexico
37. New York
38. North Carolina
39. North Dakota
40. Northern Mariana Islands
41. Ohio
42. Oklahoma
43. Oregon
44. Palau
45. Pennsylvania
46. Puerto Rico
47. Rhode Island
48. South Carolina
49. South Dakota
50. Tennessee
51. Texas
52. Utah
53. Vermont
54. Virgin Islands
55. Virginia
56. Washington
57. West Virginia
58. Wisconsin
59. Wyoming
60. United States
61. Interstate Compact
62. Philippines
63. Indian
64. Dakota
Answer:
|
songer_r_natpr
|
0
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
The COUNTY OF SULLIVAN, N. Y. and the Sullivan County Airport Commission, Petitioners, v. CIVIL AERONAUTICS BOARD, Respondent, and The State of New York and Mohawk Airlines, Inc., Intervenors.
No. 467, Docket 35585.
United States Court of Appeals, Second Circuit.
Argued Dec. 3, 1970.
Decided Jan. 4, 1971.
Don W. Crockett, Washington, D. C. (Robert M. Beckman, Washington, D. C., Carl P. Goldstein, Atty., County of Sullivan, Montieello, N. Y., and Theodore Drew, Asst. Sullivan County Atty., Montieello, N. Y., of counsel), for petitioners.
J. Michael Roach, Atty., Civil Aeronautics Board, Washington, D. C. (Richard W. McLaren, Asst. Atty. Gen., Gregory B. Hovendon, Atty., Dept, of Justice, Washington, D. C., R. Tenney Johnson, Gen. Counsel, Civil Aeronautics Board, Washington, D. C., O. D. Ózment, Deputy Gen. Counsel, Warren L. Sharf-man, Associate Gen. Counsel, Litigation and Research, and Robert L. Toomey, Atty., Civil Aeronautics Board, Washington, D. C., of counsel), for respondent.
Philip Weinberg, Asst. Atty. Gen. (Louis J. Lefkowitz, Atty. Gen. of N. Y., of counsel), for intervenor State of New York.
Raymond J. Rasenberger, Washington, D. C. (Frank J. Costello, Zuckert, Scoutt & Rasenberger, Washington, D. C., of counsel), for intervenor Mohawk Airlines, Inc.
Before FRIENDLY, SMITH and ANDERSON, Circuit Judges.
FRIENDLY, Circuit Judge:
This petition to review an order of the Civil Aeronautics Board concerns the rendition of air service by Mohawk Airlines, Inc. to Liberty/Monticello in Sullivan County, New York, an important resort area in the Catskill Mountains.
Mohawk’s authority to serve Liberty/Monticello, sometimes hereafter referred to as the Sullivan County Airport, dates back to 1952 when the Board granted certificate authority to Mohawk’s corporate predecessor, Robinson Air Corp., Certificate Renewal, 15 C.A. B. 940, 954-955 (1952). Because of the lack of a suitable airport, no service by fixed wing aircraft had been rendered, and a helicopter experiment proved unprofitable. In 1964, with such an airport finally in prospect, the Civil Aeronautics Board renewed this authority for a period terminating October 26, 1967. Mohawk Airlines, Inc., “Use It or Lose It” Investigation, 40 C.A.B. 393, 41 C.A.B. 263 (1964). On April 26, 1967, Mohawk made an application for a further renewal of authority to serve Liberty/Monticello “for three years from the present expiration date” and also to add it as an intermediate point on the carrier’s Boston-Cleveland and Boston-Pittsburgh routes. In one paragraph of the application Mohawk served notice that it “intends to rely upon section 9(b) of the Administrative Procedure Act, 5 U.S.C. § 558, and Part 377 of the Board’s Special Regulations.” The prayer for relief read as follows:
Wherefore, Mohawk prays that the Board amend its existing certificate of public convenience and necessity for Route 94 so as to authorize Mohawk to engage in scheduled air transportation as an air carrier of persons, property, and mail as herein-above applied for until October 26, 1970. Mohawk also prays for such other, further, and different relief as the Board may deem appropriate.
The last sentence of § 9(b) of the APA, now 5 U.S.C. § 558(c), provides:
When the licensee has made timely and sufficient application for a renewal or a new license in accordance with agency rules, a license with reference to an activity of a continuing nature does not expire until the application has been finally determined by the agency.
Mohawk’s renewal application thus effected an extension of its Liberty/Monti-eello authorization beyond October 26, 1967, even though the Board had not acted thereon. The agency approved Mohawk’s failure to institute service until a suitable airport was completed. This was ultimately done, at a cost of over $7 million of federal, state and county funds. Mohawk began service on July 2, 1969. In April, 1970, it informed Sullivan County of its intention to allow the service to lapse on October 26, 1970, when it considered that the renewal of its authority achieved by the combined effect of its 1967 application and the last sentence of § 9(b) of the APA would expire.
The notification had the impact that must have been anticipated. On May 4, 1970, Sullivan County and its Airport Commission filed an application with the Board, apparently under § 401(g) of the Federal Aviation Act, to extend Mohawk’s authority to serve Liberty./Monticello and moved for an immediate hearing. When the Board got around to this on July 16, more than ten weeks later, it granted the motion and set the application for expedited hearing. Although Examiner Fitzmaurice then proceeded with commendable speed, it became apparent by mid-August that the proceeding would not be concluded by October 26, and the Sullivan interests moved, on August 13, that the Board direet Mohawk to continue service until final determination of the § 401(g) proceeding. On September 23, the Board issued an order observing that, for various reasons there stated, “it would be undesirable for Mohawk to discontinue its services during the pendency of the proceeding,” and granted an exemption under § 416(b) permitting the airline to continue to serve Liberty/Montieello until 60 days after final decision in the § 401(g) case. After various conversations, Mohawk informed the Sullivan officials and the Board on October 20 that it did not intend to avail itself of the permission given by the exemption but would discontinue serving the Sullivan County Airport on October 26 when it considered its obligations under the certificate to end.
This led to the motion resulting in the order here under review. The Sullivan authorities promptly made a further application to the Board, arguing that § 9(b) of the APA compelled Mohawk to furnish service until its 1967 renewal application was finally determined, and moving for an order to that end. On October 30 the Board denied the motion on the ground that it was powerless to require Mohawk to render servcie except as a possible outcome of the § 401(g) proceeding. Meanwhile Mohawk had discontinued service on October 26, and Examiner Fitzmaurice had rendered an initial decision in the § 401(g) case adverse to the Sullivan authorities. On November 18, the latter sought discretionary review of the Examiner’s decision under the Board’s Rule 28, 14 C.F. R. § 302.28. In addition, they had also instituted an action for a declaratory judgment and an injunction in the District Court for the Southern District of New York. It was agreed that proceedings there should be suspended pending review of the Board’s October 30 order in this court. The Sullivan authorities filed a petition for such review on November 9, which we heard on December 3.
If Mohawk’s renewal application had been for a period expiring October 26, 1970, simpliciter, the correctness of the Board’s decision would be so clear as not to require extended discussion. The final sentence of § 9(b) says that once a timely and sufficient application for renewal or a new license has been made, no “license with reference to an activity of a continuing nature” shall expire until that application has been finally determined. It does not say that an application for a renewal or a new license imposes an obligation beyond the terms sought, which the applicant does not wish to assume. If the words themselves left any doubt what the sentence meant, the context would remove it. The whole thrust of § 9(b) is to protect applicants and licensees, not to impose unsought obligations upon them. The first sentence directs that license applications shall be heard “within a reasonable time.” The second sentence protects against suspension or revocation unless written notice of the objectionable conduct is given to the licensee and he is afforded an opportunity to comply with all lawful requirements. The final sentence completes the circle by providing that if the licensee has timely sought renewal, the valuable rights conferred by a license for a limited term shall not be lost simply because the agency has not managed to decide the application before expiration of the existing license. As Mr. Justice Burton said, dissenting in Pan-Atlantic Steamship Corp. v. Atlantic Coast Line R.R., 353 U.S. 436, 444-445, 77 S.Ct. 999, 1005, 1 L.Ed.2d 963 (1957), in a passage with which the majority did not express disagreement:
The policy behind the third sentence of § .9(b) is that of protecting those persons who already have regularly issued licenses from the serious hardships occasioned both to them and to the public by expiration of a license before the agency finds time to pass upon its renewal.
S.ee also Attorney General’s Manual on the Administrative Procedure Act 91-92 (1947).
It may well be, although we do not decide the point, that when the holder of a certificate limited in time applies for a renewal for a fixed period, a literal application of the final sentence of § 9(b) of the APA and the public interest considerations mentioned by Mr. Justice Burton would prevent his withdrawing the application or ceasing service before the stipulated date except on authorization granted pursuant to § 401(g) or (j). But it would be stretching the language of the last sentence of § 9(b) outside its reasonable meaning or intended purpose to give it the effect of prolonging through an indefinite period of administrative inaction the authorization of an unwilling licensee beyond the fixed period for which he has sought renewal.
The Sullivan authorities argue that even if that should be so, a different result is required here because of the second sentence in the renewal application, usually dubbed the “catchall” clause, in which Mohawk prayed “for such other, further, and different relief as the Board may deem appropriate.” Examination of the Board’s files would doubtless reveal such precautionary language in certificate applications going back to the agency’s earliest days. The draftsmen of thirty years ago were very likely following equity pleading practice, see, e. g., Form 17 to F.R.Civ.P., without any particularly definite idea what they meant the clause to accomplish. Other practitioners followed their example for safety’s sake. Gradually certain uses did emerge. If a person applied for a permanent certificate but, after hearing, was given a temporary one, the “catchall” would surely protect against an adverse party’s claim of not having been put on proper notice. See, e. g., Salt Lake City—Rapid City Extension Case, 16 C.A.B. 594, 600 (1952). Whether the catchall clause would oblige the applicant to accept such a certificate or would require an applicant for a short-term certificate to accept one of longer duration are different questions, which do not seem to have arisen. An even more important usefulness was in matters of routing and points of service. The Board might decide to grant certain points sought by an applicant but not others, to arrange them in a different way, to impose restrictions against nonstop or turn-around service, or to authorize service to certain points not sought but nevertheless accepted with varying degrees of enthusiasm. The value of a catchall clause' in empowering the Board to authorize routes not specifically requested and in protecting against an adverse party’s claim of lack of notice when the Board gave such an authorization was impressively demonstrated by CAB v. State Airlines, Inc., 338 U.S. 572, 575-577, 70 S.Ct. 379, 94 L.Ed. 353 (1950). Again the issue whether a mere catchall clause would require an applicant to serve an unrequested stop which the Board included in its certificate seems not to have arisen; the applicant in North Central Airlines, Inc. v. CAB, 281 F.2d 18, 108 U.S.App.D.C. 185 (D.C.Cir. 1960), had gone considerably beyond the stereotyped phraseolgy in indicating willingness to serve additional unspecified cities..
The Board would scarcely have been justified and was much less required to read the catchall clause of Mohawk’s 1967 renewal application as expanding timewise the carrier’s extremely specific request for renewal of its authorization to serve Liberty/Monticello on segments 1 and 2 “for three years from the present expiration date.” The catchall clause could scarcely turn such an explicit declaration of desire to serve for a limited period even without a sifting of the facts into an indication of willingness to serve for whatever period the Board might choose to take to determine the renewal application. Mohawk expected that before the end of the specified term it would have had experience in operating to and from the Sullivan County Airport, which was scheduled for completion by June of 1968, and the proof of the pudding would then be in the eating. Mohawk has now had over a year’s experience in serving Liberty/Monticello and considers it a losing proposition. Whatever effect the catchall clause might have had if the Board had acted on the renewal application before October 26, 1970, and had decided to continue the authority beyond that date, or whatever bearing it may have on the Board’s power to force Liberty/Monticello upon Mohawk under § 401(g) if the agency should disagree with its Trial Examiner as to the conclusions to be drawn from the evidence developed in the case brought by Sullivan County under that section, issues on which we intimate no opinion, it did not have the effect of continuing Mohawk’s obligation to serve Liberty/Monticello after October 26, 1970, without an agency determination of any sort.
We therefore deny the petition to review. We also deny a motion for a mandatory injunction to direct the Board to compel continued service by Mohawk. This seems only to be asking the same thing in another way which would pose additional problems.
. Liberty/Monticello was designated as an intermediate point in segment 1 between New York, N. Y./Newark, N. J., and Buffalo and Niagara Falls, N. Y., and on segment 2 between New York, N. Y./Newark, N. J. and northern New York points. The remainder of these two authorizations was permanent.
. The County asserts the airport was “designed to meet all of Mohawk’s requirements.” Mohawk says the airport, especially the large terminal building, went far beyond them.
. If it becomes apparent that the agency will not complete proceedings before the stipulated date and the licensee wishes the license to continue, presumably he can amend his renewal application or file a new one. See 14 C.F.R. § 377.10(c).
. As Mr. Justice Reed pointed out in the opinion in that case, 281 F.2d at 21, the problem is related to but somewhat different from the issue of the Board’s power under § 401(g) [§ 401(h) of the earlier Civil Aeronautics Act of 1938, 52 Stat. 973, 989] to amend an existing certificate to include points the carrier does not wish to serve.
. Examiner Fitzmaurice’s initial decision contains other material indicating Mohawk’s scepticism in early 1967 concerning the Sullivan County operation.
Question: What is the total number of respondents in the case that fall into the category "natural persons"? Answer with a number.
Answer:
|
songer_district
|
G
|
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".
THILL v. UNITED STATES.
No. 6761.
Circuit Court of Appeals, Ninth Circuit.
Aug. 5, 1933.
John J. Sullivan and Everett O. Butts, both of Seattle, Wash., and Fred McDonald, of San Francisco,,Cal., for appellant.
Anthony Savage, U. S. Atty., and Tom De Wolfe, Asst. U. S. Atty., both of Seattle, Wash.
Before WILBUR, MACK, and GARRECHT, Circuit Judges.
WILBUR, Circuit Judge.
John Thill, claimant of one Cadillac town sedan automobile, engine number 1001858, model 370, Indiana license number 758-471, brings this appeal from the decree of forfeiture of said Cadillac automobile entered on the 25th day of January, 19321, by the District Court of the United States for the Western District of Washington. The government seeks forfeiture of the automobile under Rev. Stat. §§ 3061, 3062 (19 USCA §§ 482, 483), and sections 459, 460 of the Tariff Act of 1930 (19 USCA §§ 1459, 1460).
On August 23, 1931, John Thill, claimant, and Sue Thill, his wife, entered the United States from Canada at Blaine, Wash., in said automobile. They were stopped by the customs officials at the port of Blaine, Wash., and the usual examination was made. Mrs. Sue Thill was taken into the customs office and searched, and there were found concealed on her person three and one-half ounces of smoking opium, five eodinc tablets, one five-grain veronal tablet, two ounces of laudanum, one ounce of paregoric, and one vial of strychnine sulphate tablets. Claimant, on behalf of himself and his wife, declared certain merchandise in their possession, which declaration did not include the property which was found on the person of Ms wife.
The contention of claimant, appellant, is that since the contraband articles were found on the person of Mrs. Thill and not in the car itself, and, as he claims, they were in her possession without his knowledge, the automobile is not subject to forfeiture under R. S. §§ 3061, 3062 (19 USCA §§ 482, 483). As Mrs. Thill was a passenger in said automobile with the smuggled goods concealed on her person, the automobile was transporting said merchandise. The fact that the appellant did not know that his wife had these articles in her possession would not relieve the car of forfeiture. The language of sections 3061 and 3062 of the Revised Statutes is very broad and provides for forfeiture of the merchandise when it is introduced into the United States in any manner contrary to law, whether by the person in possession or charge, or by, in, on, about, or upon a vehicle, or otherwise, and also provides for the forfeiture of the vehicle which is used in conveying, drawing, or propelling said merchandise.
In General Motors Corp. v. United States, 286 U. S. 49, 52 S. Ct. 468, 470, 76 L. Ed. 971, 82 A. L. R. 600, Justice Caxdozo, speaking for the court, said: “Certain it is therefore that vehicles carrying smuggled merehandise other than intoxicating liquors may still be seized and forfeited under the provisions of the tariff acts and those of the Revised Statutes ancillary thereto. The forfeiture may be enforced even against innocent owners, though the Secretary of the Treasury may remit it, upon such terms as he deems reasonable, if satisfied that there was neither willful negligence nor intent to violate the law. Rev. St. § 378 (5 USCA § 328); Tariff Acts of 1922 (19 USCA §§ 520, 532) and 1930, sections 613, 618 (19 USCA §§ 1613, 1618). The penalty is at times a hard one, but it is imposed by the statute in terms too clear to be misread.”
It is immaterial under R. S. §§ 3061 and 3062 that the merchandise be found on the person of a passenger in the vehicle. We agree with Judge Bourquin, as stated by him in U. S. v. One Gardner Roadster (D. C.) 35 F.(2d) 777, 778, that sections 3061, 3062, Rev. Stat. (19 USCA §§ 4821, 483), require the forfeiture of a vehicle whether the contraband articles are “in direct contact with it or indirectly by reason of intervention of container or person, at least when the intervening person is driver of beast or vehicle.”
Appellant relies upon our decision in U. S. v. One 1920 Premier Automobile, 297 F. 1007. That ease is clearly distinguishable from the case at bar. There the proceedings were under section 3450 of the Revised Statutes (26 USCA §§ 1181, 1182) dealing with internal revenue. These sections, among other things, deal with the removal of goods within the United States for the purpose of evading the tax thereon. It was held by us in U. S. v. One 1920 Premier Antomobile, supra, that the purpose of the transportation of the eodine capsules was not proven to be for its “removal from particular specified places designated by law.” (See opinion of Judge Cushman, U. S. v. One Ford Automobile Truck [D. C.] 286 F. 204, 209, which we cited.) It was also stated in that opinion, as a second ground of decision, that the removal “was not a removal of the capsules of cocaine, but was a removal of the possessor thereof, -who had them upon his person.” This second ground seems too narrow a view of the situation in light of decisions of the Supreme Court holding that the rule of strict construction of laws imposing a penalty do not apply to statutes enacted to prevent fraud on revenue. U. S. v. Ryan, 284 U. S. 167, 174, 52 S. Ct. 65, 67, 76 L. Ed. 224, where it was said: “We are not called upon to give a strained interpretation in order to avoid a forfeiture. Statutes to prevent fraud on the revenue are construed less narrowly, even though a forfciture results, than penal statutes and others involving forfeitures. U. S. v. Stowell, 133 U. S. 1, 12, 10 S. Ct. 244, 33 L. Ed. 555; Smythe v. Fiske, 23 Wall. 374, 380, 23 L. Ed. 47; U. S. v. Hodson, 10 Wall. 395, 406,19 L. Ed. 937; Cliquot’s Champaigne, 3 Wall. 114, 145, 18 L. Ed. 116; Taylor v. United States, 3 How. 197, 210, 11 L. Ed. 559.”
However that may be we hold that under the more comprehensive urovisions of section's 3061, 3062, Rev. Stat.‘(19 USCA §§ 482, 483), a forfeiture must be decreed where the smuggled goods are “by, in, or upon such vehicle,” even though they be upon the person of an occupant of the car. This view has been advanced by a number of the District Courts. See U. S. v. One Gardner Roadster, 35 F.(2d) 777, supra; U. S. v. One Ford Truck, 39 F.(2d) 86; U. S. v. One Chevrolet Coach, 1 F. Supp. 310; U. S. v. One Studebaker Automobile, 2 F. Supp. 609.
Decree affirmed.
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_state
|
36
|
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".
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant Cross-Appellee, v. The MONARCH MACHINE TOOL COMPANY; and Local Lodge No. 996 of the International Association of Machinists and Aerospace Workers, AFL-CIO, Defendants-Appellees Cross-Appellants.
Nos. 77-3526, 77-3527.
United States Court of Appeals, Sixth Circuit.
Argued Dec. 12, 1979.
Decided Nov. 14, 1980.
Designated for Publication June 22, 1984.
Odas Nicholson, Asst. Gen. Counsel, MacArthur Drake, E.E.O.C., Chicago, 111., William Ng, argued, Sharyn Lynn Danch, EEOC, Counsel, Washington, D.C., for plaintiff-appellant cross-appellee.
Richard A. DuRose, argued, Smith & Schnacke, Dayton, Ohio, for Monarch.
Bruce E. Pence, Dayton, Ohio, for Local Lodge No. 996.
Before ENGEL, MERRITT and KENNEDY, Circuit Judges.
ENGEL, Circuit Judge.
This Title VII litigation had its genesis when charging parties Carol Ross and Melissa Hanna applied to the Monarch Machine Tool Company (Monarch) in Sidney, Ohio, for jobs as general laborers and were rejected. Both women filed a charge of sex discrimination with the Equal Employment Opportunity Commission (EEOC) on the same day. The EEOC brought suit against Monarch and Local 996, International Association of Machinists, alleging that, from July 2, 1965 to the time of the suit, the company had intentionally engaged in unlawful employment practices, in violation of section 703(a) of Title VII of the Civil Rights Act of 1964, by refusing to hire women for factory work until July, 1974, and thereafter failing to hire women at the same rate as men. In its prayer for relief, the Commission sought a permanent injunction against the discriminatory employment practices, and sought to institute a program to provide equal employment opportunities for women “having the effect of eradicating the defendant’s past and present unlawful practices.” The Commission also requested the court “to order the company to make whole those persons adversely affected by the unlawful employment practices described herein, by providing appropriate backpay, with interest, in an amount to be proved at trial” and to afford “other affirmative relief necessary to eradicate the effects of its unlawful employment practices.”
At trial, it was shown that Monarch had hired no women for factory work until July, 1974. The reason given by the company for this apparent discrimination was its reliance upon Ohio’s female protective statutes, which effectively limited the company’s ability to hire female employees for general labor of the nature required by Monarch. While the Ohio Supreme Court declared that these statutes conflict with Title VII, Jones Metal Products Co. v. Walker, 29 Ohio St.2d 173, 281 N.E.2d 1 (1972), the company sought to establish before the district court that the lack of rest room facilities for women and budget restrictions caused by the company’s financial condition restricted its ability to hire women for factory work until July, 1974, when it acquired temporary rest room facilities.
The EEOC sought a bifurcated trial at which the general allegations of sex discrimination would be established initially with specific relief to be later determined in separate proceedings. The district court, however, without ruling on the viability of class relief, brought the case on for trial on the merits generally. In a written- opinion, the district judge ruled that the company’s reliance upon the lack of rest room facilities was a “subterfuge” and held that Monarch had improperly refused to hire Ross and Hanna because they were women. He thereupon proceeded to award Ross and Hanna backpay from the date the company refused them employment on February 26, 1974, until July, 1974, when Monarch began generally hiring women. The court held that the evidence before it did not indicate that either Ross or Hanna had failed to seek other work'diligently or had earned other wages which would reduce the award of backpay, and accordingly awarded $2,664 to both women, reflecting an hourly rate of $3.70 for an 18-week period. The district judge issued an injunction prohibiting Monarch from committing similar acts of discrimination in the future. The court also dismissed the charges against Local 996. Finally, the district judge held that the Commission had failed to prove that any other females were the victims of discrimination and declined to reopen the proceedings for the presentation of proof to that effect.
I.
At the time this case was tried in the district court, considerable uncertainty existed whether actions brought by the EEOC under Title VII must, if they sought class-wide relief, proceed subject to the specific rules governing class actions set forth in Rule 23 of the Federal Rules of Civil Procedure. The Supreme Court has recently fully resolved that issue in General Telephone Co. of the Northwest, Inc. v. EEOC, 446 U.S. 318, 100 S.Ct. 1698, 64 L.Ed.2d 319 (1980). Relying upon the language of Title VII itself, the legislative intent underlying the 1972 amendments to the Civil Rights Act and the enforcement procedures which existed prior to the amendments, the Supreme Court held that Rule 23 is not applicable to an enforcement action brought by the EEOC under section 706. Because it is most apparent that had the trial judge possessed the advantage of the Supreme Court’s ruling in General Telephone Company of the Northwest, supra, at the time of trial, he would have proceeded with the class action aspects of the suit in the manner sought by the Commission, we note at the outset that a general remand is necessary for this purpose.
A number of other issues have been raised by the parties in their cross-appeals. Because the case must in all events be remanded, we also proceed to deal with these issues, finding merit in many of them, and conclude that a vacation of the entire judgment and de novo trial is the means most fairly and efficiently to remedy the errors found herein.
II.
In its cross-appeal Monarch complains that the trial judge, in finding it guilty of sex discrimination, relied upon certain evidence which he requested that the company submit at the close of the trial. Monarch complied, but the district judge did not permit the company to reopen the proof to present any rebuttal evidence concerning the relevance and accuracy of that evidence. Specifically, the district judge at the close of trial requested all of the applications for employment which Monarch received from October, 1973 through October, 1974, stating at the time:
I mean I am not going to have another hearing on this. I’m not taking the position that this is critical information or even dispositive information. I simply want to see it for my own background information, and if counsel wishes to make a copy available to you, I don’t care, but I am not going to require it.
Although the trial judge stated that the applications would not be considered dis-positive, he in fact specifically relied upon this evidence in finding Monarch guilty of discrimination. In our view, it was error for the trial judge to have so considered the evidence without giving Monarch an opportunity for a response, and to have used it for a purpose and to an extent not indicated by him when he requested it.
The circumstances here are not unlike those in Wright v. Southwest Bank, 554 F.2d 661 (5th Cir.1977), where the Fifth Circuit held that it was error for the trial court to have considered evidence which was filed after the parties had completed the presentation of their proof. We agree with the following observation in Wright:
A trial judge, sitting without jury, is entitled to great latitude concerning the admission or exclusion of evidence, but it is error to accept evidence ex parte because it is inherently unfair to allow one party to put evidence before the court without allowing his opponent the opportunity to test its validity.
554 F.2d at 663 (footnote omitted). See also Fireman’s Fund Insurance Co. v. Wilburn Boat Co., 259 F.2d 662 (5th Cir.1958).
Because we are remanding for a trial de novo, Monarch will have an opportunity to present evidence to attempt to explain the information contained in the applications and to dispel the inferences which the district judge drew therefrom. Likewise, the EEOC may wish to offer additional evidence to explain the significance of these applications because it, like Monarch-, was denied the opportunity to address this issue in the district court.
III.
Monarch in its cross-appeal also asserts that the district judge erred in granting general injunctive relief. It argues that such a grant was unnecessary because since July, 1974, Monarch had discontinued any discriminatory hiring practices with respect to female applicants.
As we have noted before, because of our general vacation of the judgment below and remand for new trial, it is not possible to anticipate what may. be the ultimate judgment of the district court on remand. It is true that we have upheld the denial of injunctive relief in other Title VII eases where the evidence showed that, while there may have been discriminatory practices in the past, there was no longer any evidence of such discrimination and such relief was not needed. Donnell v. General Motors Corp., 576 F.2d 1292 (8th Cir.1978). At the same time we have consistently recognized that the matter is one for the proper exercise of judicial discretion. Thus, in EEOC v. New York Times Broadcasting Service, Inc., 542 F.2d 356 (6th Cir.1976), we upheld a district court’s grant of an injunction where the evidence indicated that the employer had in fact discontinued its discriminatory practices. There we observed:
The defendant in its brief and the district court in its opinion rely heavily upon the corrective practices which have been taken by the television station since the filing of Ms. Wilson’s complaint and the filing of the EEOC action in the district court. It may be true that under new management more enlightened attitudes have prevailed and that this has had a distinctly beneficial effect upon employment practices and resulted in a more balanced composition of the staff at the television station. However, we agree with the EEOC that the voluntary changes effectuated by the defendant, as salutary as they may be, do not render moot the questions presented in the litigation or make judicial sanctions inappropriate, Rowe v. General Motors Corp., 457 F.2d 348 (5th Cir.1972); United States v. I.B.E.W., Local 38, 428 F.2d 144 (6th Cir.1970), but are rather more properly considered and must inevitably bear upon the extent of any corrective action to be ordered.
Id. at 361. See also Manning v. International Union, 466 F.2d 812 (6th Cir.1972).
In his conclusions of law, the trial judge here held that “[wjhere charging parties have proved discrimination, such parties are entitled to damages and the Equal Employment Opportunity Commission is entitled to injunctive relief.” To the extent that such a finding endeavors to set forth an inflexible rule, it would in our view be inconsistent with the grant of discretion given a district judge under 42 U.S.C. § 2000e-5(g). We emphasize with respect to injunctive relief that it is fundamentally an exercise of equitable power and we leave to the discretion of the trial judge on remand the final decision whether such relief is appropriate under all the circumstances of the case, if it is shown that the employer has been guilty of the discriminatory practices alleged.
IV.
Although the trial court appears to have determined that Monarch discriminated generally against women on account of their sex during the period in question, it limited individual relief to the two charging parties, finding that proof had been presented only as to them. We conceive that this ruling was primarily the result of the trial judge’s conclusion that the EEOC had failed to comply with Rule 23 as a condition to seeking broader relief. This, of course, has subsequently been held to be unnecessary in Title VII actions brought by the commission. See Part I, supra.
Because the EEOC powers are not limited by Rule 23 and because it never abandoned its right to seek class-wide relief, we believe that the trial should have been bifurcated, if class-wide discrimination was properly found. The burden and order of proof in class actions under Title VII has rather clearly evolved in Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977), and more particularly in Franks v. Bowman Transportation Co., 424 U.S. 747, 96 S.Ct. 1251, 47 L.Ed.2d 444 (1976). Thus, as pointed out by the Supreme Court in Teamsters, the Commissioner’s burden at the liability stage is:
to demonstrate that unlawful discrimination has been a regular procedure or policy followed by an employer. At the initial, “liability” stage ... the government is not required to offer evidence that each person for whom it will ultimately seek relief was a victim of the employer’s discriminatory policy. Its burden is to establish a prima facie case that such a policy existed.
431 U.S. at 360, 97 S.Ct. at 1867.
If on retrial the trial court finds that a policy of discrimination existed in Monarch’s refusal to hire women for general labor employment, we then agree with the position of the EEOC upon appeal, that such a pattern of discrimination establishes a prima facie case of liability to all women rejected during the period of unlawful exclusion from 1972 to 1974. It further follows that if the district court makes a general finding of discrimination, the burden is upon the company to prove that qualified individual women who applied for available employment openings were rejected for non-discriminatory reasons. Franks v. Bowman Transportation, supra, 424 U.S. at 773 n. 32, 96 S.Ct. at 1268 n. 32.
V.
In awarding backpay to the charging parties Ross and Hanna, the trial judge found that the average hourly rate between February, 1974 and July, 1974 in job level II was $3.70 per hour. The trial judge further found that:
plaintiffs are entitled to damages for the period beginning February 24, 1974, when they were discriminated against because of sex until July, 1974, when defendant ceased discriminating against women applicants. Assuming a pay rate of $3.70 per hour and a 40-hour week, plaintiffs are each entitled to the sum of $148 per week for 18 weeks, or a total of $2,664.00.
Both parties appeal from this finding. Both agree that the hourly rate chosen by the trial judge, $3.70, was incorrect, but disagree as to the appropriate rate. The EEOC claims the rate was $3.18 per hour, the wage which Monarch paid certain male applicants whom the trial judge determined to possess qualifications similar to the charging parties. The company for its part relies upon the collective bargaining agreement, which states that after November 25, 1973, employees at level II earned $2.94 per hour and employees at level III received $3.06 per hour. There is evidence, however, to show that during the same period, the company did in fact pay $3.18 per hour to some of its employees at level II and $3.35 per hour for employees hired at level III. Because both parties agree that the finding of the trial court was wrong but disagree as to the correct figure, the matter remains open for final resolution and reconsideration by the trial judge.
The company further complains that the district judge failed to consider other wages which the women earned or could have earned during that period. In fact the trial judge did make the following finding: “[N]o evidence has been produced as to a lack of diligence of charging parties in seeking other employment, nor has evidence been produced as to actual earnings by charging parties during the time in question.” Both Hanna and Ross testified, however, that they were, in fact, employed during portions of the period for which the district court awarded damages. Carol Ross stated she worked from May, 1974 through February, 1975, earning $2.00 per hour and working forty hours per week. Melissa Hanna testified that she also worked forty hours per week except for certain layoffs and earned $3.70 per hour initially and was, in fact, earning $4.95 at the time of trial. Clearly the interim earnings of the two women should have been ascertained and should have reduced the award of backpay. Upon remand, the district court should take such evidence into account in making an award.
Monarch also complains that Ross did not diligently seek other employment and that her backpay should, therefore, be reduced. The company claims that the fact that Hanna was able to obtain other employment at a wage rate higher than paid at Monarch demonstrates that Ross, who possessed similar qualifications, did not make sufficient effort to locate a job. In support of this proposition, Monarch relies primarily upon Jurinko v. Edwin L. Wiegand Co., 331 F.Supp. 1184 (W.D.Pa.1971). In Jurinko two women successfully proved that they had been refused employment by Wiegand because of discrimination. In awarding backpay, the district judge reduced the award of backpay to one because of evidence that the other had successfully obtained employment. Id. at 1188. In essénce, the company argues that, as a matter of law, the experience of the charging party most successful in obtaining alternate employment should set a standard for awarding backpay to other claimants. We decline to establish such a rule. While evidence of employment opportunities is, of course, relevant to the question of whether a given employee was diligent in seeking alternative employment, we are unwilling to so encumber a statutory scheme which vests discretionary authority in the district judge, to be exercised on the basis of all the relevant facts in each case. Moreover, it is important to remember that once discrimination is shown, the defendant has the burden of proving that the employee did not diligently seek other employment. Kaplan v. International Alliance of Theatrical and Stage Employees, 525 F.2d 1354, 1363 (9th Cir.1975). See Rolfe v. County Board of Education of Lincoln County, Tenn., 391 F.2d 77 (6th Cir.1968).
VI.
Finally, in its appeal, the EEOC maintains that the trial judge erred in cutting off the award of backpay to Ross and Hanna at July, 1974. The trial judge does not articulate his reasons for cutting off the award on that date, but we note that this was the date when Monarch commenced hiring women for the general labor force. Upon the record here, however, we seriously doubt that a backpay cutoff date based upon this factor was justified. Albemarle Paper Co. v. Moody, 422 U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975). The cessation of a general policy of discrimination is not a basis for terminating the award of backpay for prior victims absent equitable considerations which overrule the law’s policy of providing full and adequate relief to those injured by employment discrimination. It is true that some support for the trial judge’s action can be found in Thornton v. East Texas Motor Freight, 497 F.2d 416 (6th Cir.1974), wherein our court upheld the trial court’s refusal to award backpay beyond the date the company ceased its discriminatory practices. Any doubt as to whether the good faith of the employer alone is an adequate basis for denying backpay, however, was in our judgment fully dispelled by Albemarle Paper Co. v. Moody, 422 U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975). In Albemarle the Court wrote:
Where an employer has shown bad faith — by maintaining a practice which he knew to be illegal or of highly questionable legality — he can make no claims whatsoever on the Chancellor’s conscience. But, under Title VII, the mere absence of bad faith simply opens the door to equity; it does not depress the scales in the employer’s favor. If back-pay were awardable only upon a showing of bad faith, the remedy would become a punishment for moral turpitude, rather than a compensation for workers’ injuries. This would read the “make whole” purpose right out of Title VII, for a worker’s injury is no less real simply because his employer did not inflict it in “bad faith.” (footnote deleted). Title VII is not concerned with the employer’s “good intent or absence of discriminatory intent” for “Congress directed the thrust of the Act to the consequences of employment practices, not simply the motivation.” Griggs v. Duke Power Co., 401 U.S., [424] at 432, [91 S.Ct. 849 at 854, 28 L.Ed.2d 158]. See also Watson v. City of Memphis, 373 U.S. 526, 535 [83 S.Ct. 1314, 1319, 10 L.Ed.2d 529] (1963); Wright v. Council of City of Emporia, 407 U.S. 451, 461-462, 92 S.Ct. 2196, 2202-2203, 33 L.Ed.2d 51 (1972). To condition the awarding of backpay on a showing of “bad faith” would be to open an enormous chasm between injunctive and backpay relief under Title VII. There is nothing on the face of the statute or in its legislative history that justifies the creation of drastic and categorical distinctions between those two remedies.
Id. 422 U.S. at 422-3, 95 S.Ct. at 2373-74. See also Palmer v. General Mills, Inc., 513 F.2d 1040, 1042 (6th Cir.1975), and Palmer v. General Mills, Inc., 600 F.2d 595, 598-600 (6th Cir.1979).
Albemarle itself was foreshadowed by this circuit’s decision in Head v. Timken Roller Bearing Co., 486 F.2d 870 (6th Cir.1973), where Judge Miller, speaking for the court, emphasized that the prime object of a backpay award was to make the injured party whole and that this consideration was generally unaffected by the motivation of the employer:
The finding of discrimination by the district court, in addition to the nature of the relief (compensatory as opposed to punitive), and the clear intent of Congress that the grant of authority under Title VII should be broadly read and applied mandate an award of back pay unless exceptional circumstances are present.
Congress evidently intended that the award of back pay should rest within the sound discretion of the trial judge. Although appellate courts are loathe to interfere with the exercise of such discretion by a trial court, it is recognized that it is not free from appellate scrutiny. In Moody v. Albemarle Paper Co., 474 F.2d
134, 141 (4th Cir.1973), the Fourth Circuit said:
Discretion in a legal sense necessarily is the responsible exercise of official conscience on all the facts of a particular situation in the light of the purpose for which the power exists. Bowles v. Goebel, 151 F.2d 671, 674 (8th Cir.1945) (emphasis added). Thus in determining the proper scope of the exercise of discretion, the objective sought to be accomplished by the statute must be given great weight. Hecht Co. v. Bowles, 321 U.S. 321, 331, 64 S.Ct. 587, 592, 88 L.Ed. 754 (1944). Where a district court fails to exercise discretion with an eye to the purposes of the Act, it must be reversed. Wirtz v. B.B. Saxon Co., 365 F.2d 457 (5th Cir.1966); Shultz v. Parke, 413 F.2d 1364 (5th Cir.1969).
We find no reasonable basis for denial of such relief on the present record. The 1968 change in Timken’s seniority system does not ameliorate the injury already suffered. Good faith by Timken either during the 1965-68 period or thereafter is not a' valid defense to a claim for back pay.
Id. at 876-7. Precisely when an award of backpay should end appears to depend upon the circumstances in each case and upon an application of the broad “make whole” principles enunciated by the Supreme Court in Albemarle and by our own circuit in Head, Palmer, and Manning v. International Union, 466 F.2d 812 (6th Cir.1972). See also Pettway v. American Cast Iron Pipe Co., 494 F.2d 211, 251-53 (5th Cir.1974).
The EEOC argues that because Ross and Hanna should have been employed in February, 1974, they are entitled to backpay up to the date of any final judgment in the district court, and presumably this would carry the award up to the final date of judgment upon retrial, less of course any sums earned in other employment. Generally, where an employer has discriminatorily refused to hire an employee, contrary to that employee’s rights under Title VII, the award of backpay will be computed from the date of first refusal until final judgment. As a leading treatise in this area notes:
In the individual case, the termination date of back-pay liability is ordinarily the date of an offer of. employment, reinstatement, or promotion, whether pursuant to a court decree or voluntarily. There may be some instances in which an earlier date may be appropriate. Some courts have terminated back pay as of the date the plaintiff obtained a better paying job than the job sought from the defendant. In a promotion case, the period of liability will end if plaintiff voluntarily quits his employment with the defendant absent a constructive discharge. Some courts have terminated the back-pay period after a specified time on the ground that it was speculative whether the plaintiff would have continued in the employer’s employ beyond that period. The backpay period will end if the plaintiff dies, retires, or otherwise is not eligible for employment or reinstatement. If the defendant sells his business and therefore could not have offered employment or reinstatement after that date, back pay will end upon the sale. If a discharged plaintiff does not seek reinstatement, it could be argued that the filing of a complaint not seeking reinstatement constituted a waiver to reemployment from that date forward and terminated the back-pay period.
Schlei and Grossman, Employment Discrimination Law 1240-41 (1974). The district judge was mistaken in terminating the award of backpay to Ross and Hanna on the date the company began hiring women. In the absence of the type of compelling considerations present in Manning and Palmer II, supra, we hold that the limitation on the recovery of backpay which the district court imposed in this case frustrates the purposes of Title VII.
CONCLUSION
While we regret the necessity of remanding for a full retrial, nothing herein is intended to preclude the court and the parties from agreeing to any economies in time which may come from the use of the record already before the court. The important objective to be achieved upon remand is, of course, a full, fair and complete trial to consider, initially, the general question of discrimination. If the district court concludes discrimination existed, it should then conduct a separate hearing' to establish which individuals are entitled to relief.
Reversed and remanded for a new trial or other proceedings consistent herewith.
. Ohio Revised Code §§ 4107.40-4107.53 (Baldwin’s 1977). These provisions prohibit the employment of women in jobs which require lifting more than twenty-five pounds repeatedly and restrict the number of hours which women can work per day and per week.
. As noted in Wright, supra, at 663 n. 5, the result is the same both before and after the adoption of the Federal Rules of Evidence, Rule 611(a), which provides the trial judge with broad discretion over "the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth ...."
. Although we realize the Supreme Court in Teamsters was discussing the proper procedure for the district court to follow in a section 707 pattern-and-practice suit, it adopted this procedural framework from Franks which dealt with class actions under section 706. 431 U.S. at 358-61, 97 S.Ct. at 1866-67.
. The EEOC does not dispute the trial judge’s commencement date of the awards to Hanna and Ross as the date when the company refused to hire them on February 26, nor does it appear generally to dispute our circuit’s holding that a trial judge might properly exercise his discretion to deny awards of backpay prior to March 15, 1972, the date when Ohio women’s protective statute was declared unconstitutional by the Ohio Supreme Court, Jones Metal Products v. Walker, 29 Ohio St.2d 172, 281 N.E.2d 1 (1972). See generally, Manning v. International Union, 466 F.2d 812 (6th Cir.1972), cert. denied, 410 U.S. 946, 93 S.Ct. 1366, 35 L.Ed.2d 613 (1973); Palmer v. General Milk, Inc., 600 F.2d 595 (6th Cir.1979).
Title VII itself recognizes a complete, but very narrow, immunity for employer conduct shown to have been undertaken "in good faith, in conformity with, and in reliance on any written interpretation or opinion of the [Equal Employment Opportunity] Commission.” 42 U.S.C. § 2000e-12(b). It is not for the courts to upset this legislative choice to recognize only a narrowly defined "good faith” defense.
We note that some courts have denied backpay, and limited their judgments to declaratory relief, in cases where the employer discriminated on sexual grounds in reliance on state "female protective” statutes that were inconsistent with Title VII. See, e.g., Kober v. Westinghouse Electric Corp., 480 F.2d 240 (CA 3 1973); LeBlanc v. Southern Bell Telephone & Telegraph Co., 460 F.2d 1228 (CA 5 1972); Manning v. General Motors Corp., 466 F.2d 812 (CA 6 1972); Rosenfeld v. Southern Pacific Co., 444 F.2d 1219 (CA 9 1971). There is no occasion in this case to decide whether these decisions were correct. As to the effect of Title VII on state statutes inconsistent with it, see 42 U.S.C. § 2000e-7.
This Court in Manning v. International Union, 466 F.2d 812 (6th Cir.1972), denied back pay despite a showing of discrimination. That case is easily distinguishable from the case at hand, for in Manning the defendants were caught between two statutes, one directing them not to discriminate and one directing them to discriminate.
. This treatise was cited with approval by the Supreme Court in Teamsters v. United States, 431 U.S. 324, 335-36 n. 15, 97 S.Ct. 1843, 1854-55 n. 15, 52 L.Ed.2d 396 (1977).
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:
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songer_respond1_3_2
|
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 respondent. The nature of this litigant falls into the category "federal government (including DC)". Your task is to determine which category of federal government agencies and activities best describes this litigant.
Ralph H. SEIPEL, d/b/a Investors Surety Company, Appellant, v. SECURITIES AND EXCHANGE COMMISSION, Appellee.
No. 12557.
United States Court of Appeals District of Columbia Circuit.
Argued Oct. 24, 1955.
Decided Nov. 3, 1955.
Petition for Rehearing Denied Feb. 29, 1956.
Mr. Charles F. O’Neall, Washington, D. C., with whom Mr. Francis C. Brooke, Washington, D. C., was on the brief for appellant.
Mr. William H. Timbers, Gen. Counsel, Securities and Exchange Commission, with whom Mr. David Ferber, Sp. Counsel, Securities and Exchange Commission, was on the brief for appellee.
Messrs. Leo A. Rover, U. S. Atty., and Lewis Carroll, Asst. U. S. Atty., also entered appearances for appellee.
Before EDGERTON, Chief Judge, and PRETTYMAN and WILBUR K. MILLER, Circuit Judges.
PER CURIAM.
Alleging that Ralph H. Seipel, a registered investment adviser, had violated § 206(1, 2) of the Investment Advisers Act of 1940, 15 U.S.C.A. § 80b-6(l) and (2), and was about to continue to do so, the Securities and Exchange Commission sued in the United States District Court for the District of Columbia to enjoin the continuance of the acts and practices said to constitute such violations. The District Court entered a permanent injunction from which Seipel appeals.
The record fully justified the action of the District Court.
Affirmed.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Which category of federal government agencies and activities best describes this litigant?
A. cabinet level department
B. courts or legislative
C. agency whose first word is "federal"
D. other agency, beginning with "A" thru "E"
E. other agency, beginning with "F" thru "N"
F. other agency, beginning with "O" thru "R"
G. other agency, beginning with "S" thru "Z"
H. Distric of Columbia
I. other, not listed, not able to classify
Answer:
|
songer_respond1_3_2
|
I
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Your task is to determine which category of federal government agencies and activities best describes this litigant.
UNITED STATES of America v. Sylvester KEARNEY, Jr., Appellant.
No. 73-1288.
United States Court of Appeals, District of Columbia Circuit.
May 17, 1974.
Tom M. Schaumberg, Washington, D. C. (appointed by this court), was on the brief for appellant.
Harold H. Titus, Jr., U. ,S. Atty. at the time the brief was filed, John A. Terry and Warren L. Miller, Asst. U. S. Attys., were on the brief for appellee. Brian W. Shaughnessy, Asst. U. S. Atty., entered an appearance for appellee.
Before WRIGHT and MacKINNON, Circuit Judges, and DAVIES, United States Senior District Judge for the District of North Dakota.
Sitting by designation pursuant to 28 U. S.C. § 294(d).
MacKINNON, Circuit Judge:
The principal point raised by appellant relates to his conviction for first degree burglary while armed, D.C. Code §§ 22-1801 (a), 22-3202, for which he was sentenced to imprisonment for two to ten years. Even though he raised an alibi defense at trial, on this appeal he does not contest his convictions on three armed robbery counts, D. C.Code §§ 22-2901, 22-3202, for which he was also sentenced to imprisonment for two to ten years on each count. Since all of these sentences were adjudged to run concurrently the term of imprisonment to which appellant has been sentenced will not be reduced even if his appeal were upheld. His predicament may be further complicated by a subsequent indictment charging him with (1) armed robbery and (2) assault with intent to kill. These additional charges arose out of a crime committed in the District of Columbia while appellant was released on bond following his arrest on the instant charges (Tr. 236).
After thorough consideration of all points raised by appellant, we find them to be without merit, and affirm all the convictions, except those for assault with a dangerous weapon, which we routinely vacate as lesser included offenses where there has also been convictions of the greater offenses of armed robbery.
Appellant’s precise claim on this appeal is that the trial judge erred in denying the defendant’s motion for a directed verdict of acquittal with respect to the burglary count, and in failing to instruct the jury that to convict it must find that there was an unlawful entry against the will of the occupants as defined by D.C.Code § 22-3102. Otherwise stated, appellant contends that if the occupants of a dwelling give express permission for a person to enter that such permission constitutes a defense to the crime of first degree burglary as defined by statute of the District of Columbia.
I
Can the crime of burglary in the first degree be committed in the District of Columbia when the occupants consent to the entry?
The common law crime of burglary no longer exists in the District of Columbia. It has been replaced by a statutory crime, denominated first degree burglary, which is defined as follows:
Whoever shall, either in the nighttime or in the daytime, break and enter, or enter without breaking, any dwelling, or room used as a sleeping apartment in any building, with intent to break and carry away any part thereof, or any fixture, or other thing attached to or connected thereto or to commit any criminal offense, shall, if any person is in any part of such dwelling or sleeping apartment at the time of such breaking and entering, or entering without breaking, be guilty of burglary in the first degree. Burglary in the first degree shall be punished by imprisonment for not less than five years nor more than thirty years.
D.C.Code § 22-1801 (a) (1973) (81 Stat. 736-737). The operative words of this statute, so far as this case is concerned, provide:
Whoever shall . . . enter without breaking, any dwelling, or room used as a sleeping apartment . with intent ... to commit any criminal offense, shall ... be guilty of burglary in the first degree.
Thus, under the statute the essential requirement for the offense is that the accused “enter . . . with intent . to commit any criminal offense.” It is the intent and acts of the accused that the statute makes controlling. There is no language in the statute from which it can be concluded that the entry must be by force or that it must be against the will of the occupant. A plain reading of the unambiguous language of the statute thus indicates that the consent of the occupant to the entry is not a defense to the offense if the stated requirements of the Act are violated. Under statutes such as presently exist in the District of Columbia, which define burglary as an entry without breaking with intent to commit any criminal offense, it is uniformly held that consent to enter is not a defense where one is shown to have entered with the requisite criminal intent. We accordingly see no need to go beyond the plain interpretation of the statute to deny appellant's attack on his conviction.
However, to assure that the same points will not be raised again, we point out the erroneous logic in appellant’s contentions. Appellant’s theory is somewhat novel. He argues basically that, since the offense generally denominated as unlawful entry, D.C.Code § 22-3102, may be a lesser included offense of burglary, all the elements of the lesser offense (which included entry against the will of the occupant) must be proved to sustain a conviction for burglary — a greater offense. We disagree. While unlawful entry might be a lesser included offense of first degree burglary in some factual situations, such as where the accused did “break and enter” and was so charged, it is not necessarily a lesser included offense of every first degree burglary as defined by the District of Columbia statute, e. g., where the accused enters “without breaking.” Whether unlawful entry is a lesser included offense or not, with respect to any particular crime that is charged, will depend not solely upon a comparison of the statutory requirements for the respective crimes but also upon an analysis of the facts of the offense as charged in each indictment and as proved at trial. The result may vary depending upon the facts alleged in each indictment, because the statutory requirements allow for committing the crime by various methods. While many first degree burglaries, as charged and proved, might include the lesser included offense of unlawful entry, there is no requirement, statutory or otherwise, that they do so.
A plain reading of the first degree burglary statute prohibits, inter alia, an entry without breaking with intent to commit any criminal offense, and where such statutory elements are proved, the statute is violated. Neither the unlawful entry statute, nor the forcible entry statute, D.C.Code § 22-3101 (1973), engraft any additional elements on the first degree burglary statute, The unlawful entry statute does not purport to amend the burglary statutes and it does not do so by operation of law, either expressly or impliedly. Nor do the requirements of the unlawful entry statute constitute additional elements of every second degree burglary.
We have previously noted that in the District of Columbia “a burglary can in rare circumstances be accomplished by means of an entry which is ‘permitted,’ ” United States v. Whitaker, 144 U.S.App.D.C. 344, 349, 447 F.2d 314, 319 (1971), and we have similarly held that burglary can be based on an entry into a public place where the requisite intent is proved. United States v. Whitaker, supra, 144 U.S.App.D.C. at 346, 447 F.2d at 316; See James v. United States, 92 U.S.App.D.C. 275, 204 F.2d 733 (1953). In fact, the weight of authority in the United States holds that consent to enter is not a defense to the charge of burglary even under statutes which require an “unlawful entry,” since an entry made with the necessary criminal intent is unlawful or wrongful.
It is thus apparent that since the District of Columbia first degree burglary statute makes it an offense to enter an occupied dwelling with intent to commit a crime therein and that such offense can be committed without a violation of the unlawful entry statute, the entry need not necessarily be against the will of the occupants. The requisite intent is the principal element of the crime of burglary in this district,
II
The important question here is whether Kearney was proved to possess that criminal intent. To meet its burden on this issue the Government proved that the accused entered the premises armed and disguised as a woman and accompanied by another man who also carried a concealed firearm. They had both obtained consent to their entry into the premises under the pretext that they were looking for another person who was expected to arrive shortly. Nevertheless, shortly after their entry, as soon as some of the occupants started a poker game, played one hand, and some money appeared on the card table, the accused and his companion whipped out their guns, robbed the occupants and fled. On these facts — (1) the disguise and the guns in their possession, both of which indicated advance planning and necessarily preceded their entry, (2) the facts surrounding their entry which were consistent with a pretextual entry, and (3) the rapidity with which they proceeded to rob the occupants almost as soon as money appeared— there was ample evidence for the jury to find that when appellant entered the apartment he possessed the criminal intent required by the statute.
Even if an entry against the will of the occupants was required, the consent that was given to the entry of appellant would be vitiated by the misrepresentation which he indulged in to obtain that consent. In obtaining the consent to enter, the pretense was used that the two men were paying a social visit looking for a person who was expected to arrive shortly. Appellant also concealed his identity by being disguised as a woman and both participants in the crime concealed their guns. They thus obtained consent to enter, and the continued consent to remain, by the use of pretense, subterfuge, misrepresentation and concealment. The occupants were deceived into granting consent. An entry obtained in that manner is not with the will of the occupants. Even with common law larceny, consent is not a defense where the burglar exceeds the scope of the consent. Thus, even if the requirements of the unlawful entry statute were required to be met, they are completely satisfied here.
We thus affirm all the convictions for first degree burglary and armed robbery, and vacate the convictions for assault with a dangerous weapon as charged by counts five, eight and eleven.
Judgment accordingly.
. See p. 63 infra.
. As to the three additional convictions for assault with a dangerous weapon, D.C.Code § 22-502, we have held, subsequent to appellant’s trial, that such offenses, as here charged, are lesser included offenses, of the armed robbery offenses. United States v. Johnson, 155 U.S.App.D.C. 28, 475 F.2d 1297 (1973). Ve will accordingly order that the convictions on counts five, eight and eleven be vacated. Since concurrent sentences of one to three years’ imprisonment were imposed on each of such offenses, and such sentences were also adjudged to run concurrently with the burglary and armed robbery convictions, no remand for resentencing is considered necessary. United States v. Wimbush, 154 U.S.App.D.C. 236, 475 F.2d 347 (1973).
. Id.
. Appellant’s Br. at i, 9-17, 14.
. Annot., 93 A.L.R.2d 548 (1964) and cases cited. See also note 9 infra.
. D.C.Code § 22-3102 (1973) provides :
Any person who, without lawful authority, shall enter, or attempt to enter, any public or private dwelling, building or other property, or part of such dwelling, building or other property, against the will of the lawful occupant or of the person lawfully in charge thereof, or being therein or thereon, without lawful authority to remain therein or thereon shall refuse to quit the same on the demand of the lawful occupant, or of the person lawfully in charge thereof, shall be deemed guilty of a misdemeanor, and on conviction thereof shall be punished by a fine not exceeding $100 or imprisonment in the jail for not more than six months, or both, in the discretion of the court. (Mar. 3, 1901, 31 Stat. 1324, ch. 854, § 824; Mar. 4, 1935, 49 Stat. 37, ch. 23; July 17, 1952, 66 Stat. 766, ch. 941, § 1.)
It is significant that a violation of this statute does not, in all circumstances, require an entry “against the will of the lawful occupant,” etc., since it also provides that a criminal offense may be committed if any person “being therein [a dwelling] or thereon, without lawful authority to remain therein or thereon” refuses to leave after demand by the lawful occupant.
. D.C.Code § 22-1801 (b) (1973) defines second degree burglary ns follows:
(b) Except as provided in subsection (a) of this section, whoever shall, either in the night or in the daytime, break and enter, or enter without breaking, any dwelling, bank, store, warehouse, shop, stable, or other building or any apartment or room, whether at the time occupied or not, or any steamboat, canalboat, vessel, or other watercraft, or railroad car or any yard where any lumber, coal, or other goods or chattels are deposited and kept for the purpose of trade, with intent to break and carry away any part thereof or any fixture or other thing attached to or connected with the same, or to commit any criminal offense, shall be guilty of burglary in the second degree. Burglary in the second degree shall be punished by imprisonment for not less than two years nor more than fifteen years. (Mar. 3, 1901, 31 Stat. 1323, eh. 854, § 823; Dec. 27, 1967, Pub.L. 90-226, § 602, title VI, 81 Stat. 736.)
. Franklin v. United States, 293 A.2d 278 (D.C.Ct.App.1972), is to the same effect.
. McCreary v. State, 25 Ariz. 1, 212 P. 336 (1923) ; Walders v. State, 101 Ark. 345, 142 S.W. 511 (1912) ; Pinson v. State, 91 Ark. 434, 121 S.W. 751 (1909) ; People v. Deptula, 58 Cal.2d 225, 23 Cal.Rptr. 366, 373 P.2d 430 (1962) ; People v. Schneller, 69 Ill.App.2d 50, 216 N.E.2d 510 (1966) ; State v. Baker, 183 Neb. 499, 161 N.W.2d S64 (1968) ; State v. Vassalluzo, 113 N.J.Super. 140, 273 A.2d 79 (1971) ; Commonwealth v. Shultz, 168 Pa.Super. 435, 79 A.2d 109, cert. denied, 342 U.S. 842, 72 S.Ct. 71, 96 L.Ed. 636 (1951). Contra, Smith v. State, 362 P.2d 1071 (Alaska 1961). See Annot., 93 A.L.R.2d 552-554 (1964).
. In fact, in those states that require a “breaking” for burglary, when entry is effected under tire pretense of having business with the occupant or of paying a social visit, the defendant is deemed to have committed a breaking. 2 Wharton, Criminal Law § 415 (12th ed. 1957).
. Id. § 414.
. See note 2 supra.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Which category of federal government agencies and activities best describes this litigant?
A. cabinet level department
B. courts or legislative
C. agency whose first word is "federal"
D. other agency, beginning with "A" thru "E"
E. other agency, beginning with "F" thru "N"
F. other agency, beginning with "O" thru "R"
G. other agency, beginning with "S" thru "Z"
H. Distric of Columbia
I. other, not listed, not able to classify
Answer:
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songer_respond1_5_2
|
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 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 OF the VIRGIN ISLANDS v. Beaumont GEREAU, Ishmael LaBeet, Warren Ballantine, Meral Smith, Raphael Joseph. Appeal of Ishmael LaBEET.
No. 78-1386.
United States Court of Appeals, Third Circuit.
Argued Dec. 12, 1978.
Decided Jan. 31, 1979.
Victor G. Schneider, Charlotte Amalie, St. Thomas, V. I., for appellant.
Ishmael Meyers, U. S. Atty., Charlotte Amalie, St. Thomas, V. I., Mark L. Milligan, James F. Rutherford, Asst. U. S. Attys., Christiansted, St. Croix, V. I., for appellee.
Before SEITZ, Chief Judge, WEIS and GARTH, Circuit Judges.
OPINION OF THE COURT
PER CURIAM.
Appellant, Ishmael LaBeet, now known as Ishmail M. Ali, and four co-defendants, were convicted on eight counts of first degree murder, two counts of robbery and four counts of first degree assault on August 13, 1973, following a jury trial in the District Court of the Virgin Islands. Each defendant was sentenced by the court to eight consecutive terms of life imprisonment on the first degree murder counts; concurrent terms were imposed on the remaining counts. See Government of Virgin Islands v. Gereau, 523 F.2d 140 (3d Cir. 1975), cert. denied, 424 U.S. 917, 96 S.Ct. 1119, 47 L.Ed.2d 323 (1976); Government of Virgin Islands v. Gereau, 502 F.2d 914 (3d Cir. 1974), cert. denied, 420 U.S. 909, 95 S.Ct. 829, 42 L.Ed.2d 839 (1975).
On June 14, 1976, a timely motion for reconsideration of the eight consecutive life sentences was filed in the district court on appellant’s behalf. That motion, filed pursuant to Rule 35 of the Federal Rules of Criminal Procedure, 5 V.I.C. App. II, R. 35, was comprised of a challenge to the legality of appellant’s sentence and a plea for judicial leniency. The motion was denied by the district court in an opinion and order dated February 9, 1978. Ali’s appeal from that order presents only one issue for the consideration of this Court: “Whether the imposition of eight life sentences to be served consecutively constitutes cruel and unusual punishment, in violation of the eighth amendment to the Constitution of the United States.”
Ali contends that his sentence constitutes cruel and unusual punishment because: (1) it is more excessive than other sentences that have been imposed for murder in the Virgin Islands; (2) it removes any possibility that he will become eligible for parole; (3) it is inherently cruel and severe; (4) it is disproportionate to the offense charged; (5) it is unnecessarily cruel in that the permissible aims of punishment could have been achieved as effectively by a less severe sentence; (6) it has had the effect of “denationalizing” Ali from his indigenous citizenship as a Virgin Islander; and (7) it was imposed arbitrarily and selectively to a member of an unpopular minority group. We do not find any of these contentions meritorious.
I.
Ali was sentenced by the district court in accordance with 14 V.I.C. § 923(a), which then provided: “Whoever commits murder in the first degree shall be imprisoned for life.” At that time, appellant’s eligibility for parole was defined by 5 V.I.C. § 4601, stating:
“Every prisoner confined . . . for the term of his natural life, whose record of conduct shows that he has observed the rules of the institution in which he is confined, upon recommendation of the Warden, supported by the recommendation of a psychiatrist and/or psychologist, may be released on parole after serving 10 years of a life sentence . ; Provided, however, That the Board of Parole, subject to the approval of the Governor, in its discretion by at least a two-thirds affirmative vote of all its members, upon recommendation by the Warden, supported by the recommendation of a psychiatrist and/or psychologist, is authorized to fix an earlier eligibility date for the release of prisoners on parole.
Because the district court determined that each of appellant’s sentences on the first degree murder counts was to run consecutively to the others, he will not become eligible for normal parole consideration until August 13, 2053. The district court’s decision to impose consecutive, rather than concurrent, terms of imprisonment upon Ali has created the alleged constitutional infirmities in his sentence.
II.
Two of appellant’s contentions with respect to the constitutionality of the sentence imposed upon him evoke the equal protection strain inherent in the eighth amendment’s prohibition of cruel and unusual punishments. See, e. g., Furman v. Georgia, 408 U.S. 238, 257, 92 S.Ct. 2726, 2735, 33 L.Ed.2d 346 (1972) (Douglas, J., concurring) (“discrimination is an ingredient not compatible with the idea of equal protection of the laws that is implicit in the ban on ‘cruel and unusual’ punishments”). Ali claims that his sentence was imposed in a,, discriminatory fashion because it is more severe than other sentences that have been imposed for murder in the Virgin Islands and because it was imposed upon a group of young, black, native Virgin Islanders. With respect to these contentions he has called this Court’s attention to the favorable treatment afforded by the district court to a white, mainland American’s motion for reduction of a sentence imposed for second degree murder. The distinguishing features between appellant’s crimes and that of a man convicted of second degree murder for the killing of his wife’s lover adequately explains the district court’s disparate treatment of the two motions. The record is completely devoid of any proof that could even arguably support an equal protection claim. In the absence of any showing that Ali’s sentence was either illegal or unconstitutional, we have no power to review the sentence imposed. Gore v. United States, 357 U.S. 386, 393, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958); Government of Virgin Islands v. Richardson, 498 F.2d 892, 894 (3d Cir. 1974).
Ali contends that a sentence of eight consecutive life terms is an inherently cruel and severe punishment, analogous to torture. We do not find this analogy persuasive. He also contends that his punishment was cruel and unusual because it eliminated any possibility of his becoming eligible for parole, thereby eliminating any incentive for rehabilitation. The Supreme Court held in Schick v. Reed, 419 U.S. 256, 95 S.Ct. 379, 42 L.Ed.2d 430 (1974), that a no-parole condition attached by the President to the commutation, of a death sentence “is similar to sanctions imposed by legislatures such as mandatory minimum sentences or statutes otherwise precluding parole; it does not offend the Constitution.” Id. 267, 95 S.Ct. at 385 (footnote omitted). Recently, the Sixth Circuit has applied Schick v. Reed in rejecting a claim that a Kentucky statute authorizing the imposition of life imprisonment without parole for rape is violative of the eighth amendment. See Moore v. Cowan, 560 F.2d 1298, 1302-03 (6th Cir. 1977), cert. denied, 435 U.S. 929, 98 S.Ct. 1500, 55 L.Ed.2d 525, 436 U.S. 960, 98 S.Ct. 3079, 57 L.Ed.2d 1127 (1978). The Supreme Court’s opinion in Schick v. Reed mandates the conclusion that it is not per se impermissible for the legislature to authorize, and a court to impose, a term of imprisonment that precludes the possibility that the defendant will be paroled.
This Court also rejects Ali’s argument that the district court’s sentencing decision was inconsistent with the Virgin Islands Legislature’s decision to allow persons imprisoned for life to be considered for parole release after serving ten years. The Legislature has granted the district court discretion in specifying whether sentences are to be served concurrently or consecutively, and has not indicated that that discretion is to be limited by considerations of parole eligibility. See 5 V.I.C. § 3672 & Revision note. Moreover, the Legislature has revised the penalties for murder subsequent to Ali’s conviction. 14 V.I.C. § 923(a) now provides that: “Whoever commits murder in the first degree shall be imprisoned for the remainder of his natural life without parole.” Act of May 1, 1974, No. 3560, § 1 (V.I.C. Cum.Supp.1976). The same enactment amended the definition of parole eligibility in 5 V.I.C. § 4601 accordingly.
We note as well, that although appellant has characterized his sentence as one eliminating any possibility that he will become eligible for parole, the district court pointed out that parole eligibility is not absolutely precluded in this case. The proviso to 5 V.I.C. § 4601, quoted above, allows the Board of Parole to fix an earlier eligibility date for parole release than would otherwise be specified by that section. Although that proviso would not apply to one convicted of first degree murder after the 1974 amendments to 14 V.I.C. § 923(a), it does provide some possibility of earlier release in appellant’s case.
Ali contends that a punishment of life imprisonment without possibility of parole is disproportionate to his crimes. See Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977) (plurality opinion) (sentence of death is disproportionate to the crime of rape). The Supreme Court has held, however, that the death penalty may be imposed for the crime of deliberate murder. Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976). A fortiori, a sentence of eight consecutive life terms imposed for a conviction on eight counts of first degree murder is not “grossly out of proportion to the severity of the crime.” Coker, supra at 592, 97 S.Ct. at 2865.
Appellant also contends that his sentence was disproportionate in that a lesser sentence may have served as effectively the permissible aims of punishment. The plurality in Coker did state that “a punishment' is ‘excessive’ and unconstitutional if it . makes no measurable contribution to acceptable goals of punishment and hence is nothing more than the purposeless and needless imposition of pain and suffering . .” Id. Despite Ali’s contention to the contrary, we believe that the sentence imposed in this case may serve more effectively the legitimate penal purpose of isolating the offender from society than would a sentence imposing eight concurrent life terms of imprisonment. Viewed in the context of the crimes for which appellant was convicted, we cannot say that the legislative authorization and judicial implementation of the sentence imposed in this case constituted “the purposeless and needless imposition of pain and suffering.” See generally Carmona v. Ward, 576 F.2d 405, 415-17 (2d Cir. 1978), cert. denied, - U.S. -, 99 S.Ct. 874, 59 L.Ed.2d 58 (1979).
Finally, Ali contends that his incarceration in a penitentiary situated on the United States mainland constitutes cruel and unusual punishment in that it effects his “denationalization” as a Virgin Islander. See Trop v. Dulles, 356 U.S. 86, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958) (denationalization as a punishment for wartime desertion is cruel and unusual punishment). Appellant has previously challenged the legitimacy of his transfer to a mainland penitentiary and the conditions of confinement there in requests for habeas corpus relief addressed to the District Court of the Virgin Islands and the United States District Court for the Northern District of Georgia. See Ali v. Gibson, 572 F.2d 971 (3d Cir. 1978) (remanding case to the district court for further proceedings); United States ex rel. Gereau v. Henderson, 526 F.2d 889 (5th Cir. 1976). Without addressing the merits of the contentions raised by the appellant in his pending habeas action, we conclude that his transfer to a mainland prison for the service of his sentence did not constitute denationalization, and that his transfer alone did not amount to the imposition of cruel and unusual punishment proscribed by the eighth amendment.
III.
The judgment of the district court, denying appellant’s request for a reduction of sentence, will be affirmed.
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:
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songer_genapel1
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed appellant.
FIRST NATIONAL BANK AND TRUST COMPANY OF VINITA, OKLAHOMA, a corporation, Additional Defendant on Cross-Complaint-Appellant, v. ATLAS CREDIT CORPORATION, a corporation, Defendant and Cross-Petitioner-Appellee. James B. WEEDIN and Meredith M. Weedin, Defendants-Appellants, v. ATLAS CREDIT CORPORATION, a corporation, Defendant and Cross-Petitioner-Appellee.
Nos. 47-68, 48-68.
United States Court of Appeals Tenth Circuit.
Nov. 18, 1969.
Rehearing Denied in No. 48-68 Dec. 30, 1969.
James R. Ryan, Tulsa, Okl. (George P. Pitcher, Vinita, Okl., with him on the brief) for appellant First National Bank & Trust Co. of Vinita, Okl.
Fred H. Miller, Norman, Okl., for ap-pellee Atlas Credit Corp.
Alvin L. Floyd, Tulsa, Okl., for appellant James B. Weedin.
Hicks Epton, Wewoka, Okl., for ap-pellee Atlas Credit Corp.
Before PHILLIPS, LEWIS and HICKEY, Circuit Judges.
HICKEY, Circuit Judge.
This appeal arose out of an action to foreclose a real estate mortgage upon ranch property in Craig County, Oklahoma. The mortgage was successfully foreclosed and the real estate mortgagee is no longer interested in the case.
Atlas Credit Corporation and its subsidiary, Atlas Subsidiaries of Missouri, Inc., were originally joined as defendants in the mortgage foreclosure action because they held junior liens on the real estate involved and claimed a security interest in the livestock grazed upon the real property in question. Atlas Credit Corporation has been assigned the interest of its subsidiary and will be referred xo as Atlas.
Atlas filed an answer counterclaiming foreclosure of its junior lien on the real estate and seeking recovery of the livestock given as additional security for money loaned by them to defendant debtors. Atlas joined the First National Bank and Trust Company of Vinita, Oklahoma (Bank) as an additional defendant who claimed a prior security interest in the livestock pledged to them. The Bank is the other party involved in the main issue of this appeal.
The issue between Atlas and the Bank relates to the priority of security interests which cover the same livestock and equipment.
Defendants Weedin, a dentist and his wife, officers and principal stockholders of the W. E. Ranch, Inc., who negotiated the loans here in question, appeal the denial of their discharge in bankruptcy. This issue relates to the trial court’s finding that certain representations to Atlas’ assignor were fraudulent and therefore the debt to Atlas was non-dis-chargeable in bankruptcy.
The court found in favor of Atlas on the priority question, and it is agreed that this question is based primarily on the interpretation of Title 12A, § 9-312 (5) Okl.Stat.Ann. (1961) (Uniform Commercial Code, § 9-312(5)).
The law of the state where the collateral is located at the time of the transaction is the governing law without regard to possible contacts in other jurisdictions. Uniform Commercial Code, § 9-102, Comment 3, (12A Okl.Stat.Ann. § 9-102).
The record discloses that the Bank loaned $38,422.34 to the debtors on October 22, 1963, and properly filed a financing statement covering specifically described livestock and “all other cattle now owned or later acquired.” Although there was evidence indicating otherwise, the trial court found and for the purpose of this appeal the parties agree that a security agreement was not executed nor received by the Bank at this time, but, on April 30, 1965, a security agreement was made and executed by the debtors. It is a note given by the debtors at this time upon which the Bank’s judgment is based.
On February 4, 1964, Atlas loaned the debtors $34,000.00 for which debtors executed a financing statement and a security agreement covering the debtor’s livestock and equipment then owned or thereafter acquired. The financing statement was filed February 11, 1964. The Bank had notice of this filing within a week thereafter.
The Bank records disclose a course of business transactions between the debtors and the Bank after October 22, 1963, wherein money in excess of the original $38,422.34 loaned was advanced and repaid until the total was calculated on April 30, 1965, and set forth in the security agreement then executed in the amount of $27,301.00.
The appellate courts of Oklahoma have not considered the issue here presented under the code so far as we can ascertain.
Because the Uniform Commercial Code is here involved and believing it is a step in the right direction away from the confused and archaic past of the law of commerce, we seek a uniform literal construction of the act.
We approach the issue pursuant to the reasoning of such cases as Shircliff v. Elliott, 384 F.2d 947 (6th Cir. 1967): “In reaching a result, this Court must apply the statute in a manner consonant with the literal meaning of its terms and in a manner to best effectuate its overriding purpose.” swpra at 950.
The trial court in the case at bar refused to accept the language of the code which directs that priorities between conflicting security interests in the same collateral shall be determined in the order of filing a financing statement if both are perfected by filing. Uniform Commercial Code, § 9-312(5). Perfection occurs when the security interest later attaches at the time the transaction takes place and the security agreement is executed. Thus the filing date, which determines priority, may precede the perfection date. See 2 Gilmore, Security Interests in Personal Property, § 34.4 at 909.
12A Okl.Stat.Ann. § 9-312(5) (Uniform Commercial Code § 9-312(5)) reads as follows:
“(5) In all cases not governed by other rules stated in this section (including cases of purchase money security interests which do not qualify for the special priorities set forth in subsections (3) and (4) of this section), priority between conflicting security interests in the same collateral shall be determined as follows:
“(a) in the order of filing if both are perfected by filing, regardless of which security interest attached first under Section 9-201(1) and whether it attached before or after filing;
“(b) in the order of perfection unless both are perfected by filing, regardless of which security interest attached first under Section 9-204(1) and, in the case of a filed security interest, whether it attached before or after filing; * * (Emphasis added).
The Oklahoma Code Comment following this section reads as follows:
“(5) This is a change of Oklahoma law. It creates a ‘Race of Diligence’.
Priority between conflicting security interests are:
“(a) In the order of filing if both are perfected by filing.
“(b) In the order of perfection unless both are perfected by filing. Example 2 in the Uniform Commercial Code Comment covers this situation. If one is perfected by taking possession the time of taking possession is the time used as to that one in determining which has priority.”
The Bank argues that the clear mandate of section 9-312(5) of the U.C.C., as explained in Example 1 in Comment 4 of the official comments, operates to give priority to the Bank. Example 1 reads as follows:
“Example 1. A files against X (debt- or) on February 1. B files against X on March 1. B makes a non-purchase money advance against certain collateral on April 1. A makes an advance against the same collateral on May 1. A has priority even though B’s advance was made earlier and was perfected when made. It makes no difference whether or not A knew of B’s interest when he made his advance.
“The problem stated in the example is peculiar to a notice filing system under which filing may be made before the security interest attaches (See Section 9-402). The Uniform Trust Receipts Act, which first introduced such a filing system, contained no hint of a solution and case law under it has been unpredictable. This Article follows several of the accounts receivable statutes in determining priority by order of filing. The justification for the rule lies in the necessity of protecting the filing system — that is, of allowing the secured party who has first filed to make subsequent advances without each time having, as a condition of protection, to check for filings later than his. * * * ”
Before going further into an analysis of the effect of the first-to-file priority rule of U.C.C. § 9-312(5) (a) on this case, we consider whether the facts allow analyzing it pursuant to the teaching of Example 1 to Comment 4 of the official comments to the U.C.C., supra (adopted in Oklahoma).
Atlas argues that this case does not fit within the single advance situation illustrated by Example 1 to Comment 4 because more than one loan was in fact made by the Bank.
Further, they argue that this was not a situation where future advances were contemplated in the initial security agreement as illustrated by Examples 4 and 5 to Comment 4 because the trial court found there was no security agreement executed at that time. Atlas urges upon this court that the situation presented is nothing more than a series of separate secured loans with no future advance clause providing that future advances of the Bank were to be secured by the collateral filed against on October 22, 1963.
Atlas then argues that, in accordance with this reasoning, it. is entitled to priority in line with the decision in Coin-O-Matic Service Co. v. Rhode Island Hospital Trust Co., 3 U.C.C.Rep. 1112 (R.I. Super.Ct.1966). In this case one Doroff purchased a car on credit and gave a security interest in it which was perfected by filing. The chattel paper on this transaction was assigned to the defendant. The security agreement contained no provision for future advances. A year later, Doroff became indebted to the plaintiff and gave it a security interest in the car which was also perfected by filing. Shortly thereafter, the defendant loaned Doroff $1,000 part of which was used to pay off the old debt and that security interest was cancelled.
The question, when Doroff went bankrupt, was whether defendant had a prior claim on the car because he had filed first even though the first security agreement had been cancelled. The court held that he did not because a new security interest is a separate transaction and requires a separate filing for perfection, unless the initial security interest has a clause securing future advances.
“That is to say, a single financing statement in connection with a security agreement when no provision is made for future advances is not an umbrella for future advances based upon new security agreements, notwithstanding the fact that involved is the same collateral.” 3 U.C.C.Rep. 1112 at 1120.
It seems clear that if, as the record shows the Bank intended, a security agreement had been executed at the time the 1963 financing statement was filed, we could not reverse the trial court without meeting the Coin-O-Matic case head on. What differentiates this case is the trial court’s finding that there was no security agreement executed in 1963. By accepting the trial court’s holding that no security interest attached until April 30,1965, we would conclude that only one transaction is involved. On the other hand, if we were to acknowledge normal business realities and accept Atlas’ theory that there must have been a series of separate secured loans by the Bank, then the record discloses that the security interests provided that they covered future advances by the Bank. The claimed security interest of October 22, 1963, is, of course, not in the record. The trial judge admitted into the record a copy of the form being used by the Bank at that time and it, as well as the April 30, 1965 agreement, clearly provides that future advances are to be covered thereby. Because of the disposition we make, we need only note in passing that under either of these possibilities, Coin-O-Matic is distinguishable.
In Coin-O-Matic, the intervening secured creditor obtained priority when the initial financing statement and security agreement were liquidated because the court held that the code contemplates that the security interest relates back to an unliquidated prior financing statement. This is the literal interpretation of § 9-312(5) (a).
However, it seems equally clear that the Bank, intending but somehow failing to get a security agreement when the October, 1963, loan was made, would fall heir to a windfall were we to hold that this case is controlled by Example 1 to Comment 4 under U.C.C. § 9-312(5). Under the trial court’s findings, the loan of $38,422.34 was unsecured and if these insolvency proceedings had come before the security agreement of April, 1965, was entered into, the Bank would have been an unsecured creditor. The facts of the case before us do not fit squarely under Example 1 in the Comment because that example discusses application of U.C.C. § 9-312(5) to a single advance by the secured party to the debtor after filing of a financing statement and subsequent to perfection of a second security interest. The record indicates that there were several advances and payments between the Bank and the debtors between October 22, 1963 and April 30, 1965. It is therefore clear that there was not simply a single advance as is contemplated in Example 1. Likewise, although the Bank perhaps intended to enter into a series of secured transactions protected by the October 22, 1963 filing (which would have then brought the case under Coin-O-Matic), the lower court’s finding precludes basing an affirmance solely upon that case.
We therefore conclude that we cannot base our conclusion upon either the application of the Example or the Coin-O-Matic case. This analysis, however, is not determinative of our ease.
Undoubtedly the trial court was chagrined by the fast and loose dealings between the debtors and the Bank and the duplicate dealings with Atlas and therefore felt the equities weighed in favor of Atlas.
The simple answer to this approach is that Atlas had an opportunity to protect itself by checking the files for financing statements and if it had, it would have learned the Bank had a potential interest in the cattle and their increase.
“Banks have traditionally loaned money to ranchers in return for a promissory note and a consensual lien in livestock held by the rancher. The problems involved in using livestock as collateral are numerous, but central among them is the problem of keeping account of the animals * * * Since the collateral cannot be held by the lender, the security agreement typically includes a promise by the borrower assuring that the livestock will not be sold or transferred without the written consent of the secured party. The security interest in the collateral is perfected by filing with the county clerk in the county of the debtor’s residence. In this manner, constructive notice that the livestock is subject to a mortgage is given within the county.” Comment, Commercial Law — Uniform Commercial Code — Security Interests in Livestock, 8 Natural Resources Journal 183.
12A Okl.Stat.Ann. § 9-208 (Uniform Commercial Code § 9-208) provides that a debtor may request information from the lender as to the amount due on the obligation and the collateral covered by the security agreement. If the secured party, without reasonable excuse, fails to comply with the request, he is liable for any loss caused to the debtor thereby and if the debtor has properly included in his request a good faith statement of the obligation or a list of the collateral or both, the secured party may claim a security interest only as shown in the statement against persons misled by his failure to comply. Thus, by its inadvertence Atlas permitted itself to be defrauded.
If notice filing under the code has any efficacy or future value in the commercial world, it must be honored in this case, giving priority to the Bank. The “first-to-file” rule of U.C.C. § 9-312(5) (a) must be recognized.
An analysis used by the court in Coin-O-Matic is appropriate for this case:
“It would seem to this court that without a consideration of the meaning of § 9-312(5) this case might properly be decided on what the parties themselves did , and what the parties themselves intended.” 3 U.C.C.Rep. at 1120.
Thus it is apparent to us that the conduct of the Bank and Atlas’ assignor brings this case within the first-to-file priority rule of that section and necessitates reversal of the trial court’s determination of priority.
We further hold that the record clearly demonstrates and the court properly found fraud on the part of Weedins. The trial court therefore was correct in its determination that the debt to Atlas was non-dischargeable in bankruptcy.
We therefore reverse the Atlas judgment on the issue of priority over the Bank and affirm the judgment in favor of Atlas as it relates to debtors Weedin.
Reversed in part; affirmed in part.
. At the outset we should note that the omission of a reference to “knowledge” in § 9-312 indicates to us that the presence or absence of knowledge of the Atlas Security Agreement is irrelevant. This view, not clarified in tbe official Uniform Commercial Code Comment, is made explicit by the Oklahoma Code Comment following the section.
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:
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songer_counsel2
|
E
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
UNITED STATES of America, Plaintiff-Appellee, v. Kevin Deneal COBBS, Defendants Appellant.
No. 90-8556.
United States Court of Appeals, Eleventh Circuit.
Aug. 10, 1992.
Lynn Fant, Federal Defender Program, Inc., Atlanta, Ga., for defendant-appellant.
William R. Harper, III, Bryan J. Farrell, Asst. U.S. Attys., Atlanta, Ga., for plaintiff-appellee.
Before COX, Circuit Judge, CLARK , and WELLFORD , Senior Circuit Judges.
See Rule 34-2(b), Rules of the U.S. Court of Appeals for the Eleventh Circuit.
Honorable Harry W. Wellford, Senior U.S. Circuit Judge for the Sixth Circuit, sitting by designation.
PER CURIAM:
Kevin Deneal Cobbs pleaded guilty to several offenses involving unauthorized access devices. In this appeal, Cobbs challenges the district court’s order directing him to pay restitution. For the reasons stated below, we vacate and remand.
I.BACKGROUND
In January 1990 a federal grand jury in the Northern District of Georgia returned a nineteen count indictment against Cobbs. Count I charged Cobbs with attempting to fraudulently obtain money through the unauthorized use of an access device in violation of 18 U.S.C. § 1029(a)(2) and (b)(1). Count II alleged that from approximately November 22, 1989 to January 3, 1990, Cobbs used an unauthorized American Express Card in the name of Sterling Ward to fraudulently obtain $1516.00 in cash and other valuables in violation of 18 U.S.C. § 1029(a)(2). Count III charged that “[o]n or about the 9th day of January 1990, ... Cobbs, did, knowingly and with the intent to defraud, possess eighty-nine (89) unauthorized access devices, which offense affected interstate commerce,” in violation of 18 U.S.C. § 1029(a)(3). Counts IV through XIX charged Cobbs with the use of various unauthorized access devices on numerous dates from approximately July 1986 through January 1990 in violation of 18 U.S.C. § 1029(a)(2).
Cobbs pleaded guilty to Counts I, II, and III. He was sentenced to 24 months imprisonment on each count to run concurrently and to be followed by three years of supervised release. The district court further ordered Cobbs to pay restitution in the amount of $54,702.00, which represents the total loss caused by all of the fraudulent activities charged in the indictment.
Cobbs appeals the district court’s order of restitution, arguing that the district court (1) abused its discretion by ordering him to pay restitution in an amount he cannot possibly afford to pay, and (2) exceeded its authority by imposing restitution in an amount that exceeds the loss attributable to the counts to which he pleaded guilty.
II.ISSUE ON APPEAL
Whether the district court erred by ordering Cobbs to pay restitution in an amount greater than the loss attributable to the counts to which he pleaded guilty.
III.STANDARD OF REVIEW
This court reviews the legality of a criminal sentence, including an order of restitution, de novo. United States v. Stone, 948 F.2d 700, 702 (11th Cir.1991).
IV.CONTENTIONS OF THE PARTIES
Cobbs contends that because he pleaded guilty to, and was convicted of, only those offenses charged in the first three counts of the indictment, the district court exceeded its authority in ordering restitution in an amount equal to the total loss attributable to all of the offenses charged in the indictment. Cobbs argues that the Supreme Court’s opinion in Hughey v. United States, 495 U.S. 411, 110 S.Ct. 1979, 109 L.Ed.2d 408 (1990), and this court’s decisions in United States v. Stone, 948 F.2d 700 (11th Cir.1991) and United States v. Young, 953 F.2d 1288 (11th Cir.1992), prohibit the district court from ordering restitution beyond the losses attributable to the offenses to which he pleaded guilty.
The Government first contends that Cobbs has waived this argument because he failed to raise the issue prior to appeal. Consistent with this court’s opinion in United States v. Jones, 899 F.2d 1097, 1102-03 (11th Cir.), cert, denied, — U.S. -, 111 S.Ct. 275, 112 L.Ed.2d 230 (1990), the Government argues, Cobbs was given ample opportunity to object to the district court’s order of restitution under Hughey but failed to do so, thus waiving this objection.
Next, the Government argues that even if Cobbs did not waive this objection, the Hughey line of cases is inapposite because those cases involve situations in which courts have imposed restitution on the basis of counts that were either dismissed or uncharged. Here, the Government contends, all of the losses charged in the indictment arose from the unauthorized use of the devices referred to in Count III. Thus, the district court’s order of restitution is supported by the offenses of conviction. The Government further argues that the VWPA authorizes the court to order the defendant to make restitution to “any victim” of the offense of conviction and that the term victim should be interpreted broadly to include anyone suffering injury as a result of the offense. Because the victims identified in the indictment suffered losses as a result of Cobbs’s possession of the access devices, and because the VWPA is intended to have broad remedial effect, the Government contends that the district court’s order of restitution should be affirmed.
V. DISCUSSION
A. Waiver
In United States v. Jones, 899 F.2d 1097, 1102-03 (11th Cir.), cert, denied, — U.S. -, 111 S.Ct. 275, 112 L.Ed.2d 230 (1990), this court held that, after imposing sentence, the district court should elicit fully articulated objections to the sentence and to the sentencing process. After having been given this opportunity, any objections not fully and specifically articulated by the parties would be deemed waived and not entertained by this court “unless refusal to do so would result in manifest injustice.” Jones, 899 F.2d at 1103. The Government argues that Cobbs was given the opportunity to object and failed to object on the basis of Hughey. Therefore, the Government contends, Cobbs waived that ground of objection. We disagree.
Although we recognize the general rule stated in Jones, that case does not preclude review of an issue if there is plain error. See United States v. Webb, 943 F.2d 43 (11th Cir.1991). “Even in the absence of an objection ... we may notice on appeal ‘plain errors’ or errors ‘affecting substantial rights’ of the accused.” United States v. Lippner, 676 F.2d 456, 467 n. 16 (11th Cir.1982) (quoting Fed.R.Crim.P. 52(b)). It is said that the imposition of an illegal sentence constitutes plain error. Lippner, 676 F.2d at 467-68 n. 16. But to describe a sentence as “illegal” does not serve to distinguish the kinds of .sentencing issues that are subject to review under the plain error doctrine from those that are not reviewable in the absence of an appropriate objection. All sentences imposed contrary to law are in a sense “illegal.”
In Lippner, the sentencing court had enhanced a sentence under a recidivist statute based upon consideration of prior convictions that were not final because they were on appeal. The resulting sentence, being one in excess of the maximum authorized by statute but for application of the recidivist statute, was held to be an illegal sentence subject to review under the plain error doctrine.
In United States v. Young, 953 F.2d 1288 (11th Cir.1992), the district court had awarded restitution unrelated to losses caused by the offenses of which the defendant had been convicted. This portion of the sentence was described as illegal and beyond the statutory powers of the sentencing judge notwithstanding the fact that the defendant had explicitly agreed, as a part of his plea bargain, that he would make restitution “not limited by reference to the two counts contained in the instant information.” Id. at 1289.
The Tenth Circuit has held that an order of restitution encompassing losses stemming from offenses other than the offense of conviction is unauthorized and constitutes “plain error.” United States v. Wainwright, 938 F.2d 1096, 1098 (10th Cir.1991) (citing United States v. Vance, 868 F.2d 1167, 1168-69 (10th Cir.1989)).
Our review of these cases suggests that the kinds of “illegal” sentences subject to review as plain error include sentences that are beyond the statutory power of the court to impose. We need not undertake to define all such “illegal” sentences in this case. We simply hold that if a court orders restitution beyond that authorized by the Victim and Witness Protection Act (VWPA), 18 U.S.C. §§ 3663 and 3664 (formerly codified at 18 U.S.C. §§ 3579 and 3580), the resulting sentence is an illegal sentence subject to review as plain error. Therefore, if the district court imposed an illegal sentence in its restitution order by requiring restitution beyond that authorized by statute, Cobbs is entitled to relief notwithstanding his failure to object at sentencing.
B. Restitution
The restitution provisions of the VWPA provided at the time of Cobbs’s sentencing hearing that the district court, when sentencing defendants convicted of certain offenses could order “in addition to, or in the case of a misdemeanor, in lieu of any other penalty authorized by law, that the defendant make restitution to any victim of such offense.” 18 U.S.C.A. § 3663(a)(1) (West 1992). Section 3664 of the VWPA states that “[t]he court, in determining whether to order restitution ... and the amount of such restitution, shall consider the amount of the loss sustained by any victim as a result of the offense, the financial resources of the defendant, the financial needs and earning ability of the defendant and the defendant’s dependents, and such other factors as the court deems appropriate.” 18 U.S.C.A. § 3664(a) (West 1992).
In Hughey v. United States, 495 U.S. 411, 110 S.Ct. 1979, 109 L.Ed.2d 408 (1990), the Supreme Court interpreted the VWPA to limit the district court’s authority to order restitution. Specifically, the Court held that the “language and structure of the Act make plain Congress’s intent to authorize an award of restitution only for the loss caused by the specific conduct that is the basis of the offense of conviction.” Id. at 413 (footnote omitted), 110 S.Ct. at 1981. In addition, the Court stated that “the loss caused by the conduct underlying the offense of conviction establishes the outer limits of a restitution order." Id, at 420, 110 S.Ct. at 1984. Recently, this court dealt with issues concerning restitution under the VWPA and echoed the language of the Supreme Court. See United States v. Stone, 948 F.2d 700, 704 (11th Cir.1991) (“[A] restitution order under the VWPA may not exceed the loss attributable to the specific conduct that is the basis of the offense of conviction.”); Young, 953 F.2d at 1289 (“A court may not authorize restitution even for like acts significantly related to the crime of conviction.”)
Here, in addition to one count of attempted use of an unauthorized access device and one count of using an access device to obtain cash and valuables totalling $1516.00, Cobbs pleaded guilty to possessing 89 unauthorized access devices. The Government contends that conviction on this possession count (Count III) supports the district court’s award of restitution. The Government argues that Hughey, Stone, and Young are inapposite and that this case should be considered in light of two Sixth Circuit cases. In United States v. Durham, 755 F.2d 511 (6th Cir.1985) and United States v. Mounts, 793 F.2d 125 (6th Cir.), cert, denied, 479 U.S. 1019, 107 S.Ct. 673, 93 L.Ed.2d 724 (1986), the Sixth Circuit held that the term “victim” as used in the VWPA should be interpreted to allow an order of restitution to anyone suffering “injury as a result of the defendant’s actions that surrounded the commission of the offense” of conviction. Durham, 755 F.2d at 513, Mounts, 793 F.2d at 127 (quoting Durham) (emphasis added). The Government contends that the broad interpretation enunciated in these cases supports a decision in its favor. However, following the Supreme Court’s decision in Hughey, the Sixth Circuit held that the Supreme Court “explicitly repudiated [Durham’s broad interpretation of the VWPA], finding its narrow reading of the Act more consistent than ... one that permits an open-ended inquiry into losses resulting from the defendant’s related course of conduct or from acts that had a significant connection to the act for which conviction was had.” United States v. Clark, 957 F.2d 248, 253 (6th Cir.1992) (quotation marks & citations omitted). Thus, the Government’s argument based on Durham and Mounts is not persuasive.
Consistent with the Supreme Court’s decision in Hughey and this court’s decisions in Stone and Young, we hold that the district court is authorized to order restitution only for the loss caused by the specific conduct underlying the offense of conviction. We hold that the possession count to which Cobbs pleaded guilty will not support the district court’s order of restitution because there was no loss caused by his mere possession of the access devices. It was only Cobbs’s use of the devices that resulted in loss to the victims.
Of the three counts to which Cobbs pleaded guilty, the only offense that resulted in a loss is the one charged in Count II; that offense resulted in a $1516.00 loss to MBank. Therefore, $1516.00 is the limit of the restitution award that may be ordered by the district court.
VI. CONCLUSION
Since “[t]he illegal order for restitution ... represented only a component of the sentencing court’s balance of sanctions,” Young, 953 F.2d at 1290, the entire sentence is vacated and the case is remanded for resentencing.
VACATED and REMANDED.
. Cobbs’s argument concerning his ability to pay the amount of restitution ordered by the district court warrants no discussion in light of our disposition of the other issue presented.
. The statute has since been amended to permit such plea bargains. See 18 U.S.C. § 3663(a) (Supp.1991); Young, 953 F.2d at 1290.
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_dissent
|
0
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the number of judges who dissented from the majority (either with or without opinion). Judges who dissented in part and concurred in part are counted as dissenting.
Carroll L. AUSTIN, Appellee, v. The TORRINGTON COMPANY, a subsidiary of Ingersoll-Rand Company, Inc., Appellant, and Webb Forging Company, a subsidiary of Jervis B. Webb, Company, Defendant. Charles S. GLASER, Appellee, v. The TORRINGTON COMPANY, a subsidiary of Ingersoll-Rand Company, Inc., Appellant, and Webb Forging Company, a subsidiary of Jervis B. Webb, Company, Defendant. Judy C. HOWARD, Appellee, v. The TORRINGTON COMPANY, a subsidiary of Ingersoll-Rand Company, Inc., Appellant, and Webb Forging Company, a subsidiary of Jervis B. Webb, Company, Defendant. Nancy BROWN, Appellee, v. The TORRINGTON COMPANY, a subsidiary of Ingersoll-Rand Company, Inc., Appellant, and Webb Forging Company, a subsidiary of Jervis B. Webb, Company, Defendant. Anthony L. DUCKETT, Appellee, v. The TORRINGTON COMPANY, a subsidiary of Ingersoll-Rand Company, Inc., Appellant, and Webb Forging Company, a subsidiary of Jervis B. Webb, Company, Defendant. Josephine HILL, Appellee, v. The TORRINGTON COMPANY, a subsidiary of Ingersoll-Rand Company, Inc., Appellant, and Webb Forging Company, a subsidiary of Jervis B. Webb, Company, Defendant. David R. FRICK, Appellee, v. The TORRINGTON COMPANY, a subsidiary of Ingersoll-Rand Company, Inc., Appellant, and Webb Forging Company, a subsidiary of Jervis B. Webb, Company, Defendant. Ronnie Dean DUCKETT, Appellee, v. The TORRINGTON COMPANY, a subsidiary of Ingersoll-Rand Company, Inc., Appellant, and Webb Forging Company, a subsidiary of Jervis B. Webb, Company, Defendant. James A. McABEE, Jr., Appellee, v. The TORRINGTON COMPANY, a subsidiary of Ingersoll-Rand Company, Inc., Appellant, and Webb Forging Company, a subsidiary of Jervis B. Webb, Company, Defendant. John Edward WARD, Appellee, v. The TORRINGTON COMPANY, a subsidiary of Ingersoll-Rand Company, Inc., Appellant, and Webb Forging Company, a subsidiary of Jervis B. Webb, Company, Defendant. Robin W. CALDWELL, Appellee, v. The TORRINGTON COMPANY, a subsidiary of Ingersoll-Rand Company, Inc., Appellant, and Webb Forging Company, a subsidiary of Jervis B. Webb, Company, Defendant.
Nos. 85-1740(L), 85-1741 to 85-1750.
United States Court of Appeals, Fourth Circuit.
Argued March 4, 1986.
Decided Jan. 23, 1987.
David L. Freeman (Carl F. Muller, Wyche, Burgess, Freeman & Parham, P.A., Greenville, S.C., Robert L. Thompson, Stephen M. Paskoff, Thomas A. Pogue, Elar-bee, Thompson & Trapnell, Atlanta, Ga., on brief), for appellant.
J. Kendall New (Few & Glenn, Greenville, S.C., on brief), for appellees.
Before HALL and WILKINSON, Circuit Judges, and MICHAEL, United States District Judge for the Western District of Virginia, sitting by designation.
MICHAEL, District Judge,
Sitting by Designation:
This case presents four issues for resolution under the law of South Carolina, Federal jurisdiction being predicated on diversity of citizenship. First, does South Carolina common law recognize a cause of action for “blacklisting”? Second, was the language alleged by the plaintiffs below as slanderous sufficient under South Carolina common law and under the evidence presented at trial, to support the jury’s affirmative verdict on the question of slander? Third, were the challenged statements privileged, or qualifiedly privileged, as a matter of law? Fourth, under the evidence adduced, were the plaintiffs caused to suffer actual damages, and, if so, are the plaintiffs entitled to punitive damages?
I. Factual Background
The case arises under a somewhat unusual set of facts. Eleven separate cases were filed against the Torrington Company, Appellant herein, by eleven of its former employees. The complaints asserted claims against Torrington and Webb Forging Company, but Webb was dismissed as a party before trial for lack of diversity jurisdiction, and the cases proceeded against Torrington only. These eleven cases were consolidated and tried to a jury in the United States District Court for the District of South Carolina. Verdicts were returned for all eleven plaintiffs, all receiving monetary awards ranging from $5000.00 to $7500.00 for “hurt feelings”, all receiving monetary awards of $20,000.00 each for punitive damages, and three plaintiffs receiving monetary awards ranging from $1350.00 to $7500.00 for economic loss. The remaining eight plaintiffs received nothing for economic loss.
The verdicts were followed by the defendant’s motion, among others, for judgment non obstante veredicto, or in the alternative for a new trial. This motion was denied, 611 F.Supp. 191, and this appeal followed in timely fashion.
It is apparent that there were some factual differences in the various situations involving the eleven plaintiffs. However, each plaintiff sought actual and punitive damages under two counts, one for defamation and one for “blacklisting”. In each of the eleven complaints, the basis asserted for both allegations was a telephone call between the personnel manager of the Appellant, Mr. Love, and the personnel manager of a separate, similar company, the Webb Forging Company, Mr. Dowd.
Essentially, the facts are not much in dispute, so far as the events giving rise to the charges of defamation and blacklisting are concerned. In 1982, because of economic considerations, the Appellant had been required to lay off many of its personnel. At that time, the Webb Forging Company was in the process of establishing its plant in the same community, to operate in somewhat the same business activity as that of Appellant, and Mr. Dowd was engaged in the process of selecting new employees to staff the Webb Forging Company plant.
Incident to that hiring process, one of the plaintiffs, Charles Glaser, a former employee of Torrington, applied to and was interviewed by Mr. Dowd for a position at the Webb Forging Company. Mr. Glaser had brought to the interview a resume which he left with Mr. Dowd. Dowd then called Mr. Love at Torrington to inquire about matters concerning Glaser’s application. At trial, Dowd testified that he was not certain about the recall rights of employees laid off by Torrington, and that he wished to clarify this question. Love indicated that he was not able to recommend Mr. Glaser for employment, and he then apparently went on to state his views about other former employees of Torrington. Mr. Dowd made notes of these comments as they were made, and ultimately reduced them to a memorandum in the following form:
CONFIDENTIAL INFORMATION
*1. CHARLES GLASER. 17 yrs. (NO)
2. TIM CALICUT MILITANT
3. PAUL RICE WORK.COMP. LABOR BOARD GOOD TALKER (NO)
*4. SONNY MCABEE
*5. NANCY BROWN
*6. JUDY HOWARD ORGANIZER (NOW) + ERA
*7. ROBIN CALDWELL
*8. JOSEPHINE HILL
*9. CARROLL AUSTIN EMOTIONAL PROBLEM (MALE)
*10. DAVID FRICK
*11. ANTHONY DUCKETT MILITANT
*12. RONNIE DUCKETT MILITANT
13. ROBERT JETER
*14. EDDIE WARD
ROCK HILL UNION ORGANIZERS
EDDIE REEVES
RAY RENFROW
? BUMPER
EDDIE NICHOLS AMALGAMATED TEXTILE UNION
This memorandum contained not only the information given by Mr. Love to Mr. Dowd during the telephone call, but also included four names, Eddie Reaves, Ray Renfrow, ? Bumper, and Eddie Nichols, which Dowd had received from Love in a previous meeting when the two had discussed union policies, union methodology, etc., in the area of their operations.
Most of the fourteen people listed on the first part of the memorandum had made one or more applications to Webb Forging for employment after they had been laid off by the Appellant. Dowd testified without contradiction at trial that at the time of his telephone conversation with Love, and for some time thereafter, he had approximately 2500 applications for employment in his files, with less than 100 places to be filled initially, but that his method of selecting employees was to act on the recommendation of persons in the community in whom he had trust, and on the recommendations of current employees of Webb Forging. Upon receiving such a recommendation, he would then interview the individual, and, if necessary, would request that the individual fill out an application form for employment. If he found the recommended individual’s application in the file, he did not require a new application.
Dowd testified that the “confidential information” memorandum, supra, was placed in his desk, and remained there for some eighteen months until a security guard saw the list on Dowd’s desk, recognized at least two names on the list, made a photocopy of the list, and gave that photocopy to one of the plaintiffs, Austin, who was the nephew of the security guard.
Thereafter, Austin filed suit against the Appellant, and the attendant publicity alerted the other ten plaintiffs to the fact that their names also were contained on the list. The remaining ten plaintiffs then each brought suit and the matter came on for trial. Two of those mentioned on the list who became plaintiffs, Robin Caldwell and David Frick, did not apply for employment with Webb during the period involved in the case.
II. Discussion
The standard for appellate review of a judgment below, on appeal of denial of a motion for judgment notwithstanding the verdict, or in the alternative for a new trial, is whether there is evidence upon which a jury could properly find a verdict, Ralston Purina Co. v. Edmunds, 241 F.2d 164, 167 (4th Cir.1957). Appellate review is not to weigh the contrasting evidence, not to judge credibility of witnesses, and not to substitute the reviewer’s judgment of the facts for that of the jury. See Whalen v. Roanoke County Board of Supervisors, 769 F.2d 221 (4th Cir.1985) (rev’d en banc on other grounds).
Against this standard, an old case, still followed, holds that a “scintilla” of evidence is not enough to sustain a verdict, Schuylkill and Dauphin Improvement Co. v. Munson, 81 U.S. (14 Wall) 442, 448, 20 L.Ed. 867 (1871), and case law further provides that any inferences drawn by the jury must be “reasonably probable;” mere speculation is insufficient. Lovelace v. Sherwin-Williams, Co., 681 F.2d 230, 241-42 (4th Cir.1982).
Applying these requirements to the evidence below, as adduced in the Joint Appendix and the Supplemental Appendix, we address first the issue of blacklisting, and second the issue of slander, noting, as set out more fully infra, that the law of South Carolina actively invokes the concept of malice under both issues.
As a preliminary to consideration of the first issue, the point is made in Appellees’ brief that no objection was made in the court below to the charge given the jury on the question of blacklisting. This court ordinarily does not address here objections not timely and properly saved in the trial below. An exception to this rule is that which requires the reviewing court to consider an error of law which adversely affects the substantive rights of the appellant. As this court has said, “There are instances, however, when issues not previously raised should be entertained on appeal. If the error is ‘plain’ and a refusal to treat it would result in a denial of fundamental justice, it should be decided.” See United States v. Barge Shamrock, 635 F.2d 1108, 1111 (4th Cir.1980). Further, “Indeed, if deemed necessary to reach the correct result, an appellate court may sua sponte consider points not presented to the district court and not even raised on appeal by any party.” See Ricard v. Birch, 529 F.2d 214, 216 (4th Cir.1975), quoting from Washington Gas Light v. Virginia Electric and Power Co., 438 F.2d 248 (4th Cir.1971). Here, Appellant’s contention is that the court below recognized as a tort cognizable under South Carolina law the act of blacklisting, which recognition severely affected adversely the Appellant on this issue. If there is in fact no such tort recognized under South Carolina law, and if the charge of the court did recognize blacklisting as a tort, then there has been a plain error of law which has, in light of the verdicts, severely affected adversely the rights of the Appellant. Thus, we examine the case to determine answers to these questions.
A. Blacklisting as a tort:
There is sharp controversy between the parties as to whether South Carolina in fact recognizes “blacklisting” as a cause of action separate and distinguishable from the tort of slander. From the case law the act of blacklisting in itself is not considered to be a tort under the law of South Carolina. Rhodes v. Granby Cotton Mills, 87 S.C. 18, 68 S.E. 824 (1910). In Parker v. Southeastern Haulers, 210 S.C. 18, 41 S.E.2d 387 (1947), the court said that, “the majority of an able court [in Granby ] held that the blacklist was not illegal per se ....” 210 S.C. at 28, 41 S.E.2d at 391, 392. Under both Granby and Parker, South Carolina law requires that, in order for blacklisting to constitute a tort, there must be some willful or malicious use of the blacklist, by one or a combination of the parties who prepared and used the blacklist, which willful or malicious use results in injury to the plaintiff. Thus, under these cases, the simple act of blacklisting is not a tort in South Carolina. Rather, to effectuate a recovery under a blacklisting theory, the plaintiff must prove that there was a blacklist, a combination of employers who exchanged the information contained on the blacklist, and a willful or malicious use of that blacklist by one or more of the members of the combination, with resultant injury to the plaintiff. See supra, Granby, 87 S.C. at 42-44, 68 S.E. at 833-4 (Woods, J., concurring).
No controversy exists about the fact that the two employers, speaking through Dowd and Love, did in fact exchange information concerning plaintiffs below which represented a “blacklisting” of those individuals. To the extent that Dowd accepted additional information about other former employees in addition to Glaser, as proffered by Love, that exchange of information covered all of the persons on the “confidential information” memorandum as set out and discussed supra.
The next question to be addressed, then, is whether the evidence below can sustain a finding of willful or malicious use of that blacklist with resultant injuries to the plaintiffs. First, the evidence at trial indicates that Dowd did not use the list’s information at all. His testimony is that the list was never used by him in any way in evaluating any potential employee of Webb Forging. However, there is evidence that the blacklist was seen on Dowd’s desk on one or more occasions, most particularly when the security guard saw the list on Dowd’s desk and made a photocopy. If the jury chose to believe the testimony of the security guard and others that the list was seen on Dowd’s desk, it would have weakened Dowd’s testimony that he never referred to the list. However, it appears from the oral argument, the briefs, and the joint appendix that the plaintiffs do not assert a willful or malicious motive on Dowd’s part in making the list. Rather, plaintiffs focus on Love; they assert that there was ample evidence from which the jury could have concluded that Love’s giving of the information was done maliciously with the intent to hurt the plaintiffs. This was, of course, strenuously denied by Love throughout his testimony at trial. Love testified that the communication of such information is a regular and permissible activity among personnel managers of various employers.
Of some importance, there is a factual distinction between the facts in this case and those in Granby, supra. In Granby, the plaintiff had been mistakenly placed on a list of strikers which had been exchanged with other employers. It was conceded that the plaintiff had not been a striker at all. Nevertheless, his name had been retained on the list of strikers even after the listing employer had known that the plaintiff was not a striker. Under these facts, a finding that there was some willful or malicious motive activating the employer in keeping the plaintiffs name on the striker list is an understandable, and defensible, conclusion.
In the present appeal, however, the evidence advanced to support a finding of malicious conduct in connection with the blacklist presents a far different picture. Appellees advance three propositions in attempting to prove a willful or malicious motive by Love: first, of his own volition Love volunteered the information concerning the plaintiffs, except for Charles Glaser; second, the information was in derogation of the plaintiffs’ suitability for employment with Webb Forging; third, the information was false.
Given the proposition that blacklisting is not illegal per se, we cannot see how the three assertions above can be said, in and of themselves, to prove malice by Love. As the Court noted in the Granby opinion, Love’s giving such information to Dowd in the context of their mutual interests in the employment process is allowable under South Carolina law. In a broader context, where such information is exchanged because of a mutual interest in its content, and without malice, penalizing that exchange would be a grave disservice to the employer. Certainly, the prospective employer seeks to acquire information judged pertinent by it to facilitate decision as to employment vel non. The former employer is a source of such information, and perhaps the only source. Proscribing such an interchange would severely inhibit the right of employers to communicate on a matter of serious, mutual concern. It appears that this reasoning underlies the decision of the Court expressed in Judge Woods’ concurring opinion in Granby, supra, and this Court finds that reasoning strongly persuasive as it is applied in the South Carolina law.
The fact that Love proffered the information as to all plaintiffs, except Glaser, without specific inquiry by Dowd loses significance in light of the fact that Dowd initiated the exchange by inquiring about the reinstatement rights of former employees of Torrington. Glaser’s application precipitated the inquiry, but the answer to the question as to Torrington reinstatement policy was obviously general in application to all former employees. In the context of that generalized inquiry and response, discussion of employees other than Glaser flowed as a natural consequence.
That the information exchanged between Love and Dowd related to and dealt with the suitability of the plaintiffs for employment is simply the function of such a list. Information normally found in such a list deals with the question of suitability of employment.
Whether the information on the list was or was not false is, in the context of the factual pattern here, more a function of subjective opinion than refutable fact. Nothing in the evidence from trial indicates that the falsity, if any, of the information contained on the list was brought home to Love, except in one case. In that instance, a fellow employee of Judy Howard told Love that Howard was neither an organizer for NOW nor an organizer for ERA. Love apparently responded that he had information which was contrary to that statement and he apparently relied upon that contrary information in his phone conversation with Mr. Dowd. We have already indicated that blacklisting is not illegal per se under South Carolina law. Given this, the subjective opinions of a person making a blacklist do not, in and of themselves, establish malice or a wanton desire to hurt the persons on the list. No information concerning the possible falsity of any of the statements is brought home to Love, except in the case of Howard. In that one case, the mere existence of conflicting information falls far short of establishing on the part of Love malice with respect to the information on the blacklist concerning her.
After a detailed review of the record, we can find no evidence upon which the plaintiffs could have relied in asserting proof of malice. The three bases asserted by plaintiffs to support a finding of malice, i.e., volunteering information, derogatory information, and falsity of the information, if assumed to be true, do not present as much as that “scintilla” of evidence, under the facts in this case. South Carolina’s concept of the necessary “scintilla of evidence” describes it as evidence which must be “real, material, and pertinent and relevant evidence, not speculative and theoretical deductions.” See Turner v. American Motorists Ins. Co., 176 S.C. 260, 264, 180 S.E. 55, 57 (1935). More than that “scintilla” of evidence is required to permit the conclusion that the inference drawn here by the jury was “reasonably probable,” and not the product of speculation. The record, simply put, does not disclose evidence relating to these three factors that can support the quantum leap from the three factors to establishing the required willful or malicious misconduct “ — malice in fact — ” on the part of Love. For a discussion of factors held insufficient to establish malice in fact, though much stronger factors favoring the plaintiff than those in the case at bar, see Bell v. Bank of Abbeville, 211 S.C. 167, 44 S.E.2d 328 (1947) (second opinion).
B. Slander:
Under the law of South Carolina, an action for slander requires that the challenged statement be both defamatory and actionable. A defamatory statement is a statement which tends to impeach the plaintiff’s reputation. To be actionable, that statement must also injure the plaintiff. Capps v. Watts, 271 S.C. 276, 281, 246 S.E.2d 606, 609 (1978).
Where a statement is defamatory per se, it is actionable without any proof of special damages. Where the defamatory statement is not defamatory per se, there must be proof of special damages. Capps, supra, 246 S.E.2d at 611. Where special damages are required, in the case of a defamatory statement which is not defamatory per se, those special damages must be a loss of money or some other loss capable of being assessed at a monetary value. Smith v. Phoenix Furniture Co., 339 F.Supp. 969, 971 (D.S.C.1972).
Here, the district court below held that the entire conversation between Love and Dowd bore a qualified privilege, because of the serious, common interests held by Love and Dowd. The status of the challenged statements as qualifiedly privileged, while not conceded by the appellees, is nonetheless cursorily treated in their brief, asserting now that because Love spoke of other employees than Glaser, Love went beyond the scope of the privilege, so that the protection of qualified privilege was lost.
The court below charged the jury on this point in the following language:
I charge you that the qualified privilege is applicable to this case and that the defendant is entitled to assert and rely upon this defense. The effect of the qualified privilege defense is to cast upon the plaintiffs the burden of proving malice in fact on the part of the defendant by a preponderance of the evidence____
There was no objection below by the plaintiffs to this portion of the charge. Thus, under South Carolina law regarding qualified privilege, the plaintiffs had the heavier burden below of proving defamation, injury, and malice in fact on the part of Love, in order to prevail on their charges of slander. Conwell v. Spur Oil Co., 240 S.C. 170, 181, 125 S.E.2d 270, 276 (1962). There is no dispute among the parties that Mr. Love and Mr. Dowd had a common interest, each serving as a personnel manager for an employer in the same community, and from these facts the court below concluded that a qualified privilege existed. The conclusion is clear, and substantially not disputed that the substance of Love’s comments to Dowd was that Love could not recommend plaintiffs for employment. It is on this substance that the appellees attempt to engraft malice in fact.
Some consideration of just what was recorded on the memorandum as to the plaintiffs is in order here. As to Glaser, the comment is “17 yrs. (NO)”; as to Howard, “organizer (NOW) & ERA”; as to Austin, “Emotional Problem (male)”; as to A. Duckett and R. Duckett, “militant”; as to McAbee, Brown, Caldwell, Hill, Frick, and Ward, there are no comments of any sort.
Thus, as to the six plaintiffs for whom no comment is made, there is simply no slanderous statement to be found, unless the plaintiffs would have the Court adopt some scheme which would embrace all plaintiffs in a sort of umbrella theory.
Even if this Court were willing to do so, consideration of the comments made as to the five plaintiffs fails to show the required degree of injury which impeaches the particular plaintiff’s reputation. As to Glaser, the comment is “17 yrs. (No)”. Taken under all the facts here, the statement is Love’s statement that he would not recommend hiring Glaser. We cannot see how more can be read into this comment. As to Judy Howard, the comment is “Organizer (NOW) & ERA”. It is doubtful that there ever was a day when being stated to be an organizer for the National Organization of Women and the Equal Rights Amendment was considered a slander, but certainly that would scarcely be considered the case today or at the time of trial below. As to Austin, the comment is “Emotional Problem (male).” The statement is obviously one of the opinion of Love, but, again, the language used does not “tend to impeach the reputation of the plaintiff.” See, Capps v. Watts, 271 S.C. 276, 281, 246 S.E.2d 606, 609. As to “emotional problem,” aside from the matter of expressing an opinion, these words, without more, identify nothing of the nature of whatever problems there might have been, but leave the reader to speculate according to the individual’s predilections to assign some further meaning to these words. It is impossible to assign any slanderous meaning to the identification of Austin as “(male)”. As to A. Duckett and R. Duck-ett, the comment is “Militant” as to both. Again, Love expresses an opinion, but there is perhaps more comfort to be drawn by these plaintiffs from that description than there are adverse inferences. In the context in which the notes were made, the description may be intended to indicate strong pro-employee feelings and actions, but, as in all the above analyses of these comments, the most important consideration is that each of the descriptions is given in the framework of qualified privilege, and here, as in the previous comments noted, the statement is intended to convey to Dowd information he could consider in his hiring decisions.
In the fact pattern in this case, and in light of the qualified privilege attaching to the communication, the evidence will not support a finding of slander.
If we assume, however, that this information went beyond a simple statement of non-recommendation for employment, and the memorandum taken as a whole was thus defamatory as to each name listed thereon, the plaintiffs still face the burden of proving actual malice. An inference of malice is not sufficient where the statements are found to be qualifiedly privileged, as was the case below. See Woodward v. South Carolina Farm Bureau Insurance Co., 277 S.C. 29, 282 S.E.2d 599 (1981).
The opinion in Padgett v. Sun News, 278 S.C. 26, 292 S.E.2d 30 (1982) sets out the following definition of “actual malice,” as that term is understood in the law of South Carolina. It requires that the defendant
acted “with ill will toward the plaintiff or that [he] acted recklessly or wantonly, meaning with conscious indifference toward plaintiff’s rights”, and requires that “at the time of his act or omission to act the tortfeasor be conscious, or chargeable with consciousness of his wrongdoing.” Rogers v. Florence Printing Co., 233 S.C. 567, 577, 106 S.E.2d 258; Jones v. Gamer, 250 S.C. 479, 158 S.E.2d 909.
Sun News, 292 S.E.2d at 34.
No evidence of record supports the proposition that Love at the time of transmitting the challenged statements to Dowd was “at the time of his act or omission to act [was] conscious or chargeable with consciousness of his wrongdoing.” As illustrated in the discussion of the South Carolina law governing blacklisting and intentional, improper interferences, etc., Love acted in a way which did not give rise to a tort action under these theories. Certainly, nothing in the evidence showed that Love was “conscious” of any wrongdoing.
It should be noted, also, that under the “actual malice” formulation of Sun News, supra, ill will and consciousness of wrongdoing are conjunctive, so that each element must be supported by more than a “scintilla” of evidence before “actual malice” can be found.
We conclude that, as a matter of law, there was a failure in the evidence below to demonstrate actual malice. Four of the plaintiffs testified below that they “got along fine” with Love. Appellees suggest in their brief that there is only evidence of actual malice toward one of the plaintiffs, Nancy Brown. However, Mrs. Brown’s own testimony itself belies this argument. She stated at trial that there had been some sharp words between her and Mr. Love some two years or more before the blacklisting incident. This is the only evidence advanced to show malice in fact on Love’s part toward Nancy Brown. In contrast, the recitation of facts suggesting actual malice in Bell v. Bank of Abbe-ville, supra (second opinion), shows a series of incidents, far severer than those revealed as to Nancy Brown, which series of incidents was not enough to provide that necessary “scintilla of evidence.” Further, Nancy Brown testified that after the incident relied on she had continued to work under Love’s supervision and her relationship with him after the incident complained of had been very good. She did not deny Love’s testimony to the effect that he had evaluated her for the highest possible wage increases in the intervening two years, and she believed Love was sorry that she was discharged during the reduction in the Tor-rington Co. work force. Taking the Brown testimony as a whole, that testimony is, if possible, less than the “scintilla” of evidence discussed supra. Certainly it is not sufficient, as a matter of law, to support a finding that malice in fact on the part of Mr. Love existed at the time the memorandum was prepared.
Similarly, plaintiffs’ argument that malice on Love’s part as to plaintiff Howard could be inferred from certain facts fails, since, given a qualified privilege, there must be proof of malice in fact.
If plaintiffs rely entirely on the Brown incident between Mr. Love and Ms. Brown, as apparently they must, for their proof of actual malice, then, as a matter of law, this evidence does not establish Love’s ill will toward Ms. Brown, and that he acted recklessly or wantonly with a conscious indifference toward her rights, and was conscious, or chargeable with consciousness of his wrongdoing.
We thus conclude that the statements in question were qualifiedly privileged, there was no proof at trial of actual malice on the part of Love, and thus the verdict of the jury on the slander count of the complaint was not supported by the evidence.
III. Conclusion
Because we have found that the verdicts of the jury on the blacklisting and slander counts cannot stand, it is not necessary to address the issues relating to damages, as those issues have been asserted on appeal.
For the reasons indicated above, the decision of the court below in denying a directed verdict is reversed, and the case is remanded with directions to enter judgment for the defendant.
REVERSED AND REMANDED.
. The asterisks were not on the memorandum prepared by Mr. Dowd, but have been added to identify the eleven persons out of the group of fourteen who became plaintiffs.
. As indicated in the discussion of the requirement of malice, infra, and of the qualifiedly privileged nature of the communication, also discussed infra, the malice must be "express or actual” malice, sometimes referred to as "malice in fact,” that is, that Love was "actuated by ill will in what he did and said, with the design to causelessly and wantonly injure” the plaintiffs. See Belt v. Bank of Abbeville, 208 S.C. 490, 495, 38 S.E.2d 641, 643 (1946).
. A change in this aspect of the law of South Carolina may come about as a result of applying the doctrine of New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) and its progeny in a proper state case. However, no such change has been found in any reported South Carolina case. In fact, the latest South Carolina case dealing with this aspect of the law reiterates the principle set out in the text of this opinion, see Capps, supra, 246 S.E.2d at 609, the Capps opinion having been handed down some fourteen years after New York Times v. Sullivan. Thus, taking South Carolina law as it now stands, Capps affirms the principle presently followed in the reported South Carolina cases.
Question: What is the number of judges who dissented from the majority?
Answer:
|
sc_adminaction_is
|
A
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether administrative action occurred in the context of the case prior to the onset of litigation. The activity may involve an administrative official as well as that of an agency. To determine whether administration action occurred in the context of the case, consider the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
FRY v. PLILER, WARDEN
No. 06-5247.
Argued March 20, 2007
Decided June 11, 2007
Scalia, J., delivered the opinion for a unanimous Court as to all but footnote 1 and Part II-B. Roberts, C. J., and Kennedy, Thomas, and Alito, JJ., joined that opinion in full; Stevens, Souter, and Ginsburg, JJ., joined it as to all but Part II-B; and Breyer, J., joined as to all but footnote 1 and Part II-B. Stevens, J., filed an opinion concurring in part and dissenting in part, in which Souter and Ginsburg, JJ., joined, and in which Breyer, J., joined in part, post, p. 122. Breyer, J., filed an opinion concurring in part and dissenting in part, post, p. 126.
Victor S. Haltom, by appointment of the Court, 549 U. S. 1165, argued the cause for petitioner. With him on the briefs was John R. Duree, Jr.
Ross C. Moody, Deputy Attorney General of California, argued the cause for respondent. With him on the brief were Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Manuel M. Medeiros, State Solicitor General, Gerald A. Engler, Senior Assistant Attorney General, Donald E. de Nicola, Deputy Solicitor General, and Peggy S. Ruffra, Supervising Deputy Attorney General.
Patricia A. Millett argued the cause for the United States as amicus curiae urging affirmance. On the brief were Solicitor General Clement, Assistant Attorney General Fisher, Deputy Solicitor General Dreeben, Jonathan L. Marcus, and Joel M. Gershowitz.
Lori R. E. Ploeger, Maureen P Alger, and Matthew D. Brown filed a brief for the Innocence Network as amicus curiae urging reversal.
Briefs of amici curiae urging affirmance were filed for the State of Missouri et al. by Jeremiah W. (Jay) Nixon, Attorney General of Missouri, James R. Layton, State Solicitor, and Heidi C. Doerhojf and Ronald S. Ribaudo, Assistant Attorneys General, and by the Attorneys General for their respective States as follows: Troy King of Alabama, Terry Goddard of Arizona, Dustin McDaniel of Arkansas, John W. Suthers of Colorado, Joseph R. Biden III of Delaware, Mark J. Bennett of Hawaii, Lisa Madigan of Illinois, Steve Carter of Indiana, Tom Miller of Iowa, Gregory D. Stumbo of Kentucky, Michael A Cox of Michigan, Jim Hood of Mississippi, Mike McGrath of Montana, Wayne Stenehjem of North Dakota, TV A Drew Edmondson of Oklahoma, Henry D. McMaster of South Carolina, Lawrence E. Long of South Dakota, Greg Abbott of Texas, Mark L. Shurtlejf of Utah, and Darrell V. McGraw, Jr., of West Virginia; and for the Criminal Justice Legal Foundation by Kent S. Scheidegger.
Justice Scalia
delivered the opinion of the Court.
We decide whether a federal habeas court must assess the prejudicial impact of constitutional error in a state-court criminal trial under the “substantial and injurious effect” standard set forth in Brecht v. Abrakamson, 507 U. S. 619 (1993), when the state appellate court failed to recognize the error and did not review it for harmlessness under the “harmless beyond a reasonable doubt” standard set forth in Chapman v. California, 386 U. S. 18 (1967).
I
After two mistrials on account of hung juries, a third jury convicted petitioner of the 1992 murders of James and Cynthia Bell. At trial, petitioner sought to attribute the murders to one or more other persons. To that end, he offered testimony of several witnesses who linked one Anthony Hurtz to the killings. But the trial court excluded the testimony of one additional witness, Pamela Maples, who was prepared to testify that she had heard Hurtz discussing homicides bearing some resemblance to the murder of the Bells. In the trial court’s view, the defense had provided insufficient evidence to link the incidents described by Hurtz to the murders for which petitioner was charged.
Following his conviction, petitioner appealed to the California Court of Appeal, arguing (among other things) that the trial court’s exclusion of Maples’ testimony deprived him of a fair opportunity to defend himself, in violation of Chambers v. Mississippi, 410 U. S. 284 (1973) (holding that a combination of erroneous evidentiary rulings rose to the level of a due process violation). Without explicitly addressing petitioner’s Chambers argument, the state appellate court held that the trial court had not abused its discretion in excluding Maples’ testimony under California’s evidentiary rules, adding that “no possible prejudice” could have resulted in light of the “merely cumulative” nature of the testimony. People v. Fry, No. A072396 (Ct. App. Cal., 1st App. Dist., Mar. 30, 2000), App. 97, n. 17. The court did not specify which harmless-error standard it was applying in concluding that petitioner suffered “no possible prejudice.” The Supreme Court of California denied discretionary review, and petitioner did not then seek a writ of certiorari from this Court.
Petitioner next filed a petition for writ of habeas corpus in the United States District Court for the Eastern District of California, raising the aforementioned due process claim (among others). The case was initially assigned to a Magistrate Judge, who ultimately recommended denying relief. He found the state appellate court’s failure to recognize error under Chambers to be “an unreasonable application of clearly established law as set forth by the Supreme Court,” App. 180, and disagreed with the state appellate court’s finding of “no possible prejudice.” But he nevertheless concluded that “there ha[d] been an insufficient showing that the improper exclusion of the testimony of Ms. Maples had a substantial and injurious effect on the jury’s verdict” under the standard set forth in Brecht. App. 181-182. The District Court adopted the Magistrate Judge’s findings and recommendations in full, and a divided panel of the United States Court of Appeals for the Ninth Circuit affirmed. We granted certiorari. 549 U. S. 1092 (2006).
II
A
In Chapman, supra, a case that reached this Court on direct review of a state-court criminal judgment, we held that a federal constitutional error can be considered harmless only if a court is “able to declare a belief that it was harmless beyond a reasonable doubt.” Id., at 24. In Brecht, supra, we considered whether the Chapman standard of review applies on collateral review of a state-court criminal judgment under 28 U. S. C. § 2254. Citing concerns about finality, comity, and federalism, we rejected the Chapman standard in favor of the more forgiving standard of review applied to nonconstitutional errors on direct appeal from federal convictions. See Kotteakos v. United States, 328 U. S. 750 (1946). Under that standard, an error is harmless unless it “‘had substantial and injurious effect or influence in determining the jury’s verdict.’” Brecht, supra, at 631 (quoting Kotteakos, supra, at 776). The question in this case is whether a federal court must assess the prejudicial impact of the unconstitutional exclusion of evidence during a state-court criminal trial under Brecht even if the state appellate court has not found, as the state appellate court in Brecht had found, that the error was harmless beyond a reasonable doubt under Chapman.
We begin with the Court’s opinion in Brecht The primary reasons it gave for adopting a less onerous standard on collateral review of state-court criminal judgments did not turn on whether the state court itself conducted Chapman review. The opinion explained that application of Chapman would “underminfe] the States’ interest in finality,” 507 U. S., at 637; would “infring[e] upon [the States’] sovereignty over criminal matters,” ibid.; would undercut the historic limitation of habeas relief to those “ ‘grievously wronged,’ ” ibid.; and would “impos[e] significant ‘social costs,’ ” ibid. (quoting United States v. Mechanik, 475 U. S. 66, 72 (1986)). Since each of these concerns applies with equal force whether or not the state court reaches the Chapman question, it would be illogical to make the standard of review turn upon that contingency.
The opinion in Brecht clearly assumed that the Kotteakos standard would apply in virtually all §2254 cases. It suggested an exception only for the “unusual case” in which “a deliberate and especially egregious error of the trial type, or one that is combined with a pattern of prosecutorial misconduct, . . . infect[s] the integrity of the proceeding.” 507 U. S., at 638, n. 9. This, of course, has nothing to do with whether the state court conducted harmless-error review. The concurring and dissenting opinions shared the assumption that Kotteakos would almost always be the standard on collateral review. The former stated in categorical terms that the “Kotteakos standard” “will now apply on collateral review” of state convictions, 507 U. S., at 643 (Stevens, J., concurring). Justice White’s dissent complained that under the Court’s opinion Kotteakos would apply even where (as in this case) the state court found that “no violation had occurred,” 507 U. S., at 644; and Justice O’Connor’s dissent stated that Chapman would “no longer appl[y] to any trial error asserted on habeas,” 507 U. S., at 651. Later cases also assumed that Brechfs applicability does not turn on whether the state appellate court recognized the constitutional error and reached the Chapman question. See Penry v. Johnson, 532 U. S. 782, 795 (2001); Calderon v. Coleman, 525 U. S. 141, 145 (1998) (per curiam).
Petitioner’s contrary position misreads (or at least exaggerates the significance of) a lone passage from our Brecht opinion. In that passage, the Court explained:
“State courts are fully qualified to identify constitutional error and evaluate its prejudicial effect on the trial process under Chapman, and state courts often occupy a superior vantage point from which to evaluate the effect of trial error. For these reasons, it scarcely seems logical to require federal habeas courts to engage in the identical approach to harmless-error review that Chapman requires state courts to engage in on direct review.” 507 U. S., at 636 (citation omitted).
But the quoted passage does little to advance petitioner’s position. To say (a) that since state courts are required to evaluate constitutional error under Chapman it makes no sense to establish Chapman as the standard for federal habeas review is not at all to say (b) that whenever a state court fails in its responsibility to apply Chapman the federal habeas standard must change. It would be foolish to equate the two, in view of the other weighty reasons given in Brecht for applying a less onerous standard on collateral review— reasons having nothing to do with whether the state court actually applied Chapman.
Petitioner argues that, if Brecht applies whether or not the state appellate court conducted Chapman review, then Brecht would apply even if a State eliminated appellate review altogether. That is not necessarily so. The federal habeas review rule applied to the class of case in which state appellate review is available does not have to be the same rule applied to the class of case where it is not. We have no occasion to resolve that hypothetical (and highly unrealistic) question now. In the case before us petitioner did obtain appellate review of his constitutional claim; the state court simply found the underlying claim weak and therefore did not measure its prejudicial impact under Chapman. The attempted analogy — between (1) eliminating appellate review altogether and (2) providing appellate review but rejecting a constitutional claim without assessing its prejudicial impact under Chapman — is a false one.
Petitioner contends that, even if Brecht adopted a categorical rule, post-Brecht developments require a different standard of review. Three years after we decided Brecht, Congress passed, and the President signed, the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), under which a habeas petition may not be granted unless the state court’s adjudication “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States . . . .” 28 U.S.C. § 2254(d)(1). In Mitchell v. Esparza, 540 U. S. 12 (2003) (per curiam), we held that, when a state court determines that a constitutional violation is harmless, a federal court may not award habeas relief under §2254 unless the harmlessness determination itself was unreasonable. Petitioner contends that § 2254(d)(1), as interpreted in Esparza, eliminates the requirement that a petitioner also satisfy Brechts standard. We think not. That conclusion is not suggested by Esparza, which had no reason to decide the point. Nor is it suggested by the text of AEDPA, which sets forth a precondition to the grant of habeas relief (“a writ of habeas corpus ... shall not be granted” unless the conditions of § 2254(d) are met), not an entitlement to it. Given our frequent recognition that AEDPA limited rather than expanded the availability of habeas relief, see, e. g., Williams v. Taylor, 529 U. S. 362, 412 (2000), it is implausible that, without saying so, AEDPA replaced the Brecht standard of “‘actual prejudice,”’ 507 U. S., at 637 (quoting United States v. Lane, 474 U. S. 438, 449 (1986)), with the more liberal AEDPA /Chapman standard which requires only that the state court’s harmless-beyond-a-reasonable-doubt determination be unreasonable. That said, it certainly makes no sense to require formal application of both tests (AEUTA/Chapman and Brecht) when the latter obviously subsumes the former. Accordingly, the Ninth Circuit was correct to apply the Brecht standard of review in assessing the prejudicial impact of federal constitutional error in a state-court criminal trial.
B
Petitioner argues that, even if Brecht provides the standard of review, we must still reverse the judgment below because the exclusion of Maples’ testimony substantially and injuriously affected the jury’s verdict in this case. That argument, however, is not fairly encompassed within the question presented. We granted certiorari to decide a question that has divided the Courts of Appeals — whether Brecht or Chapman provides the appropriate standard of review when constitutional error in a state-court trial is first recognized by a federal court. Compare, e. g., Bains v. Cambra, 204 F. 3d 964, 976-977 (CA9 2000), with Orndorff v. Lockhart, 998 F. 2d 1426, 1429-1430 (CA8 1993). It is true that the second sentence of the question presented asks: “Does it matter which harmless error standard is employed?” Pet. for Cert. I. But to ask whether Brecht makes any real difference is not to ask whether the Ninth Circuit misapplied Brecht in this particular case. Petitioner seems to have understood this. Only in a brief footnote of his petition did he hint that the Ninth Circuit erred in its application of the Brecht standard. Pet. for Cert. 23, n. 19. Indeed, if application of the Brecht standard to the facts of this case were encompassed within the question presented, so too would be the question of whether there was constitutional error in the first place. After all, it would not “matter which harmless error standard is employed” if there were no underlying constitutional error. Unlike the dissenting Justices, some of whom would reverse the decision below on the ground that the error was harmful under Brecht, and one of whom would vacate the decision below on the ground that it is unclear whether there was constitutional error in the first instance, we read the question presented to avoid these tangential and factbound questions, and limit our review to the question whether Chapman or Brecht provides the governing standard.
* * *
We hold that in §2254 proceedings a court must assess the prejudicial impact of constitutional error in a state-court criminal trial under the “substantial and injurious effect” standard set forth in Brecht, supra, whether or not the state appellate court recognized the error and reviewed it for harmlessness under the “harmless beyond a reasonable doubt” standard set forth in Chapman, 386 U. S. 18. Since the Ninth Circuit correctly applied the Brecht standard rather than the Chapman standard, we affirm the judgment below.
It is so ordered.
As this case comes to the Court, we assume (without deciding) that the state appellate court’s decision affirming the exclusion of Maples’ testimony was an unreasonable application of Chambers v. Mississippi, 410 U. S. 284, 302 (1973). We also assume that the state appellate court did not determine the harmlessness of the error under the Chapman standard, notwithstanding its ambiguous conclusion that the exclusion of Maples’ testimony resulted in “no possible prejudice.”
We do not agree with petitioner’s amicus that Brecht’s concerns regarding the finality of state-court criminal judgments and the difficulty of retrying a defendant years after the crime “have been largely alleviated by [AEDPA],” which “sets strict time limitations on habeas petitions and limits second or successive petitions as well.” Brief for Innocence Network 7. Even cases governed by AEDPA can span a decade, as the nearly 12-year gap between petitioner’s conviction and the issuance of this decision illustrates.
The question presented included one additional issue: “[I]f the Brecht standard applies, does the petitioner or the State bear the burden of persuasion on the question of prejudice?” Pet. for Cert. I. We have previously held that, when a court is “in virtual equipoise as to the harmlessness of the error” under the Brecht standard, the court should “treat the error ... as if it affected the verdict . . . .” O’Neal v. McAninch, 513 U. S. 432, 435 (1995). The majority opinion below did not refer to O’Neal, presumably because the majority harbored no grave doubt as to the harmlessness of the error. Neither did the dissenting judge refer to O’Neal, presumably because she did not think the majority harbored grave doubt as to the harmlessness of the error. Moreover, the State has conceded throughout this §2254 proceeding that it bears the burden of persuasion. Thus, there is no basis on which to conclude that the court below ignored O’Neal.
Question: Did administrative action occur in the context of the case?
A. No
B. Yes
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".
NELSON v. COMMISSIONER OF INTERNAL REVENUE.
No. 14119.
United States Court of Appeals Eighth Circuit.
Oct. 26, 1950.
William F. Dalton, Omaha, Neb., for petitioner.
Harry Marselli, Special Assistant to Attorney General (Th’eron Lamar Caudle, Assistant Attorney General, Ellis N. Slack, Robert N. Anderson and S. Dee Hanson, Special Assistants to Attorney General, on the brief), for respondent.
Before GARDNER, Chief Judge, THOMAS, Circuit'Judge, and DEWEY, District Judge.
GARDNER, Chief Judge.
This matter is before us on petition to review a decision of the United States Tax Court sustaining deficiencies in petitioner’s income tax for the taxable years 1943 and 1944 in the respective amounts of $2508.-36 and $2582.79. The issues presented to the Tax Court were (1) whether the petitioner and his wife operated a news agency business as partners in 1943 and 1944.and (2) whether the cost of installing certain1 office improvements in 1944 was a business expense of that year. The Tax Court determined both of these issues against petitioner. The only oral testimony introduced was that on the part of the petitioner, and the Commissioner introduced no evidence except in the nature of exhibits which were offered in connection with the cross-examination of petitioner’s witnesses. They consisted largely’ of individual tax returns made by petitioner and his wife. On all the evidence and the circumstances disclosed thereby the court entered detailed findings, finding among other things that,
“The petitioner and his wife neyer entered into any written partnership agreement and never obtained a license to do business as a partnership in, the State of Nebraska. They did not file a partnership return or report any partnership income in their individual income tax returns. In his returns for the taxable years 1943 and 1944 the petitioner reported income from his business as ‘News Dealer’ in the respective amounts of $19,020.45 and $28,105.44. The only income reported by his wife in those years was the rent from the Carberry Apartments, amounting to $6,925.54 in 1943 and $6,942.18 in 1944.
“All of the agency contracts under which the petitioner operated were made in his name individually.
“The petitioner and his wife did not form, or intend to form, a bona fide partnership to operate a news agency prior to or during 1943 and 1944.”
The court also found that petitioner at the time of his marriage in 1897 and for some time thereafter was employed as an elevator operator at the Omaha Post Office at a salary of $50.00 per month; that his wife did some sewing and took in boarders; that they had $150.00 each at the time of their marriage and they always commingled their earnings; that while serving as elevator operator petitioner also distributed magazines in his spare time and later acquired the agency for other periodicals and the business grew to the point where in about 1899 it became necessary for him to give up the job as elevator operator and devote his full time to his news agency; that in 1901 he obtained a contract as distributing agent for the Curtis Publishing Company requiring the handling of a large number of copies of the Saturday Evening Post, and to handle this increased business he enlarged his office space and secured additional help. His wife agreed to help with the office work and did so from 1906 to 1924. Her principal duties were to hire and instruct the Saturday Evening Post salesboys and keep a record of their sales. She took care of the telephone calls, handled invoices and bank deposits and kept the office records. During this period petitioner devoted most of his time to outside work. Prior to 1926 petitioner maintained a single bank account but in 1926 it was changed to a joint account of himself and wife, both he and his wife being authorized to draw on the account'. In 1899 petitioner purchased a lot in Omaha for $275.00, which was paid out of his and his wife’s joint funds. A house was built on this lot at a cost of $1,000.00 paid out of their common fund and this property was later sold and other property was bought and sold from time to time. In 1931 petitioner purchased improved real estate known as the Carberry Apartments for $110,000.00, paying $22,500.00 in cash from the joint account and another piece of real estate valued at $7,500.00. Title to the property was taken in the joint names of petitioner and his wife. The property was placed in the hands of a real estate agent with instructions to use the rents first to pay off the mortgage of $80,000.00 and thereafter to pay the net income to petitioner’s wife. The mortgage was retired in 1941 and the proceeds from the property since have been paid to petitioner’s wife and she has accounted for that income in her income tax returns.
In seeking reversal of the Tax Court’s decision petitioner charges error (1) in making the following findings of fact: “The petitioner and his wife did not form, or intend to form, a bona fide partnership to operate a news agency prior to or during 1943 and 1944.” Petitioner not only challenges this finding but “all its findings and conclusions in support thereof”; (2) in making findings that the cost of making the improvements which petitioner made in the office in 1944 was a capital expenditure rather than a business expense of that year.
The findings of fact of the Tax Court while not conclusive on review by this court are presumptively correct and should not be set aside unless clearly erroneous, due regard being given to the opportunity of the trial court to judge of the credibility of the witnesses. Rule 52, Federal Rules of Civil Procedure, 28 U.S.C.A.; United States v. United States Gypsum Co., 333 U.S. 364, 68 S.Ct. 525, 92 L.Ed. 746; Kohl v. Commissioner of Internal Revenue, 8 Cir., 170 F.2d 531.
Whether for federal tax purposes a partnership exists depends upon the particular facts in each case. A taxpayer may not by the device of a purported partnership divide his income for the purpose of preventing having it all taxed to himself, and the family partnership is looked upon with suspicion and is subjected to special scrutiny to prevent tax avoidance. Recent decisions of the Supreme Court indicate that the vital question to be determined in these family partnership cases is whether “the partners really and truly intended to join together for the purpose of carrying on business and sharing in the profits or losses or both. And their intention in this respect is a question of fact, to be determined from testimony disclosed by their ‘agreement, considered as a whole, and by their conduct in execution of its provisions.’ ” Commissioner v. Tower, 327 U.S. 280.
Tn Commissioner of Internal Revenue v. Culbertson, 337 U.S. 733, 69 S.Ct. 1210, 1214, 93 L.Ed. 1659, the Supreme Court gave further consideration to the family partnership problem and gave added emphasis to the thought that the intent of the parties is of very great if, indeed, not controlling importance. In the course of that opinion it is said: “The question is not whether the services or capital contributed by a partner are of sufficient importance to meet some objective standard supposedly established by the Tower case, but whether, considering all the facts — the agreement, the conduct of the parties in execution of its provisions, their statements, the testimony of disinterested persons, the relationship of the parties, their respective abilities and capital contributions, the actual control of income and the purposes for which it is used, and any other facts throwing light on their true intent — the parties in good faith and acting with a business purpose intended to join together in the present conduct of the enterprise. There is nothing new or particularly difficult about such a test. Triers of fact are constantly called upon to determine the intent with which a persoii acted.”
In the instant case the Tax Court found as a fact from all the evidence and attending circumstances that “the petitioner and his wife did not form, or intend to form, a bona fide partnership to operate a news agency prior to or during 1943 and 1944.” The income here involved resulted from operating the news agency. The income arising from rentals of the Carberry Apartments was reported by petitioner’s wife. In the course of the Tax Court’s opinion it is observed that, “According to the evidence, the petitioner operated the news agency as his own individual business. His wife did render valuable assistance to him in the earlier years from about 1906 to 1924, but she has taken no active part in the business since that time. No partnership, agreement, was ever entered into and proof is lacking even of an intention on the part of either the petitioner or his wife to form a real business partnership. The evidence as to how or when the alleged partnership was formed is vague and indefinite. When asked by Government counsel how the partnership originated, petitioner’s wife replied, ‘Well, I think we talked it over together; we had no other way of doing it.’ The petitioner testified that he thought a partnership was formed about Í906, when his wife agreed to help him with the business.”
It is also pointed out that the wife did not contribute capital to the business, as capital was not required. The agency contracts which were at least the source of the principal income were acquired by petitioner without cost. No claim of partnership was ever asserted so far as income taxes were concerned and even for the years in question the original tax returns were made by petitioner.
Petitioner relies very strongly on the decision of the Sixth Circuit in Weizer v. Commissioner, 165 F.2d 772, but the facts are readily distinguishable. In the Weizer case the wife contributed a' substantial amount of capital and she rendered important and extensive services to the business from the time of her" marriage throughout the taxable year. She participated in the management and control of the business and she and her husband held themselves out as partners. They filed a partnership income tax return.
Wé can not "say that’the findings of the Tax Court, based upon all the evidence and circumstances in this case, are clearly erroneous and hence they must be sustained'.
There remains to consider the contention that the Tax Court erred.in finding that the cost of installing certain office improvements in 1944 was a capital expenditure rather than a business expense of that year. It appears from the evidence, and *he Tax Court so found, that the improvements in question were made by petitioner to his office which was occupied under a lease of undisclosed duration, at a cost of $976.98; that they were attached to the realty upon installation and became permanent fixtures which the evidence shows had a useful life of several years. We think the evidence warranted a finding that the improvement constituted a capital expenditure recoverable through depreciation over the asset’s useful life of several years. It was in the nature of a betterment and hence not deductible from gross income for the taxable year as a business expense. Lamson Bldg. Co. v. Commissioner of Internal Revenue, 6 Cir., 141 F.2d 408. It is to be borne in mind that the evidence does not show the term which the lease had to run but it does show that the improvement had a usable life of several years.
The decision of the Tax Court is therefore 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_respond1_5_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 "state government (includes territories & commonwealths)". Your task is to determine which category of state government best describes this litigant.
L.P. ACQUISITION COMPANY, et al., Plaintiffs-Appellants, v. Carl L. TYSON, Acting Director of the Corporation and Securities Bureau of the Department of Commerce of the State of Michigan, et al., Defendants-Appellees.
No. 85-1640.
United States Court of Appeals, Sixth Circuit.
Argued Aug. 20, 1985.
Decided Aug. 26, 1985.
Contie, Circuit Judge, concurred in part, dissented in part, and filed an opinion.
John C. Elam, Vorys, Sater, Seymour & Pease, Columbus, Ohio, Michael W. Schwartz, argued, Wachtell, Lipton, Rosen & Katz, New York City, for plaintiffs-appellants.
Diane Sanger, Asst. Gen. Counsel, S.E.C., Washington, D.C., for amicus curiae (SEC).
William Saxton, Butzel, Long, Gust, Klein & Van Zile, Phillip Kessler, argued, Detroit, Mich., Joe Sutton argued, (Kelley, Ross & Tyson) Asst. Atty. Gen., Lansing, Mich., for defendants-appellees.
Before MERRITT, MARTIN and CON-TIE, Circuit Judges.
PER CURIAM.
Plaintiffs L.P. Acquisition Company and L. P. Media, Inc. appeal from a judgment of the district court denying their motion for a preliminary injunction and dismissing their complaint challenging the constitutionality of the Michigan Take-Over Offers Act, M. C.L.A. §§ 451.901-917, and the Michigan Uniform Securities Act, M.C.L.A. §§ 451.-501-818, pursuant to 28 U.S.C. §§ 1331(a), 1337(a), 2201. We reverse.
I.
On July 29, 1985, plaintiffs L.P. Acquisition Company and L.P. Media, Inc. (hereinafter L.P.) filed a motion in the United States District Court for the Eastern District of Michigan against defendants Carl L. Tyson, Acting Director of the Corporation and Securities Bureau of the Department of Commerce of the State of Michigan; Frank J. Kelley, Attorney General of the State of Michigan; Doug Ross, Director of the Department of Commerce of the State of Michigan; and the Evening News Association (ENA), a Michigan corporation, seeking to enjoin defendants from enforcing M.C.L.A. §§ 451.501-818, et seq., 451.901-917.
The first amended complaint, filed August 6, 1985, alleged that L.P. Acquisition and L.P. Media were incorporated on July 26, 1985 for the purpose of acquiring ENA, and that L.P. Acquisition, a Delaware corporation, is a wholly owned subsidiary of L.P. Media. The complaint alleged that L.P. Acquisition had commenced a cash tender offer for any and all of the approximately 450,000 shares of ENA from ENA’s 333 shareholders for $1,000 per share. An examination of the tender offer transmitted to shareholders reveals that the offer was not conditioned upon any minimum number of shares being tendered. The complaint further alleged that about half of the shareholders were Michigan residents with about half of the shares being owned by Michigan residents. The offer was due to expire on August 23, 1985. L.P. also alleged that “ENA shares are not listed on any registered securities exchange or widely traded on the over-the-counter market.”
In the complaint, L.P. admitted that it had not complied with all the provisions of Michigan’s securities laws, but had filed copies of the tender offer documents with the Michigan Department of Commerce without prejudice to its claims that the Act is unconstitutional. In Count I, L.P. alleged that the Michigan statute violated the Commerce Clause, U.S. Constitution Art. I § 8 cl. 3. Specifically, L.P. cited the requirement that L.P. file a registration statement with respect to the tender offer, the fact that the statute empowers Michigan officials to enjoin the sale and purchase of securities pursuant to the terms of the tender offer, and the' expense incurred by L.P. in litigating the applicability of the statute. L.P. asserted that the statute was a direct burden on the free flow of interstate commerce to the extent it hindered the sale of securities by a non-Michigan seller to a non-Michigan buyer, and that the statute indirectly burdened interstate commerce because the burdens on interstate commerce outweighed the benefits the state sought from the statute. In Count II, L.P. asserted that the Michigan statute violated the Supremacy Clause to the extent that it delayed the purchase and sale of securities past the 20-day minimum period established by 17 C.F.R. § 240.14e-1(a), promulgated pursuant to 15 U.S.C. § 78n(e). In Count III, L.P. challenged the M.C.L.A. § 451.808, as unconstitutional as applied to interstate transactions, and, in Count IV, alleged that ENA had violated 15 U.S.C. § 78n(e).
L.P. sought a temporary restraining order, a preliminary injunction, and a permanent injunction restraining defendants from attempting to enforce the Michigan statutes and enjoining ENA from making further misleading statement about the L.P. tender offer. L.P. also sought a declaratory judgment that the statutes are unconstitutional as applied. The motion for a temporary restraining order was accompanied by an affidavit from L.P. Media counsel Grover C. Cooper representing that application of the Michigan statute would delay FCC approval for the transfer of control of the ENA licenses as parent of a number of FCC media facilities.
On August 7,1985, 616 F.Supp. 1186, the district court entered judgment denying in-junctive relief and dismissing the complaint. The court order represented that “[t]he state defendants have indicated that although they are prepared to enforce the Michigan acts as to L.P.’s offer, they will await the decision of this court. L.P. represents that ENA will surely seek to enforce the Michigan acts.” The court disposed of L.P.’s Supremacy Clause and fraud claims (Counts II and III) by finding that 15 U.S.C. § 78n(e) of the Williams Act only applied to registered securities. The court held that
to interpret § 14(e) broadly would render an absurd result by extending coverage of its provisions to foreign and totally intrastate tender offers, as well as those made for the securities of closely held corporations. That Congress would intend for only one subsection of an extensive regulatory scheme to have this cosmic scope defies logic. The court would suggest that Congress’ choice of the phrase “any tender offer” was intended to refer to the form tender offers take— whether for cash or securities, for all or a portion of the outstanding shares, and the type of transmittal through which the tender offer is made.
(footnote omitted). With respect to L.P.’s Commerce Clause challenge, the court held:
The protection of resident shareholders of a Michigan corporation is a legitimate state interest. This is particularly true in the absence of any applicable federal regulation and under the facts of this case. The ENA is a closely held corporation with 50 percent of its shares and shareholders located in Michigan. The corporation owns a major newspaper that impacts upon the entire state and two radio stations in Michigan’s largest city. Each of these factors underscore the need for regulation of a hostile tender offer. These state interests outweigh the incidental burden the application of the Take Over Act will have an interstate commerce.
(footnote omitted). The court found further support in its findings that 17 C.F.R. § 240.14e-l(a) is inapplicable to the ENA unregistered securities and that Congress, in enacting the Williams Act, had not changed the provisions of 15 U.S.C. § 78bb(a) which reserved some regulatory power for the states.
On August 7, 1985, L.P. moved for an expedited appeal and a preliminary injunction pending appeal, and on August 20, 1985, we heard argument in the case. L.P. appealed pursuant to 28 U.S.C. §§ 1291, 1292(a)(1). At oral argument, counsel for L.P. represented that the tender offer had been increased to $1,250 per share and that the offer would expire August 30, 1985. Counsel also represented that this offer was subject to the condition that none of the tendered shares would be purchased unless more than half of the shares were tendered.
II.
Prior to consideration of the constitutional issues argued before us, we review the scope of the statute in issue. M.C.L.A. § 451.903(4) defines “target company” as an issuer of securities which may be the subject of a take-over offer. The statute defines “take-over offer” as an offer directed at an issuer who either is “organized under the laws of this state” or has “its principal place of business in this state” and where acceptance of the offer would make the offeror “a beneficial owner of more than 5% of the outstanding shares of the class of the security offered or acquired.” M.C.L.A. § 451.904(1). However, excluded from the definition of “take-over offer” are (1) “an offer made to not more than 15 persons in this state during any 12 consecutive months,” (2) “an offer made by a person other than an issuer which is initiated or approved by the board of directors of the issuer of the security which is the subject of the offer if the offer is made when a take-over offer with respect to the security by another person is not effective or was not publicly disclosed under section 3,” and (3) an offer “[b]y the issuer of the security.” Section 451.-904(2)(a), (d), (f).
An offer may not be made unless it is “effective” or “exempt.” Section 451.-905(1). An offer becomes “effective” 10 days after the offeror files a registration statement with the department of commerce, delivers the statement to the target company, and publicly discloses the terms of the offer. Section 451.905(3). Once the offer becomes “effective” “it shall remain open for acceptance by the offerees for not less than 60 days.” Section 451.905(2). The effective date is stayed if the administrator, the department of commerce, section 451.902(1), “orders a hearing for an alleged violation of this act.” Section 451.-905(4). The hearing must be held not more than 20 days after filing of the registration statement and a “summary determination” is to be made within 20 days after the hearing. Section 451.907(1), (2), (4). “The administrator may summarily order the delay of the effective date of the offer if the administrator determines that the registration statement ... does not provide full disclosure to offerees of all material information concerning the offer.” Section 451.908(3).
The contents of the registration statement required by the Michigan act are virtually identical to the information required to be disclosed to shareholders by the Williams Act, 15 U.S.C. § 78n(d). M.C.L.A. § 451.908(1). The statute further contains anti-fraud provisions which are identical to the anti-fraud provisions of the Williams Act, 15 U.S.C. § 78n(e). M.C.L.A. § 451.-910. See also M.C.L.A. § 451.911(3)(a).
The statute prohibits offerors from acquiring shares from residents of the state while administrative proceedings are pending, M.C.L.A. § 451.911(2), and provides that “[a]n offeror may not make a takeover offer which is not made to security holders in this state on substantially the same terms as the offer is made to security holders outside this state,” section 451.-911(1). With respect to exemptions, the statute provides:
The administrator may by rule or order exempt from this act takeover offers that it determines are not made for the purpose, or do not have the effect of, changing or influencing the control of a target company or where compliance with this act is not necessary for the protection of the offerees, and may similarly exempt persons from the filing of registration statements under this act.
M.C.L.A. § 451.912(1).
The statute empowers the administrator to issue cease and desist orders and to enforce those orders in state court. M.C. L.A. § 451.914. The statute also allows the target company to seek injunctive relief with respect to violations of the statute. Section 451.917(2). In this case, of course, neither the administrator nor the target company has taken action pursuant to the statute, but have announced their intention to do so should the statute pass constitutional muster.
III.
Our review of a district court’s denial of a preliminary injunction is limited to determining whether the district court abused it discretion. Christian Schmidt Brewing v. G. Heileman Brewing, 753 F.2d 1354, 1356 (6th Cir.1985). “A district court abuses its discretion ... when it improperly applies the law____” Id.
There are four factors to be considered in determining whether the grant or denial of a preliminary injunction was an abuse of discretion: (a) the likelihood of success on the merits of the action, (b) the irreparable harm which could result without the relief requested, (c) the impact on the public interest, and (d) the possibility of substantial harm to others.
Id.; Martin-Marietta Corp. v. Bendix Corp., 690 F.2d 558, 564 (6th Cir.1982). “To show a likelihood of prevailing on the merits, the appellant must show the likely existence of a constitutional violation casually related to the result sought to be enjoined.” Id. at 565. Accordingly, we consider in turn L.P.’s likelihood of success in its challenges to the Michigan statute.
A.
Article I § 8, cl. 3 of the U.S. Constitution provides that “[t]he Congress shall have Power ... To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” Of course, “[i]n the absence of conflicting federal legislation, the States retain authority under their general police powers to regulate matters of ‘legitimate local concern,’ even though interstate commerce may be affected.” Lewis v. BT Investment Managers, Inc., 447 U.S. 27, 36, 100 S.Ct. 2009, 2015, 64 L.Ed.2d 702 (1980). The Court has applied a rule of per se invalidity to state legislation which effects simple economic protectionism. Id. However, where the challenged legislation indirectly burdens interstate commerce, a different rule applies.
Where the statute regulates evenhandedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits____ If a legitimate local purpose is found, then the question becomes one of degree. ■And the extent of the burden that will be tolerated will of course depend on the nature of the local interest involved, and on whether it could be promoted as well with a lesser impact on interstate activities.
Id. at 36-37, 100 S.Ct. at 2015, 2016 (quoting Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 90 S.Ct. 844, 847, 25 L.Ed.2d 174 (1970)); Metropolitan Life Ins. Co. v. Ward, — U.S.-,-, 105 S.Ct. 1676, 1683, 84 L.Ed.2d 751 (1985); Bacchus Imports, Ltd. v. Dias, — U.S.-, 104 S.Ct. 3049, 3055, 82 L.Ed.2d 200 (1984). “The principal focus of the inquiry must be the practical operation of the statute, since the validity of state laws must be judged chiefly in terms of their probable effects.” Lewis, 447 U.S. at 37, 100 S.Ct. at 2016.
We believe that the Michigan statute is not violative of the Commerce Clause because the state is regulating in an area reserved to the states by federal securities legislation. Further, even absent the Congressional authorization to regulate, the benefits arising from the state’s promotion of its legitimate interest in protecting resident shareholders outweighs the burdens the statute places on interstate commerce.
15 U.S.C. § 78bb(a) provides in pertinent part that “[njothing in this chapter shall affect the jurisdiction of the securities commission ... of any State over any security or any person insofar as it does not conflict with the provisions of this chapter or the rules and regulations thereunder.” It is clear that Congress “ ‘may redefine the distribution of power over interstate commerce’ by ‘permitting] the states to regulate the commerce in a manner which would otherwise not be permissible.’ ” South-Central Timber Development, Inc., 467 U.S. 82, 104 S.Ct. 2237, 2240, 81 L.Ed.2d 71 (1984) quoting Southern Pacific Co. v. Arizona, 325 U.S. 761, 65 S.Ct. 1515, 89 L.Ed.2d 1915 (1945); New Eng land Power Co. v. New Hampshire, 455 U.S. 331, 340-41, 102 S.Ct. 1096, 1101, 71 L.Ed.2d 188 (1982); Lewis, 447 U.S. at 44, 100 S.Ct. at 2019, 2020. While the Court has generally required an express statement of Congressional policy to allow otherwise impermissible regulation of interstate commerce, “[tjhere is no talismanic significance to the phrase ‘expressly stated’, however; it merely states one way of meeting the requirement that for a state regulation to be removed from the reach of the dormant Commerce Clause, congressional intent must be unmistakably clear.” South-Central Timber, 467 U.S. at-, 104 S.Ct. at 2242.
This is not a case where the state seeks to regulate tender offers for which the Congress has already provided disclosure requirements nor has Congress “remained completely silent on the subject” of state regulation. Northeast Bancorp, Inc. v. Board of Governors, — U.S. -, 105 S.Ct. 2545, 2554, 86 L.Ed.2d 112 (1985) (“When Congress so chooses, state actions which it plainly authorizes are invulnerable to constitutional attack under the Commerce Clause.”). The parties admit that the securities at issue here are not registered, and, therefore, the disclosure requirements of 15 U.S.C. § 78n(d) are inapplicable. The Court has indicated that 15 U.S.C. § 78bb(a) indicates “the intent of Congress that state law continues to apply where the Act itself does not.” Merrill Lynch, Pierce, Fenner & Smith v. Ware, 414 U.S. 117, 138 n. 16, 94 S.Ct. 383, 395 n. 16, 38 L.Ed.2d 348 (1973); Leroy v. Great Western United Corp., 443 U.S. 173, 182, 99 S.Ct. 2710, 2716, 61 L.Ed.2d 464 (1979) (“That section [15 U.S.C. § 78bb(a)J was plainly intended to protect, rather than to limit, state authority.” (footnote omitted)). Justice Powell’s concurring opinion in Edgar v. MITE Corp., 457 U.S. 624, 102 S.Ct. 2629, 73 L.Ed.2d 269 (1982) indicates that the interplay between the Commerce Clause and the Williams Act “leaves some room for state regulation of tender offers.” Id. at 646, 102 S.Ct. at 2642. It is clear that Justice Powell was referring to situations such as this in which an out-of-state offeror seeks to takeover an in-state corporation. Justice Powell commented that “[ijnevitably there are certain adverse consequences in terms of general public interest when corporate headquarters are moved away from a city and State. ” Id. at 646, 102 S.Ct. at 2643 (footnote omitted) (emphasis added). Accordingly, we believe that through the Williams Act and 15 U.S.C. § 78bb(a) Congress intended to reserve for the states regulation of securities and tender offers which Congress clearly declined to regulate.
Alternatively, we find no undue burden on interstate commerce in violation of the Commerce Clause. Although appellants argue that the Michigan statute impermis-sibly exempts the issuer from the statute’s disclosure requirements, we perceive no discrimination that has characteristically invalidated state statutes. The statute does not favor Michigan offerors over foreign offerors and only prohibits as offeror from acquiring the securities of state residents during the pendency of state proceedings pursuant to the statute. M.C.L.A. § 451.-911(2). Accordingly, we do not perceive the statute as constitutionally infirm on the basis of impermissible protectionist intent or effect.
In balancing the burdens and benefits of the statute pursuant to the standards set out in Pike, supra, we are guided by the decisions in MITE and Martin-Marietta. In Martin-Marietta, this court held the same Michigan statute unconstitutional as applied to a tender offer subject to the disclosure requirements of 15 U.S.C. § 78n(d). Following MITE, the court found the statute unconstitutional to the extent that it interfered with the timing of a tender offer under the Williams Act and to the extent that the state attempted to compel revision of the offer. 690 F.2d at 565. With respect to the burdens that the Michigan statute places on interstate commerce, we are bound by the characterizations of Martin-Marietta. The court found commerce burdened by the registration statement requirement, and the cost and time of litigation under the statute, and, due to the conditional nature of-the tender offer, the statute defeated “the tender offers of residents from other states where the tendered shares owned by Michigan residents are needed to provide, sufficient tendered shares to satisfy the tender offer.” Id. at 566-67. In this case, the parties represent that about half of the ENA shares are owned by Michigan residents. While the basis for this belief is not clear, there, of course, is nothing impeding any shareholder from either changing residency or selling his shares in the course of this litigation. Assuming, however, that the 50/50 estimate is accurate, L.P. would be required to obtain tenders from all of the shares of non-Michigan shareholders. Clearly, this places some burden on interstate commerce. See MITE, 457 U.S. at 643, 102 S.Ct. at 2641.
However, the weight of the benefits in this case differs from MITE and Martin-Marietta. While we recognize that “there exists no legitimate state interest in the protection of non-resident shareholders,” Martin-Marietta, 690 F.2d at 566, both MITE and Martin-Marietta, unlike the pending case, involved tender offers subject to section 14(d) of the Williams Act. Accordingly, in the absence of the federal disclosure requirements, the state’s interest in protecting resident shareholders is enhanced. In MITE, the Court found that the benefits provided by the Illinois statute to resident shareholders were speculative because “the Williams Act provides these same substantive protections,” and the requirements of the Illinois statute “which go beyond those mandated by the Williams Act and the regulations pursuant to it may not substantially enhance the shareholders’ ability to make informed decisions.” 457 U.S. at 644-45, 102 S.Ct. at 2642. In contrast, the benefits to resident shareholders from the Michigan statute are great since the disclosure requirements of the Williams Act are inapplicable in this case. Therefore, the state statute, unlike the statutes in MITE and Martin-Marietta, provides for disclosure in the first instance rather than merely enhancing the foundation of federal disclosure mandates. Justice Powell’s concurrence eloquently articulates the state’s compelling interest in protecting its residents.
The corporate headquarters of the great national and multinational corporations tend to be located in the large cities of a few States. When corporate headquarters are transferred out of a city and State into one of these metropolitan centers, the State and locality from which the transfer is made inevitably suffer significantly. Management personnel — many of whom have provided community leadership — may move to the new corporate headquarters. Contributions to cultural, charitable, and educational life — both in terms of leadership and financial support — also tend to diminish when there is a move of corporate headquarters.
Id. at 646, 102 S.Ct. at 2642, 2643. Accordingly, we hold that, under the facts of this case, the Michigan statute does not violate the Commerce Clause.
B.
Appellants argue that under the Supremacy Clause, Section 14(e) of the Williams Act, 15 U.S.C. § 78n(e), preempts the timing provisions of the Michigan statute. Specifically, appellants rely on 17 C.F.R. § 240.14e-l(a) and the policy of avoiding delay in order to maintain a balance of power between the offeror and the target company.
A state statute is preempted by federal law where (1) “compliance with both federal and state regulations is a physical impossibility,” Florida Lime and Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-43, 83 S.Ct. 1210, 1217, 10 L.Ed.2d 248 (1963), or (2) when “the purpose of the federal statute would to some extent be frustrated by the state statute,” Colorado Anti-Discrimination Commission v. Continental Air Lines, Inc., 372 U.S. 714, 722, 83 S.Ct. 1022, 1026, 10 L.Ed.2d 84 (1963). “Congressional enactments which do not expressly exclude state legislation in the field nevertheless override state laws with which they might conflict.” National City Lines, Inc. v. LLC Corp., 687 F.2d 1122, 1128 (8th Cir.1982).
15 U.S.C. § 78n(e) provides:
It shall be unlawful for any person to make any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made, in the light of the circumstances under which they are made, not misleading, or to engage in any fraudulent, deceptive, or manipulative acts or practices, in connection with any tender offer or request or invitation for tenders, or any solicitation of security holders in opposition to or in favor of any such offer, request, or invitation. The Commission shall, for the purposes of this subsection, by rules and regulations define, and prescribe means reasonably designed to prevent, such acts and practices as are fraudulent, deceptive, or manipulative.
17 C.F.R. § 240.14e-l(a) provides:
As a means reasonably designed to prevent. fraudulent, deceptive or manipulative acts or practices within the meaning of section 14(e) of the Act, no person who makes a tender offer shall:
(a) Hold such tender offer open for less than twenty business days from the date such tender offer is first published or sent or given to security holders: Provided, however, That this paragraph (a) shall not apply to a tender offer by the issuer of the class of securities being sought which is not made in anticipation of or in response to another person’s tender offer for securities of the same class.
Of course, “properly promulgated, substantive agency regulations have the ‘force and effect of law.’ This doctrine is so well established that agency regulations implementing federal statutes have been held to pre-empt state law under the Supremacy Clause.” Chrysler Corp. v. Brown, 441 U.S. 281, 295-96, 99 S.Ct. 1705, 1714, 60 L.Ed.2d 208 (1979) (footnotes omitted).
Preliminarily, the district court found, and appellees argue, that 14(e) is not applicable to the tender offer at issue in this case, but is only applicable to registered securities. For several reasons, we reject this conclusion. First, the plain language of the statute refers to “any tender offer.” (Emphasis added). Second, as the remaining subsections of 15 U.S.C. § 78n demonstrate, Congress clearly knew how to limit the applicability of legislation to a particular class of tender offers when it so intended. Third, the Securities and Exchange Commission, the agency with expertise in the area, has found that “[t]he broad anti-fraud provisions of Section 14(e) are applicable to any tender offer.” Securities Act Release No. 6022 (February 5, 1979). Fourth, the Supreme Court has described 14(e) as “a general antifraud provision,” MITE, 457 U.S. at 633 n. 8, 102 S.Ct. at 2635 n. 8, and the Third Circuit has found that “[ujnlike the proxy regulations of section 14(a) and the disclosure requirements of 14(d), the anti-fraud proscriptions contained in section 14(e) apply to any class of security.” E.H.I. of Florida, Inc. v. Insurance Co. of North America, 652 F.2d 310, 315 (3d Cir.1981). Accordingly, we conclude that the district court erred in construing 14(e) as inapplicable to this case.
In MITE, a plurality of the Court found that “Congress sought to protect the investor not only by furnishing him with the necessary information but also by withholding from management or the bidder any undue advantage that could frustrate the exercise of an informed choice.” 457 U.S. at 634, 102 S.Ct. at 2636. Further, “the takeover bidder should be free to move forward within the time frame provided by Congress.” Id. The plurality found that the 20-day pre-commencement notification provision furnishes “incumbent management with a powerful tool to combat tender offers,” and, therefore, “frustrates the objectives of the Williams Act.” Id. at 635, 102 S.Ct. at 2637. Further, the plurality found that “the hearing provisions of the Illinois Act frustrate the congressional purpose by introducing extended delay into the tender offer process.” Id. at 637, 102 S.Ct. at 2638. “Delay has been characterized as ‘the most potent weapon in a tender-offer fight.’ ” Id. at n. 12. Further, the SEC has found, in establishing a 20-day minimum period for which offers should be held open, that national uniformity in this area is desirable. Securities Act Release No. 6022 (February 5, 1979). The Eighth Circuit has likewise found that “[s]tate statutes which can be used to unduly delay tender offers are preempted by the Williams Act.” National City Lines, 687 F.2d at 1131.
The Michigan statute, much like the Illinois statute in MITE, frustrates the congressional purpose of maintaining a balance between the target company and the offeror. The pre-commencement notification provision, the hearing scheme, and the 60-day minimum period for holding the offer open all impermissibly delay the offer and aid management in fighting off the take-over. This frustrates the purposes of the Williams Act as expressed in 15 U.S.C. § 78n(e) and 17 C.F.R. § 240.14e-l(a). Accordingly, to the extent these procedures conflict .with the 20-day minimum period of Rule 14e-l(a), they are preempted by federal law. We do not hold that a state might never establish a hearing scheme to inquire into the adequacy of an offeror’s disclosures. However, whatever scheme a state devises must operate within the confines of congressional intent expressed through the federal securities laws and regulations. Accordingly, we find that appellants have established a likelihood of success on the merits.
Our consideration of the remaining elements required for a grant of injunctive relief is largely controlled by our decision in Martin-Marietta. Appellants may suffer irreparable harm because they “are in danger of losing the opportunity, which the evenhanded operation of the Williams Act guarantees them, to attempt to acquire [ENA] stock. Such loss could not be compensated by money damages.” Martin-Marietta, 690 F.2d at 568. Further, balancing the irreparable harm threatened to L.P. against the harm potentially suffered by defendants favors the granting of in-junctive relief. The state has no legitimate interest in enforcing laws which frustrate federal securities regulation. Finally, the public interest would best be served by granting relief since “the public has no interest in the enforcement of laws in an unconstitutional manner.” Id.
Accordingly, we reverse the judgment of the district court and remand for entry of preliminary injunctive relief consistent with this opinion. We also vacate the district court’s dismissal of L.P.’s complaint seeking permanent injunctive relief, a declaratory judgment, and inj
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:
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sc_issue_2
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04
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What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue of the Court's decision. Determine the issue of the case on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis.
PURKETT, SUPERINTENDENT, FARMINGTON CORRECTIONAL CENTER v. ELEM
No. 94-802.
Decided May 15, 1995
Per Curiam.
Respondent was convicted of second-degree robbery in a Missouri court. During jury selection, he objected to the prosecutor’s use of peremptory challenges to strike two black men from the jury panel, an objection arguably based on Batson v. Kentucky, 476 U. S. 79 (1986). The prosecutor explained his strikes:
“I struck [juror] number twenty-two because of his long hair. He had long curly hair. He had the longest hair of anybody on the panel by far. He appeared to me to not be a good juror for that fact, the fact that he had long hair hanging down shoulder length, curly, unkempt hair. Also, he had a mustache and a goatee type beard. And juror number twenty-four also has a mustache and goatee type beard. Those are the only two people on the jury . . . with the facial hair .... And I don’t like the way they looked, with the way the hair is cut, both of them. And the mustaches and the beards look suspicious to me.” App. to Pet. for Cert. A-41.
The prosecutor further explained that he feared that juror number 24, who had had a sawed-off shotgun pointed at him during a supermarket robbery, would believe that “to have a robbery you have to have a gun, and there is no gun in this case.” Ibid.
The state trial court, without explanation, overruled respondent’s objection and empaneled the jury. On direct appeal, respondent renewed his Batson claim. The Missouri Court of Appeals affirmed, finding that the “state’s explanation constituted a legitimate ‘hunch’” and that “[t]he circumstances fail[ed] to raise the necessary inference of racial discrimination.” State v. Elem, 747 S. W. 2d 772, 775 (Mo. App. 1988).
Respondent then filed a petition for habeas corpus under 28 U. S. C. § 2254, asserting this and other claims. Adopting the Magistrate Judge’s report and recommendation, the District Court concluded that the Missouri courts’ determination that there had been no purposeful discrimination was a factual finding entitled to a presumption of correctness under § 2254(d). Since the finding had support in the record, the District Court denied respondent’s claim.
The Court of Appeals for the Eighth Circuit reversed and remanded with instructions to grant the writ of habeas corpus. It said:
“[Wjhere the prosecution strikes a prospective juror who is a member of the defendant’s racial group, solely on the basis of factors which are facially irrelevant to the question of whether that person is qualified to serve as a juror in the particular case, the prosecution must at least articulate some plausible race-neutral reason for believing those factors will somehow affect the person’s ability to perform his or her duties as a juror. In the present case, the prosecutor’s comments, T don’t like the way [he] look[s], with the way the hair is cut. . . . And the mustach[e] and the bear[d] look suspicious to me,’ do not constitute such legitimate race-neutral reasons for striking juror 22.” 25 F. 3d 679, 683 (1994).
It concluded that the “prosecution’s explanation for striking juror 22 . . . was pretextual,” and that the state trial court had “clearly erred” in finding that striking juror number 22 had not been intentional discrimination. Id., at 684.
Under our Batson jurisprudence, once the opponent of a peremptory challenge has made out a prima facie case of racial discrimination (step one), the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation (step two). If a race-neutral explanation is tendered, the trial court must then decide (step three) whether the opponent of the strike has proved purposeful racial discrimination. Hernandez v. New York, 500 U. S. 352, 358-359 (1991) (plurality opinion); id., at 375 (O’Connor, J., concurring in judgment); Batson, supra, at 96-98. The second step of this process does not demand an explanation that is persuasive, or even plausible. “At this [second] step of the inquiry, the issue is the facial validity of the prosecutor’s explanation. Unless a discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will be deemed race neutral.” Hernandez, 500 U. S., at 360 (plurality opinion); id., at 374 (O’Connor, J., concurring in judgment).
The Court of Appeals erred by combining Batson’s second and third steps into one, requiring that the justification tendered at the second step be not just neutral but also at least minimally persuasive, i.e., a “plausible” basis for believing that “the person’s ability to perform his or her duties as a juror” will be affected. 25 F. 3d, at 683. It is not until the third step that the persuasiveness of the justification becomes relevant — the step in which the trial court determines whether the opponent of the strike has carried his burden of proving purposeful discrimination. Batson, supra, at 98; Hernandez, supra, at 359 (plurality opinion). At that stage, implausible or fantastic justifications may (and probably will) be found to be pretexts for purposeful discrimination. But to say that a trial judge may choose to disbelieve a silly or superstitious reason at step three is quite different from saying that a trial judge must terminate the inquiry at step two when the race-neutral reason is silly or superstitious. The latter violates the principle that the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike. Cf. St. Mary’s Honor Center v. Hicks, 509 U. S. 502, 511 (1993).
The Court of Appeals appears to have seized on our admonition in Batson that to rebut a prima facie case, the proponent of a strike “must give a ‘clear and reasonably specific’ explanation of his ‘legitimate reasons’ for exercising the challenges,” Batson, supra, at 98, n. 20 (quoting Texas Dept. of Community Affairs v. Burdine, 450 U. S. 248, 258 (1981)), and that the reason must be “related to the particular case to be tried,” 476 U. S., at 98. See 25 F. 3d, at 682, 683. This warning was meant to refute the notion that a prosecutor could satisfy his burden of production by merely denying that he had a discriminatory motive or by merely affirming his good faith. What it means by a “legitimate reason” is not a reason that makes sense, but a reason that does not deny equal protection. See Hernandez, supra, at 359; cf. Burdine, supra, at 255 (“The explanation provided must be legally sufficient to justify a judgment for the defendant”).
The prosecutor’s proffered explanation in this case — that he struck juror number 22 because he had long, unkempt hair, a mustache, and a beard — is race neutral and satisfies the prosecution’s step two burden of articulating a nondiscriminatory reason for the strike. “The wearing of beards is not a characteristic that is peculiar to any race.” EEOC v. Greyhound Lines, Inc., 635 F. 2d 188, 190, n. 3 (CA3 1980). And neither is the growing of long, unkempt hair. Thus, the inquiry properly proceeded to step three, where the state court found that the prosecutor was not motivated by discriminatory intent.
In habeas proceedings in federal courts, the factual findings of state courts are presumed to be correct, and may be set aside, absent procedural error, only if they are “not fairly supported by the record.” 28 U. S. C. § 2254(d)(8). See Marshall v. Lonberger, 459 U. S. 422, 432 (1983). Here the Court of Appeals did not conclude or even attempt to conclude that the state court’s finding of no racial motive was not fairly supported by the record. For its whole focus was upon the reasonableness of the asserted nonracial motive (which it thought required by step two) rather than the genuineness of the motive. It gave no proper basis for overturning the state court’s finding of no racial motive, a finding which turned primarily on an assessment of credibility, see Batson, 476 U. S., at 98, n. 21. Cf. Marshall, supra, at 434.
Accordingly, respondent’s motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
Question: What is the issue of the decision?
01. voting
02. Voting Rights Act of 1965, plus amendments
03. ballot access (of candidates and political parties)
04. desegregation (other than as pertains to school desegregation, employment discrimination, and affirmative action)
05. desegregation, schools
06. employment discrimination: on basis of race, age, religion, illegitimacy, national origin, or working conditions.
07. affirmative action
08. slavery or indenture
09. sit-in demonstrations (protests against racial discrimination in places of public accommodation)
10. reapportionment: other than plans governed by the Voting Rights Act
11. debtors' rights
12. deportation (cf. immigration and naturalization)
13. employability of aliens (cf. immigration and naturalization)
14. sex discrimination (excluding sex discrimination in employment)
15. sex discrimination in employment (cf. sex discrimination)
16. Indians (other than pertains to state jurisdiction over)
17. Indians, state jurisdiction over
18. juveniles (cf. rights of illegitimates)
19. poverty law, constitutional
20. poverty law, statutory: welfare benefits, typically under some Social Security Act provision.
21. illegitimates, rights of (cf. juveniles): typically inheritance and survivor's benefits, and paternity suits
22. handicapped, rights of: under Rehabilitation, Americans with Disabilities Act, and related statutes
23. residency requirements: durational, plus discrimination against nonresidents
24. military: draftee, or person subject to induction
25. military: active duty
26. military: veteran
27. immigration and naturalization: permanent residence
28. immigration and naturalization: citizenship
29. immigration and naturalization: loss of citizenship, denaturalization
30. immigration and naturalization: access to public education
31. immigration and naturalization: welfare benefits
32. immigration and naturalization: miscellaneous
33. indigents: appointment of counsel (cf. right to counsel)
34. indigents: inadequate representation by counsel (cf. right to counsel)
35. indigents: payment of fine
36. indigents: costs or filing fees
37. indigents: U.S. Supreme Court docketing fee
38. indigents: transcript
39. indigents: assistance of psychiatrist
40. indigents: miscellaneous
41. liability, civil rights acts (cf. liability, governmental and liability, nongovernmental; cruel and unusual punishment, non-death penalty)
42. miscellaneous civil rights (cf. comity: civil rights)
Answer:
|
songer_constit
|
B
|
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the constitutionality of a law or administrative action, and if so, whether the resolution of the issue by the court favored the appellant.
James Skip HULSEY, Plaintiff-Appellant, v. STATE OF TEXAS, et al., Defendants-Appellees.
No. 90-8568
Summary Calendar.
United States Court of Appeals, Fifth Circuit.
April 19, 1991.
James Skip Husley, Amarillo, Tex., pro se.
R.E. Motsenbocker, James M. O’Leary, Shafer, Davis, McCollum, Ashley, O’Leary & Stoker, Odessa, Tex., for defendants-ap-pellees.
Before KING, GARWOOD, and DUHÉ, Circuit Judges.
DUHÉ, Circuit Judge.
James Skip Hulsey filed a civil rights action in district court against the State of Texas, the City of Odessa, and Ted Hughes, an Odessa police officer. The court dismissed with prejudice Hulsey’s claims against the State of Texas for want of prosecution and granted summary judgment in favor of the City of Odessa and Officer Hughes. Hulsey now appeals the court’s judgment. We affirm.
In April 1989 Hulsey was on parole from prison after a previous state criminal conviction in Texas. Pursuant to an arrest warrant issued by the Texas Department of Pardons and Paroles, Officer Hughes arrested him in Odessa, Texas for a parole violation based on an allegation that he had committed rape. The next day, Hulsey was transferred to a jail in Ector County, Texas to await the disposition of his parole revocation proceedings.
While Hulsey waited in the Ector County jail, the Odessa Police Department conducted an investigation of the alleged rape. After Hulsey had been in the Ector County jail for five days, formal charges were brought against him in state court for sexual assault. The court appointed an attorney to represent Hulsey.
About two months later, the Odessa Police Department obtained an evidentiary search warrant from a state court judge. This warrant authorized police officers to transport Hulsey to a hospital for the purpose of taking samples of his blood, saliva, head hair, and pubic hair to use in investigating the sexual assault charges pending against him. Pursuant to this warrant, Officer Hughes took Hulsey to a hospital in Odessa.
Before taking the body samples, hospital employees requested that Hulsey sign a medical authorization and release. According to Hulsey, Officer Hughes threatened him with additional criminal charges if he refused to sign this form. Hulsey reluctantly signed the form and allowed hospital employees to take the body samples. Then Officer Hughes transported him back to the Ector County jail.
About eight months later, after consulting with his attorney, Hulsey pleaded guilty to the sexual assault charge. The trial judge sentenced him to a term of six years in prison. While incarcerated in the state prison in Huntsville, Texas, Hulsey filed this pro se suit against the State of Texas, the City of Odessa, and Officer Hughes.
Hulsey alleged that the defendants (1) unlawfully detained him for six days before filing a formal complaint, (2) took body samples from him without showing him a search warrant, (3) forced him to sign a hospital consent form authorizing release of body samples to the police, (4) refused to allow him to call his attorney before submitting to medical tests, and (5) denied him the right to a speedy trial.
The State of Texas moved to quash the summons on the grounds of improper service, and the court granted the motion. In the same order, however, the court directed Hulsey to obtain proper service on the State of Texas by serving the Secretary of State. In addition, the Clerk of Court sent Hulsey detailed instructions on obtaining proper service. When Hulsey failed to perfect service even after receiving these instructions, Hulsey’s claims against the State of Texas were dismissed with prejudice for want of prosecution.
The City of Odessa and Officer Hughes, the two remaining defendants, filed a motion for summary judgment. They supported this motion with documentary evidence, including a request for admissions propounded to Hulsey and his response to that request. Hulsey’s opposition to the motion consisted of little more than a request that the court deny the defendants' motion.
The court granted summary judgment for the City of Odessa and Officer Hughes. Hulsey now appeals, raising before this Court the same issues that he raised before the trial court. In addition, for the first time on appeal, he argues that the defendants (1) used an invalid search warrant to obtain body samples and (2) denied his right to an examining trial in state court. Finally, Hulsey files a motion for the appointment of counsel on appeal.
Standards of Review
We review a district court’s dismissal for want of prosecution only for an abuse of discretion. See Fournier v. Textron, Inc., 776 F.2d 532, 534 (5th Cir.1985); Porter v. Beaumont Enterprise & Journal, 743 F.2d 269, 271 (5th Cir.1984). In reviewing a grant of summary judgment, we apply the same standard of review applied by the district court. See Waltman v. International Paper Co., 875 F.2d 468, 474 (5th Cir.1989); Moore v. Mississippi Valley State Univ., 871 F.2d 545, 548 (5th Cir.1989).
Summary judgment is appropriate only if, when viewed in the light most favorable to the nonmoving party, the record discloses “that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c).
Although we must draw all inferences in favor of the party opposing the motion, an opposing party cannot establish a genuine issue of material fact by resting on the mere allegations of the pleadings. Russell v. Harrison, 736 F.2d 283, 287 (5th Cir.1984). A properly supported motion for summary judgment should be granted unless the opposing party produces sufficient evidence to demonstrate that a genuine factual issue exists. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510-11, 91 L.Ed.2d 202 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986).
Because summary judgment is a final adjudication on the merits, courts must employ this device cautiously. Jackson v. Procunier, 789 F.2d 307, 310 (5th Cir.1986). In prisoner pro se cases, courts must be especially careful to “guard against premature truncation of legitimate lawsuits merely because of unskilled presentations.” Murrell v. Bennett, 615 F.2d 306, 311 (5th Cir.1980).
Dismissal of the State
The district court issued an order that directed Hulsey to serve the State of Texas by serving the Secretary of State. Moreover, the Clerk of Court sent Hulsey detailed instructions on this process. Instead of following the court’s clear instructions, Hulsey filed a motion to dismiss the court’s order, arguing that he had exercised good faith in filing his suit and that someone else was responsible for the error in service.
The district court was appropriately lenient with Hulsey because of his status as a pro se plaintiff. See Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 750 (5th Cir.1987); Birl v. Estelle, 660 F.2d 592, 593 (5th Cir.1981). It not only allowed him a second chance at obtaining service but also instructed him on the proper procedure. In response, Hulsey disregarded a clear and reasonable court order. See National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 640-43, 96 S.Ct. 2778, 2779-81, 49 L.Ed.2d 747 (1976).
“The right of self-representation does not exempt a party from compliance with relevant rules of procedural and substantive law.” Birl, 660 F.2d at 593; see Kersh v. Derozier, 851 F.2d 1509, 1512 (5th Cir.1988). We conclude that the district court did not abuse its discretion in dismissing with prejudice Hulsey’s claims against the State of Texas.
Claim of Unlawful Detention
Hulsey alleges that after his arrest, he remained in jail for six days before any complaint was filed against him. The record clearly refutes this argument. In support of the motion for summary judgment, the defendants submitted a copy of the state magistrate’s advice of rights form signed by Hulsey at the time of his arraignment. This document establishes that Hulsey was arrested for a violation of the conditions of his parole. In opposing the motion for summary judgment, Hulsey failed to address this issue.
Furthermore, the summary judgment evidence reveals that Hulsey formally admitted that he was arrested for a parole violation. In response to the defendants’ request for admissions, Hulsey failed to deny the assertion that he was initially arrested for a parole violation. Under Federal Rule of Civil Procedure 36(a), a matter in a request for admissions is admitted unless the party to whom the request is directed answers or objects to the matter within 30 days. Fed.R.Civ.P. 36(a). Hulsey thus admitted that a parole violation was the basis of his initial arrest.
Under Rule 36(b), “Any matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission.” Fed.R.Civ.P. 36(b); see Dukes v. South Carolina Ins. Co., 770 F.2d 545, 548-49 (5th Cir.1985). Hulsey failed to make a motion for withdrawal or amendment of his admission. The defendants therefore conclusively established his detention after an arrest for a parole violation and attached conclusive proof to their motion for summary judgment.
Because of the overwhelming evidence of lawful detention for a parole violation and because of Hulsey’s failure to respond to this evidence, no genuine issue of material fact remains on the issue of Hulsey’s detention. The defendants are therefore entitled to summary judgment on this issue.
Validity of the Search Warrant
Hulsey argues for the first time on appeal that the search warrant authorizing the police to obtain body samples was invalid. Because Hulsey failed to raise this issue before the district court, we need not consider it on appeal. See Hobbs v. Blackburn, 752 F.2d 1079, 1083 (5th Cir.), cert. denied, 474 U.S. 838, 106 S.Ct. 117, 88 L.Ed.2d 95 (1985).
Failure to Serve the Search Warrant
Hulsey alleges that Officer Hughes failed to show him the search warrant before hospital employees took body samples. Assuming, as we must on consideration of summary judgment, that Hulsey’s version of the story is true, the fact that Hulsey did not see the warrant before the search does not invalidate the search under either federal or state law. See, e.g., United States v. Marx, 635 F.2d 436, 441 (5th Cir. Unit B 1981) (holding that the failure to deliver a copy of the search warrant to the party searched does not invalidate the search in the absence of a showing of prejudice); Smith v. State, 491 S.W.2d 924, 926 (Tex.Crim.App.), cert. denied, 414 U.S. 1025, 94 S.Ct. 451, 38 L.Ed.2d 317 (1973) (holding that failure to comply with the technical requirements for issuing a search warrant does not invalidate the search).
By alleging merely that he did not see the search warrant before the search, Hul-sey has failed to produce any evidence suggesting a genuine issue of material fact. The district court thus correctly granted summary judgment for the defendants, on this issue.
Use of Coercion to Obtain Signed Consent Form
Hulsey contends that Officer Hughes improperly coerced him to sign the hospital consent form by threatening him with additional criminal charges. Assuming that this allegation is true, we find that it provides no basis for relief. A valid search warrant had already been issued; the search, therefore, could have been legally conducted without a hospital consent form. See Schmerber v. California, 384 U.S. 757, 770-71, 86 S.Ct. 1826, 1835-36, 16 L.Ed.2d 908 (1966). Obtaining a signed consent form — an administrative procedure of the hospital — is irrelevant to the validity of the search.
Furthermore, the allegation that Officer Hughes threatened him with additional criminal charges fails to suggest a violation of any other constitutional or statutory right. A complaint of excessive force by a police officer requires a showing that the plaintiff sustained a significant injury resulting from the use of excessive and improper force that was objectively unreasonable. See Johnson v. Morel, 876 F.2d 477, 479-80 (5th Cir.1989). The summary judgment evidence reveals that Hulsey failed to submit any evidence of significant injury or excessive force. The district court therefore appropriately granted summary judgment for the defendants on this issue.
Right to an Attorney in Signing the Consent Form
Hulsey argues that the defendants violated his constitutional rights by refusing to allow him to call his attorney before he signed the hospital consent form. Hulsey has no constitutionally protected right to avoid signing a hospital consent form. As we explained in the previous section, the search would have been legal even without the signed form because it was conducted pursuant to a valid search warrant.
Because the consent form was unrelated to the constitutional validity of the search, Hulsey had no constitutionally protected right to consult with an attorney before signing it. Since his claim on this issue is without merit, the district court correctly granted summary judgment for the defendants.
Right to a Speedy Trial
Hulsey claims in his brief that his constitutional right to a speedy trial has been denied. Hulsey, however, has failed to discuss this issue in his brief. Issues stated but not briefed need not be considered by this Court on appeal. Morrison v. City of Baton Rouge, 761 F.2d 242, 244 (5th Cir.1985).
Right to an Examining Trial
For the first time on appeal, Hulsey argues that he has been denied his right to an examining trial in state court. We will not consider on appeal issues not raised in the district court. See Hobbs, 752 F.2d at 1083, City of Waco v. Bridges, 710 F.2d 220, 227 (5th Cir. 1983), cert. denied, 465 U.S. 1066, 104 S.Ct. 1414, 79 L.Ed.2d 741 (1984); In re Novack, 639 F.2d 1274, 1276 (5th Cir.1981).
Motion for Counsel on Appeal
Hulsey has filed a motion in this Court for appointment of counsel on appeal. A civil rights complainant has no absolute right to the appointment of counsel. Freeze v. Griffith, 849 F.2d 172, 175 (5th Cir.1988); Ulmer v. Chancellor, 691 F.2d 209, 212 (5th Cir.1982). In fact, the appointment of counsel is unnecessary unless a case presents exceptional circumstances. Ulmer, 691 F.2d at 212-213.
Among the factors we must consider in deciding whether to appoint counsel are the complexity of the issues and the ability of Hulsey to represent himself adequately. See id. at 213. The facts and issues in this case are neither novel nor complicated. Moreover, Hulsey has demonstrated in his brief and pleadings that he is capable of adequately presenting his ease. We therefore deny his motion for appointment of counsel.
Conclusion
After carefully considering the issues raised by Hulsey on appeal, we find no error in the district court’s dismissal of the State of Texas and grant of summary judgment for the other defendants. Viewing the record in the light most favorable to Hulsey, we find that he has failed to raise any genuine issue of material fact and that the defendants are entitled to a judgment as a matter of law.
The judgment of the district court is AFFIRMED.
The motion for appointment of counsel on appeal is DENIED.
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:
|
songer_district
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable".
NATIONAL LABOR RELATIONS BOARD, Petitioner, v. WIGWAM MILLS, INC., Respondent.
No. 15115.
United States Court of Appeals Seventh Circuit.
Oct. 7, 1965.
Marcel Mallet-Prevost, Asst. Gen. Counsel, Herman M. Levy, Attorney, N.L. R.B., Washington, D. C., Arnold Ordman, General Counsel, Dominick L. Manoli, Associate General Counsel, Allison W. Brown, Jr., Linda R. Sher, Attorneys, N.L.R.B., for petitioner.
Myron E. Ropella, Albert H. Petajan, Roemer & Ropella, Milwaukee, Wis., for respondent.
Before SCHNACKENBERG, CASTLE and SWYGERT, Circuit Judges.
SCHNACKENBERG, Circuit Judge.
The National Labor Relations Board seeks enforcement of its order against Wigwam Mills, Inc., respondent, a manufacturer at Sheboygan, Wisconsin.
That order followed the Board’s review of proceedings before a trial examiner. It adopted his findings, conclusions and recommendations.
Two cases were involved. One was based on unfair labor practices charged by the United Textile Workers of America, AFL-CIO (“the Union”). The other arose out of a representation election conducted under the Board’s auspices among respondent’s employees, which the Union lost by a vote of 219 to 154.
Respondent contends that in the record there is no evidence to support the charges against it and the findings upon which the Board’s order rests.
It also contends that there is evidence that the trial examiner was biased against it, preventing him from making a fair and reasonable decision, and shifting to this court the responsibility of determining the credibility of witnesses.
From our examination of the record, we conclude that it does not support the charge of prejudice by the examiner.
We hold that there is substantial evidence in the record to support the findings that respondent violated Section 8(a) (1) of the Act, by interfering with, restraining and coercing its employees in the exercise of their statutory right to select a bargaining agent, and that it discharged employee Ruth Engl because of her union activities, in violation of Section 8(a) (3) and (1) of the Act.
The questions of credibility of witnesses are not for this court to determine.
The order of the Board will be enforced in full.
Order enforced.
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_applfrom
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court).
In re the ESTATE OF Michael Patrick SMITH, et al., Plaintiffs-Appellants, and People of the State of Colorado, et al., Plaintiffs in Intervention-Appellants, v. Margaret HECKLER, et al., Defendants-Appellees.
Nos. 83-1442, 83-1466.
United States Court of Appeals, Tenth Circuit.
Oct. 29, 1984.
Kathleen Mullens, Legal Aid Society of Metropolitan Denver, Denver, Colo, (and John Robert Holland, Denver, Colo., for Medicaid Nursing Home, appellants, with Kristie A. Hansen, Denver, Colo., for State appellants, on the brief).
Shalom Brilliant, Civil Div., Dept, of Justice, Washington, D.C. (with J. Paul McGrath, Asst. Atty. Gen., Washington, D.C., Robert N. Miller, U.S. Atty., Denver, Colo., and Lewis K. Wise, Civil Div., Dept, of Justice, Washington, D.C., on the brief) for defendants-appellees.
Glenn W. Merrick, Denver, Colo., for amicus Concerned Friends and Relatives of Nursing Home Residents.
Michael C. Parks and Sylvia Drew Ivie, Nat. Health Law Program, Los Angeles, Cal., and Toby S. Edelman and Patricia B. Nemore, Nat. Senior Citizens Law Center, Washington, D.C., for the amicus Nat. Citizens Coalition for Nursing Home Reform and Gray Panthers of Denver.
Before SETH, and McKAY, Circuit Judges, and CAMPOS, District Judge.
Honorable Santiago E. Campos, United States District Judge, District of New Mexico, sitting by designation.
McKAY, Circuit Judge.
Plaintiffs, seeking relief under 42 U.S.C. § 1983 (1982), brought this class action on behalf of medicaid recipients residing in nursing homes in Colorado. They alleged that the Secretary of Health and Human Services (Secretary) has a statutory duty under Title XIX of the Social Security Act, 42 U.S.C. §§ 1396-1396n (1982), commonly known as the Medicaid Act, to develop and implement a system of nursing home review and enforcement designed to ensure that medicaid recipients residing in medicaid certified nursing homes actually receive the optimal medical and psychosocial care that they are entitled to under the Act. The plaintiffs contended that the enforcement system developed by the Secretary is “facility oriented,” not “patient oriented” and thereby fails to meet the statutory mandate. The district court found that although a patient care or “patient oriented” management system is feasible, the Secretary does not have a duty to introduce and require the use of such a system. In re Estate of Smith v. O’Halloran, 557 F.Supp. 289, 295 (D.Colo.1983).
The primary issue on appeal is whether the trial court erred in finding that the Secretary does not have a statutory duty to develop and implement a system of nursing home review and enforcement which focuses on and ensures high quality patient care. If the Secretary has such a duty we must determine whether the enforcement mechanism promulgated by the Secretary satisfies that duty.
BACKGROUND
The factual background of this complex lawsuit is fully discussed in the district court’s opinion. In re Estate of Smith v. O’Halloran, 557 F.Supp. 289 (D.Colo.1983). Briefly, plaintiffs instituted the lawsuit in an effort to improve the deplorable conditions at many nursing homes. They presented evidence of the lack of adequate medical care and of the widespread knowledge that care is inadequate. Indeed, the district court concluded that care and life in some nursing homes is so bad that the homes “could be characterized as orphanages for the aged.” Id. at 293.
When the suit was filed in 1975, plaintiffs named Colorado nursing home operators, and federal and Colorado state governmental agencies and officials as defendants. In 1978, plaintiffs and the Colorado governmental defendants stipulated to dismissal, without prejudice, of the claims against the Colorado governmental defendants. Pursuant to the stipulation, the state defendants filed a complaint in intervention on behalf of the people of Colorado against the federal defendants. After extensive pretrial discovery and preparation, the district court ordered separate trials for the federal defendant and the nursing home operators. In 1980, the plaintiffs, plaintiffs in intervention and federal defendant jointly moved for a stay, based on proposed regulatory revisions, which the plaintiffs and plaintiffs in intervention believed would accomplish the ultimate objective of the litigation. However, the proposed changes in the regulations were never adopted and the lawsuit against the federal defendant proceeded to trial in June 1982. The trial court denied relief. This appeal is from that judgment.
THE MEDICAID ACT
An understanding of the Medicaid Act (the Act) is essential to understand plaintiffs’ contentions. The purpose of the Act is to enable the federal government to assist states in providing medical assistance to “aged, blind or disabled individuals, whose income and resources are insufficient to meet the costs of necessary medical services, and ... rehabilitation and other services to help such ... individuals to attain or retain capabilities for independence or self care.” 42 U.S.C. § 1396 (1982). To receive funding, a state must submit to the Secretary and have approved by the Secretary a plan for medical assistance which meets the requirements of 42 U.S.C. § 1396a(a).
The district court detailed the requirements of section 1396a(a). See 557 F.Supp. at 294-95. A state seeking plan approval must establish or designate a single state agency to administer or supervise administration of the state plan, 42 U.S.C. § 1396a(a)(5), and must provide reports and information as the Secretary may require. Id. § 1396a(a)(6). Further, the state agency is responsible for establishing and maintaining health standards for institutions where the recipients of the medical assistance under the plan receive care or services. Id. § 1396a(a)(9)(A). The plan must include descriptions of the standards and methods the state will use to assure that medical or remedial care services provided to the recipients “are of high quality.” Id. § 1396a(a)(22)(D).
The state plan must also provide “for a regular program of medical review____of each patient’s need for skilled nursing facility care ..., a written plan of care, and, where applicable, a plan of rehabilitation prior to admission to a skilled nursing facility____” Id. § 1396a(a)(26)(A). Further, the plan must provide for periodic inspections by medical review teams of:
(i) the care being provided in such nursing facilities ... to persons receiving assistance under the State plan; (ii) with respect to each of the patients receiving such care, the adequacy of the services available in particular nursing facilities ... to meet the current health needs and promote the maximum physical well-being of patients receiving care in such facilities ...; (iii) the necessity and desirability of continued placement of such patients in such nursing facilities ...; and (iv) the feasibility of meeting their health care needs through alternative institutional or noninstitutional services.
Id. § 1396a(a)(26)(B).
The state plan must provide that any skilled nursing facility receiving payment comply with 42 U.S.C. § 1395x(j), which defines “skilled nursing facility” and sets out standards for approval under a state plan. Id. § 1396a(a)(28). The key requirement for purposes of this lawsuit is that a skilled nursing facility must meet “such other conditions relating to the health and safety of individuals who are furnished services in such institution or relating to the physical facilities thereof as the Secretary may find necessary____” Id. § 1395x(j)(15).
The state plan must provide for the appropriate state agency to establish a plan, consistent with regulations prescribed by the Secretary, for professional health personnel to review the appropriateness and quality of care and services furnished to Medicaid recipients. Id. § 1396a(a)(33)(A). The appropriate state agency must determine on an ongoing basis whether participating institutions meet the requirements for continued participation in the Medicaid program. Id. § 1396a(a)(33)(B). While the state has the initial responsibility for determining whether institutions are meeting the conditions of participation, section 1396a(a)(33)(B) gives the Secretary the authority to “look behind” the state’s determination of facility compliance, and make an independent and binding determination of whether institutions meet the requirements for participation in the state Medicaid plan. Thus, the state is responsible for conducting the review of facilities to determine whether they comply with the state plan. In conducting the review, however, the states must use federal standards, forms, methods and procedures. 42 C.F.R. § 431.610(f)(1) (1983). From 1972 through 1980, Congress required the Secretary to reimburse the states for all necessary costs of inspecting long-term care facilities. See 42 U.S.C. § 1396b(a)(4) (1976). In 1980, Congress reduced the rate of reimbursement to seventy-five percent of such costs. 42 U.S.C. § 1396b(a)(2) (1982).
The Secretary “shall approve” any plan which fulfills the requirements of section 1396a(a). Id. § 1396a(b). Once the state plan is approved, the Secretary reimburses the states according to percentages set out in section 1396b. If the state fails to show that it has an effective program of “utilization control” as defined in section 1396b(g)(3), the Secretary must reduce the percentage of reimbursement to the state. If after approving a state plan the Secretary determines that the plan has been so changed that it no longer complies with section 1396a(a), or that it complies on paper but not in its actual administration, the Secretary is required to terminate payments to the state, effectively disapproving the plan. Id. § 1396c.
IMPLEMENTING REGULATIONS
Congress gave the Secretary a general mandate to promulgate rules and regulations necessary to the efficient administration of the functions with which the Secretary is charged by the Act. 42 U.S.C. § 1302 (1982). Pursuant to this mandate the Secretary has promulgated standards for the care to be provided by skilled nursing facilities and intermediate care facilities. See 42 C.F.R. § 442.200-.516 (1983). Among other things, the regulations provide for the frequency and general content of patients’ attending physician evaluations, 42 C.F.R. § 405.1123(b), nursing services with policies “designed to ensure that each patient receives treatments, medications, ... diet as prescribed, ... rehabilitative nursing care as needed ..., is kept comfortable, clean, well-groomed, [is] protected from accident, injury, an infection, and [is] encouraged, assisted, and trained in self-care and group activities.” 42 C.F.R. § 405.1124(c). The rehabilitative nursing care is to be directed toward each patient achieving an optimal level of self-care and independence. Id. § 405.1124(e). The regulations require a written patient care plan to be developed and maintained for each patient. Id. § 405.1124(d). In addition to the rehabilitative nursing care provided for in section 405.1124(e) and (e), section 405.1126 provides specific standards for specialized rehabilitative services, as needed by patients to improve and maintain functioning. Finally, the regulations provide for treatment of the social and emotional needs of recipients. Id. § 405.1130.
The Secretary has established a procedure for determining whether state plans comply with , the standards set out in the regulations. This enforcement mechanism is known as the “survey/certification” inspection system. Under this system, the states conduct reviews of nursing homes pursuant to 42 U.S.C. § 1396a(a)(33). The Secretary then determines, on the basis of the survey results, whether the nursing home surveyed is eligible for certification and, thus, eligible for Medicaid funds. The states must-use federal standards, forms, methods and procedures in conducting the survey. 42 C.F.R. § 431.610(f)(1). At issue in this case is the form SSA-1569, record, appendix vol. 1, at 93-127, which the Secretary requires the states to use to show that the nursing homes participating in Medicaid under an approved state plan meet the conditions of participation contained in the Act and the regulations. Plaintiffs contend that the form is “facility oriented,” in that it focuses on the theoretical capability of the facility to .provide high quality care, rather than “patient oriented,” which would focus on the care actually provided. The district court found, with abundant support in the record, that the “facility oriented” characterization is appropriate and that the Secretary has repeatedly admitted that the form is “facility oriented.” In re Estate of Smith, 557 F.Supp. at 295.
THE' PLAINTIFFS’ CLAIMS
Plaintiffs contend that the statutory requirements regarding the content of state plans create a correlative entitlement for Medicaid recipients to quality care. They argue that the Secretary has an enforcement obligation to insure compliance with the approved state plan. More specifically, plaintiffs argue that the Secretary has a statutory duty to develop an enforcement system whereby to receive medicaid funds states would be forced to use a patient care management system. Such a system would ensure, through the review process of section 1396a(a)(33), that Medicaid recipients residing in nursing homes certified for Medicaid participation are “actually, continuously receiving their Medicaid entitlements to optimal medical and psychosocial care in a safe, sanitary, rehabilitatively supportive, accessible, personalized environment and in a context of full civil liberties as a condition of such facilities’ receipt of Federal and State financial reimbursement from the Medicaid Program.” In re Estate of Smith, 557 F.Supp. at 292.
The plaintiffs do not challenge the substantive medical standards, or “conditions of participation,” which have been adopted by the Secretary and which states must satisfy to have their plans approved. See 42 C.F.R. § 405.1101-.1137. Rather, plaintiffs challenge the enforcement mechanism the Secretary has established. The plaintiffs contend that the federal forms, form SSA-1569 in particular, which states are required to use, evaluate only the physical facilities and theoretical capability to render quality care. They claim that the surveys assess the care provided almost totally on the basis of the records, documentation and written policies of the facility being reviewed. Appellants’ brief at 10 (citing 45 Fed.Reg. 47,368 (1980)). Further, out of the 541 questions contained in the Secretary’s form SSA-1569 which must be answered by state survey and certification inspection teams, only 30 are “even marginally related to patient care or might require any patient observation____” Appellants’ brief at 10. Plaintiffs contend that the enforcement mechanism’s focus on the facility, rather tha,n on the care actually provided in the facility, results only in “paper compliance” with the substantive standards of the Act. Thus, plaintiffs contend, the Secretary has violated her statutory duty to assure that federal Medicaid monies are paid only to facilities which meet the substantive standards of the Act — facilities which actually provide high quality medical, rehabilitative and psychosocial care to resident Medicaid recipients.
THE DISTRICT COURT’S HOLDING
After hearing the evidence, the district court found the type of patient care management system advocated by plaintiffs clearly feasible and characterized the cur: rent enforcement system as “facility oriented.” In re Estate of Smith, 557 F.Supp. at 295. However, the court concluded that the failure to implement and require the use of a “patient oriented” system is not a violation of the Secretary’s statutory duty. Id. The essence of the district court’s holding was that the State of Colorado, not the federal government, is responsible for developing and enforcing standards which would assure high quality care in nursing homes and, thus, the State of Colorado, not the federal government, should have been the defendant in this case. Id. at 297.
The district court found that the duty lies with the state because the Medicaid Act provides that states are responsible for establishing and maintaining health standards for provider institutions, 42 U.S.C. § 1396a(a)(9)(A), and the states determine what kind and how many professional medical and supporting personnel will be used to administer the state plan. Id. § 1396a(a)(22)(A). The state plan must include standards and methods which the state will use to assure that the medical assistance provided is of high quality. Id. § 1396a(a)(22)(D). Section 1396a(a)(33) provides that the responsibility for inspecting nursing homes for survey and certification purposes lies with the state. In re Estate of Smith, 557 F.Supp. at 295-96.
The district court also concluded that the “look behind” provision of section 1396a(a)(33)(B), authorizing the Secretary to reject a survey/certification performed by the state agency and substitute her own independent and binding determination, is' “nothing more than permitted authority to intervene for the purpose of protecting the public funds used to reimburse the state.” Id. at 296. Nor did the district court believe that section 1302, the general mandate to make rules and regulations, imposes by itself a rulemaking duty on the Secretary. Further, the trial court held that, even if the Secretary has a duty to promulgate such regulations when section 1302 is read with section 1396a(a)(33)(A), the Secretary has satisfied that duty by promulgating the detailed regulations found in 42 C.F.R. Parts 430-456. 557 F.Supp. at 296.
The district court also found it significant that under Colorado law, the State of Colorado is responsible for licensing nursing homes, suspending a license if the public health or welfare is endangered, for regulating nursing home administration, and licensing and regulating the various professions which provide care in nursing homes. Id. at 297-98. The district court found that these state statutes provided further credibility to its interpretation of the statute: that the state is primarily responsible for administering and enforcing the Medicaid Act and that the role of the federal government is essentially limited to providing financial assistance to states which meet the statutory requirements for participation. Id. at 296.
THE SECRETARY’S DUTY
After carefully reviewing the statutory scheme of the Medicaid Act, the legislative history, and the district court’s opinion, we conclude that the district court improperly defined the Secretary’s duty under the statute. The federal government has more than a passive role in handing out money to the states. The district court erred in finding that the burden of enforcing the substantive provisions of the Medicaid Act is on the states., The Secretary of Health and Human Services has a duty to establish a system to adequately inform herself as to whether the facilities receiving federal money are satisfying the requirements of the Act. These requirements include providing high quality patient care. This duty to be adequately informed is not only a duty to be.informed at the time a facility is originally certified, but is a duty of continued supervision.
Nothing in the Medicaid Act indicates that Congress intended the physical facilities to be the end product. Rather, the purpose of the Act is to provide medical assistance and rehabilitative services. 42 U.S.C. § 1396. The Act repeatedly focuses on the care to be provided, with facilities being only part of that care. For example, the Act provides that health standards are to be developed and maintained, id. § 1396a(a)(9)(A), and that states must inform the Secretary what methods they will use to assure high quality care. Id. § 1396a(a)(22). In addition to the “adequacy of the services available,” the periodic inspections must address “the care being provided” in nursing facilities. Id. § 1396a(a)(26)(B). State plans must provide review of the “appropriateness and quálity of care and services furnished,” id. § 1396a(a)(33)(A), and do so on an ongoing basis. Id. § 1396a(a)(33)(B).
While the district court correctly noted that it is the state which develops specific standards and actually conducts the inspection, there is nothing in the Act to indicate that the state function relieves the Secretary of all responsibility to ensure that the purposes of the Act are being accomplished. The Secretary, not the states, determines which facilities are eligible for federal funds. See Conf.Rep. No. 1605, 92nd Cong., 2d Sess., reprinted in 1972 U.S. Code Cong. & Ad. News, 4989, 5370, 5390. While participation in the program is voluntary, states who choose to participate must comply with federal statutory requirements. Harris v. McRae, 448 U.S. 297, 301, 100 S.Ct. 2671, 2680, 65 L.Ed.2d 784 (1980); Mississippi Hospital Association, Inc. v. Heckler, 701 F.2d 511, 515 (5th Cir.1983). The inspections may be conducted by the states, but the Secretary approves or disapproves the state’s plan for review. Further, the inspections must be made with federal forms, procedures and methods.
It would be anomalous to hold that the Secretary has a duty to determine whether a state plan meets the standards of the Act while holding that the Secretary can certify facilities without informing herself as to whether the facilities actually perform the functions required by the state plan. The Secretary has a duty to ensure more than paper compliance. The federal responsibility is particularly evident in the “look behind” provision. 42 U.S.C. § 1396a(a)(33)(B) (1982). We do not read the Secretary’s “look behind” authority as being “nothing more than permitted authority ...” 557 F.Supp. 296, as the district court found. Rather, we find that the purpose of that section is to assure that compliance is not merely facial, but substantive.
The legislative history makes clear that the “look behind” provision was added to the Act because the states were not properly carrying out the function of making sure that facilities were providing high quality care. The House report states:
[T]he Committee is concerned that, without the authority to validate State agency compliance reviews and to make an independent judgment as to the extent of compliance by particular facilities, the Secretary lacks the means necessary to assure that Federal matching funds are being used to reimburse only those [skilled nursing facilities] and [intermediate care facilities] that actually comply with medicaid requirements.
H.R.Rep. No. 1167, 96th Cong., 2d Sess., reprinted in 1980 U.S. Code Cong. & Ad. News 5526, 5570. The district court’s conclusion that this section merely provides the Secretary the authority to go behind a state’s determination of compliance if and when the Secretary wants to, but imposes no duty on the Secretary, ignores the purpose of the section and eliminates its effectiveness.
By enacting section 1302 Congress gave the Secretary authority to promulgate regulations to achieve the functions with which she is charged. The “look-behind” provision and its legislative history clearly show that Congress intended the Secretary to be responsible for assuring that federal Medicaid money is given only to those institutions that actually comply with Medicaid requirements. The Act’s requirements include providing high quality medical care and rehabilitative services. In fact, the quality of the care provided to the aged is the focus of the Act. Being charged with this function, we must conclude that a failure to promulgate regulations that allow the Secretary to remain informed, on a continuing basis, as to whether facilities receiving federal money are meeting the requirements of the Act, is an abdication of the Secretary’s duty. While the Medicaid Act is admittedly very complex and the Secretary has “exceptionally broad authority to prescribe standards for applying certain sections of the Act,” Schweiker v. Gray Panthers, 453 U.S. 34, 43, 101 S.Ct. 2633, 2639, 69 L.Ed.2d 460 (1981), the Secretary’s authority cannot be interpreted so as to hold that that authority is merely permissive authority. The Secretary must insure that states comply with the congressional mandate to provide high quality medical care and rehabilitative services.
The district court made a factual finding that the Secretary’s current method. of informing herself as to whether the facilities in question are satisfying the statutory requirements is “facility oriented,” rather than “patient oriented.” 557 F. Supp. at 295. This characterization is fully supported by the record. Having determined that the purpose and the focus of the Act is to provide high quality medical care, we conclude that by promulgating a facility oriented enforcement system the Secretary has failed to follow that focus and such failure is arbitrary and capricious. See Heckler v. Campbell, 461 U.S. 458, 103 S.Ct. 1952, 1957, 76 L.Ed.2d 66 (1983).
REMEDY
The district court found that the Secretary owed no duty to the plaintiffs and thus denied the requested relief. Plaintiffs contend that the district court has jurisdiction to compel the Secretary to perform her statutory duty pursuant to the Mandamus and Venue Act of 1962, 28 U.S.C. § 1361 (1982), federal question jurisdiction, 28 U.S.C. § 1331 (1982), and the Administrative Procedure Act, 5 U.S.C. §§ 701-706 (1982).
This court considered the mandamus remedy in Carpet, Linoleum and Resilient Tile Layers, Local Union No. 419 v. Brown, 656 F.2d 564 (10th Cir.1981). We repeated there the general rule that mandamus is appropriate where the person seeking the relief “can show a duty owed to him by the government official to whom the writ is directed that is ministerial, clearly defined and peremptory.” Id. at 566 (quoting Schulke v. United States, 544 F.2d 453, 455 (10th Cir.1976)). This ministerial-discretionary dichotomy, we noted, “is merely shorthand for the well-taken rule that to the extent a statute vests discretion in a public official, his exercise of that discretion should not be controlled by the judiciary.” Id. The judiciary is not a “super agency” controlling the affairs of an agency which is part of another branch of government. Id.
[I]t is the court’s duty in a mandamus action to measure the allegations in the complaint against the statutory and constitutional framework to determine whether the particular official actions complained of fall within the scope of the discretion which Congress accorded the administrators____ In other words, even in an area generally left to agency discretion, there may well exist statutory or regulatory standards delimiting the scope or manner in which such discretion can be exercised. In these situations, mandamus will lie when the standards have been ignored or violated.
Id. (quoting Davis Associates, Inc. v. Secretary, Department of Housing and Urban Development, 498 F.2d 385, 389 & n. 5 (1st Cir.1974)). If, after studying the statute and its legislative history, the court determines that the defendant official has failed to discharge a duty which Congress intended him to perform, the court should compel performance, thus effectuating the congressional purpose. Carpet, Linoleum and Resilient Tile Layers, 656 F.2d at 566.
We also held in Carpet, Linoleum and Resilient Tile Layers that 28 U.S.C. § 1331 gives the district court jurisdiction to issue a mandatory injunction. The injunctive remedy is provided for by the Administrative Procedure Act, 5 U.S.C. § 706(1), where a court' reviewing agency action is authorized to “compel agency action unlawfully withheld.” Thus, in Carpet, Linoleum and Resilient Tile Layers, 656 F.2d at 567, we concluded that a mandatory injunction is essentially in the nature of mandamus, and jurisdiction can be based on either 28 U.S.C. § 1361, § 1331, or both.
Applying these principles, we find that jurisdiction exists and mandamus is an appropriate remedy. The Secretary has a duty to promulgate regulations which will enable her to be informed as to whether the nursing facilities receiving federal Medicaid funds are actually providing high quality medical care. This conclusion is fully supported by the statute and its legislative history. The statute vests broad discretion in the Secretary as to how that duty is best accomplished. The court is not a “super agency” and cannot control the specifics of how the Secretary satisfies the duty. This is not a question of controlling the Secretary’s discretion because the Secretary has failed to discharge her statutory duty altogether. Thus, the court should “compel performance and thus effectuate the congressional purpose,” behind the statutory scheme. Carpet, Linoleum and Resilient Tile Layers, 656 F.2d at 566. The case is thus remanded for further proceedings not inconsistent with this opinion.
REVERSED AND REMANDED.
. The Act defines various health care services that qualify for federal assistance. Relevant here are skilled nursing facilities, § 1396d(a)(4) and § 1396d(f), which states must have to receive funding, and intermediate care facilities, § 1396d(a)(15) and § 1396d(c) and (d), which states may receive funding to operate, but states are not required to operate.
. The state plan must provide for similar review of intermediate care facilities. § 1396a(a)(31).
. Our conclusions are further evidenced by Congress’ recent amendment to the Medicaid Act. Tax Reform Act of 1984, Pub.L. No. 98-369 (1984). Directly in response to the district court’s opinion in this case, Congress amended the Act specifically imposing upon the Secretary a duty to assure that Medicaid patients in skilled nursing and intermediate care facilities receive high quality medical care. The legislative history indicates that Congress was merely reaffirming the Secretary's duty under existing law because Congress believed the district court misinterpreted the statute. 130 Cong.Rec. H 6544, 6740 (daily ed. June 22, 1984); Deficit Reduction Act of 1984, Conf.Rep. No. 861, 98th Cong., 2d Sess. 1363 (1984). We do not address the issue of whether a current legislature’s comment on the intent of a previous legislature is binding. However, the amendment and its legislative history make the Secretary’s duty under the Act even more clear.
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_appel2_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 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 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).
MANDELIN et al. v. KENNEALLY et al. THE CHARLES WHITTEMORE.
(Circuit Court of Appeals, Fourth Circuit.
February 27, 1926.)
No. 2445.
Seamen <3^>33 — Master’s refusal to pay wages admittedly due, unless aceepted in full, held unwarranted, and seamen entitled to double pay penalty (Rev. St; §§ 4529, 4530, as amended by Seamen’s Act Maroh. 4, 1915 [Comp. St. §§ 8320, 8322]).
Master’s refusal to pay seamen’s wages, admittedly due after deduction of fines, unless aceepted in full of their accounts, held unwarranted, under Rev. St. §§ 4529, 4530, as amended by Seamen’s Act March 4, 1915 (Comp. St. §§ 8320, 8322), and seamen entitled to double pay penalty therein provided for.
Appeal from the District Court of the United States for the Eastern District of Virginia, at Norfolk; D. Lawrence Groner, Judge.
libel by Felix Mandelin and others against J. F. Kenneally, master and bailee of the schooner Charles Whittemore, and another. From a decree dismissing the libel, libel-ants appeal.
Decree modified, and, as modified, affirmed.
Jacob Louis Morewitz, of Newport News, Va., for appellants.
D. Arthur Kelsey and H. H. Little, both of Norfolk, Va. (Hughes, Little & Seawell and Oast, Kelsey So Jett, all of Norfolk, Va., on the brief), for appellees.
Before WADDILL and PARKER, Circuit Judges, and McDOWELL, District Judge.
WADDILL, Circuit Judge.
This is an appeal from a decree of the United States District Court for the Eastern District of Virginia, in whieh the court dismissed the libel and decreed that libelants were entitled to receive only certain wages admitted to be due, to wit, $452.02, paid by the respondent ship to the United States shipping commissioner at Newport News, Va. Libelants were members of the crew of the schooner Charles Whittemore, having shipped for a round trip from Newport News, Va., to Dutch Guiana, at the rate of $60 per month. The voyage was made without special incident, and the ship arrived, on the return voyage, at Newport News on the 15th of November, 1924. On the arrival of the vessel at its destination in Dutch Guiana, libelants demanded that half of their wages be paid to them; the captain complied with their request by paying to them the amounts to whieh he deemed them entitled, and a disagreement arose as the result thereof.
On the return voyage, the captain, because of alleged derelictions of duty and misconduct, logged libelants, imposing upon them such penalties as he thought their conduct justified. Upon the schooner reaching Newport News, but before making the landing, the master called the libelants into his cabin, and, in the .presence of his mate, read them the log, showing the fines and penalties he had imposed upon them for their breaches of discipline, respectively, occurring on the trip en route and returning.
Against the impositjon of these fines, aggregating $82, the libelants protested, and upon the matter being taken before the shipping commissioner, before whom they appeared by counsel and contested their liability for the same, they insisted that such amounts should not be deducted from their wages. The ship’s master, on the other hand, urged that the amount due, after deducting such fines, was not in dispute, and paid the latter sum, to wit, $452.02 (as follows: $113.66 to Felix Mandelin, $125.99 to Ame Hankanen, $123.86 to Bernt Abrahamson, and $88,51 to Otto Sachs), to the United States shipping commissioner, with instructions to pay the amounts over to the libelants if they should severally accept the same in full of their accounts. The libelants refused to accept the sums thus admitted to be due them upon the conditions prescribed, and promptly filed the libel in this case, seeking to recover the full amount of wages, exclusive of the amount of fines assessed legally and logged against them, together with the penalties provided by law incident to the retention of the same.
One of the libelants, Felix Mandelin, sued for personal injuries alleged to have been sustained by him while in port at Dutch Guiana, and all denied the right of respondent to retain the amounts for which they were logged, for causes specified or any other rear son. The ease was heard before the District Court, the testimony in part taken orally; and the judge sustained the respondent’s view of the ease in all respects, including the alleged assault upon Mandelin sued for, directed that the libel be dismissed, and decreed that libelants were entitled to the amount of their wages after deducting the fines and charges therefrom as aforesaid. This decree was entered on the 1st day of January, 1925, and under it libelants received the amounts of the wages due them as of the date of their discharge, to wit, the 17th of November, 1924, less deductions for fines logged against them.
The assignments of error cover the rulings of the trial court generally on the entire case, and we do not feel called upon to review the same in detail further than as covered by the fourth and fifth assignments, relating to the right of libelants to the statutory indemnity for the failure to pay promptly the wages due them. The court heard the testimony of the witnesses, and evidently gave much thought and consideration to the case, and in an able and comprehensive opinion reached and announced its conclusions respecting the merits of the controversy; and we are not inclined to substitute our views for those of the trial judge. Certainly, upon the essential features of the ease, there was ample testimony to warrant his conclusions and findings.
Assignments 4 and 5 present the question of the right of the respondent to withhold the amounts admittedly due libelants at the end of their voyage on the 15th of November, 1924, at Newport News, Va., unless libelants would accept the same upon the conditions imposed by respondent. This the respondent could not do, as it constituted neither a payment of the wages nor a lawful tender of the amount due, but, on the contrary, a proffer of a future lawsuit respecting the same. The fact that, in the litigation that followed in this particular ease, the court sustained respondent’s claim to withhold the fines and penalties imposed, would not warrant the imposition of any such condition or penalty as was sought to be imposed. The only effect of libelants’ accepting the payment of the wages upon the conditions prescribed would have been to surrender their claims entirely.
Under the law libelants were entitled to have paid them, within two days after the termination of the voyage, the amount of wages due them, and, in default of such payment, sections 4529, 4530, of the Revised Statutes, as amended by the Seamen’s Act of March 4, 1915, 38 Stat. 1164 (Comp. Stat. §§ 8320, 8322), imposed a penalty of two days’ pay for each day of delay in payment. If this important provision of the statute looking to securing for seamen the prompt payment of wages due them could be lightly avoided by the ship’s prescribing conditions like those in this case, it would work an easy avoidance of a most important provision of the law enacted for the protection of seamen.
“ * * * The mariners of a ship are commonly said to be wards of the admiralty. Their wages, their rights, their wrongs and injuries have always been a special subject of the admiralty jurisdiction. * * * ” Benedict’s Admiralty (4th Ed.) § 182. See Gerber et al. v. Spencer et al., 278 F. 886, 889, 890 (C. C. A. 9th Circuit), and cases cited.
The libelants are entitled to recover double wages at the rate of $60 per month for each day their wages were withheld — that is, from the 17th of November, 1924, to the 1st of January, 1925, inclusive — aggregating $720, the same to be distributed equally between libelants, with costs. The judgment of the lower court will be accordingly modified and affirmed.
Modified.
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)". 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_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".
UNITED STATES of America, Appellant, v. Thomas R. BRUNNER, Trustee in Bankruptcy, Appellee. In the matter of Eugene L. BROWN and Maxine E. Brown, husband and wife, doing business as Lockjoint Wood Products, Bankrupt.
No. 6282.
United States Court of Appeals Tenth Circuit.
Sept. 3, 1960.
Kathryn H. Baldwin, Attorney, Dept, of Justice, Washington, D. C. (George Cochran Doub, Asst. Atty. Gen., Wilbur G. Leonard, U. S. Atty., Topeka, Kan., and Morton Hollander, Attorney, Dept.
of Justice, Washington, D. C., on the brief), for appellant.
Fred Hinkle, Wichita, Kan., for appellee.
Before BRATTON, PICKETT and LEWIS, Circuit Judges.
PICKETT, Circuit Judge.
This appeal raises the question of whether the United States is entitled to set off in a bankruptcy proceeding an amount it owes the bankrupts on an ex-ecutory contract against its claim for damages arising out of the bankrupts’ failure to- complete that contract.
The bankrupts’ claim arose from their partial performance of a written contract with the Army Engineer Corps, and the claim of the United States is based on a breach of that same contract, occasioned by the filing of a voluntary bankruptcy petition. The contract in question required the bankrupts, Eugene L. Brown and his wife, to manufacture 128,200 small wooden boxes and deliver them to the United States Army Chemical Arsenal in Arkansas at a price of 420 each. The contract provided that not less than 10% of the total number of boxes' was to be delivered on or before June 2, 1958, with additional 10% shipments to follow at 15-day intervals, and complete delivery was to be made not later than October 15, 1958. Under a default clause the United States could terminate the contract if the Browns failed to make delivery of the boxes within the specified times. Upon termination, it could purchase the boxes elsewhere and the contractors would be liable to the United States for the excess cost of repurchase. On June 25, 1958, the Browns filed a voluntary petition in bankruptcy and were duly adjudicated bankrupts on June 30, 1958. On the date of the filing of the petition in bankruptcy, there was due to the Browns the sum of $3,966.60. By letter dated June 27, 1958, the bankrupts were notified that “In view of the bankruptcy proceedings, you are hereby given Notice ■of Default in accordance with * * * your contract and your right to proceed with performance * * * is hereby terminated * * *Thereafter the United States filed a preliminary proof of claim in an amount representing the •cost in excess of the contract price of purchasing the undelivered boxes from another source, less the $3,966.60 due the bankrupts. Twenty days later the referee, on petition of the trustee, ordered the United States to show cause why the $3,966.60 should not be paid. The answer to this petition admitted that the sum was due the bankrupts and asserted the right to set it off against its larger claim for breach of contract and to recover the balance as a claim having priority by reason of 11 U.S.C. A. § 104, sub. a and 31 U.S.C.A. § 191. The referee held that on the date of the filing of the petition in bankruptcy, the United States had no provable claim against which there could be a set-off and the trustee was entitled to the payment of the sum due. The claim without the set-off was allowed in full as a common claim against the bankruptcy estate. Upon petition for review, the District Court adopted the findings and conclusions of law of the referee and affirmed his action.
Provision for set-off of mutual debts of a bankrupt and his creditors is found in 11 U.S.C.A. § 108, which reads:
“a. In all cases of mutual debts or mutual credits between the estate of a bankrupt and a creditor the account shall be stated and one debt shall be set off against the other, and the balance only shall be allowed or paid.
“b. A set-off or counterclaim shall not be allowed in favor of any debtor of the bankrupt which (1) is not provable against the estate and allowable under subdivision g of Section 93 of this title; or (2) was purchased by or transferred to him after the filing of the petition or within four months before such filing, with a view to such use and with knowledge or notice that such bankrupt was insolvent or had committed an act of bankruptcy * * .”
The purpose of this section is to make it unnecessary for a creditor to pay the bankruptcy estate the full value of a claim he owes the bankrupt, while at the same time being allowed only partial satisfaction of a claim due him from the estate.
The issue resolves itself into whether the United States had a provable claim on the date of the filing of the petition in bankruptcy against which there could be an effective set-off. In allowing the claim, the referee recognized that there was an anticipatory breach of the contract caused by the filing of the petition in bankruptcy, from which damages resulted to the United States, but denied the right to set off the amount which was owed the bankrupts on the same contract. It was reasoned that under the circumstances, the United States had no claim until it had exercised its right under the provisions of the contract to purchase the boxes elsewhere, and since this purchase was not made until sometime after bankruptcy, there was no claim in existence or provable at the time of the filing of the petition in bankruptcy. We think this holding is contrary to the provisions of the Bankruptcy Act. Section 103, sub. a(9) permits debts of the bankrupt to be proved and allowed against his estate which are founded upon “claims for anticipatory breach of contracts, executory in whole or in part, * * *.” Section 108 contemplates that mutual debts or mutual credits between the estate of a bankrupt and a creditor shall be set off one against the other and the balance only shall be allowed or paid. It is the right which one party has to use his claim against another in full or partial satisfaction of what he owes to the other. If this is not accomplished by the parties, then “under the command of the statute, it must be done by the trustee.” Studley v. Boylston Nat. Bank, 229 U.S. 523, 33 S.Ct. 806, 808. The claims of the creditors referred to are those which are provable. The only limitation upon the proof and allowance of unliquidated or contingent claims is that if the court determines that it is not capable of liquidation or of reaonable estimation, or that such liquidation or estimation will unduly delay the administration of the estate, it shall not be allowed. No contention is made that the claim was disallowed for any other reason than that it was not provable at the time of the filing of the petition in bankruptcy.
Anticipatory breach of contract having been expressly made the basis for a provable claim against the bankruptcy estate, Collier on Bankruptcy, 14 Ed. Vol. 4, § 68.10 points out that “The right of set-off may be asserted in the bankruptcy proceedings even though at the time the petition is filed one of the debts involved is absolutely owing but not presently due, or where a definite liability has accrued but is as yet unliquidated. Nor is it necessary that the debts sought to be set off be due at the date of adjudication. Such claims are provable; but in the case of an unliquidated claim, liquidation must be accomplished within the terms of section 57d [11 U.S.C.A. 93(d)], or it is not deemed provable. * * *»
The Supreme Court has held that the initiation of bankruptcy proceedings is an anticipatory breach constituting the basis for a provable claim. And in a bankruptcy case arising in Kansas, this court recognized the general rule that bankruptcy is an anticipatory breach of an executory contract. The liability existed at the time of the breach, the amount of which was ascertained and determined at a later date and allowed by the trustee. We therefore hold that the United States had a provable claim at the time of the filing of the petition in bankruptcy against which it •could set off the debt which it owed the bankrupt.
The order is reversed and the matter is remanded with instructions that the set-off be allowed and the United States given the statutory priority for the balance of its claim.
. The default provision of the contract reads, in part:
“Default: (a) The Government may, subject to the provisions of paragraph (b) below, by written Notice of Default to the Contractor terminate the whole or any part of this contract in any one of the following circumstances: * * *
(i) if the Contractor fails to make delivery of the supplies or to perform the services within the time specified herein or any extension thereof; or * * *
(c) In the event the Government terminates this contract in whole or in part as provided in paragraph (a) of this clause, the Government may procure, upon such terms and in such manner as the Contracting Officer may deem appropriate, supplies or services similar to those so terminated, and the Contractor
. See Studley v. Boylston Nat. Bank, 229 U.S. 523, 33 S.Ct. 806, 57 L.Ed. 1313; Prudential Ins. Co. of America v. Nelson, 6 Cir., 101 E.2d 441; In re Progressive Wallpaper Corp., D.C.N.D.N.Y., 240 E. 807; Collier on Bankruptcy, 14 Ed., Vol. 4, § 68.02.
. City Bank Farmers Trust Co. v. Irving Trust Co., 299 U.S. 433, 57 S.Ct. 292, . 81 L.Ed. 324. In discussing the right to prove a claim for the breach of an executory contract after bankruptcy, the court, in Central Trust Co. of Illinois v. Chicago Auditorium Ass’n, 240 U.S. 581, 592, 36 S.Ct. 412, 415, 60 L.Ed. 811, said:
“The claim for damages by reason of such a breach is ‘founded upon a contract, express or implied,’ within the meaning of § 68a — 4, and the damages may be liquidated under § 63b. [Frederic L.] Grant Shoe Co. v. [W. M.] Laird [Co.], 212 U.S. 445, 448 [29 S.Ct. 332, 53 L.Ed. 591, 593], It is true that in Zavelo v. Reeves, 227 U.S. 625, 631 [33 S.Ct. 365, 57 L.Ed. 676, 678] we held that the debts provable under § 63a-4 include only such as existed at the time of the filing of the petition. But we agree with what was said in Ex parte Pollard, 2 Low. 411, Fed.Cas.No.il,252, that it would be ‘an unnecessary and false nicety’ to hold that because it was the act of filing the petition that wrought the breach, therefore there was no breach at the time of the petition. And as was also declared in In re Pettingill [& Co., D.C.], 137 F.B. 143, 147: ‘The test of provability under the Act of 1898 may be stated thus: If the bankrupt, at the time of bankruptcy, by disenabling himself from performing the contract in question, and by repudiating its obligation, could give the proving creditor the right to maintain at once a suit in which damages could be assessed at law or in equity, then the creditor can prove in bankruptcy on the ground that the bankruptcy is the equivalent of disenablement and repudiation. For the assessment of damages proceedings may be directed by the court under § 63b (30 Stat. 562).’ It was in effect so ruled by this court in Lesser v. Gray, 236 U.S. 70, 75 [35 S.Ct. 227, 59 L.Ed. 471, 475], where it was said: ‘If, as both the bankruptcy and state courts concluded, the contract was terminated by the involuntary bankruptcy proceedings, no legal injury resulted. If, on the other hand, that view of the law was erroneous, then there was a breach and defendant Gray became liable for any resulting damage; but he was released therefrom by his discharge.’ Of course, he could not be released unless the debt was provable.
“We therefore conclude that the Circuit Court of Appeals was correct in holding that the intervention of bankruptcy constituted such a breach of the contract in question as entitled the Auditorium Association to prove its claim.” Annotation 54 A.L.R.2d 1090.
. Continental Motors Corp. v. Morris, 10 Cir., 169 F.2d 315. We find no Kansas decisions holding that filing of a petition in bankruptcy is not an anticipatory breach of an executory contract under Kansas law. See Mabery v. Western Casualty & Surety Co., 173 Kan. 586, 250 P.2d 824.
. In Luther v. United States, 10 Cir., 225 F.2d 495, 498, we said: “At the intervention of bankruptcy, no claim for refund of the overpayments of income tax had been filed, and no determination had been made in respect to the existence of such overpayments or amounts thereof. But the overpayments had been made and the liability therefor existed. The amount of such liability was not ascertained and determined until later. But it existed in an undetermined amount at the time of the filing of the petition in bankruptcy. And the mere fact that the amount of the liability was not determined until after the intervention of bankruptcy does not deprive the Government of the right of setoff if it otherwise would have existed.”
Question: What is the general issue in the case?
A. criminal
B. civil rights
C. First Amendment
D. due process
E. privacy
F. labor relations
G. economic activity and regulation
H. miscellaneous
Answer:
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songer_interven
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A
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine whether one or more individuals or groups sought to formally intervene in the appeals court consideration of the case.
ASSOCIATED STATIONS, INC., a Virginia corporation, and USCO, Inc., a Virginia corporation, Appellees, v. CEDARS REALTY AND DEVELOPMENT CORPORATION, a Mississippi corporation, and Magnolia Homes Manufacturing Corporation, a Mississippi corporation, Appellants.
No. 71-1476.
United States Court of Appeals, Fourth Circuit.
Argued Nov. 2, 1971.
Decided Jan. 17, 1972.
Thomas H. Atkins, Richmond, Va. (G. Kenneth Miller, and May, Garrett & Miller, Richmond, Va., on brief), for appellants.
George C. Rawlings, Jr., Fredericks-burg, Va., for appellees.
Before HAYNSWORTH, Chief Judge, and WINTER and RUSSELL, Circuit Judges.
WINTER, Circuit Judge:
Associated Stations, Inc. (Associated), a Virginia corporation, leased certain property to Cedars Realty and Development Corporation (Cedars), a Mississippi corporation engaged in the manufacturing of mobile homes. After the lease expired, Associated sued to recover for damages to its property. Finding Cedars liable, the district court gave judgment in the amount of $42,858.00. We agree with the district court’s conclusion that Cedars was liable to Associated for damages to the leasehold; however, we conclude that the district court erred in using the “cost of restoration” standard in assessing damages. Therefore, we vacate the judgment and remand the case to the district court for a redetermination of damages.
I
In the fall of 1964, Associated leased to Cedars 32.46 acres, improved by two large quonset type buildings suitable for manufacturing as well as offices and storage areas, located at Doswell, Virginia. The term of the lease was from November 30, 1964 to November 30, 1967, with rent payable in monthly installments of $1,150.00. The lease provided, inter alia, that Cedars was to maintain the premises in good repair and upon termination of the lease to leave the premises in good repair, to remove all rubbish, and to return the keys to Associated.
In the latter months of 1966, Cedars decided to move its operations to Georgia and to discontinue all business at the Doswell site. This fact was known in the community because of its effect on jobs and because of two auctions held by Cedars to sell certain property. Although Cedars never formally communicated to Associated its intention to vacate the premises, Associated was aware of Cedars’ plans to discontinue its operations in Virginia.
Cedars’ closing operations occurred over a number of months. Regular production personnel were still on the site two days before Christmas, in 1966, and various supplies and materials, including a forklift truck, were still on the property in the early months of 1967. Despite the fact that Cedars claims that it intended to cease all operations, no effort was made to clear the property of rubbish, return the keys to Associated, or to restore the buildings which had been modified for Cedars’ operations to their former condition. Additionally, Cedars continued to pay the monthly rent, the checks being sent to Associated from Cedars’ office in Georgia.
Sometime around the end of January or the beginning of February, 1967, an employee of Cedars returned to the Dos-well property to retrieve the forklift truck. He noticed that an air-conditioning unit was missing from one of the buildings. He reported this fact to his superior, but this information was never conveyed to Associated. In March, of 1967, Mr. George Thomas, the president of Associated, visited the property and found that a considerable amount of vandalism had occurred. Windows, doors, and wiring, as well as plumbing and electrical fixtures, had been damaged. Holes were found in the roof and several of the heating motors and electrical switches required replacement. In addition, the special heavy-duty wiring which had been used by a previous tenant in the midfifties had been torn out and removed. Mr. Thomas made several more visits to the property and on each successive occasion he found more damage, but this damage was minor in comparison to what was originally found. The district court found that the bulk of the damage had occurred prior to Thomas’ March, 1967 visit.
After Associated regained possession of the property, it repaired some of the damage and made certain modifications of the facilities to accommodate a new tenant, Fiberlay Corporation, to which the property was let in May, 1968. Thereafter, Associated instituted this suit in the district court to recover $47,620.00 which it alleged would be the aggregate cost of restoring the property to its former condition. Of this sum, $11,900.00 was actually expended by Associated, including $2,800.00 for modifications for the new tenant. The remaining $35,720.00 was never spent. This figure included $27,500.00 to replace and repair the special heavy-duty electrical wiring required by Cedars’ predecessor. In 1970, Fiberlay Corporation purchased the property for $152,-000.00.
The district court found that Cedars was liable for the damage caused by the vandalism and awarded Associated '$43,858.00. It arrived at this sum by taking Associated’s estimated cost of repairs ($47,620.00) and reducing it by 10%. Cedars thereupon appealed.
II
Cedars contends that Associated, knowing that the property had been vacated and that vandalism was occurring, had a duty to protect the property from further damage and that having failed to do so, is barred from holding Cedars responsible for damages. Cedars’ argument need not detain us long. The district court found that Associated had not accepted a surrender of the property and that the property had not been abandoned. Even after all manufacturing had ceased, Cedars continued to use the property for storage in the early part of 1967. Cedars made no effort to comply with the provisions in the lease with respect to surrender and, throughout the period in question, it continued to pay the monthly rental. Manifestly, the district court was not clearly erroneous in finding neither an abandonment nor a surrender. It follows that Cedars was not relieved of its responsibility to protect the property.
Nor do we think that under the facts of this case Associated was required to reenter the property in order to prevent further vandalism. Where an injured party is in a position to prevent further loss to himself by a reasonable expenditure of money or effort, he is required to do so. Haywood v. Massie, 188 Va. 176, 49 S.E.2d 281 (1948); Stonega Coke & Coal Co. v. Addington, 112 Va. 807, 73 S.E. 257 (1912). But, in determining what is reasonable, regard must be had for all the circumstances. In the present case, Cedars concedes that the property was difficult to secure. Presumably, this difficulty was as great for Associated as Cedars. In any event, there is nothing to suggest that by a “trifling inconvenience,” or even a reasonable effort, Associated could have prevented the damages. See Haywood v. Massie, supra, 49 S.E.2d at 284. Moreover, it was not until the great majority of the damage had been done that Associated was aware of the situation. We agree with the district court that Cedars has failed to demonstrate that by a reasonable effort Associated could have prevented the loss.
Ill
In assessing damages, the district court used the “cost of restoration” standard. Damages were based on the amount it would have cost to restore the property to the condition it had been in when the property was leased to Cedars. This is the general rule for determining damages to leasehold property in Virginia. See Sharlin v. Neighborhood Theatre, Inc., 209 Va. 718, 167 S.E.2d 334 (1969); Vaughan v. Mayo Milling Co., 127 Va. 148, 102 S.E. 597 (1920); Moses v. Old Dominion Iron and Nail Works Co., 75 Va. 95 (1880). In none of these cases, however, was there any contention that the cost of restoring the property to its former condition greatly exceeded any benefit to the market value of the property. Cedars has made this very assertion — that the cost of repair does exceed any benefit to the value of the property — and thus we have no controlling Virginia ruling on this point.®
The object of damages in a contract case is to restore the plaintiff to the position he would have been in had the contract not been breached. The “cost of restoration” method is one convenient way of determining the amount of damages to be awarded the plaintiff where a breach had occurred. There are, however, certain situations where this method of computing damages does not restore the plaintiff to the position he would have been in had the contract not been breached, but rather places him in a better position, thus providing him with a windfall. In those cases, courts have resorted to alternative methods of computing damages in order to insure that, as far as possible, the plaintiff neither loses nor benefits from the breach. As the court in Crystal Concrete Corp. v. Town of Braintree, 309 Mass. 463, 35 N.E.2d 672 (1941), stated:
[T]he plaintiff is not to be put in a better position than it would have been if the defendant had performed the terms of the lease. The location and character of the demised premises must be considered; and the reasonable cost of repairs, in some instances, would furnish the proper measure of damages while, in other instances, the value of the premises may be such that the incurrence of the expense for repairs would not be a reasonable, practical or economical method of dealing with the property. Such expense might greatly exceed any diminution of the fair market value of the land that was caused by the defendant’s nonperformance of the provisions of the lease.
Id. at 675.
We think the present case is similar to Bowes v. Saks & Company, 397 F.2d 113 (7 Cir. 1968). In Bowes, the lease provided that on its termination the property was to be returned to the landlords in the same condition that it had been when it was let to the lessees. The tenants in that case altered the property by building a bridge across an alley; and, at the expiration of the lease, the landlords sought to recover $115,000.00, which they claimed was the cost of removing the bridge and restoring the wall in the building where the bridge had been connected. During the term of the lease, the landlords sold the property, with settlement to be made two days after the expiration of the lease. Prior to the expiration of the lease, the tenant entered into a three-year lease with the new purchaser and thus its interest in the building continued. No effort was made by the new purchaser either to have the building restored or to recover part of the purchase price from the original landlords because of the lack of restoration. In a suit by the original landlords to recover damages for breach of the covenant to restore the premises, the court declined to permit the landlord to recover the cost of restoration because the value of the building was not diminished by the tenant’s failure to restore it, and, therefore, the landlords suffered no loss from the breach. Bowes v. Saks & Company, supra, 397 F.2d at 117; accord Dodge Street Building Corp. v. United States, 341 F.2d 641, 169 Ct.Cl. 496 (1965); Crystal Concrete Corp. v. Town of Braintree, supra.
In the absence of any controlling Virginia precedent, we think that the rule set forth in Bowes and the cases cited therein is the most appropriate for application in the present case. Included in Associated’s estimate for the cost of repairing the property was $27,500.00 to replace special heavy-duty electrical wiring which had been used last by a former tenant in the fifties. Expert testimony was to the effect that the value of the property at the expiration of the lease in 1967, assuming no vandalism, was $116,945.00, and that in 1970 when the property was sold it was valued at $134,700.00. The expert testimony was also that had the special heavy-duty wiring been replaced, its replacement would not have affected the market value of the property either in 1967 or in 1970. Thus, Associated expended $9,665.00 and was successful in selling property worth $134,700.00 for $152,-000.00, realizing thereby a profit of $7,635.00. If Associated were to recover also $27,500.00 as the estimated cost of replacement of the electrical wiring which Associated has no intention of replacing and which would have no effect on the market value of the property, Associated would realize a windfall of $27,500.00. Since, in this case, the use of the “cost of restoration” method of determining damages would probably do more than place Associated in the position it would have been in had Cedars not breached its agreement, we think the use of this method inappropriate. Rather, Associated should be permitted to recover the cost of restoration or the diminution in market value, whichever is less. In the event that diminution in market value is less, and so becomes the measure of recovery, Associated should also be permitted to recover the salvage value, if any, of the property removed by Cedars or others and not replaced by Cedars. Under this formula, Associated will not realize unjust enrichment, but it will be fully protected from any actual loss.
We have referred to the expert testimony with regard to the market value of the subject property in 1967 and in 1970. And, at one stage of the proceedings, the district court purportedly found the market value to be $131,950.00 as of an undisclosed date. But our study of the record discloses that the case was tried as to damages on the basis that Virginia law required damages to be assessed by the “cost of restoration” standard in all events without recognition of the exceptional case in which slavish devotion to the doctrine will result in unjust enrichment. Although we have concluded this case is in the latter category, we recognize that the evidence as to market value may not have been as fully developed, nor the finding of the district court as fully considered, had the relevance of market value been recognized at the outset. In remanding to the district court for reassessment of damages in the light of this opinion, we direct that the parties be given a reasonable opportunity to present additional evidence of market value, the district court being free to make findings in this regard anew.
Vacated and remanded.
. The original lessors were USCO, Inc. and Dixie Trailer Equipment Manufacturing. The name of USCO, Inc. has been changed to Usry Investment Corporation and Associated Stations, Ine. has succeeded to Dixie’s interest. Magnolia Homes Manufacturing Corporation, the parent of Cedars, was also joined as a defendant.
. The term was later amended to run from January 1, 1965 to December 30, 1967.
. Paragraphs 5 and 6 of the lease provide as follows:
5. Lessee will comply with all lawful requirements of local and state health boards, police and fire departments, County, Municipal, State and Federal authorities, and the Board of Fire Underwriters respecting the use of the premises and will make any improvements not of a structural nature required by said authorities.
Lessee will keep and maintain the premises in good condition and repair; keej) in good running order all heating and air conditioning systems, electric wiring, toilets, water pipes, water, gas and electric fixtures; replace all locks, trimmings, glass and plate glass broken during the term of this lease; unstop all water fixtures that may become choked and repair all water pipes and plumbing that may burst. Lessee will not make any alterations of, additions to or changes in the premises, except after first obtaining the written consent of Lessors, and all alterations of, additions to or changes in the premises, except after first obtaining the written consent of Lessors, and all alterations, changes and improvements, by whomsoever made, shall be the property of Lessors. The foregoing shall not apply to any equipment used in Lessee’s business which may be attached to the premises and Lessee may remove such equipment at the termination of this lease. It shall, however, repair and replace any and all damage done to the premises by such removal.
6. Lessee covenants to leave the premises in good repair, damages by fire, act of God, or other casualty excepted, and upon surrender of possession will have all rubbish removed, the premises thoroughly cleaned, and will deliver to Lessors all keys to the premises.
. The president had made an earlier visit to the property. On that occasion lie found that all operations had ceased, but that Cedars’ materials -were still on the property,
. Under Virginia law, mitigation of damages is an affirmative defense, and the burden of proof rests entirely on the party breaching the contract. See Foreman v. E. Caligari and Company, Inc., 204 Va. 284, 130 S.E.2d 447 (1903).
6. Green v. Burkholder, 208 Va. 708, 160 S.E.2d 765 (1968), cited by Associated for the proposition that the “cost of restoration” standard still applies, is distinguishable.
In Green, the parties assumed that damages were to be determined by the cost of restoration method and thus all the evidence went to the issue of how much it would cost the plaintiff to perform the breached contract. No evidence was submitted to show the present market value of the property or the effect the restoration might have on that market value. Nevertheless, the trial judge refused to permit the issue of damages to go to the jury because the plaintiff had not demonstrated that defendant’s breach adversely affected the value of his property.
The Supreme Court of Appeals reversed the trial court, holding that since the case was tried on the cost of repair theory and not the market value theory, “it [was too] late for the defendants to say that the proper measure of damages was the difference between the before and after value of the property.” Id. at 767. Although the court did apply the cost of restoration rule, nothing in the opinion suggests that this rule should be applied exclusively in all situations. Indeed, the court indicated that its application in that case was proper because the damages to be awarded under the rule would not be grossly disproportionate to the harm suffered and would not involve economic waste. The view we take of the instant case is consistent with the latter statement.
. Although the instrument in this case is a lease, the lease itself contains mutual covenants which are subject to contract principles. See generally, 3A Corbin, Corbin on Contracts, § 686 (1960).
. This sum was part of a larger sum of $35,720.00 which Associated never spent. By referring only to the $27,500.00 we do not mean to imply that Associated can recover the balance of the larger sum. Indeed, we do not decide what damages are to be recovered. We refer to the electrical wiring and its costs only by way of example since it was an item of considerable cost but having little or no relation to market value of the property.
Question: Did one or more individuals or groups seek to formally intervene in the appeals court consideration of the case?
A. no intervenor in case
B. intervenor = appellant
C. intervenor = respondent
D. yes, both appellant & respondent
E. not applicable
Answer:
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songer_circuit
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H
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What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case.
PAGE et al. v. NATURAL GAS & FUEL CO.
Circuit Court of Appeals, Eighth Circuit.
October 7, 1929.
No. 8299.
Frank J. Looney and J. M. Grimmet, both of Shreveport, La. (Pat MeNalley and MeNalley & Sellers, all of El Dorado, Ark., and Pugh, Grimmet & Boatner, of Shreveport, La., on the brief), for appellants.
Mr. Jeff Davis, of El Dorado, Ark., for appellee.
Before VAN VALKENBURGH and COTTERAL, Circuit Judges, and SCOTT, District Judge.
COTTERAL, Circuit Judge.
The appellants, John H. Page, successor to Mike Lyvers, trustee for Mike Lyvers Syndicate, and that Syndicate, filed their bill against the Natural Gas & Fuel Corporation, on December 29,1927, in a state court seeking a decree to the effect that appellant trustee is the owner of the north half of a mineral lease upon a tract of 40 acres, that the lease be conveyed to them by the defendant engaged in operating it, and that the defendant account for the oil and gas produced therefrom. The suit was removed to the federal court, where it was dismissed on motion of the defendant for failure to set out a cause of action, and from that decree the plaintiffs have appealed.
In substance, the bill alleged that on February 23, 1923, the Mike Lyvers Syndicate was organized pursuant to the laws of Arkansas as a common-law trust, for the benefit of certificate holders who paid for their interests the amount of $200,000; that the declaration was duly filed for record on February 22, 1923, in Union county, Ark.; that the syndicate through its trustee acquired the W. y2 of the N. W. % of the N. W. % of section 9, township 16 S, range 15 W., in that county, that in the bankruptcy proceeding of Morris Guaranteed Gusher Syndicate, No. 3, Mike Lyvers personally intervened, claiming ownership of the north half of the lease, with the result that the decree of the referee was adverse to him, and was that he should convey the property to the bankruptcy trustee by quitclaim deed, and the title to it was vested in the said trustee, and that decree was affirmed on review by the District Court; that he executed such deed in the belief it was in accordance with the order of the court, at the instance and direction of the trustee, who prepared the deed, as the trustee for the Mike Lyvers Syndicate, the real owner of the property, without right, power, or authority; that the lease was sold by the bankruptcy trustee to the Natural Gas & Petroleum Corporation (called the petroleum corporation), which at the time was fully advised that the property belonged to the Mike Lyvers Syndicate, a trust estate; that Mike Lyvers has signed other instruments, at the instance of the bankruptcy trustee, corrective of errors in description and affecting the interests of the syndicate in the lease; that the defendant and appellee, the Natural Gas & Fuel Corporation (called the fuel corporation), took possession of the lease under claim of ownership, by transfer, and has produced therefrom and converted to its use large quantities of oil, in excess of $500,000, and continues therein, without accounting to plaintiff and without claim thereto; that the petroleum corporation and the fuel corporation had knowledge of the above facts because Jeff Davis was fully aware of them, being their'attorney at the time of both transfers to those companies; that the claim of appellee is unfounded, and is a cloud on plaintiff’s title; that the stock in both companies is owned by the same parties, and they are controlled by the same officers; that the latter company took title to said property with full knowledge of all things imputed to the former company; and that the plaintiff is without a complete and adequate remedy at law.
Copies of the declaration of trust, the proceedings in bankruptcy, the quitclaim deed, and other exhibits are attached to the bill.
In ruling on the motion to dismiss the bill, the District Judge reviewed the history of the case. He noted the quitclaim deed was made in three capacities — as an individual, trustee for the Mike Lyvers Syndicate, and trustee; that the claim of mistaken belief inducing the quitclaim deed was contrary to Lyvers’ petition for review and the deed itself; that there was no allegation of deception or coercion upon him, or want of consideration to the bankruptcy trustee from his purchaser, or to it from its grantee; that the notice to Jeff Davis as attorney was without definite averment of facts, or while acting for them within the scope of his authority; and for these reasons the bill was dismissed.
The appeal presents four main questions: (1) Whether the order of the referee upon Mike Lyvers as an individual to execute the deed bound him to do that as trustee of the syndicate; (2) whether his deed as trustee conveyed the title to the lease; (3) whether the defendant, the fuel corporation, was an innocent purchaser of the lease; and (4) whether the plaintiffs were guilty of laches, barring this suit. We are constrained to hold that the first three questions must be answered in the negative, for sound and sufficient reasons. The last requires no absolute answer, in view of a proposed amendment to the bill.
1. The intervention in the bankruptcy proceeding was made solely by Mike Lyvers, as an individual, representing that the bankruptcy trustee had taken possession of his property, consisting of leases, including the 40 acres in dispute, requesting that the producing property be turned back to him and that the trustee sell none of the'property. The referee found that the property was claimed by Lyvers and another, one Morris, was purchased with funds derived from the sale of units of the bankrupt’s trust estate, was taken in their names and the name of Mike Lyvers, trustee, and thus handled for their convenience, the funds were commingled and hard to trace, the interveners failed to testify, but appeared by attorneys and cross-examined the witnesses. The referee thereupon ordered that the interventions of Lyvers and Morris be denied, that the title to the property be vested in the bankruptcy trustee, and that the interveners execute conveyances of the legal title to the property'to said trustee. Oh review, the District Judge found that the trustee had filed a petition for a summary order requiring the conveyances; that thereafter Lyvers moved to dismiss his intervention, and the motion was denied; that the referee had found the property belonged to the estate; that the only question was one of jurisdiction to make the order, and it was sustained. The order of the referee requiring the quitclaim deed by Lyvers was affirmed.
We do not inquire collaterally into the merits of these proceedings, passing the serious contention that the referee had no jurisdiction to make the summary order on Lyvers. See May v. Henderson, 268 U. S. 111, 45 S. Ct. 456, 69 L. Ed. 870; Harrison v. Chamberlin, 271 U. S. 191, 46 S. Ct. 467, 70 L. Ed. 897. Aside from that, it is clear that the order on him as an individual had no force whatever upon him as trustee of the Mike Lyvers Syndicate. It was not an adjudication against him as trustee, and does not estop* the plaintiff, as successor trustee, to maintain this bill. 34 C. J. 984, 997, 998, 999; Troxell v. Del., Lack. & West. R. R., 227 U. S. 434, 33 S. Ct. 274, 57 L. Ed. 586.
2. The next question arising from the execution of the quitclaim deed calls for some notice of the declaration of trust. It is prefaced by a recital that Mike Lyvers, as trustee, being about to take title to certain oil and gas leases, declares that he and his heirs, successors, administrators, and executors shall hold said leases and all other property that may be transferred to him as trustee upon the trusts therein set forth, for the benefit of the owners of certificates of interest. This is followed by some twenty articles defining the powers of the trustee and the rights of the beneficiaries, to whom the certificates were to issue for the consideration to be paid to the trustee of $10, or multiples thereof, entitling them to the benefits of the trust estate. The trust was to be known as Mike Lyvers Syndicate, with Mike Lyvers as trustee, holding in his own name the legal title to the corpus of the trust, possessing the sole power of selling, mortgaging and incumbering the property, in any manner or form, delegating the same, in record form, until.superseded, and with the sole right to resign and power to name his successor, with the same powers. Alienation of or liens upon the property were to work a revocation of their estate and be paramount thereto, their interest attaching to the proceeds to be undivided and inure to their heirs and assigns, their rights being confined to income distributable by the trustee. The purpose of the trust was to buy and hold oil and gas leases, drill upon and operate them, refine the product, and barter,- sell, and exchange such property. The trustee was authorized to pay salaries, and expenses, and terminate the trust by merger or reorganization, etc.
Article XIV provides .as follows:
“See. 1. The trustee mjiy at airtimes, for value, sell or otherwise .dispose of equitable estate in the "corpus, as in these articles provided, to such extent as in his discretion he may see fit,- and may close the sales of same at pleasure, and the proceeds from the sale of such equitable estate in the corpus shall accrue and inure to the trustee fund by him to be expended in his discretion for promoting, procuring and effecting the purpose of this trust.”
While the sole power of alienating the property was thus vested in the trustee, it did not authorize him to donate it to others, or sacrifice it in a manner contrary to his fiduciary obligation to the cestui que trustent, or dispose of it otherwise than for their benefit. A fair construction of the articles is that the purpose was to enable him to act according to his own discretion and judgment, but in keeping with those obligations and in good faith in the' discharge of his trust. It is fundamental that he was in duty bound to act for the promotion of their interests. 26 R. C. L. p. 1289; 39 C. J. 348, 349, 350. The execution of the quitclaim deed of this property, viewed as a voluntary act, without consideration, was therefore made without authority, and was a plain breach of the obligations of the trust. This being so, we find no occasion to- determine whether the bill sufficiently alleges coercion or duress on the part of the bankruptcy trustee in obtaining the deed.
The petroleum corporation derived no title to the property at the sale by the bankruptcy trustee, as he was vested by his appointment only with the title of the bankrupt, the Morris Syndicate (section 110, title 11, U. S. Code [11 USCA § 110]), and the order was ineffective to vest in the trustee the title of the absent party, the trustee of the Lyvers Syndicate. That company has no claim to title except through the quitclaim deed; and that instrument, for .the reasons stated, conveyed no title.
3. A purchaser is charged with notice of every matter appearing in the deeds forming an essential link in his chain of title, and those of which he would have learned by due inquiry, including a trust, such as is disclosed by the deed of the trustee of the Mike Lyvers Syndicate. 39 C. J. 1713, 1714, 1715; Simmons Creek Coal Co. v. Doran, 142 U. S. 417, 437, 12 S. Ct. 239, 35 L. Ed. 1063; 26 R. C. L. 1280. Inquiry by the petroleum corporation would have readily developed the pertinent facts that the order of the referee was not a direetion to* the trustee to make the deed, and that by the declaration of trust, recorded February 22, 1923, the execution of the quitclaim deed was a breach of the trusts The defendant, the fuel corporation, was in no better position, as before it obtained the assignment of the lease on March 2, 1925, the quitclaim forming a chain in its title had been theretofore recorded on November 25, 1924. But, aside from constructive notice, the bill alleged that the petroleum corporation was fully advised that the property belonged to the Lyvers Syndicate, there was identity of the stockholders and officers of the two corporations, and further the fuel corporation took title with full knowledge of all things imputed to the petroleum corporation. We hold the hill amply alleged notice to the fuel corporation. It was in no sense an innocent purchaser of the property.
4. The defense of laches is dependent on the fact that the quitclaim deed was dated October 13,1924, the conveyance of the bankruptcy trustee to the petroleum corporation was made on March 2,1925, and this suit was brought on December 20, 1927, summons of that date being served on January 4, 1928. As counsel assert, relief will he denied if the bill discloses laches in bringing suit. Hays v. Port of Seattle, 251 U. S. 233, 40 S. Ct. 125, 64 L. Ed. 243. It must be conceded, the authorities call for diligence in seeking relief where there are sufficient circumstances connected with the development of mineral leases. Without referring to the eases, our present view is that plaintiffs’ hill is not open to this objection, as it alleges no more than that the defendant has profited by producing large quantities of oil from the leases, and will continue to do so; and there is no averment of exploration, development, or outlays by the defendant, or of change in the value of the property.
But w;e refrain from finally deciding the question, as the plaintiffs have justifiably asked leave of this court to amend the bill to meet this objection to it. It is true they elected to stand on the bill, and this would ordinarily limit them to its allegations. Security Sav. Ass’n v. Buchanan (C. C. A.) 66 F. 799; Investor’s Guaranty Corp. v. Luikart (C. C. A.) 5 F.(2d) 793. But we consider that the objection was not expressly set out in the motion to dismiss the bill, the dismissal was not based upon it, counsel for appellants advise us, as opposing counsel admit, it was not presented to the District Court, and they assert they would have there amended the bill had this been done. They claim surprise it is raised on appeal, and for this reason they have presented to us the motion to amend. Their election to stand on the bill should not therefore conclude them. In any event, the appellee is not entitled to an affirmance of the decree in this case on the ground of laches.
This court has the power to allow an amendment even on appeal in the interest of justice. Jones v. Meehan, 175 U. S. 1, 29, 20 S. Ct. 1, 44 L. Ed. 49; Wiggins Perry Co. v. Ohio & Miss. Ry. Co., 142 U. S. 396, 12 S. Ct. 188, 35 L. Ed. 1055. It may he done where the facts appear in the record, the practice, however, being to remit the question to the trial court. Norton v. Larney, 266 U. S. 511, 45 S. Ct. 145, 69 L. Ed. 413. The proposed amendment will be properly allowed by the District Court; and, if made, the question of laches will be for determination by that court. Otherwise, as we conclude, the bill states sufficient facts as a basis for relief.
The decree of the District Court is therefore reversed, with direction to allow the plaintiffs to amend their hill, if so advised within a reasonable time, and for further proceedings consistent with this opinion.
Reversed.
Question: What is the circuit of the court that decided the case?
A. First Circuit
B. Second Circuit
C. Third Circuit
D. Fourth Circuit
E. Fifth Circuit
F. Sixth Circuit
G. Seventh Circuit
H. Eighth Circuit
I. Ninth Circuit
J. Tenth Circuit
K. Eleventh Circuit
L. District of Columbia Circuit
Answer:
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songer_genapel1
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G
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
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.
Geilher MOLINA, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
Nos. 89-1684, 90-1167.
United States Court of Appeals, First Circuit.
Submitted Oct. 6, 1992.
Decided Dec. 4, 1992.
John H. Ruginski, Jr., Providence, R.I., for appellant.
Harvey Kaplan, Maureen O’Sullivan, Jeremiah Friedman, Kaplan, O’Sullivan & Friedman, Boston, Mass., Lory D. Rosenberg, American Immigration Lawyers Ass’n, Washington, D.C., Kenneth H. Stern and Stern & Elkind, Denver, Colo., on briefs for American Immigration Lawyer’s Ass’n and Nat. Immigration Project of the Nat. Lawyers Guild, amici curiae.
Norah Ascoli Schwarz with whom Stuart M. Gerson, Asst. Atty. Gen., Robert Kendall, Jr., Asst. Director, Office of Immigration Litigation, and Jill E. Zengler, Attorney, Office of Immigration Litigation, Washington, D.C., were on brief for appel-lee.
Before BREYER, Chief Judge, BOWNES, Senior Circuit Judge, and SELYA, Circuit Judge.
BREYER, Chief Judge.
Geilher Molina asks us to review two decisions regarding his immigration status. See 8 U.S.C. § 1105a(a). First, the Board of Immigration Appeals (affirming an immigration judge) held that Molina had entered the United States unlawfully, and it ordered him deported. See 8 U.S.C. § 1251(a)(2). Second, the INS Legalization Appeals Unit denied Molina’s “amnesty” request (to become a temporary resident despite his unlawful entry) because of his two drug-crime convictions. See 8 U.S.C. §§ 1255a(a), 1255a(a)(4)(B). We find both of these decisions lawful, and we dismiss Molina’s review petitions.
I
The Deportation Decision
Molina argues that the decision ordering him deported contains three legal flaws. First, he says the decision is procedurally flawed because he was not present at his immigration hearing, on March 30, 1987. He argues that the immigration judge should have granted a continuance instead of then ordering him deported. Molina must concede, however:
1) that, at a first scheduled immigration hearing a month earlier, he personally had asked for an initial continuance until March 30 (because his counsel could not be present in February);
2) that the immigration judge then told him he should return with counsel on March 30 and gave him a written notice of the new March 30 hearing date;
3) that his counsel, present on March 30, could offer no reason for Molina’s absence, stating simply that Molina “probably got lost or he couldn’t get up here today;” and,
4) that his counsel conceded that he had entered the United States unlawfully— a fact that he does not now deny.
Immigration judges have broad legal power to decide whether or not to grant continuances. See Castaneda-Delgado v. INS, 525 F.2d 1295, 1300 (7th Cir.1975); Patel v. INS, 803 F.2d 804, 806 (5th Cir.1986). Given the circumstances just described, the immigration judge, in denying a further continuance, acted well within the boundaries of that power. See, e.g., Reyes-Arias v. INS, 866 F.2d 500 (D.C.Cir.1989) (no abuse of discretion to deny continuance and proceed with hearing in alien’s absence where counsel is present). Thus, there is no procedural flaw.
Second, Molina argues that the immigration judge, instead of ordering him deported, should have permitted him to leave voluntarily. See 8 U.S.C. § 1254(e) (authorizing Attorney General to permit voluntary departure). This INS decision, too, however, is highly discretionary. Strantzalis v. INS, 465 F.2d 1016, 1017 (3d Cir.1972). To qualify for voluntary departure, a deportable alien must show that he has demonstrated “good moral character” over the preceding five years. See 8 U.S.C. § 1254(e); Trias-Hernandez v. INS, 528 F.2d 366, 370 (9th Cir.1975). Molina has made no such demonstration.
We add one point. The record shows that the immigration judge said he would deny Molina’s voluntary departure request “because Molina did not appear at the hearing.” However, read in context, that statement does not imply that the immigration judge was equating “bad character” with “failure to appear.” In making the statement, the judge simply was referring to Molina’s failure to demonstrate good character, at the hearing or elsewhere in the record.
Third, Molina says that he later told the BIA why he was late, and he argues that the BIA then should have reopened the matter. BIA regulations, however, say that a
motion to reopen shall state the new facts to be proved and shall be supported by affidavits or other evidentiary material.
8 C.F.R. § 3.8(a). The only evidence attached to Molina’s motion consisted of a traffic ticket issued on the date of the hearing and an auto repair shop receipt dated March 30 one year later. Moreover, the record is silent as to what, in a reopened proceeding, Molina could have shown that might have helped him. Thus, the INS’s decision not to reopen (like its decision to deport Molina and its decision not to permit him to depart voluntarily) was plainly lawful. See Fuentes v. INS, 746 F.2d 94 (1st Cir.1984) (alien must support motion to reopen with affidavits or other evidence).
II
The “Amnesty” Decision
The immigration laws grant a kind of “amnesty” to certain aliens who have lived unlawfully in the United States since 1982. They permit the Attorney General to “adjust the status of [such] an alien to that of an alien lawfully admitted for temporary residence.” 8 U.S.C. § 1255a(a)(4). The Attorney General may make this adjustment, however, only if the alien is “admissible as an immigrant.” Id. And, an alien is “admissible as an immigrant” only if (among other things) he “has not been convicted of any felony.” 8 U.S.C. § 1255a(a)(4)(B).
Molina asked for “temporary residence” under these provisions. The INS (through its Legalization Appeals Unit) denied his request because, in its view, Molina had “been convicted” of two drug felonies. Molina admitted that, on two occasions, he had pled nolo contendere to Rhode Island drug charges and that he had been sentenced to probation, but he denied that these dispositions of the charges against him amounted to “convictions.” And, he sought review of the INS decision in this court.
While Molina’s petition was pending before this court, the INS asked us to remand this aspect of Molina’s case. The Legalization Appeals Unit of the INS, and the Bureau of Immigration Appeals of the Department of Justice (“BIA”), from time to time, have changed the standards they use to determine what counts as a “conviction.” Compare Matter of M—, 19 I. & N. Dec. 861 (Op. Comm’r.1989) with Matter of Ozkok, Int.Dec. 3044,1988 BIA LEXIS 4 (January 26, 1988) and Matter of L— R—, 8 I. & N. Dec. 269 (BIA 1959). The Fifth Circuit had held that the INS’s most recent change in these standards was unlawful in that it was inconsistent with binding BIA precedent. See Martinez-Montoya v. INS, 904 F.2d 1018, 1022-24 (5th Cir.1990) (setting aside INS decision in Matter of M— as inconsistent with BIA precedent in Matter of Ozkok). And, the INS wished to reconsider Molina’s status adjustment request in light of the Fifth Circuit opinion. After reconsideration, the INS Legalization Appeals Unit, applying the standard set out in Matter of Ozkok (which preceded the Matter of M— standard invalidated by the Fifth Circuit), reaffirmed its original determination. See Matter of Ozkok, supra; cf. Matter of L— R—, supra. Molina now continues to press his original argument, namely that he is entitled to amnesty because a “nolo plea plus probation” under Rhode Island law does not amount to a “conviction.”
A
Defining the Word “Conviction:” The “Ozkok” Standard
Almost every state has some provision in its criminal law that permits a person, accused of a crime, to enter a plea that leads 1) to a kind of “provisional” conviction, 2) followed by probation, and 3) followed by some kind of “expunging” of the conviction upon successful completion of probation. See Dickerson v. New Banner Institute, 460 U.S. 103, 121-22, 103 S.Ct. 986, 996, 74 L.Ed.2d 845 (1983) (describing variations among state procedures). The INS has developed standards (which it has modified from time to time) designed to define just when such “pleas plus probation” amount (for federal immigration law purposes) to “convictions,” and when they do not.
In 1988, in Matter of Ozkok, the BIA set forth the standards that the INS now applies to Molina. In that case, the BIA said it would (for federal immigration law purposes) consider a “person” to have been “convicted,” if
1) “the court has adjudicated him guilty” or “has entered a formal judgment of guilt”
or
2) an “adjudication of guilt has been withheld” and
a)“a judge or jury has found” him “guilty” or “he has entered a plea of guilty or nolo contendere” or he “has admitted sufficient facts to warrant a finding of guilty;” and
b) the “judge has ordered some form of punishment, penalty, or restraint on the person’s liberty;” and
c) a “judgment or adjudication of guilt may be entered if the person violates the terms of his probation ... without availability of further proceedings” regarding his guilt or innocence of the crime originally charged.
Matter of Ozkok, 1988 BIA LEXIS at 12-13.
Molina’s case, as we have said, involves a “plea plus probation.” In fact, it involves two of them:
a) On February 19, 1987, Molina pled “nolo contendere” in a Rhode Island court to a charge of possession of cocaine. The court placed him on probation for 18 months.
b) On February 26, 1987, Molina pled “nolo contendere” in a Rhode Island court to a charge of possession of a controlled substance. The court placed him on probation for two years.
The INS held that these “pleas plus probation,” in the circumstances here present, met the Ozkok tests to qualify as convictions. Indeed, the “pleas plus probation” apparently met both Ozkok tests. They met the first test because the state documents entitled “Judgment and Disposition” in each case specifically say, “IT IS ADJUDGED that the defendant has been adjudged guilty” upon the “plea of (nolo contendere).” (See Appendix A). They met the second test because, in each instance, a) there was a plea of nolo contend-ere; b) the judge ordered probation, which, to a degree, restrained Molina’s liberty; and c) a probation violation would have led to further punishment without further litigation about the original crime. See R.I.Gen.L. § 12-19-19 (after plea of nolo contendere, court may impose sentence at any time or, if sentence is deferred pursuant to an agreement, within five years after the agreement); R.I.Gen.L. § 12-19-9 (upon probation violation, defendant shall appear before the court and, after statement of facts documenting probation violation is received by court, court may in its discretion order defendant committed on previously set or new sentence, or continue suspension of sentence).
As the INS noted, the relevant Rhode Island law also contains a kind of “ex-pungement” provision. That law provides that “upon the completion of the probationary period, and absent a violation of the terms of said probation[,] said plea [of nolo contendere] and probation shall not constitute a conviction for any purpose.” R.I.GemL. § 12-18-3 (emphasis added). Under the Ozkok rules, the existence of this “expungement” provision is beside the point, at least in a case like Molina’s. Accordingly, the INS held that the Rhode Island provision’s existence did not change the result.
B
Molina’s Argument: The Existence of Legal Power
Molina points out that Rhode Island law says that, after he successfully completes probation, his “plea plus probation” shall not “constitute a conviction for any purpose.” (emphasis added). The INS, however, counts his “plea plus probation” as a “conviction” for at least one purpose, namely to deny him amnesty under immigration law. The INS’s denying him amnesty, Molina says, runs contrary to Rhode Island law. And, in his view, the INS must follow Rhode Island’s law because of the statutory counterpart to the federal Constitution’s “full faith and credit” clause. See 28 U.S.C. § 1738 (federal courts must give full faith and credit to state acts, records, and judicial proceedings); cf. U.S. Const, art. IV, § 1 (states must give full faith and credit to the public acts, records, and judicial proceedings of other states).
The problem with this argument is that neither the constitutional clause nor its statutory analogue (binding federal courts) purports to prevent federal legislative authorities from writing federal statutes that differ from state statutes or from attaching, to words in a federal statute, a meaning that differs from the meaning attached to the same word when used in a statute enacted by a state. A federal Union in which this were not so — a Union in which states possessed the constitutional power to control federal courts’ interpretation of federal statutes — would not resemble our posi-Civil War United States. The federal Constitution permits Congress to condition its immigration law upon the absence of a “conviction” as federally defined.
There is no claim here that the federal definition exceeds the bounds that some other part of the Constitution (say, the “due process” clause) might set. After all, that federal definition (according to the INS) applies the word “conviction” where the state proves, or the defendant waives his right to deny that, the defendant has committed a crime with which the state has charged him. We see nothing “fundamentally unfair” about such a definition. Nor do we see how later state proceedings could create some “fundamental unfairness” where they do not revise the state’s determination of the defendant’s guilt. Cf. Thrall v. Wolfe, 503 F.2d 313, 316 (7th Cir.1974), cert. denied, 420 U.S. 972, 95 S.Ct. 1392, 43 L.Ed.2d 652 (1975) (federal statutory disability may be based on state conviction despite existence of state pardon, where pardon is not expressly based on a determination of innocence). The Constitution does not require precise conformity between the word “conviction” in the federal immigration laws and the varying meanings of the word “conviction” in the laws of the fifty states.
Moreover, Molina does not (and could not successfully) argue that, in the immigration statutes, Congress intended to effect perfect conformity between varying state and federal laws. Rather, the need for national uniformity in the application of federal law and the history of that word as applied by the INS, see pp. 20-21, infra, and the courts, suggest that the federal word, while reflecting basic state usage, need not provide its precise mirror image. Cf. Dickerson v. New Banner Institute, 460 U.S. 103, 111-12, 103 S.Ct. 986, 991, 74 L.Ed.2d 845 (1983). This Circuit, forty years ago, held that the “meaning of the word ‘convicted’ ” in the federal immigration law “is a federal question.” Pino v. Nicolls, 215 F.2d 237, 243 (1st Cir.1954) (Magruder, J.). And, the Supreme Court, reviewing the same case, reversed the Circuit on other grounds but made clear that the word’s federal meaning did not precisely track the contours of the state’s equivalent phrase. See Pino v. London, 349 U.S. 901, 75 S.Ct. 576, 99 L.Ed. 1239 (1955) (holding that the federal immigration law word “conviction” requires “finality” despite state law precedent suggesting the contrary); see also Yazdchi v. INS, 878 F.2d 166, 167 (5th Cir.), cert. denied, 493 U.S. 978, 110 S.Ct. 505, 107 L.Ed.2d 507 (1989) (definition of the word “conviction” primarily a matter of federal law); Chong v. INS, 890 F.2d 284, 285 (11th Cir.1989) (same); Kolios v. INS, 532 F.2d 786, 789 (1st Cir.), cert. denied, 429 U.S. 884, 97 S.Ct. 234, 50 L.Ed.2d 165 (1976); Aguilera-Enriquez v. INS, 516 F.2d 565, 570 (6th Cir.1975), cert. denied, 423 U.S. 1050, 96 S.Ct. 776, 46 L.Ed.2d 638 (1976); Will v. INS, 447 F.2d 529, 531 (7th Cir.1971); Gutierrez v. INS, 323 F.2d 593, 596 (9th Cir.1963), cert. denied 377 U.S. 910, 84 S.Ct. 1171, 12 L.Ed.2d 179 (1964).
Finally, Molina does not (and could not successfully) argue that the INS lacks the legal power to provide, within limits, an interpretation of “conviction” to which courts should pay particular attention (even if that interpretation changes somewhat over time). The application of the immigration term “conviction,” at least in the context of varying state “expungement” laws and practices, raises issues that involve administration of the statute, that demand administrative expertise, and that, in the context of the entire statute, are comparatively minor or “interstitial.” See Mayburg v. Secretary of HHS, 740 F.2d 100, 105-06 (1st Cir.1984). That being so, one would expect courts to hold that Congress has delegated a degree of legal power to the INS, the agency charged with enforcing the statutory scheme, to provide a reasonable interpretation of the word “conviction.” See generally Chevron v. NRDC, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Or, at the least, one would expect to find courts listening with care to the agency’s interpretation, insofar as it has the power to “persuade” if not to “control.” Skidmore v. Swift & Co., 323 U.S. 134, 65 S.Ct. 161, 89 L.Ed. 124 (1944).
In sum, we have no reason to doubt that the INS, at least in principle, has the legal power to which Molina objects, namely the legal power to apply the word “conviction” in the federal immigration statute in a manner that does not conform perfectly with the application of the same word in Rhode Island’s state law. This conclusion provides sufficient grounds for us to reject Molina’s claim to the contrary, namely, his claim that the federal government lacks the legal power to ignore Rhode Island’s “ex-pungement” provision.
C
Amici’s Arguments: The Exercise of That Power
Amici curiae have submitted briefs in which they argue, not that the INS lacked the power to vary from Rhode Island’s definition of “conviction,” but, rather, that the INS acted unlawfully in developing a new definition of “conviction” in the case of Ozkok, and then applying that new definition to Molina’s pr e-Ozkok “pleas plus probation.” Normally, we would not consider these separate issues, since they were not raised by the parties in the case. See, e.g., North and South Rivers Watershed Ass’n, Inc. v. Town of Scituate, 949 F.2d 552, 556 n. 8 (1st Cir.1991) (declining to consider argument raised by amicus which litigants have ignored); Baker v. City of Concord, 916 F.2d 744, 755 (1st Cir.1990); Lane v. First Nat’l Bank, 871 F.2d 166, 175 (1st Cir.1989). Nonetheless, we have examined amici’s arguments in order to satisfy ourselves that the INS acted lawfully in refusing amnesty to Molina. We conclude that it did.
Amici’s most important argument is that, when Molina entered his nolo pleas, he may have relied upon the INS’ preexisting, pr e-Ozkok interpretation of the word “conviction,” set forth in the 1959 INS case, Matter of L— R—, supra. In 1988, in the case of Matter of Ozkok, supra, the INS revised this interpretation, and it later applied the revised interpretation to Molina. Because Molina reasonably relied on pr e-Ozkok INS rules, amici argue, the INS should have promulgated its new Ozkok standard so that it did not apply to any pre-existing past convictions, but only to convictions that might take place in the future. They conclude that the INS’s failure to do so, say, by changing the pr e-Ozkok definition in a rulemaking proceeding, or by overruling its prior case with prospective effect only, was “arbitrary, capricious, [or] an abuse of discretion,” and therefore unlawful. See Administrative Procedure Act (“APA”), 5 U.S.C. § 706(2)(A); cf. NLRB v. Wyman Gordon, 394 U.S. 759, 89 S.Ct. 1426, 22 L.Ed.2d 709 (1969) (finding an abuse of the agency’s power to choose between rulemaking and adjudicatory proceedings as a vehicle for promulgating new policies); NLRB v. Atkinson, 195 F.2d 141 (9th Cir.1952) (reliance interests make it unreasonable, hence unlawful, for an agency to make policy change retroactive); Ruangswang v. INS, 591 F.2d 39 (9th Cir.1978) (where good faith reliance on immigration investment standard shown, court will apply standard in effect at time of investment rather than current standard); Patel v. INS, 638 F.2d 1199 (9th Cir.1980) (same).
The flaw in this argument lies in its premise: that Molina reasonably relied upon the pre-existing standard. The record contains no evidence that Molina actually relied upon pre-existing caselaw. But, even were we to engage in a legal fiction, and assume that Molina was familiar with existing law and that this familiarity affected his decision to plead “nolo”, we cannot find significant, reasonable reliance. For one thing, pre-existing INS standards would not have told Molina that, despite his “plea plus probation,” he could reasonably have expected to remain eligible for amnesty. Those standards, set forth in the BIA case Matter of L— R—, were, at best, ambiguous with respect to a person in Molina’s situation. Under those standards, a conviction existed if:
1)there had been a judicial finding of guilt;
2) the court had removed the case from the category of “pending” cases;
3) the court had ordered the defendant fined, or incarcerated, or the court had suspended the sentence, or the court had suspended the imposition of sentence; and
4) the action of the court was considered a conviction by the state for at least some purpose.
Matter of L— R—, 8 I. & N. Dec. at 270. These standards clearly exempted “plea plus probation” procedures found in many states — procedures in which a court suspends entry of a judgment, never entering such a judgment if the defendant successfully completes probation. See, e.g., Matter of Garcia, 19 I. & N. Dec. 270 (BIA 1985) (no conviction since adjudication of guilt withheld); Matter of Seda, 17 I. & N. Dec. 550 (BIA 1980) (same). These standards, however, did not clearly exempt Rhode Island’s procedure — a procedure in which the defendant is “adjudged guilty” at the time he presents his plea. Under Rhode Island procedure, it could be found, at least arguably, that: (1) there had been a judicial finding of guilt; (2) the case was no longer pending; (3) the court had “suspended the sentence,” and (4) the court’s action was “considered a conviction by the state for at least some purpose,” namely the purpose of imposing probation. Rhode Island apparently permitted courts to consider “pleas plus probation” for purposes of enhancing sentences in any future criminal proceedings as well. See R.I.Gen.L. § 12-18-3 (evidence of nolo plea cannot be introduced in court proceeding except for sentencing purpose after conviction of a subsequent crime); see also R.I.Gen.L. § 12-1.3-4 (despite expungement, conviction record must be disclosed if defendant is applicant for admission to bar, court, or law enforcement agency).
Whether or not under Matter of L— R— standards Molina’s “pleas plus probation” would have amounted to “convictions” is not completely clear. On the one hand, Rhode Island, unlike many states with similar procedures, imposes comparatively few disabilities as a consequence of a nolo plea after the defendant has completed probation and the plea has been expunged. Cf. Garcia-Gonzalez v. INS, 344 F.2d 804, 807 & n. 3 (9th Cir.), cert. denied, 382 U.S. 840, 86 S.Ct. 88, 15 L.Ed.2d 81 (1965) (large number of disabilities imposed under California law despite expungement of conviction after plea and probation cited to support finding of immigration law conviction). On the other hand, Rhode Island’s own caselaw indicates that, in Rhode Island, a nolo plea constitutes an admission of guilt, and is “as much a conviction as a jury’s verdict of guilt would have been” for the purpose of that proceeding, State v. Degnan, 587 A.2d 71 (R.I.1991), and, therefore, one might claim, for the purpose of the imposition of probation which results. Moreover, a Rhode Island prosecutor apparently could introduce the “plea plus (even a successful) probation” into the record at sentencing should the defendant commit another, future crime. R.I.Gen.L. § 12-18-3.
We have used a computerized data base to search the BIA cases hoping to find an instance in which the INS applied Matter of L— R— to a Rhode Island-type statute. Some cases find “no conviction” in circumstances where there has been no adjudication of guilt. That does not seem to be the situation here. See Matter of Garcia, supra; Matter of Seda, supra. Other cases find that a conviction exists where the state considers the defendant to have been convicted for some purpose besides the imposition of probation. See Matter of Zangwill, 18 I. & N. Dec. 22 (1981); Matter of Westman, 17 I. & N. Dec. 50 (1979); Matter of Robinson, 16 I. & N. Dec. 762 (1979); Matter of Rehman, 15 I. & N. Dec. 505 (1975); Matter of Pikkarainen, 10 I. & N. Dec. 401 (1963); Matter of A— F—, 8 I. & N. Dec. 429 (1959). Indeed, one case finds a conviction where the state says successful probation “annuls” the conviction for every purpose except potential future sentence enhancement. And, this seems very much like the situation under Rhode Island law. See Matter of Varagianis, 16 I. & N. Dec. 48 (1976) (successful completion of probation “annuls” all consequences except consideration at a new sentencing proceeding if defendant commits a new crime). Given this background, we cannot say that pre-Ozkok BIA standards would have exempted the Rhode Island procedure. And, we do not see how Molina, at the time of his plea, reasonably could have made a firm and favorable prediction about the matter.
Second, and independently, before Molina entered his pleas, the Supreme Court had decided a case involving the applicability of the federal word “conviction,” in a federal gun control statute, to “plea plus probation” procedures. See Dickerson, supra. In Dickerson, the Court held that the definition of “conviction” within the terms of the federal gun control statute was a matter of “federal, not state, law, despite the fact that the predicate offense and its punishment are defined by the law of the State.” Dickerson, 460 U.S. at 111-12, 103 S.Ct. at 991. This court then held that the specific Rhode Island “plea plus probation” procedure here at issue produced a “conviction” for federal gun control purposes. United States v. Bustamante, 706 F.2d 13 (1st Cir.), cert. denied, 464 U.S. 856, 104 S.Ct. 175, 78 L.Ed.2d 157 (1983).
Of course, federal gun control law is not federal immigration law. And, in 1986, Congress, in a sense, overruled Dickerson by explicitly amending the definition of conviction in the federal gun control statute to specifically incorporate state law. See Firearm Owners’ Protection Act, Pub.L. 99-308, § 105, 100 Stat. 449, 459 (1986). Nonetheless, the opinions in Dickerson and Bustamante, interpreting the federal term “conviction” in a highly analogous set of circumstances, should have warned Molina (and others in his situation) not to rely on Rhode Island’s expungement provision as maintaining their eligibility for amnesty.
Given the lack of clear legal authority warranting the reliance that amici allege, the INS did not act arbitrarily in applying the new Ozkok standard to Molina’s “conviction,” even though that “conviction” occurred prior to the Ozkok decision. Retroactive application of agency interpretations developed through adjudication is not automatically unlawful. To the contrary, retroactive application of new principles in adjudicatory proceedings is the rule, not the exception. And, agencies have broad legal power to choose between adjudication and rulemaking proceedings as vehicles for policymaking. See SEC v. Chenery Corp., 332 U.S. 194, 203, 67 S.Ct. 1575, 1580, 91 L.Ed. 1995 (1947).- Under the circumstances just described, the INS, in applying Ozkok to Molina’s pr e-Ozkok “conviction,” acted within its legal authority. NLRB v. Bell Aerospace, 416 U.S. 267, 295, 94 S.Ct. 1757, 1772, 40 L.Ed.2d 134 (1974); Clark-Cowlitz Joint Operating Agcy. v. FERC, 826 F.2d 1074, 1081 (D.C.Cir.1987) (en banc), cert. denied, 485 U.S. 913, 108 S.Ct. 1088, 99 L.Ed.2d 247 (1988), citing Retail, Wholesale & Dept. Store Union v. NLRB, 466 F.2d 380 (D.C.Cir.1972).
Amici make two other arguments. First, they point out that the statute’s word “conviction” now appears in a version of the immigration statute that Congress reenacted in 1986. See Immigration Reform & Control Act (“IRCA”), Pub.L. No. 99-603, 100 Stat. 3359. They argue that we should read that word, as it appears in the reenacted statute, to adopt the INS’s then existing, pr e-Ozkok, definition of the word. But we do not see why this should be so. Congressional reenactment of statutory language does not normally or automatically indicate a legislative intent to freeze all pre-existing agency interpretations of language, forever after immunizing them from change. Cf. American Federation of Labor v. Brock, 835 F.2d 912, 915-16 (D.C.Cir.1987) (express congressional approval of administrative interpretation necessary for interpretation to be seen as mandated by statute). The case
Question: What is the nature of the first listed appellant?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_origin
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of court which made the original decision. Code cases removed from a state court as originating in federal district court. For "State court", include habeas corpus petitions after conviction in state court and petitions from courts of territories other than the U.S. District Courts. For "Special DC court", include courts other than the US District Court for DC. For "Other", include courts such as the Tax Court and a court martial.
DICKMAN LUMBER COMPANY, a Washington corporation, Appellant, v. UNITED STATES of America, Appellee.
No. 19923.
United States Court of Appeals Ninth Circuit.
Jan. 19, 1966.
Rehearing Denied Feb. 28, 1966.
Owen P. Hughes, Neal, Bonneville & Hughes, Tacoma, Wash., for appellant.
Richard M. Roberts, Acting Asst. Gen., Meyer Rothwacks, Gilbert E. Andrews, Martin T. Goldblum, Attys., Dept, of Justice, Washington, D. C., William N. Goodwin, U. S. Atty., Tacoma, Wash., for ap-pellee.
Before POPE, BARNES and HAM-LEY, Circuit Judges.
POPE, Circuit Judge.
Appellant corporation was assessed an accumulated earnings tax under the provisions of § 531 of the Internal Revenue Act of 1954. It paid the tax and then sued for refund in the court below.
The tax assessed related to accumulated income for 1959. In that year such income amounted to $142,091.88. From this it paid dividends and other sums to stockholders amounting to $13,060.76. Upon the balance, $129,031.12, the tax of $38,676.98 was assessed. As of December ”31, 1959, appellant’s current assets and current liabilities (in round dollars) were as follows:
Current Assets:
Cash $ 331,852
Short Term Securities 850,000
Accounts Receivable 102,965
Log Inventories 463,186
TOTAL $1,748,003
Current Liabilities
Accounts — Wages Payable 36,545
Accrued Income Tax 156,086
192,631 TOTAL
All of the stock of the corporation (except for four qualifying shares in the names of employees) were owned by Ralph L. Diekman and his wife. Had the entire $129,000 mentioned been distributed in dividends in 1959, the Dickmans’ tax liability would have been increased by more than $87,000.
The trial court held that appellant’s “accumulated earnings and profits were in excess of its reasonably anticipated needs as of the end of 1959 and that the said $129,031.12 was not so needed”; that plaintiff had failed to sustain its burden of proving that it did not have, as one of its purposes for accumulating earnings and profits, the avoidance of income taxes on its shareholders.
Appellant contends that “[a] 11 undistributed earnings and surplus in excess of cash dividends paid in the sum of $12,000 at the end of 1959, were necessary for the four following reasonably anticipated needs of appellant’s business, and by reason thereof such earnings and surplus had not been accumulated for the purpose of avoiding surtax upon the shareholders of appellant: 1. Reserves required to meet competition, fluctuations and hazards of business. 2. Large amounts of available money required in supplying appellant’s mill with logs and timber. 3. Expenditures required for planned modernization and improvements of appellant’s mill. 4. Corporate funds required for payment of federal estate, state inheritance taxes and expenses of administration on retirement of a decedent shareholder’s stock under § 303 of the 1954 Code on the death of either or both of the two principal shareholders of appellant.”
The findings of the court examine in detail and in depth each of these claimed reasons for the accumulations made. In each case the court found as a fact that these claims were without basis, that “the earnings and profits of the plaintiff, in addition to the said $129,031.12 were more than sufficient, in view of the liquidity of the corporation, to meet its anticipated needs.”
The key question here is whether there was accumulation “beyond the reasonable needs of the business”. This, in our view, was a question of fact. Lundgren v. Freeman, 9 cir., 307 F.2d 104 And the trial court’s finding with respect thereto is supported by evidence.
Since we hold that the findings of the trial court are not clearly erroneous, we must affirm the judgment. It is so ordered.
. That section and related sections are as follows:
“§ 531 [Title 26, U.S.C.A.] Imposition of accumulated earnings tax. In addition to other taxes imposed by this chapter, there is hereby imposed for each taxable year on the accumulated taxable income (as defined in section 535) of every corporation described in section 532, an accumulated earnings tax equal to the sum of — •
“(1) 27% percent of the accumulated taxable income not in excess of $100,000 plus
“(2) 38% percent of the accumulated taxable income in excess of $100,000.”
“§ 533 [Title 26 U.S.C.A.] Evidence of purpose to avoid income tax. (a) Unreasonable accumulation determinative of purpose. — For purposes of section 532, the fact that the earnings and profits of a corporation are permitted to accumulate beyond the reasonable needs of the business shall be determinative of the purpose to avoid the income tax with respect to shareholders, unless the corporation by the preponderance of the evidence shall prove to the contrary.”
Ҥ 537 [Title 26, U.S.O.A.] Reasonable needs of the business.
“For purposes of this part, the term ‘reasonable needs of the business’ includes the reasonably anticipated needs of the business.”
. Among the statements cited as authoritative in appellant’s brief is the following from Mertens, Law of Federal Income Taxation, § 39.32: “The question of reasonable accumulation is one of fact to be decided upon the basis of principles of sound business management.”
Question: What type of court made the original decision?
A. Federal district court (single judge)
B. 3 judge district court
C. State court
D. Bankruptcy court, referee in bankruptcy, special master
E. Federal magistrate
F. Federal administrative agency
G. Special DC court
H. Other
I. Not ascertained
Answer:
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songer_appel1_1_4
|
J
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "trade". Your task is to determine what subcategory of business best describes this litigant.
JEFFERSON MEMORIAL GARDENS, INC., Petitioner, v. COMMISSIONER OF INTERNAL REVENUE, Respondent.
No. 24773.
United States Court of Appeals Fifth Circuit.
Jan. 30, 1968.
Rehearing Denied March 7, 1968.
Jacquin D. Bierman, Chase & Bierman, New York City, for petitioner.
Lester R. Uretz, Chief Counsel, I.R.S., Richard P. Milloy, Atty., I.R.S., Mitchell Rogovin, Asst. Atty. Gen., Lee A. Jackson, Jonathan S. Cohen, Willy Nordwind, Jr., Attys., Dept, of Justice, Washington, D. C., for respondent.
Before COLEMAN and SIMPSON, Circuit Judges, and DAWKINS, District Judge.
BEN C. DAWKINS, JR., District Judge:
Presented here is a petition for review of a decision of the Tax Court upholding income tax deficiency assessments against Jefferson Memorial Gardens, Inc. (hereinafter petitioner or taxpayer) for the years 1957, 1958, and 1959. There are two questions for decision: first, whether petitioner is entitled to a higher acquisition basis on certain real estate acquired by it for use in the cemetery business; and second, whether petitioner is entitled to exclude from its gross income certain installment receipts representing partial satisfaction of the sales prices of grave spaces and grave markers. The facts are not in controversy, having been stipulated by the parties.
Petitioner is an Alabama corporation formed on August 25, 1952 to operate a cemetery in Jefferson County, Alabama. At all times it had authorized capital stock of 2,000 shares of common with a par value of $1.00 per share. Petitioner keeps its books and files its Federal income tax returns on the basis of a calendar year using the accrual method of accounting while reporting income from sales of cemetery spaces and markers under the installment method.
Petitioner was formed by Messrs. Meyer, Bone, Braverman and McCord. To provide land necessary for the cemetery, McCord acquired two tracts of real estate which he later conveyed to petitioner. In exchange for this property, McCord received 400 “certificates of indebtedness” issued by petitioner which entitled McCord to a 40% interest in the proceeds from the business pursuant to specific terms of the certificates. Some 600 additional certificates were issued to relatives and associates of Meyer, Bone and Braverman but petitioner received no consideration of any kind from any of these persons.
For income tax purposes, petitioner treated the amounts due on the certificates as the cost of the land. However, the Commissioner ruled that the transaction was a non-taxable exchange pursuant to Section 112(b) (5) of the Internal Revenue Code of 1939. Therefore the basis for the property actually used in the business was the transferor’s (McCord’s) cost or $40,000. This valuation by the Commissioner was affirmed by the Tax Court.
As part of its business activities, petitioner sold grave spaces and grave markers on a “pre-need” basis whereby customers would purchase spaces and/or markers on a “pay now — use later” plan. As each grave space sales contract was executed, petitioner would exclude 15% of the sales price from its gross income, this being treated as a portion of the cost of goods sold. The figure of 15% was designated in the sales contracts for future use in cemetery development. As each grave marker contract was executed, petitioner would deduct the manufacturer’s list price for that type of marker on its income tax return for the year in question, again as a part of costs of goods sold. In other words, petitioner was making these exclusions from income prior to incurring actual expenditure of the designated funds.
It was petitioner’s contention that this method of accounting was the best method actually to match revenues with costs. The Commissioner disagreed, and refused to allow these exclusions until the anticipated expenditures actually were incurred. This position was affirmed by the Tax Court. (That Court’s decisions are not officially reported.) Having the facts before us, wé move to the merits of the issues presented for decision.
I.
Basis of the Land
As previously mentioned," the Commissioner found that the land transaction was governed by Section 112(b) (5) of the 1939 Internal Revenue Code, and therefore decided that petitioner’s basis for the land was $40,000. Although there was no specific finding on this issue in its opinion, the Tax Court apparently affirmed the Commissioner’s valuation. We reverse and remand on this question for the following reasons.
Petitioner contends that Section 112 (b) (5) of the 1939 Code is inapplicable to the transfer in question because the amount of stock received by McCord was not “substantially in proportion to his interest in the property prior to the exchange” as required by the statute. This position is taken because in transferring the property McCord received 400 certificates of indebtedness representing 40% of the certificates issued, whereas prior to the exchange he was 100% owner of the property. Thus petitioner argues that the “substantial proportion” provision of § 112(b) (5) has not been met. We agree.
It is well settled that in order for this section of the 1939 Code to be applied, the substantial proportion requirement must be met. In one instance it was held that a variation of as little as 3%% was disproportionate. Other cases have held similarly and do not require further elaboration.
Because it was “clearly erroneous” to sustain the Commissioner’s original position concerning applicability of § 112 (b) (5), we reverse the Tax Court on this point, and remand for further evidence to be taken, as hereinafter indicated.
In this appeal the Commissioner has taken an entirely new tack, contending that petitioner’s basis for the land is $40,000 regardless of the applicability of § 112(b) (5). Thus the Commissioner argues that where securities of the issuing corporation have no readily ascertainable independent fair market value when issued, the issued stock is assigned a value equivalent to the fair market value of the assets acquired in the exchange. Applying that well established principle to this case, the Commissioner now urges, for the first time on appeal, that the securities or certificates issued by petitioner had no readily ascertainable independent value, and therefore the purchase price of the land paid by McCord, $40,000, must be assigned to the certificates. We do not agree that this principle is necessarily applicable to this case.
We are fully aware that a decision by the Tax Court may be affirmed on a different theory of law from that relied on in the lower court. However, where such a theory has no basis in the record made up below, the taxpayer is entitled to a hearing to establish additional facts which might affect the result. After exhaustively reviewing the record in this case, we conclude that there is no basis presently in the record upon which the Commissioner’s new theory may be supported. No evidence was offered tending to prove the value of the certificates in question. We express no opinion whether such a value can be established, but taxpayer is entitled to that opportunity in view of the change of position on appeal, adopted by the Commissioner, which is completely dependent upon a factual determination, namely, that these certificates do not have an independently ascertainable value. We therefore remand upon this issue to afford petitioner the factual hearing to which it is entitled.
II.
Excludability of Receipts from Gross Income
On this point petitioner, in essence, contends that certain amounts received from sales of grave spaces and markers are excludable from gross income because such receipts represent a return of capital investment and are not subject to income tax. To support its position, petitioner has cited a wealth of constitutional landmarks holding that the government constitutionally may not levy an income tax on gross receipts but must limit its tax so as to affect only gross income. We are certain that no one, including the Commissioner, disagrees with this well established principle of law. Nevertheless, the more difficult task confronting us here is an initial determination of whether these receipts represent income or a return of capital as contended by petitioner.
It asserts that in the sales contracts for the grave spaces, it covenanted to dedicate 15% of the sales price of each plot to future cemetery development. Moreover, petitioner points out that these receipts were so allocated in its bookkeeping entries. It also had exhaustive engineering studies made prior to construction which included estimated costs of developing the cemetery. The correctness of these estimated costs is unchallenged.
Also to be considered is the fact that properly documented estimated expenditures are excludable in ordinary real estate developments every day and courts consistently have applied these principles to the cemetery business. Prior to decision of this important issue, we recognize the following basic principles.
It consistently had been held that properly estimated costs of improvements to subdivided real estate is a capital expenditure allocable to the basis of the various unsold lots to be recovered by the developer upon his ultimate sale of the lots. It also has been held that this principle is applicable to a tract of land developed for cemetery purposes and the sale of burial lots therein However, without exception, it has been the long-standing rule that where a fund is established by attributing a percentage of the sales price of cemetery lots, and the fund is to be devoted to future development and improvement, the amounts going into the fund will constitute gross income to the cemetery developer. There are two recognized exceptions to this rule: first, where there is a definitely established trust for the development fund; and second, where a segregated fund is required, under a specific agreement with the lot purchasers, which actually binds the developer to make specific improvements.
Proper interpretation and application of the trust fund exception has been astutely articulated by our brothers of the Sixth Circuit in Mount Vernon Gardens, Inc. v. C.I.R., supra, as follows:
“As [prior] opinions * * * point out, the decisive feature in each case is the terms and provisions of the particular trust involved. The questions of control by, and inurement to the benefit of, the taxpayer, are of prime importance.” (298 F.2d 712, 716. Emphasis added.)
A similar position was adopted earlier by this Court in Metairie Cemetery Association v. United States, supra, where we held:
“A cemetery association may exclude from income deposits paid to it by burial lot owners, if it can show that the deposits are received in trust and that the principal and income therefrom cannot inure to its benefit.” (282 F.2d 225, 229, 230. Emphasis added.)
Regardless of establishment of a formal trust fund, the same principles are applicable to a case, as in the second exception to the general rule, where a segregated and protected development fund is specifically required. From authorities cited above, the validity of petitioner’s claim on this issue turns upon whether such funds, received from advance sales of grave spaces and markers, and excluded from gross income, actually were managed in such manner that the use thereof could not inure to petitioner’s benefit. Because petitioner did not establish a trust for future development here, it must prove that a specific agreement existed with burial lot owners to establish a development fund is specifically required. From the authorities cited above, the validity of petitioner’s claim on this issue turns upon whether such funds, received from advance sales of grave spaces and markers, and excluded from gross income, actually were managed in such manner that the use thereof could not inure to petitioner’s benefit. Because petitioner did not establish a trust for future development here, it must prove that a specific agreement existed with burial lot owners to establish a development fund. Moreover, petitioner must show that this fund was for the benefit of the burial lot purchasers and not for petitioner’s unrestricted use.
Here, the evidence clearly shows that petitioner had very complete, detailed engineering studies conducted which accurately reflected the estimated costs of developing the cemetery in question. In addition it has been established that sales contracts executed by taxpayer with plot purchasers contained a development clause reading:
“(3) DEVELOPMENT: To expend for general improvements and development, including the building of Gardens, a sum equal to not less than fifteen per cent (15%) of the above purchase price, provided such sum, together with a like amount of all previous plot sales made by the Company, shall not already have been expended for such purposes subsequent to December 1, 1952.” (See Exhibit 15-0).
Contrariwise, there is no evidence that these funds were received for the exclusive benefit of the burial lot owners or that there was a development fund of any kind established. Indeed, the most that can be said in petitioner’s favor regarding this is that a mere bookkeeping entry was made to the effect that certain amounts were to be used in development of the cemetery. No dedicated and un-invadable development fund was established. Thus we inescapably must find that petitioner had the unfettered right to use these funds as it desired upon receipt. The funds excluded from gross income by petitioner in its tax returns actually were gross income to it. Consequently, the Commissioner’s deficiency assessment will be affirmed.
We are convinced that this case is squarely governed by the recent decision in Sherwood Memorial Gardens v. C.I.R. supra, which involved identical legal issues and at least one of the same parties. In Sherwood, a future development provision almost a twin to the clause in this case was contained in each burial lot sales contract. Regarding such a provision, the court in Sherwood held:
“Petitioner was obligated by the First Agreement only to deposit the designated sums in a separate bank account and to use the funds thus deposited for no other purpose than development of the cemetery. At best this provision created merely a contractual obligation, not a trust. But even if the agreement were a trust in form, where, as here, petitioner had wide discretion in use of the fund, with no definite obligation to make any particular improvements and with no necessary relationship between the amount of the fund and the development costs, and the fund was not for care of individual lots, petitioner was the primary beneficiary of the fund and it could not properly exclude that amount of the fund from its gross income.” (350 F.2d 225, 230.)
As here, the taxpayer in Sherwood urged that its obligation to use these funds was definite and flowed from the engineering study made of the cemetery. The court found no indication that any of the purchasers knew or were informed of the plans, and no evidence was put forth that petitioner was not free to alter the plans at will. We must reach the same conclusion.
As noted, there is little if any distinction between Sherwood and the case we now have before us. It is obvious that petitioner had the unrestricted right to use all funds received from burial lot purchasers and had no obligation to make specific improvements at any specific time. With reference to the grave markers, no purchase was necessary until final payment of the purchase price was tendered or a death occurred. These circumstances compel us to hold that petitioner was not entitled to exclude these amounts from gross income.
Because of petitioner’s persistence in urging that it has been taxed unconstitutionally, it becomes necessary briefly to dispose of this argument. Taxpayer urges that the analogy already discussed relative to real estate development is applicable. Suffice it to say that in the real estate cases, where exclusions for estimated development costs have been allowed, it was clearly established that specific improvements either were required by law or actually were made. These improvements included such items as streets, drives, sewer disposal systems and extension of gas and electric service lines. We should note that, if exclusions were taken for these items by taxpayers, that the expenditures thereafter had not been made, .the Commissioner undoubtedly would have asserted a deficiency against those taxpayers as was done here.
Recently, in Willow Terrace Development Co. v. C.I.R., supra, this court allowed a taxpayer to allocate the cost of a water and sewerage system to the cost of homes in a newly developed subdivision. However, we noted that the test to be made was set forth in Estate of Collins v. C.I.R., 31 T.C. 238 (1958):
“ ‘ * * * We have concluded that petitioners constructed the sewerage system not only for the basic purpose but for the sole purpose of inducing and making possible the sale of lots * * *, that they did not retain full ownership and control of the sewerage system, and that they parted with material property rights therein for the benefit of the subdivision lots.’ ” (345 F.2d 933, 938, 939.)
As indicated by the test set forth in Collins, and indeed in all authorities noted, for an exclusion of estimated costs to be permitted, the funds must not only be held for the benefit of someone other than the taxpayer, but must also actually be used to that end. Here neither of these requirements has been met, and, accordingly, petitioner’s argument that it has been unconstitutionally taxed upon gross receipts, instead of upon gross income, is without merit.
For the foregoing reasons and upon the basis of the authorities cited, the decision of the Tax Court is in part reversed and remanded, and in part is affirmed.
. Timely deficiency assessments were made against taxpayer as follows:
Calendar Year Ended Tax Total Assessment
December 31, 1957 $29,083.78 $29,083.78
December 31, 1958 14,825.53 14,825.53
December 31, 1959 6,937.37 6,937.37
Total Deficiency $50,846.68
. In passing we note that one of the organizers of petitioner, Fred Meyer, Jr., has been actively engaged in the commercial cemetery business all over the United States for seventen years and is well known in the cemetery trade.
. Only one of the tracts acquired by Mc-Cord and transferred to petitioner was actually used in the business. McCord paid $40,000 for this particular tract.
. The term “certificates of indebtedness” was used by petitioner to describe the securities issued to McCord and others. The Tax Court found, and petitioner agreed, that these securities did not evidence indebtedness but were equity interests in the business.
. Some of the problems encountered in this area have been recently discussed. See Aland, Prepaid Income and Estimated Future Expenses: Is a Legislative Solution Needed? 54 A.B.A.J. 84 (1968).
. Int.Rev.Code of 1939, § 112(b) (5) provides in part:
“No gain or loss shall be recognized if property is transferred to a corporation by one or more persons solely in exchange for stock or securities in such corporation, and immediately after the exchange such person or persons are in control of the corporation; but in the case of an exchange by two or more persons this paragraph shall apply only if the amount of the stock and securities received by each is substantially in proportion to his interest in the property prior to the exchange.”
. Bodell v. Commissioner of Internal Revenue, 154 F.2d 407 (1st Cir. 1946).
. See Mather & Co. v. Commissioner of Internal Revenue, 171 F.2d 864 (3d Cir.1949); United Carbon Co., 32 B.T.A. 1000, reversed 90 F.2d 43 (4th Cir.1937); Cyrus Eaton, 37 B.T.A. 715 (1938); Edwin L. Dana, 36 B.T.A. 231 (1937).
. Brief for the Respondent, pp. 17-18 and the authorities cited therein.
. Helvering v. Gowran, 302 U.S. 238, 58 S.Ct. 154, 82 L.Ed. 224 (1937).
. Brief for the Petitioner, pp. 15-16.
. Willow Terrace Development Co. v. C. I. R., 345 F.2d 933 (5th Cir. 1965); C. I. R. v. Laguna Land & Water Co., 118 F.2d 112 (9th Cir. 1941); Butler-Fornari Realty Corp. v. C. I. R., 37 B.T.A. 933 (1938); Cambria Development Co. v. C. I. R., 34 B.T.A. 1155 (1936); Birdneck Realty Corp. v. C. I. R., 25 B.T.A. 1084 (1932).
. Mount Vernon Gardens, Inc. v. C. I. R., 298 F.2d 712 (6th Cir. 1962); C. I. R. v. Cedar Park Cemetery Ass’n, 183 F.2d 553 (7th Cir. 1950).
. Sherwood Memorial Gardens, Inc. v. C. I. R., 350 F.2d 225 (7th Cir. 1965); Mount Vernon Gardens, Inc. v. C. I. R., 298 F.2d 712 (6th Cir. 1962); Gracelawn Memorial Park, Inc. v. United States, 260 F.2d 328 (3d Cir. 1958); National Memorial Park v. C. I. R., 145 F.2d 1008 (4th Cir. 1944); American Cemetery Co. v. United States, 28 F.2d 918 (D.C.Kan.1928).
. See Mount Vernon Gardens, Inc. and Cedar Park, supra.
. Monte Vista Burial Park, Inc. v. United States, 340 F.2d 595 (6th Cir. 1965); Metairie Cemetery Ass’n v. United States, 282 F.2d 225 (5th Cir. 1960); C. I. R. v. Cedar Park Cemetery Ass’n, 183 F.2d 553 (7th Cir. 1950).
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "trade". What subcategory of business best describes this litigant?
A. auto, auto parts, auto repairs
B. chemical
C. drug
D. food
E. oil, natural gas, gasoline
F. textile, clothing
G. electronic
H. alcohol or tobacco
I. general merchandise
J. other
K. unclear
Answer:
|
sc_issue_1
|
05
|
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.
UNITED STATES v. ARVIZU
No. 00-1519.
Argued November 27, 2001
Decided January 15, 2002
Rehnquist, C. J., delivered the opinion for a unanimous Court. Scalia, J., filed a concurring opinion, post, p. 278.
Austin C. Schlick argued the cause for the United States. With him on the briefs were Solicitor General Olson, Assistant Attorney General Chertoff, Deputy Solicitor General Dreeben, and Deborah Watson.
Victoria A. Brambl argued the cause for respondent. With her on the brief was Fredric F. Kay.
Briefs of amici curiae urging affirmance were filed for the DKT Liberty Project by Julia M. Carpenter; and for the National Association of Criminal Defense Lawyers et al. by Lawrence S. Lustberg and Risa E. Kaufman.
Chief Justice Rehnquist
delivered the opinion of the Court.
Respondent Ralph Arvizu was stopped by a border patrol agent while driving on an unpaved road in a remote area of southeastern Arizona. A search of his vehicle turned up more than 100 pounds of marijuana. The District Court for the District of Arizona denied respondent’s motion to suppress, but the Court of Appeals for the Ninth Circuit reversed. In the course of its opinion, it categorized certain factors relied upon by the District Court as simply out of bounds in deciding whether there was “reasonable suspicion” for the stop. We hold that the Court of Appeals’ methodology was contrary to our prior decisions and that it reached the wrong result in this case.
On an afternoon in January 1998, Agent Clinton Stoddard was working at a border patrol checkpoint along U. S. Highway 191 approximately 30 miles north of Douglas, Arizona. App. 22, 24. See Appendix, infra (containing a map of the area noting the location of the checkpoint and other points important to this ease). Douglas has a population of about 13,000 and is situated on the United States-Mexico border in the southeastern part of the State. Only two highways lead north from Douglas. See App. 157. Highway 191 leads north to Interstate 10, which passes through Tucson and Phoenix. State Highway 80 heads northeast through less populated areas toward New Mexico, skirting south and east of the portion of the Coronado National Forest that lies approximately 20 miles northeast of Douglas.
The checkpoint is located at the intersection of 191 and Rucker Canyon Road, an unpaved east-west road that connects 191 and the Coronado National Forest. When the checkpoint is operational, border patrol agents stop the traffic on 191 as part of a coordinated effort to stem the flow of illegal immigration and smuggling across the international border. See id., at 20-21. Agents use roving patrols to apprehend smugglers trying to circumvent the checkpoint by taking the backroads, including those roads through the sparsely populated area between Douglas and the national forest. Id., at 21-22, 26, 80. Magnetic sensors, or “intrusion devices,” facilitate agents’ efforts in patrolling these areas. See id., at 25. Directionally sensitive, the sensors signal the passage of traffic that would be consistent with smuggling activities. Ibid.; Tr. of Oral Arg. 23-24.
Sensors are located along the only other northbound road from Douglas besides Highways 191 and 80: Leslie Canyon Road. Leslie Canyon Road runs roughly parallel to 191, about halfway between 191 and the border of the Coronado National Forest, and ends when it intersects Rucker Canyon Road. It is unpaved beyond the 10-mile stretch leading out of Douglas and is very rarely traveled except for use by local ranchers and forest service personnel. App. 26. Smugglers commonly try to avoid the 191 checkpoint by heading west on Rucker Canyon Road from Leslie Canyon Road and thence to Kuykendall Cutoff Road, a primitive dirt road that leads north approximately 12 miles east of 191. Id., at 29-30. From there, they can gain access to Tucson and Phoenix. Id., at 30.
Around 2:15 p.m., Stoddard received a report via Douglas radio that a Leslie Canyon Road sensor had been triggered. Id., at 24. This was significant to Stoddard for two reasons. First, it suggested to him that a vehicle might be trying to circumvent the checkpoint. Id., at 27. Second, the timing coincided with the point when agents begin heading back to the checkpoint for a shift change, which leaves the area unpatrolled. Id., at 26, 47. Stoddard knew that alien smugglers did extensive scouting and seemed to be most active when agents were en route back to the checkpoint. Another border patrol agent told Stoddard that the same sensor had gone off several weeks before and that he had apprehended a minivan using the same route and witnessed the occupants throwing bundles of marijuana out the door. Id., at 27.
Stoddard drove eastbound on Rucker Canyon Road to investigate. As he did so, he received another radio report of sensor activity. Id., at 29. It indicated that the vehicle that had triggered the first sensor was heading westbound on Rucker Canyon Road. He continued east, passing Kuy-kendall Cutoff Road. He saw the dust trail of an approaching vehicle about a half mile away. Id., at 31. Stoddard had not seen any other vehicles and, based on the timing, believed that this was the one that had tripped the sensors. Id., at 31-32. He pulled off to the side of the road at a slight slant so he could get a good look at the oncoming vehicle as it passed by. Id., at 32.
It was a minivan, a type of automobile that Stoddard knew smugglers used. Id., at 33. As it approached, it slowed dramatically, from about 50-55 to 25-30 miles per hour. Id., at 32, 57. He saw five occupants inside. An adult man was driving, an adult woman sat in the front passenger seat, and three children were in the back. Id., at 33-34. The driver appeared stiff and his posture very rigid. He did not look at Stoddard and seemed to be trying to pretend that Stod-dard was not there. Id., at 33. Stoddard thought this suspicious because in his experience on patrol most persons look over and see what is going on, and in that area most drivers give border patrol agents a friendly wave. Id., at 59. Stod-dard noticed that the knees of the two children sitting in the very back seat were unusually high, as if their feet were propped up on some cargo on the floor. Id., at 34.
At that point, Stoddard decided to get a closer look, so he began to follow the vehicle as it continued westbound on Rucker Canyon Road toward Kuykendall Cutoff Road. Id., at 34-35. Shortly thereafter, all of the children, though still facing forward, put their hands up at the same time and began to wave at Stoddard in an abnormal pattern. Id., at 35, 61. It looked to Stoddard as if the children were being instructed. Their odd waving continued on and off for about four to five minutes. Id., at 35, 73.
Several hundred feet before the Kuykendall Cutoff Road intersection, the driver signaled that he would turn. Id., at 36. At one point, the driver turned the signal off, but just as he approached the intersection he put it back on and abruptly turned north onto Kuykendall. The turn was significant to Stoddard because it was made at the last place that would have allowed the minivan to avoid the checkpoint. Id., at 37. Also, Kuykendall, though passable by a sedan or van, is rougher than either Rucker Canyon or Leslie Canyon Roads, and the normal traffic is four-wheel-drive vehicles. Id., at 36, 63-64. Stoddard did not recognize the minivan as part of the local traffic agents encounter on patrol, id., at 37, and he did not think it likely that the minivan was going to or coming from a picnic outing. He was not aware of any picnic grounds on Turkey Creek, which could be reached by following Kuykendall Cutoff all the way up. Id., at 54. He knew of picnic grounds and a Boy Scout camp east of the intersection of Rucker Canyon and Leslie Canyon Roads, id., at 31, 53, 54, but the minivan had turned west at that intersection. And he had never seen anyone picnicking or sightseeing near where the first sensor went off. Id., at 53, 75.
Stoddard radioed for a registration check and learned that the minivan was registered to an address in Douglas that was four blocks north of the border in an area notorious for alien and narcotics smuggling. Id., at 37-38, 66-67. After receiving the information, Stoddard decided to make a vehicle stop. Id., at 38. He approached the driver and learned that his name was Ralph Arvizu. Stoddard asked if respondent would mind if he looked inside and searched the vehicle. Id., at 43. Respondent agreed, and Stoddard discovered marijuana in a black duffel bag under the feet of the two children in the back seat. Id., at 45-46. Another bag containing marijuana was behind the rear seat. Id., at 46. In all, the van contained 128.85 pounds of marijuana, worth an estimated $99,080. Brief for United States 8.
Respondent was charged with possession with intent to distribute marijuana in violation of 21 U. S. C. § 841(a)(1) (1994 ed.). He moved to suppress the marijuana, arguing among other things that'Stoddard did not have reasonable suspicion to stop the vehicle as required by the Fourth Amendment. After holding a hearing where Stoddard and respondent testified, the District Court for the District of Arizona ruled otherwise. App. to Pet. for Cert. 21a. It pointed to a number of the facts described above and noted particularly that any recreational areas north of Rucker Canyon would have been accessible from Douglas via 191 and another paved road, making it unnecessary to take a 40-to-50-mile trip on dirt roads. Id., at 22a.
The Court of Appeals for the Ninth Circuit reversed. 232 F. 3d 1241 (2000). In its view, fact-specific weighing of circumstances or other multifactor tests introduced “a troubling degree of uncertainty and unpredictability” into the Fourth Amendment analysis. Id., at 1248 (internal quotation marks omitted). It therefore “attempted] ... to describe and clearly delimit the extent to which certain factors may be considered by law enforcement officers in making stops such as the stop involving]” respondent. Ibid. After characterizing the District Court’s analysis as relying on a list of 10 factors, the Court of Appeals proceeded to examine each in turn. It held that seven of the factors, including respondent’s slowing down, his failure to acknowledge Stoddard, the raised position of the children’s knees, and their odd waving carried little or no weight in the reasonable-suspicion calculus. The remaining factors — the road’s use by smugglers, the temporal proximity between respondent’s trip and the agents’ shift change, and the use of minivans by smugglers — were not enough to render the stop permissible. Id., at 1251. We granted certiorari to review the decision of. the Court of Appeals because of its importance to the enforcement of federal drug and immigration laws. 532 U. S. 1065 (2001).
The Fourth Amendment prohibits “unreasonable searches and seizures” by the Government, and its protections extend to brief investigatory .stops of persons or vehicles that fall short of traditional arrest. Terry v. Ohio, 392 U. S. 1, 9 (1968); United States v. Cortez, 449 U. S. 411, 417 (1981). Because the “balance between the public interest and the individual’s right to personal security,” United States v. Brignoni-Ponce, 422 U. S. 873, 878 (1975), tilts in favor of a standard less than probable cause in such cases, the Fourth Amendment is satisfied if the officer’s action is supported by reasonable suspicion to believe that criminal activity “ ‘may be afoot,’ ” United States v. Sokolow, 490 U. S. 1, 7 (1989) (quoting Terry, supra, at 30). See also Cortez, 449 U. S., at 417 (“An investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity”).
When discussing how reviewing courts should make reasonable-suspicion determinations, we have said repeatedly that they must look at the “totality of the circumstances” of each case to see whether the detaining officer has a “particularized and objective basis” for suspecting legal wrongdoing. See, e. g., id., at 417-418. This process allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that “might well elude an untrained person.” Id., at 418. See also Ornelas v. United States, 517 U. S. 690, 699 (1996) (reviewing court must give “due weight” to factual inferences drawn by resident judges and local law enforcement officers). Although an officer’s reliance on a mere “‘hunch’” is insufficient to justify a stop, Terry, supra, at 27, the likelihood of criminal activity need not rise to the level required for probable cause, and it falls considerably short of satisfying a preponderance of the evidence standard, Sokolow, supra, at 7.
Our cases have recognized that the concept of reasonable suspicion is somewhat abstract. Ornelas, supra, at 696 (principle of reasonable suspicion is not a “‘finely-tuned standard]’ ”); Cortez, supra, at 417 (the cause “sufficient to authorize police to stop a person” is an “elusive concept”). But we have deliberately avoided reducing it to “ ‘a neat set of legal rules,”’ Ornelas, supra, at 695-696 (quoting Illinois v. Gates, 462 U. S. 213, 232 (1983)). In Sokolow, for example, we rejected a holding by the Court of Appeals that distinguished between evidence of ongoing criminal behavior and probabilistic evidence because it “create[d] unnecessary difficulty in dealing with one of the relatively simple concepts embodied in the Fourth Amendment.” 490 U. S., at 7-8.
We think that the approach taken by the Court of Appeals here departs sharply from the teachings of these cases. The court’s evaluation and rejection of seven of the listed factors in isolation from each other does not take into account the “totality of the circumstances,” as our cases have understood that phrase. The court appeared to believe that each observation by Stoddard that was by itself readily susceptible to an innocent explanation was entitled to “no weight.” See 232 F. 3d, at 1249-1251. Terry, however, precludes this sort of divide-and-conquer analysis. The officer in Terry observed the petitioner and his companions repeatedly walk back and forth, look into a store window, and confer with one another. Although each of the series of acts was “perhaps innocent in itself,” we held that, taken together, they “warranted further investigation.” 392 U. S., at 22. See also Sokolow, supra, at 9 (holding that factors which by themselves were “quite consistent with innocent travel” collectively amounted to reasonable suspicion).
The Court of Appeals’ view that it was necessary to “clearly delimit” an officer’s consideration of certain factors to reduce “troubling . . . uncertainty,” 232 F. 3d, at 1248, also runs counter to our cases and underestimates the usefulness of the reasonable-suspicion standard in guiding officers in the field. In Ornelas v. United States, we held that the standard for appellate review of reasonable-suspicion determinations should be de novo, rather than for “abuse of discretion.” 517 U. S., at 691. There, we reasoned that de novo review would prevent the affirmance of opposite decisions on identical facts from different judicial districts in the same circuit, which would have been possible under the latter standard, and would allow appellate courts to clarify the legal principles. Id., at 697. Other benefits of the approach, we said, were its tendency to unify precedent and greater capacity to provide law enforcement officers with the tools to reach correct determinations beforehand: Even if in many instances the factual “mosaic” analyzed for a reasonable-suspicion determination would preclude one case from squarely controlling another, “two decisions when viewed together may usefully add to the body of law on the subject.” Id., at 697-698.
But the Court of Appeals’ approach would go considerably beyond the reasoning of Ornelas and seriously undercut the “totality of the circumstances” principle which governs the existence vel non of “reasonable suspicion.” Take, for example, the court’s positions that respondent’s deceleration could not be considered because “slowing down after spotting a law enforcement vehicle is an entirely normal response that is in no way indicative of criminal activity” and that his failure to acknowledge Stoddard’s presence provided no support because there were “no ‘special circumstances’ rendering ‘innocent avoidance . . . improbable.’” 232 F. 3d, at 1248-1249. We think it quite reasonable that a driver’s slowing down, stiffening of posture, and failure to acknowledge a sighted law enforcement officer might well be unremarkable in one instance (such as a busy San Francisco highway) while quite unusual in another (such as a remote portion of rural southeastern Arizona). Stoddard was entitled to make an assessment of the situation in light of his specialized training and familiarity with the customs of the area’s inhabitants. See Ornelas, supra, at 699. To the extent that a totality of the circumstances approach may render appellate review less circumscribed by precedent than otherwise, it is the nature of the totality rule..
In another instance, the Court of Appeals chose to dismiss entirely the children’s waving on grounds that odd conduct by children was all too common to be probative in a particular case. See 232 F. 3d, at 1249 (“If every odd act engaged in by one’s children . . . could contribute to a finding of reasonable suspicion, the vast majority of American parents might be stopped regularly within a block of their homes”). Yet this case did not involve simply any odd act by children. At the suppression hearing, Stoddard testified about the children’s waving several times, and the record suggests that he physically demonstrated it as well. The District Court Judge, who saw and heard Stoddard, then characterized the waving as “methodical,” “mechanical,” “abnormal,” and “certainly ... a fact that is odd and would lead a reasonable officer to wonder why they are doing this.” App. to Pet. for Cert. 25a. Though the issue of this case does not turn on the children’s idiosyncratic actions, the Court of Appeals should not have casually rejected this factor in light of the District Court’s superior access to the evidence and the well-recognized inability of reviewing courts to reconstruct what happened in the courtroom.
Having considered the totality of the circumstances and given due weight to the factual inferences drawn by the law enforcement officer and District Court Judge, we hold that Stoddard had reasonable suspicion to believe that respondent was engaged in illegal activity. It was reasonable for Stoddard to infer from his observations, his registration check, and his experience as a border patrol agent that respondent had set out from Douglas along a little-traveled route used by smugglers to avoid the 191 checkpoint. Stod-dard’s knowledge further supported a commonsense inference that respondent intended to pass through the area at a time when officers would be leaving their backroads patrols to change shifts. The likelihood that respondent and his family were on a picnic outing was diminished by the fact that the minivan had turned away from the known recreational areas accessible to the east on Rucker Canyon Road. Corroborating this inference was the fact that recreational areas farther to the north would have been easier to reach by taking 191, as opposed to the 40-to-50-mile trip on unpaved and primitive roads. The children’s elevated knees suggested the existence of concealed cargo in the passenger compartment. Finally, for the reasons we have given, Stod-dard’s assessment of respondent’s reactions upon seeing him and the children’s mechanical-like waving, which continued for a full four to five minutes, were entitled to some weight.
Respondent argues that we must rule in his favor because the facts suggested a family in a minivan on a holiday outing. A determination that reasonable suspicion exists, however, need not rule out the possibility of innocent conduct. See Illinois v. Wardlow, 528 U. S. 119, 125 (2000) (that flight from police is not necessarily indicative of ongoing criminal activity does not establish Fourth Amendment violation). Undoubtedly, each of these factors alone is susceptible of innocent explanation, and some factors are more probative than others. Taken together, we believe they sufficed to form a particularized and objective basis for Stoddard’s stopping the vehicle, making the stop reasonable within the meaning of the Fourth Amendment.
The judgment of the Court of Appeals is therefore reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
[Appendix to opinion of the Court follows this page.]
Coronado National Forest consists of 12 widely scattered sections of land covering 1,780,000 acres in southeastern Arizona and southwestern New Mexico. The section of the forest near Douglas includes the Chiriea-hua, Dragoon, and Peloncillo Mountain Ranges.
At one point during the hearing, Stoddard testified that “[the children's waving] wasn’t in a normal pattern. It looked like they were instructed to do so. They kind of stuck their hands up and began waving to me like this.” App. 35.
Question: What is the issue of the decision?
01. involuntary confession
02. habeas corpus
03. plea bargaining: the constitutionality of and/or the circumstances of its exercise
04. retroactivity (of newly announced or newly enacted constitutional or statutory rights)
05. search and seizure (other than as pertains to vehicles or Crime Control Act)
06. search and seizure, vehicles
07. search and seizure, Crime Control Act
08. contempt of court or congress
09. self-incrimination (other than as pertains to Miranda or immunity from prosecution)
10. Miranda warnings
11. self-incrimination, immunity from prosecution
12. right to counsel (cf. indigents appointment of counsel or inadequate representation)
13. cruel and unusual punishment, death penalty (cf. extra legal jury influence, death penalty)
14. cruel and unusual punishment, non-death penalty (cf. liability, civil rights acts)
15. line-up
16. discovery and inspection (in the context of criminal litigation only, otherwise Freedom of Information Act and related federal or state statutes or regulations)
17. double jeopardy
18. ex post facto (state)
19. extra-legal jury influences: miscellaneous
20. extra-legal jury influences: prejudicial statements or evidence
21. extra-legal jury influences: contact with jurors outside courtroom
22. extra-legal jury influences: jury instructions (not necessarily in criminal cases)
23. extra-legal jury influences: voir dire (not necessarily a criminal case)
24. extra-legal jury influences: prison garb or appearance
25. extra-legal jury influences: jurors and death penalty (cf. cruel and unusual punishment)
26. extra-legal jury influences: pretrial publicity
27. confrontation (right to confront accuser, call and cross-examine witnesses)
28. subconstitutional fair procedure: confession of error
29. subconstitutional fair procedure: conspiracy (cf. Federal Rules of Criminal Procedure: conspiracy)
30. subconstitutional fair procedure: entrapment
31. subconstitutional fair procedure: exhaustion of remedies
32. subconstitutional fair procedure: fugitive from justice
33. subconstitutional fair procedure: presentation, admissibility, or sufficiency of evidence (not necessarily a criminal case)
34. subconstitutional fair procedure: stay of execution
35. subconstitutional fair procedure: timeliness
36. subconstitutional fair procedure: miscellaneous
37. Federal Rules of Criminal Procedure
38. statutory construction of criminal laws: assault
39. statutory construction of criminal laws: bank robbery
40. statutory construction of criminal laws: conspiracy (cf. subconstitutional fair procedure: conspiracy)
41. statutory construction of criminal laws: escape from custody
42. statutory construction of criminal laws: false statements (cf. statutory construction of criminal laws: perjury)
43. statutory construction of criminal laws: financial (other than in fraud or internal revenue)
44. statutory construction of criminal laws: firearms
45. statutory construction of criminal laws: fraud
46. statutory construction of criminal laws: gambling
47. statutory construction of criminal laws: Hobbs Act; i.e., 18 USC 1951
48. statutory construction of criminal laws: immigration (cf. immigration and naturalization)
49. statutory construction of criminal laws: internal revenue (cf. Federal Taxation)
50. statutory construction of criminal laws: Mann Act and related statutes
51. statutory construction of criminal laws: narcotics includes regulation and prohibition of alcohol
52. statutory construction of criminal laws: obstruction of justice
53. statutory construction of criminal laws: perjury (other than as pertains to statutory construction of criminal laws: false statements)
54. statutory construction of criminal laws: Travel Act, 18 USC 1952
55. statutory construction of criminal laws: war crimes
56. statutory construction of criminal laws: sentencing guidelines
57. statutory construction of criminal laws: miscellaneous
58. jury trial (right to, as distinct from extra-legal jury influences)
59. speedy trial
60. miscellaneous criminal procedure (cf. due process, prisoners' rights, comity: criminal procedure)
Answer:
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songer_genresp1
|
G
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed respondent.
Virginia CAIN, Plaintiff-Appellee, v. Robert McQUEEN et al., Defendants-Appellants. Virginia CAIN, Plaintiff-Appellee-Cross-Appellant, v. Robert McQUEEN et al., Defendants-Appellants-Cross-Appellees. Virginia CAIN, Plaintiff-Appellee, v. Robert McQUEEN et al., Defendants-Appellants.
Nos. 76-1222, 76-1387 and 76-1439.
United States Court of Appeals, Ninth Circuit.
Aug. 24, 1978.
Eugene J. Wait, Jr. (argued) of Wait, Shamberger, Georgeson & McQuaid, Reno, Nev., for Robert McQueen et al.
Jerry D. Anker (argued), Washington, D. C., for Virginia Cain.
Before TRASK and ANDERSON, Circuit Judges, and GRANT, District Judge.
Honorable Robert A. Grant, Senior United States District Judge, for the Northern District of Indiana, sitting by designation.
TRASK, Circuit Judge:
This appeal is taken by both plaintiff and defendants from an order of the district court denying defendants’ motion to dismiss and granting limited summary judgment to plaintiff. Plaintiff’s subsequent motion to amend the limited summary judgment pursuant to Rule 59(e) of the Federal Rules of Civil Procedure was denied.
Jurisdiction in the district court was based upon 42 U.S.C. § 1983, 28 U.S.C. § 1331 and 28 U.S.C. § 1343(3), (4). Appellant in her amended complaint also alleged that the defendant-trustees violated her rights under the First and Fourteenth Amendments to the Constitution of the United States and under Nev.Rev.Stat. § 391.3197 as it existed in March 1973.
The district court certified under Fed.R. Civ.P. Rule 54(b) that there was no just reason for delay for an appeal of the ruling on the motion for summary judgment and expressly directed the entry of the limited summary judgment.
Plaintiff was employed in November 1972 as a substitute teacher for the Washoe County School District in Reno, Nevada. In January 1973, she was given a full-time teaching position which was created by another teacher who had resigned. At that time she was given a standard employment contract, the same as that of any other teacher in the school district, except that it contained the following notation: “Contract starts January 16, 1973 and is for the remainder of the school year only.”
Defendants contend that this notation placed plaintiff in a different status than other teachers, and made her merely a “short-term” employee. The fact is, however, that all teachers’ contracts expire at the end of the school year. All such contracts, including plaintiff’s, are expressly made subject “to the laws of the state of Nevada regarding public schools” whose laws give teachers certain rights to continued employment.
Nevada law (Nev.Rev.Stat. § 391.3197) provides that new teachers are put on probation annually for three years, provided their services are satisfactory, or they may be dismissed at any time at the discretion of the board.
The practice of the school district had been generally to provide a teacher with notice and a hearing before the nonrenewal of his or her contract. However, the district had recently adopted the practice of denominating certain teachers’ contracts as “short-term” or “one year only,” and consequently, claimed that Nev.Rev.Stat. § 391.-3197 did not apply to such employees. Defendants maintain that plaintiff was one of these “short-term” teachers and therefore was not entitled to the protection of the statute.
On March 19, 1973, plaintiff was notified by letter signed by the administrative assistant in charge of personnel that her contract would not be renewed. No reasons were given for the nonrenewal. Plaintiff then wrote a letter to the President of the Board of Trustees, defendant Pine, requesting a hearing before the board. Her request was denied.
While the plaintiff’s request was pending before the board, some students and teachers wrote letters to the board requesting that plaintiff be retained. Defendant McQueen, a member of the board, indicated that he considered such action an organized “letter writing campaign rather than an out-pouring of spontaneous support,” and it caused him to become “disenchanted” with plaintiff. He also indicated that he was “turned off” by her own request for a hearing. He expressed these views at a board meeting where plaintiff was discussed and informed the principal of Reno High School, where plaintiff was employed, that he would not be enthused about hiring her on a full-time basis.
In spite of this, the principal recommended plaintiff to fill a position to be left by a retiring teacher. At a board meeting held in August 1973, however, plaintiff’s employment was discussed and the board determined not to employ her. At that time, defendants Pine and McQueen apparently expressed the view that plaintiffs husband made too much money and, since he was the dean of the college of education at the University of Nevada, Reno, it would be wrong to hire his wife while there were so many graduates of that college who would not get jobs. An informal vote was taken, and only two members favored hiring plaintiff.
McQueen telephoned the principal of Reno High School reminding him of his opposition to the hiring of plaintiff. In addition, Superintendent Picollo met with the principal and encouraged him to fill any vacancies with teachers who had “one year only” contracts or who requested transfer from other schools. When vacancies finally did become available, plaintiff was not recommended.
Defendants have never alleged that those selected were more qualified than plaintiff. On the contrary, Superintendent Picollo informed plaintiff that she “had received excellent recommendations” and that her “capability as a teacher had never been questioned.” Both the head of the English department and the principal praised her teaching ability.
Plaintiff brought this action against the trustees in their official capacity and two of the trustees, Pine and McQueen, as individuals, claiming she was deprived of her job in violation of procedural due process and her substantive constitutional rights under the First and Fourteenth Amendments.
Defendants’ motion to dismiss was based on their claim that plaintiff was a substitute teacher and therefore according to the express provisions of Nev.Rev.Stat. § 391.-3115, she was not entitled to the non-employment provisions of Nev.Rev.Stat. § 391.3197. In addition, they claimed the action should have been dismissed because plaintiff’s complaint alleges that no more than two of the seven board members were motivated by constitutionally impermissible reasons.
The district court denied defendants’ motion to dismiss and granted limited summary judgment for the plaintiff. The court held that Nev.Rev.Stat. § 391.3197 applied to plaintiff and that this statute gave her a “property” interest within the meaning of the Fourteenth Amendment and that she was entitled to a hearing as a matter of due process and under Nevada law. A hearing was consequently ordered. Plaintiff thereupon filed a motion to amend the judgment urging that her termination should be considered null and void and that she should be granted reinstatement and back pay. Plaintiff’s motion was denied.
I
For the procedural rights of plaintiff under the due process clause of the Fourteenth Amendment to have been violated, she must have possessed a property interest as contemplated by the Fourteenth Amendment. Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). A teacher has a property interest in his or her job not only when he or she has formal tenure under an express provision of a statute or contract, but also when applicable rules or practices establish a “clearly implied promise of continued employment.” Board of Regents v. Roth, id. at 576-77, 92 S.Ct. at 2709.
Plaintiff claims that such a property interest was created by Nev.Rev.Stat. § 391.-3197. Under that statute a “probationary” teacher, although lacking formal tenure, is entitled to be reappointed from year to year unless specific “reasons” are found for non-renewal. The court below accordingly held that Nev.Rev.Stat. § 391.3197, as it existed in 1973, “gave to probationary teachers a form of limited tenure and a right to know and reply to the reasons for termination.”
Defendants contend that plaintiff was not a probationary teacher and therefore not entitled to the benefits and protections of Nev.Rev.Stat. § 391.3197. Rather, it is their position that she was a substitute teacher. They base this on the fact that the statute states that teachers are on “probation annually.” (Emphasis added.) From this, they conclude that a teacher becomes a probationary employee when granted an annual contract, rather than one for only a portion of a year as the plaintiff had in this case.
We find no merit in defendants’ contention. It cannot be said that merely because plaintiff was hired after the school year started that she did not have an annual contract.
We agree with the district court which held that defendants’ contention that plaintiff was a substitute teacher is erroneous as a matter of law. The court found:
“The undisputed facts show unequivocally that plaintiff was not a substitute teacher. She was a substitute teacher in the Washoe County School District from November 10,1972, until sometime in December or January, 1972 [sic], hired on a day-to-day basis as needed. On January, 29, 1973, plaintiff entered into a contract with the Washoe County School District to serve as a teacher from January 16, 1973, ‘for the remainder of the 1972 — 1973 school year only.’ The contract is in the standard form then in use for teachers and expressly provides: ‘The initial three years of service for the certificated employee shall constitute a probationary period during which time the employee may be dismissed at the discretion of the Board of Trustees pursuant to NRS 391.-3197.’ Plaintiff thus became a probationary employee of the School District subject to all the rights of every probationary employee. The fact that she was hired to perform the services of another certificated teacher who had resigned does not place her in the category of substitute teacher.” C.T. 268-69.
Irrespective of the procedural safeguards afforded by the Fourteenth Amendment due process, plaintiff was at least entitled to those procedural protections mentioned in Nev.Rev.Stat. § 391.3197. The statute provides for an advance notice of “the reasons for the recommendation to dismiss or not to renew the contract” and an “opportunity to reply.” The district court determined that the phrase “opportunity to reply” must be construed as contemplating a hearing since a “statement of reasons for termination and an opportunity to reply are meaningless unless there is some sort of hearing to resolve any issues which may be presented.”
Nev.Rev.Stat. § 391.3197 was amended on July 1, 1973, to provide that “prior to dismissal or nonrenewal, the teacher may obtain a due process hearing . . . .” With regard to this amendment, which occurred after plaintiff’s contract had not been renewed, the district court stated:
“As we interpret the law, the amendments made by the 1973 legislature with respect to NRS § 391.3197 were clarifying in character and did not materially change the rights of a probationary teacher.” R.T. at 252.
In McGee v. Humbolt County School Dist., 561 P.2d 458 (Nev.1977), the Supreme Court of Nevada determined that a probationary teacher “received all the process due” her when she “received notification of the reasons respondent [school district] was not rehiring her and was given an opportunity to reply at a public hearing." Id. at 459 (Emphasis added).
II
Plaintiff contends that in addition to a hearing, she is entitled to reinstatement and back pay. This contention presents a difficult issue in which “a careful weighing of all facts and circumstances” must take place. Burton v. Cascade School Dist. Union High School No. 5, 512 F.2d 850, 853 (9th Cir. 1975). There must be a balancing of plaintiff’s interests in her wrongfully terminated teaching position against the possible disruption which her reinstatement may cause the school district. Id. at 852-53.
The Burton case points out that reinstatement and back pay are appropriately granted in situations involving racial discrimination and the legal exercise of free expression in a manner critical of the employer. It is also an appropriate form of relief when used to discourage school systems from taking similar action against other teachers in the future. Burton v. Cascade School Dist. Union High School No. 5, supra at 853-54. In this case, plaintiff claims that her termination was partially the result of her request for a hearing. If so, this situation is strikingly similar to the situation where the employee is terminated because of the legal exercise of free expression in a manner critical of the employer.
Plaintiff argues that a court-ordered hearing held years after her employment was terminated does not “make good the wrong done.” Bell v. Hood, 327 U.S. 678, 684, 66 S.Ct. 773, 90 L.Ed. 939 (1946). This argument is especially valid in light of Nev. Rev.Stat. § 391.3197 which expressly requires that the notice of reasons and opportunity to reply be provided “prior to formal action by the board.” This court has affirmed an order of a district court mandating officials to reinstate a college English instructor because his termination was in violation of his procedural due process rights under the Fourteenth Amendment. Stewart v. Pearce, 484 F.2d 1031 (9th Cir. 1973).
The Third Circuit has noted that a post-termination hearing is not an adequate substitute for a pre-termination hearing:
“But there is substantial difference in the position of the parties once termination has actually occurred. First, the employee, cut-off from the payroll, is greatly disadvantaged in his ability to pursue the hearing remedy. He may be forced by the necessity for survival to seek other employment which will foreclose the pursuit of reinstatement. Second, the institution will have made substitute teaching arrangements, thus introducing into the hearing consideration of the interests of other faculty members. This inevitability will increase whatever tendency may already exist for the hearing officials to defer to the administration’s decision. We agree with the district court, therefore, that a hearing after the fact is not the due process equivalent of the pre-termination hearing required by Perry v. Sinderman [408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570], supra. See [Skehan v. Board of Trustees of Bloomsburg State College] 3 Cir., 358 F.Supp. [430] at 434-35.” Skehan v. Board of Trustees of Bloomsburg State College, 501 F.2d 31, 38 (3d Cir. 1974), vacated on other grounds, 421 U.S. 983, 95 S.Ct. 1986, 44 L.Ed.2d 474 (1975).
An important consideration is the time lag between the wrongful termination and the hearing. In the Skehan case, supra, the Third Circuit noted that there is probably a greater likelihood that the original termination decision will be upheld if the hearing is held long after the event than if a hearing is held before the termination becomes effective. The Eighth Circuit recently held that a post-termination hearing held two years after the termination did not satisfy the requirements of due process. Brown v. Bathke, 566 F.2d 588 (8th Cir. 1977). In that case, plaintiff, a former high school teacher, was terminated without a hearing when defendants discovered that she, a single woman, had become pregnant. In the court-ordered hearing held more than two years after she was terminated, defendants voted to confirm their earlier action.
Not all cases that have found violations of procedural due process and where hearings have been ordered have granted reinstatement and back pay, however. E. g., Burton v. Cascade School Dist. Union High School No. 5, 512 F.2d 850 (9th Cir. 1975); Greene v. Howard University, 134 U.S.App.D.C. 81, 412 F.2d 1128 (1969). The disadvantage to the school district should be carefully considered.
The district court’s order was as follows:
“1. Defendants’ motion to dismiss is denied.
“2. A summary judgment will be entered in favor of plaintiff and against defendants requiring that defendants shall, within a reasonable time, accord to plaintiff the due process hearing contemplated by the foregoing opinion. The Court reserves jurisdiction to make such further orders in the premises as may be required to accord to plaintiff the full benefit of the rights to which she is entitled and will entertain supplemental pleadings if they should become necessary. It is the view of the Court that plaintiff’s rights and remedies are primarily to be worked out by plaintiff and the Board of Trustees of the Washoe County School District except to the extent that the Court has been required to interject itself into the situation in order to recognize and enforce plaintiff’s rights to due process of law.
“Dated: December 31, 1975.” C.T. at 276.
We affirm that judgment.
As will be noted, the district court has reserved jurisdiction except insofar as the right of the plaintiff to a due process hearing. We note that this, although not mentioned explicitly, necessarily includes reinstatement and back pay. Because these claims have not been ruled upon, we defer our consideration thereof until the district court has ruled and that ruling, whatever it is, is properly before us.
Judgment accordingly.
. The statute at the time the plaintiff received notice of the termination of her probationary contract, Nev.Rev.Stat. § 391.3197 provided:
“1. Teachers employed by a board of trustees shall be on probation annually for 3 years, provided their services are satisfactory, or they may be dismissed at any time at the discretion of the board of trustees. A teacher employed on a probationary contract for the first three years of his employment shall not be entitled to be under the provisions of NRS 391.311 to 391.3196, inclusive.
“However, prior to formal action by the board, the probationary teacher shall be given the reasons for the recommendation to dismiss or not to renew the contract and be given the opportunity to reply.”
The 1973 Legislature amended section 391.-3197 to provide as follows:
“391.3197 Probationary employees; Length of Probation; dismissal, refusal to reemploy; due process hearing.
“1. Teachers employed by a board of trustees shall be on probation annually for the first 3 consecutive years of employment unless on an approved leave of absence, provided their services are satisfactory, or they may be dismissed at any time at the discretion of the board.
“2. Any certificated employee who has achieved postprobationary status in a Nevada school district and is contracted in a second subsequent school district shall have a probationary period not to exceed 2 consecutive years of employment in that district.
“3. Prior to dismissal or nonrenewal, the teacher may obtain a due process hearing before the board or, at the discretion of the board, a hearing before a hearing officer or hearing commission as set out in NRS 391.-311 to 391.3196, inclusive. The appeal provisions of chapter 233B of NRS do not apply for a probationary teacher.
“The amended section became effective on July 1, 1973.
“Section 391.3197 was expressly made a part of plaintiffs contract with the Washoe County School District.” C.T. at 249
. Plaintiffs employment contract contained a specific reference to this statute.
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_treat
|
D
|
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.
JESSEN v. UNITED STATES.
No. 4775.
United States Court of Appeals Tenth Circuit.
May 7, 1954.
Hayden C. Covington, Brooklyn, N. Y. (Robert L. MeDougal and Rollie R. Rogers, Denver, Colo., were with him on the briefs), for appellant.
Robert D. Inman, Asst. U. S. Atty., Boulder, Colo. (Donald E. Kelley, U. S. Atty., Denver, Colo., was with him on the brief), for appellee.
Before PHILLIPS, Chief Judge, and BRATTON and MURRAH, Circuit Judges.
PHILLIPS, Chief Judge.
Jessen was charged by information with the violation of 50 U.S.C.A.Appendix, § 462(a) in that he refused to submit himself to induction into the armed forces of the United States. He was convicted and sentenced and has appealed.
Jessen was born on June 26, 1929. He registered with Local Board No. 1, Denver, Colorado. He returned his questionnaire, in which he stated that he had attended elementary school, junior high school, and had graduated from high school and that he was then a full time student at the University of Natural Healing Arts in Denver, Colorado. He signed Series XIV of the questionnaire, certifying that by reason of religious training and belief he was conscientiously opposed to participation in war in any form. The Local Board mailed him Conscientious Objector Form No. 33R-115. He signed Series 1(B) of the form, in which he certified that by reason of his religious training and belief he was conscientiously opposed to participation in war in any form and was conscientiously opposed to participation in noncombatant training or service in the armed forces. In such form he stated that he believed in a Supreme Being; that his obligations to God were superior to any obligation arising from any human relation; that Jehovah is the Supreme Being; that when there is a conflict between the law of a nation and the law of God, the latter is supreme and a Christian must obey it; and that the commandment “Thou shalt not kill” required him to remain strictly neutral in worldly altercations. Jessen further stated in such form that he obtained his religious training and beliefs from his parents, who had brought him up as a Jehovah’s Witness; that he had studied the Bible and Watchtower Bible and Tract Society publications; that he believed in the use of force only for the purpose of self-defense; that his parents were Jehovah’s Witnesses; and that he had been a member of that sect since childhood. He gave the name and address of his church, the name of his minister, the name and address of the person on whom he most relied for religious guidance, and a number of persons as references. He also made a lengthy statement with respect to the attitude of Jehovah’s Witnesses toward participation in war. He indicated his belief that the theocratic wars described in the Old Testament were justified because they were entered into at the command of God; and stated that Jehovah’s Witnesses were not pacifists and that they believed in participation in war at the command of Jehovah, but were opposed to all other wars. He also referred to the war prophesied in Revelations, Ch. 19, commonly known as Armageddon, and indicated that it would be a war commanded by God.
The Local Board classified him as 1-A and notified him of such classification on February 28, 1949. On December 30, 1949, he was placed by the Local Board in Class I-A-O. He was ordered to report for a pre-induction physical examination and was notified of his physical acceptability.
On January 23, 1951, the Local Board ordered him to report for induction on February 5, 1951. On February 5, 1951. the State Director wrote a letter to the Local Board suggesting that the induction be postponed. The Local Board postponed the induction on February 5, 1951, and on that date notified Jessen of such postponement. On March 9, 1951, Jessen filed four affidavits from residents of Denver, which averred facts supporting Jessen’s claim as a conscientious objector. Induction was again postponed to June 15, 1951.
On September 14, 1951, the State Director ordered the Local Board to reopen Jessen’s classification and to cancel an outstanding induction order.
On October 25, 1951, the Local Board reclassified Jessen as Class 1-A-O. On October 26, 1951, the Local Board ordered Jessen to report immediately for induction. On October 31, 1951, Jessen wrote a letter to the Local Board, the material portions of which read as follows:
“I have recently received a reclassification of l-A-0 which I wish to appeal. * * *
“Should there be any questions regarding my work or objections, I would appreciate a personal interview to clarify the situation.”
The Local Board did not grant a personal appearance and sent the file to the Appeal Board and ordered Jessen to take a pre-induction physical examination. On November 9,1951, Jessen was notified of his physical acceptability.
On December 6, 1951, the Appeal Board made a preliminary determination that Jessen should not be classified either as l-A-0 or 1-0.
In accordance with the regulations, the matter was then referred to the Department of Justice for appropriate inquiry and hearing on his claim as a conscientious objector and the file was sent to the Department of Justice. An investigation was made by the Federal Bureau of Investigation and its report, together with the file, was referred to the Hearing Officer of the Department of Justice. On December 18, 1952, Jessen was notified to appear before the Hearing Officer. Jessen appeared. The Hearing Officer made a report in which he reviewed the history of the case with the Local Board and stated:
“After reading the file carefully, and having talked to registrant and considered the additional evidence offered by the registrant, it is my conclusion that the registrant is sincere, and that he is now and has for many years past been a conscientious objector. After considering all of the facts, it is my conclusion that the registrant should be classified 1-0. * * *
“I think it would have been more difficult for the court to find the act of the Board was without any basis in fact if the Board has classified this man as 1-A rather than 1-A-O. They accepted the defendant’s professions of sincere and conscientious objections on the religious grounds as being truthful, but they attempted, and in my opinion without any basis in fact, to assert that while he was sincere and conscientious, that sincerity and conscientiousness extended only to his active aggressive participation in military service and that he was not sincere in his statements that he was opposed to war and participation in war in all its forms.”
The Department of Justice, acting through an Assistant Attorney General, T. Oscar Smith, wrote a letter to the State Board, recommending that the claim of Jessen for classification as a conscientious objector be denied. The Assistant Attorney General stated that Jessen believed in the use of force for the protection of other Jehovah’s Witnesses, justified some of the wars of the Old Testament, and stated that he believed in participation in war at the command of Jehovah. The Assistant Attorney General further stated that Jes-sen was a Jehovah’s Witness and was a sincere believer in its tenets, but that the teachings of the sect and the beliefs expressed by the registrant did not include opposition to participation in war in any form.
The Appeal Board, on March 5, 1953, classified Jessen in Class 1-A. It returned the file to the Local Board on March 10, 1953. The Local Board notified Jessen of the 1-A classification by the Appeal Board. Following a physical examination and a notification of acceptability, the Local Board mailed a notice to Jessen to report for induction on May 25, 1953. Jessen reported, but refused to submit to induction.
To be entitled to classification in 1-0 under § 6(j) of the Universal Military Training and Service Act, 62 Stat. 604, 612, 50 U.S.C.A.Appendix, § 456(j), the registrant must, “by reason of religious training and belief,” be conscientiously “opposed to participation in war in any form.”
We disagree with the construction placed on the last quoted phrase by the Assistant Attorney General.
A registrant’s belief in the use of force in self-defense is not inconsistent with a conscientious opposition to participation in war in any form.
We are of the opinion that Congress, in using the phrase “war in any form”, did not intend to embrace therein theocratic wars. Rather, we think, Congress had in mind secular wars between nations, made and directed by man. This conclusion is supported by the adjudicated cases.
The remaining question is whether there was any basis in fact for the classification made by the State Appeal Board.
In Dickinson v. United States, 346 U. S. 389, 396, 397, 74 S.Ct. 152, 157, the court said:
“The court below in affirming the conviction apparently thought the local board was free to disbelieve Dickinson’s testimonial and documentary evidence even in the absence of any impeaching or contradictory evidence. * * * However, Dickinson’s claims were not disputed by any evidence presented to the selective service authorities, nor was any cited by the Court of Appeals. The task of the courts in cases such as this is to search the record for some affirmative evidence to support the local board’s overt or implicit finding that a registrant has not painted a complete or accurate picture of his activities. We have found none here.
“Local boards are not courts of law and are not bound by traditional rules of evidence; they are given great leeway in hearing and considering a variety of material as evidence. If the facts are disputed the board bears the ultimate responsibility for resolving the conflict — the courts will not interfere. Nor will the courts apply a test of ‘substantial evidence.’ However, the courts may properly insist that there be some proof that is incompatible with the registrant’s proof of exemption. The local board may question a registrant under oath, subpoena witnesses to testify, and require both registrant and witnesses to produce documents. 32 C.F.R. § 1621.15. The board is authorized to obtain information from local, state, and national welfáre and governmental agencies. 32 C.F.R. § 1621.14. The registrant’s admissions, testimony of other witnesses, frequently unsolicited evidence from a registrant’s neighbors, or information obtained from other agencies may produce dissidence which the boards are free to resolve. Absent such admissions or other evidence, the local boards' may call on the investigative agencies of the federal government, as they would if a registrant were suspected of perjury. But when the uncontroverted evidence supporting a registrant’s claim places him prima facie within the statutory exemption, dismissal of the claim solely on the basis of suspicion and' speculation is both contrary to the spirit of the Act and foreign to our concepts of justice.”
Here, the uncontroverted evidence supported the registrant’s claim that he was opposed to participation in war in any form. There was a complete' absence of any impeaching or contradictory evidence. It follows that the' classification made by the State Appeal Board was a nullity and that Jessen violated no law in refusing to submit to induction.
Reversed and remanded, with instructions to dismiss the information.
. Annett v. United States, 10 Cir., 205 F.2d 689, 691; United States v. Pekarski, 2 Cir., 207 F.2d 930, 931; Taffs v. United States, 8 Cir., 208 F.2d 329, 331, certiorari denied 347 U.S. 928, 74 S.Ct. 532; United States v. Hartman, 2 Cir., 209 F.2d 366, 370.
. Taffs v. United States, 8 Cir., 208 F.2d 329, 331, certiorari denied 347 U.S. 928, 74 S.Ct. 532; United States v. Hartman, 2 Cir., 209 F.2d 366, 370.
. Estep v. United States, 327 U.S. 114, 122, 66 S.Ct. 423, 90 L.Ed. 567.
. United States v. Hartman, 2 Cir., 209 F.2d 366, 370; Taffs v. United States, 8 Cir., 208 F.2d 329, 331, certiorari denied 347 U.S. 928, 74 S.Ct. 532; Weaver v. United States, 8 Cir., 210 F.2d 815, 822; Pine v. United States, 4 Cir., 212 F.2d 93; Annett v. United States, 10 Cir., 205 F.2d 689, 690, 691.
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_appbus
|
3
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of 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.
McMAHAN & COMPANY, Froley, Revy Investment Co., Inc. and Wechsler & Krumholz, Inc., Plaintiffs-Appellants, v. WHEREHOUSE ENTERTAINMENT, INC., Louis A. Kwiker, George A. Smith, Michael T. O’Kane, Lawrence K. Harris, Donald E. Martin, Joel D. Tauber, Furman Selz Mager Dietz & Birney, Inc., Wei Acquisition Corp., Wei Holdings, Inc., Adler & Shaykin, and Chemical Bank, Defendants-Appellees.
No. 399, Docket 89-7664.
United States Court of Appeals, Second Circuit.
Argued Dec. 19, 1989.
Decided April 10, 1990.
Philip K. Howard, New York City (Howard, Darby & Levin, Warren G. Caywood, Jr., Bonnie Blacklock, of counsel), for appellant McMahan.
Dennis J. Block, New York City (Weil, Gotshal & Manges, H. Adam Prussin, Richard B. Friedman, Miranda S. Schiller, of counsel), for appellee Wherehouse.
Before OAKES, PRATT, Circuit Judges, and SAND, District Judge for the S.D.N.Y., sitting by designation.
GEORGE C. PRATT, Circuit Judge:
Plaintiffs appeal from a judgment of the United States District Court for the Southern District of New York, Mary Johnson Lowe, Judge, dismissing their complaint that defendants made material misrepresentations and omissions in a debenture offering in violation of § 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j; § 11 of the Securities Act of 1933, 15 U.S.C. § 77k; and § 12(2) of the Securities Act of 1933, 15 U.S.C. § 111. Finding that the complaint “fail[ed] to allege any omission or misstatement of fact — material or otherwise — within the meaning of the securities laws”, the district court granted summary judgment to defendants. The court also dismissed plaintiffs’ state-law claims for lack of pendent jurisdiction. Since we conclude that plaintiffs presented sufficient evidence to create a genuine issue as to whether the offering was materially misleading, we reverse the summary judgment and remand the case for further proceedings.
BACKGROUND
Defendant Wherehouse Entertainment, Inc. offered 61/)% convertible subordinated debentures whose key selling feature was a right of holders to tender the debentures to Wherehouse in the case of certain triggering events which might endanger the value of the debentures. The tender right was to arise if:
(a) A person or group * * * shall attain the beneficial ownership * * * of an equity interest representing at least 80% of the voting power * * * unless such attainment has been approved by a majority of the Independent Directors;
(b) The Company * * * consolidates or merges * * * unless approved by a majority of the Independent Directors;
(c) The Company * * * incurs * * * any Debt * * * excluding * * * Debt which is authorized or ratified by a majority of the Independent Directors, immediately after the incurrence of which the ratio of the Company’s Consolidated Total Debt to its Consolidated Capitalization exceeds .65 to 1.0.
Indenture § 5.02, 11-12 (June 15, 1986); see also Prospectus Summary, “Optional Tender”, 3 (July 10, 1986); id. Description of Debentures, “Optional Debenture Tender”, 25-26.
The offering materials defined an “Independent Director” as “a director of the Company” who was not a recent employee but who was a member of the board of directors on the date of the offering or who was subsequently elected to the board by the then-independent Directors. Indenture, § 5.02, 12; Prospectus Description of Debentures, “Optional Debenture Tender”, 26. The reason offered for this unusual right to tender was that it would be a protection against certain forms of takeover attempts, including leveraged buyouts. Prospectus Description of Debentures, “Effect on Certain Takeovers”, 27. At the heart of this appeal is the meaning of the limitation placed on the right to tender by the role of “Independent Directors”.
Plaintiffs are financial institutions that purchased 34% of the convertible debentures. Eighteen months after the purchase, Wherehouse entered into a merger agreement with defendants WEI Holdings, Inc. and its subsidiary WEI Acquisition Corp. The practical effect of the merger, accomplished through a leveraged buy-out, left Wherehouse with a debt approaching 90% of its capitalization and left plaintiffs’ debentures valued at only approximately 50% of par. Plaintiffs attempted to exercise their right to tender, but the company refused to redeem the debentures on the ground that the “board of directors” had approved the merger.
Plaintiffs then commenced this suit for damages and an injunction to prevent the merger. Named as defendants were Wherehouse, various officers of Where-house, the underwriter of the debentures, WEI Holdings, Inc., WEI Acquisition Corp., and the bank that was financing the tender offer. Plaintiffs claimed that the descriptions of the debentures in the registration materials, as well as representations made during conversations, were materially misleading. Specifically, they claimed that, even though the defendants knew that the right to tender was illusory, their representations of the right as valuable and protected had misled investors into buying the debentures and therefore violated federal securities laws. In the alternative, claiming that the representations created a right to tender under the contract, plaintiffs asserted state-law claims of breach of contract, interference with contract, breach of implied duty of good faith, and fraudulent conveyance.
Defendants argued that all the relevant provisions were clear and unambiguous and that no false statements were made; thus the offering was not materially misleading or in violation of the securities laws.
The district court found nothing misleading. It granted summary judgment to defendants and dismissed plaintiffs’ state-law claims for lack of pendent jurisdiction. The district court held that defendants were not required to speculate about the likelihood of a waiver of debentureholders’ rights by the Independent Directors and that, even if the right were worthless, defendants were not required to use pejorative terms describing it as such. Moreover, it found the tender option was not illusory, because it (was possible that it) might provide a benefit to debentureholders in the case of a takeover hostile to shareholders which management chose to fight. Finally, according to the district court, the definition of “Independent Directors” was adequate because further description of their role, the extent of their discretion, their interests, or their intent would constitute mere legal conclusions, characterizations, or descriptions of underlying motives and were not required disclosures. Thus, the district court found that the descriptions of the right were not misstatements, and that the alleged omissions were not required to be disclosed under the securities laws.
We disagree with the district court’s atomistic consideration of the presentation of the debentureholders’ right to tender. The district court concluded that defendants had not misled plaintiffs because the information they included in the written and oral representations was “literally true”. We think, however, that when read as a whole, the defendants’ representations connoted a richer message than that conveyed by a literal reading of the statements. The central issue on all three claims is not whether the particular statements, taken separately, were literally true, but whether defendants’ representations, taken together and in context, would have mislead a reasonable investor about the nature of the debentures.
Some statements, although literally accurate, can become, through their context and manner of presentation, devices which mislead investors. For that reason, the disclosure required by the securities laws is measured not by literal truth, but by the ability of the material to accurately inform rather than mislead prospective buyers. Greenapple v. Detroit Edison Co., 618 F.2d 198, 205 (2d Cir.1980) (where method of presentation or “gloss” placed on information obscures or distorts significance of material facts, it is misleading). Even “ ‘a statement which is literally true, if susceptible to quite another interpretation by the reasonable investor * * * may properly * * * be considered a material misrepresentation.’ ” Beecher v. Able, 374 F.Supp. 341, 347 (S.D.N.Y.1974) quoting SEC v. First American Bank & Trust Co., 481 F.2d 673 (8th Cir.1973).
We hold that the district court erred in granting summary judgment to the defendants because plaintiffs have raised a triable issue as to whether the written and oral representations about the right to tender these debentures were materially misleading to a reasonable investor in violation of § 11 and § 12 of the 1933 Securities Act and also of § 10(b) of the 1934 Securities Exchange Act. Since the analysis for all three securities claims is similar, we will first consider it in some detail under § 11, and then review it only briefly under §§ 12 and 10(b).
A. Section 11 of the Securities Act of 1933
Section 11 states that any signer, officer of the issuer, and underwriter may be held liable for a registration statement which “contained an untrue statement of a material fact or omitted to state a material fact * * * necessary to make the statements therein not misleading”. Plaintiffs claim that these offering materials misstated the right to tender and omitted important information about it in violation of § 11. They argue that a reasonable investor would have believed that the right to tender was valuable because it was presented as a right to be exercised at the holder’s option and as a protection against takeovers that might affect the security of the debentures. In truth, however, the right to tender was illusory, they argue, because it was designed to be exercised only at the option of management and therefore was intended to protect the interests of shareholders, not of debenturehold-ers.
Plaintiffs are correct that the offering materials can reasonably be read to present the option to tender as a valuable right. The language used was invariably language of entitlement:
Holder’s Right to Tender. The Holder of any Security or Securities shall have the right, at his option, * * * to tender for redemption any such Security or Securities.
Indenture § 5.01, 10 (emphasis added). The prospectus summary provided that:
“Each holder of Debentures has the option to require the Company to redeem the holder’s Debentures.”
“Optional Tender”, 3 (emphasis added). And the prospectus itself stated:
“Holders of the Debentures will have the option * * * to require the Company to redeem such Debentures.”
Description of Debentures, “Optional Debenture Tender”, 25 (emphasis added).
Further, a jury could reasonably view the presentation of the right to tender as a special feature to protect investors, for the offering materials stressed the purported value of the right in any takeover transaction which would threaten the value of the debentures.
Since the events which give rise to such right of redemption could be expected to occur in connection with certain forms of takeover attempts, the optional tender provisions could deter takeovers where the person attempting the takeover views itself as unable to finance the redemption of the principal amount of Debentures which may be tendered * * * To the extent that Debentures may be tendered * * * the Company would be unable to use the financing provided by the sale of the Debentures offered hereby. In addition, the ability of the Company to obtain additional Senior Debt based on the existence of the Debentures would be similarly adversely affected.
Prospectus Description of Debentures, “Effect on Certain Takeovers”, 27; see also id. “Optional Debenture Tender”, 26.
Finally, the right was restricted only in that it was subject to action by “the Independent Directors”. Similar language describing the restriction — the right to tender occurs upon a triggering event, “unless [the event is] approved by a majority of the Independent Directors” (emphasis added)— is found in the Indenture, § 5.02, 11-12; in the prospectus summary, “Optional Tender”, 3; and again in the full prospectus, Description of Debentures, “Optional Debenture Tender”, 25-26. A jury could reasonably find that this repeated use of the word “unless” encouraged the inference that exercise of the right would be the norm and that waiver would be the exception.
Although the offering materials explain that the Independent Directors would be chosen from the company’s board of directors, the term “Independent Director” implies a special status, some distinction from an “ordinary” director. The term suggests that these directors would be “independent” of management and the normal obligations of board members to act in the interests of shareholders. Thus the restriction could reasonably be understood to mean that in the case of a triggering event, the right to tender would arise unless the Independent Directors find the event to be in the interests of the debentureholders. In short, as plaintiffs argue, a reasonable investor could have regarded the right to tender as a valuable right, protected by Independent Directors who would, in situations endangering the security of the debentures, consider debentureholders’ interests before approving any waiver of their right.
By thus representing that in a takeover context the Independent Directors would be considering the interests of debenture-holders, the defendants implied that the Independent Directors had a duty to protect the debentureholders’ interests. Defendants, however, have shown nothing in their corporate charter or by-laws that would have permitted, much less required, these Independent Directors to favor de-bentureholders over shareholders. Moreover, at the time of the approval of this merger, the Independent Directors constituted all but one of the “ordinary” directors on the board. As ordinary directors, they had a fiduciary duty to protect the interests of shareholders in any takeover situation, regardless of deben-tureholders’ interests or rights. It is inevitable, then, that the so-called Independent Directors had no independence; they would never protect the interests of debenture-holders except by coincidence because, as ordinary directors, they were required by law to protect the interests of the shareholders. From this perspective, there is merit in plaintiffs’ contentions that the right to tender was illusory and that the representations of it in the offering materials were misleading.
In sum, on a fair reading of the offering materials, despite their literal meaning, an investor could have reasonably believed that the tender option was presented as a valuable right for debentureholders; that it provided a special feature of protection for their interests; and that Independent Directors were to render independent votes on the right to tender based on the impact of a merger and on the interests of deben-tureholders. But if, as plaintiffs claim, the right to tender was illusory because the Independent Directors were tied to management, served its needs, protected shareholders’ interests, and would inevitably waive the right in any merger beneficial to management regardless of deben-tureholders’ interests, then the offering materials could be found by a rational trier of fact to be materially misleading in violation of § 11 of the Securities Act of 1933. Plaintiffs have therefore raised a genuine issue as to whether the written representations could have misled a reasonable investor, Greenapple, 618 F.2d at 205, and summary judgment was therefore unwarranted.
B. Section 12 of the Securities Act of 1933
Section 12(2) of the Securities Act of 1933 presents a problem similar to § 11, but it has the added factor of oral representations made to the investors in order to induce them to purchase. Section 12(2) states that anyone who makes a securities offering “by means of a prospectus or oral communication, which includes an untrue statement of a material fact or omits to state a material fact necessary in order to make the statements * * * not misleading * * * shall be liable” (emphasis added). In an affidavit, Thomas Revy of plaintiff Froley, Revy, alleges that in a phone conversation and at a “due diligence” lunch, officers of Wherehouse specifically represented that the debentures included the right to tender as a “protective covenant for the debentureholders” against takeovers. Plaintiffs claim these oral communications were untrue and violated § 12(2).
Defendants argue that the statements were accurate because they would protect holders in the event of a takeover that was hostile to management. The district court agreed, finding that “where the company might find itself subjected to an hostile takeover, the right to tender could, indeed, be ‘protective’ of the debentureholders’ interests.”
However, the language used — “protective covenant” and “special protection” — is promissory and unrestricted. The statements clearly imply that the protection to debentureholders would extend to the case of any takeover hostile to the holders’ rights. It would be, to say the least, a cramped interpretation to view the right to tender as a “protective covenant for the debentureholders” if its protection were limited to a takeover that was hostile only to management and the shareholders. Finally, by representing that this special right to tender was the key selling feature of otherwise low-value debentures, defendants could be found to have implied that debentureholders would be protected against takeovers hostile to their own interests, regardless of the interests of shareholders, and thus to have misled plaintiffs as to the true nature of the right. Summary judgment was therefore inappropriate on plaintiffs’ § 12(2) claim.
C. Section 10(b) of the Securities Exchange Act of 193)
Section 10(b) of the Securities Exchange Act of 1934, the general fraud provision of the act, prohibits any person from using or employing “any manipulative or deceptive device” in connection with the sale of a security. To state a claim under this section, plaintiffs “must allege material misstatements or omissions indicating an intent to deceive or defraud in connection with the purchase or sale of a security.” Luce v. Edelstein, 802 F.2d 49, 55 (2d Cir.1986); Ernst & Ernst v. Hochfelder, 425 U.S. 185, 96 S.Ct. 1375, 47 L.Ed.2d 668 (1976). Plaintiffs claim that disclosure of the true nature of the tender provision not only would have altered a reasonable investor’s investment decision, but would have dissuaded investment here by showing these debentures to be a poor risk. They allege that Wherehouse knew this and so deliberately misrepresented the right-to-tender feature, thereby misleading investors in violation of § 10(b).
The district court, having dismissed the claims under §11, found it was therefore impossible to state a § 10(b) claim. Since we have concluded that a question of fact is presented as to whether the offering materials and the oral communications, taken together, could have misled a reasonable investor, it follows that a jury should also determine whether the defendants violated § 10(b).
D. Pendent Claims
Since the only reason for the district court’s dismissing plaintiffs’ pendent state-law claims was that the federal basis for jurisdiction had disappeared, now that we have reinstated the federal claims, the pendent claims are reinstated as well.
Reversed and remanded.
SAND, District Judge:
The reasons why I am constrained to dissent may be briefly stated.
The question whether an anti-takeover provision provides a “special protection” to debentureholders cannot be answered in the negative merely because the “Independent Directors” decided to waive its provisions and approve a particular transaction. These directors were explicitly empowered to act in this fashion by virtue of the fully disclosed terms of the provision. A significant function of an anti-takeover provision is to serve as a deterrent to hostile takeovers, including takeovers which would be contrary to the interests of both shareholders and debentureholders. One cannot, I believe, fairly characterize such a provision as being “worthless” to the debenturehold-ers, even though as a matter of Delaware law directors owe a fiduciary duty solely to shareholders. The anti-takeover provision was therefore a “special protection” to de-bentureholders, albeit a limited one.
Federal securities laws do not impose an obligation to advise investors of the fundamentals of corporate governance. The disclosure required by the federal securities laws is not a “rite of confession or exercise in common law pleading. What is required is the disclosure of material objective factual matters.” Data Probe Acquisition Corp. v. Data Lab, Inc., 722 F.2d 1, 5-6 (2d Cir.1983), cert. denied, 465 U.S. 1052, 104 S.Ct. 1326, 79 L.Ed.2d 722 (1984). Especially is this so where, as here, the investor-complainants are sophisticated financial institutions making major investments. The role of the federal securities laws is not to remedy all perceived injustices in securities transactions. Rather, as invoked in this case, it proscribes only the making of false and misleading statements or material omissions.
Whether the Independent Directors breached an implied duty of good faith or otherwise acted contrary to their fiduciary obligations are matters of state law. Here, the federal claims were asserted only conditionally, the express condition being the failure of the state law claims. These state claims were properly dismissed by the court below for lack of pendent jurisdiction.
Believing no valid federal claim to be present, I would affirm essentially for the reasons set forth in the Opinions of the Magistrate and District Court.
Question: What is the total number of appellants in the case that fall into the category "private business and its executives"? Answer with a number.
Answer:
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songer_respond2_7_2
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B
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the 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 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").
UNITED STATES of America, Appellant, v. James MARIHART et al., Appellees.
No. 72-1258.
United States Court of Appeals, Eighth Circuit.
Submitted Nov. 15, 1972.
Decided Dec. 26, 1972.
Robert L. Sikma, Asst. U. S. Atty., Sioux City, Iowa, for appellant.
Donald W. Sylvester and Donald E. O’Brien, Sioux City, Iowa, for appellees.
Before MATTHES, Chief Judge, and MEHAFFY, GIBSON, LAY, HEANEY, BRIGHT, ROSS and STEPHENSON, Circuit Judges, en banc.
MATTHES, Chief Judge.
The defendants (appellees) stand jointly charged in a four count indictment returned on March 22, 1972, with possessing four firearms which were transported in and affected interstate commerce in violation of Tit. 18 App. U.S.C. § 1202(a)(1). On April 14, 1972, the defendants filed a joint motion to suppress the firearms described in the indictment on the grounds, inter alia, that the weapons were obtained as the result of an illegal search and seizure in violation of the Fourth Amendment to the United States Constitution and because the information presented to the magistrate who issued the search warrant did not sufficiently delineate the “informant’s” source of knowledge as required by Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). The district court entered an order suppressing the firearms and this appeal followed.
I. BACKGROUND
The application for the search warrant was made on October 20, 1971, in the Municipal Court of Sioux City, Iowa, by Francis O’Keefe, Captain of Detectives of the Sioux City police force. The application was supported by O’Keefe’s affidavit, which is reprinted in full in the margin, and his oral testimony given under oath before the issuing magistrate. His live testimony contained the supplementing information that he had been told by three separate police officers that each had received informer tips identical to that recited in the affidavit; that FBI Special Agent Oxler and Sioux City Lieutenant Larson had received tips from the same informant ; and that one Sergeant Stewart of the Sioux City police had received the identical tip from another informant. O’Keefe further testified that he had twice interviewed the informant mentioned by Oxler and Larson to verify the contents of the tip, particularly questioning him about the location of the guns.
After presenting the affidavit and supporting testimony to the magistrate, O’Keefe revealed to him the name of Ox-ler and Larson’s informer. Since the judge recognized this informer as a person who had previously supplied reliable information upon which the judge had acted and which proved correct, he relied upon that informant’s tip and made no effort to ascertain the credibility of Stewart’s informer.
Based upon the officer’s written affidavit and his supplementing sworn testimony, the warrant was issued by the magistrate, and executed by police officers who found, in the apartment described in the affidavit and specified in the warrant, the four guns which are the subject of the indictment.
The district court, in sustaining the motion to suppress, reasoned that the Supreme Court had laid down a “2-prong rule” in Aguilar v. Texas, 378 U. S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli, supra, to wit: the affidavit for the warrant must disclose (1) circumstances justifying the magistrate to conclude the informant was credible, and (2) circumstances supporting the informant’s conclusion of the defendants’ connection with the criminal activity. The court found the first prong — the credibility of the informant —had been sufficiently satisfied, and. that finding is not challenged here by appellees. But the court found the second prong unsatisfied. In so deciding, the court reasoned:
“The affidavit in the case before this court like that in Spinelli does not state any of the underlying circumstances on which the informant concluded that defendants had committed the burglary in which the firearms were taken. There is nothing in this record independent of the informant’s conclusions suggesting any criminal activity on the part of defendants. Thus, compliance with the second prong of Aguilar-Spinelli is lacking.
It is therefore the view of the court that since the affidavit of Captain O’Keefe fails to state how this informant came by his information connecting the defendants with the burglary it was insufficient to establish probable cause for the issuance of the search warrant and the evidence must be suppressed.”
Thus, because Aguilar’s second prong was not satisfied, the district court granted the suppression order. The government then sought reconsideration of the order, contesting for the first time the standing of defendants to challenge the search and seizure. This issue was rejected by the court and this appeal followed.
II. STANDING ISSUE
The government’s contention that defendants lack standing to contest this search is premised on evidence which tends to show that defendants had no interest, possessory or otherwise, in the apartment where the guns were seized. However, regardless of the merits of the argument espoused by the government, we prefer to and do assume arguendo that the defendants possessed the requisite standing and go directly to the issue of the validity of the search warrant.
III. THE VALIDITY OF THE SEARCH
The essential question presented by defendants’ objections to this search is whether there was probable cause for the issuance of the warrant pursuant to which the search was conducted. Since without the informer’s tip the officers’ information would have consisted solely of knowledge of the occurrence of the burglary and observation of the act of removing a heavy, cardboard box from a car into a vacant apartment, it is clear the reliability of the informer’s tip is essential to the validity of the warrant. Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959). In this case, as in most similar cases, the magistrate could easily have found that the affiant officer accurately repeated the informer’s tip and that the tip, if true, furnished probable cause for issuance of a warrant. The focal problem in these cases, then, is whether the magistrate was given sufficient basis for crediting the informer’s tip. This is a problem which has received considerable attention from the courts, notably the Supreme Court, to whose opinions we now turn.
A.
The convenient starting place in discussing Supreme Court caselaw on informers’ tips is Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959). In that case the information the Supreme Court deemed sufficient to credit the tip was twofold. First, the officers swore to the informer’s past reliability in furnishing information. Second, the reliability of the contents of this particular tip was shown by the fact the police independently corroborated every facet of the tip’s detailed description of the suspect and his activities except the essential fact that he had heroin in his possession. Then, in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), the Supreme Court laid down a standard for testing the credibility of informers’ tips which took no cognizance of the Draper holding that corroboration of part of the tip infers the remainder is reliable. Instead, the Court held that the magistrate must be told not only “some of the underlying circumstances from which the officer concluded that the informant . was ‘credible’ or his information ‘reliable’ ” but also “some of the underlying circumstances from which the informant” reached the conclusions conveyed in his tip. 378 U.S. at 114, 84 S.Ct. at 1514.
The Court soon made clear, however, that the prophylactic rule announced in Aguilar did not overrule Draper sub silentio. In Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), the Court expressly reaffirmed Draper and enunciated the following alternative test:
“The informer’s report must first be measured against Aguilar’s standards so that its probative value can be assessed. If the tip is found inadequate under Aguilar, the other allegations which corroborate the information contained in the hearsay report should then be considered. At this stage as well, however, the standards enunciated in Aguilar must inform the magistrate’s decision. He must ask: Can it fairly be said that the tip, even when certain parts of it have been corroborated by independent sources, is as trustworthy as a tip which would pass Aguilar’s tests without independent corroboration ? Aguilar is relevant at this stage of the inquiry as well because the tests it establishes were designed to implement the long-standing principle that probable cause must be determined by a ‘neutral and detached magistrate,’ and not by ‘the officer engaged in the often competitive enterprise of ferreting out crime.’ Johnson v. United States, 333 U.S. 10, 14 [68 S.Ct. 367, 92 L.Ed. 436] (1948). A magistrate cannot be said to have properly discharged his constitutional duty if he relies on an informer’s tip which— even when partially corroborated — -is not as reliable as one which passes Aguilar’s requirements when standing alone.
. In the absence of a statement detailing the manner in which the information was gathered, it is especially important that the tip describe the accused’s criminal activity in sufficient detail that the magistrate may know that he is relying on something more substantial than a casual rumor circulating in the underworld or an accusation based merely on an individual’s general reputation.
The detail provided by the informant in Draper v. United States, 358 U.S. 307 [79 S.Ct. 329, 3 L.Ed.2d 327] (1959), provides a suitable benchmark. While Hereford, the Government’s informer in that case, did not state the way in which he had obtained his information, he reported that Draper had gone to Chicago the day before by train and that he would return to Denver by train with three ounces of heroin on one of two specified mornings. Moreover, Hereford went on to describe, with minute particularity, the clothes that Draper would be wearing upon his arrival át the Denver station. A magistrate, when confronted with such detail, could reasonably infer that the informant had gained his information in a reliable way.”
393 U.S.. at 415-417, 89 S.Ct. at 588, 589. Spinelli thus stands squarely for the proposition that even if the two-pronged test of Aguilar is not met, the information before the magistrate may be sufficient if, as in Draper, it is sufficiently detailed, or sufficiently corroborated, to supply as much trustworthiness as does the Aguilar test. See Judge (now Mr. Justice) Blackmun’s opinion in United States v. Mitchell, 425 F.2d 1353 (8th Cir.), cert. denied, 400 U.S. 853, 91 S.Ct. 85, 27 L.Ed.2d 90 (1970).
The Supreme Court caselaw on this subject has its most recent pronouncement in United States v. Harris, 403 U. S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971). While we think the present case can be decided solely on Spinelli’s reaffirmation of Draper, the Harris case merits attention because the Supreme Court majority in that case, while unable to agree to an opinion, was able to agree to a judgment which indicates a measure of disagreement with the result in Spinelli. See especially Mr. Justice Blackmun’s concurring opinion, 403 U.S. 585, 91 S.Ct. 2075.
In Harris, there was no averment of underlying circumstances to support the informer’s credibility and thus the first of Aguilar’s two prongs was not satisfied. Furthermore, unlike Draper, none of the tip was corroborated by independent investigation. The corroboration consisted solely of the suspect’s past record and reputation'and other unspecified tips from undisclosed informants. The Court nevertheless affirmed the validity of the warrant, primarily because, according to the Chief Justice’s plurality opinion, the underlying circumstances by which the informer acquired his information were said by the informer to be firsthand observation and activity, and because the credibility of this claim of firsthand knowledge was bolstered both by the fact it constituted an admission against penal interest and because the substance of the claim was corroborated to the extent mentioned above.
Thus Harris, it seems to us, indicates the inclination of the present Supreme Court to relax the standards by which the credibility of informers’ tips are to be judged and to avoid the mechanical application of prophylactic rules such as the Aguilar test. Yet, we need not rely in this case upon prognostication of future cases. The alternative test enunciated in Spinelli is clearly satisfied here. It does seem to us, however, that in view of the concurring opinions of Mr. Justice White in Spinelli and Mr. Justice Blackmun in Harris, in view of the marked difference in tone between Harris and Spinelli, and in view of the split voting pattern in those two cases, the lower federal courts would be well served if the Supreme Court would clarify its views as to warrants and searches premised upon informers’ tips.
B.
In applying Spinelli’s alternative test to the facts of the present case, we first apply the Aguilar test — the sufficiency of the showing furnished the magistrate of (1) the underlying circumstances showing the credibility of the informer or the reliability of his information, and (2) the underlying circumstances from which the informer reached the conclusions he conveyed in the tip, which here were his statements that these defendants were the burglars and used the specifically described car in the burglary. Here, of course, as found by the district court, Aguilar’s first prong is amply satisfied. The magistrate himself recalled that the informer, whose name was revealed to him, had furnished reliable information on which the magistrate had acted in the past. However, the second prong of Aguilar is not satisfied because Captain O’Keefe revealed nothing to the issuing judge that would indicate the basis of the informer’s conclusions. We turn then to the alternative to the Aguilar test, Draper: whether the informer’s tip was sufficiently detailed and corroborated to indicate its probable reliability. We think that test is clearly satisfied here.
First, unlike most other informer tip cases, the officers here were investigating a known crime, not a crime whose existence was evidenced only by the informer’s tip. Compare Harris, Spinelli, McCray, Beck, Aguilar, Jones, and Draper, supra note 4, with Rugendorf v. United States, supra note 4. Second, the officers observed the three suspects named by the informer driving a car which belonged to someone else and which was identical in year, make, model, color and license number to the ear said by the informer to have been used by them in the burglary. Third, the officers observed the three suspects unload from that car a very heavy, five foot long cardboard box, which could well contain some of the stolen guns, and deposit the box in an apartment which was not only vacant but also in a building under the control of the owner of the car. Fourth, as in Harris and Jones, supra, this informer tip was further corroborated by the fact it was identical to a tip given another officer by another informer, see 403 U.S. at 581, 91 S.Ct. 2075; 362 U.S. at 271, 80 S.Ct. 725, and by the fact this informer of known reliability conveyed this tip separately to an FBI agent and a city police lieutenant and repeated it twice under questioning by Captain O’Keefe.
In sum, we think the credibility of the informer, which was proven by the magistrate’s personal knowledge of his past reliability, plus the specificity and extent of the corroboration of the information supplied by the informer, were sufficient to support the magistrate’s belief the identified informant’s information was true. That information being credited, there clearly was probable cause for issuing the warrant and the search was therefore constitutionally valid. The District Court’s order suppressing the evidence is therefore vacated and the cause remanded for further proceedings not inconsistent with this opinion.
. Each count charges possession on October 20, 1971, of a different firearm, and also alleges all of the defendants have previously been convicted of a felony.
. The body of Captain O’Keefe’s affidavit recited as follows:
I, FRANK O’KEEFE, being first duly sworn on oath state as follows:
THAT I am a Captain in Charge of the Detective Bureau, Sioux City Iowa Police Department.
THAT on 10-16-71 between 7:30 P.M. and 8:45 P.M. the home of GEORGE A. LORENGER, 1000 South Camelia was burglarized. Taken in this burglary were thirty-three (33) firearms consisting of hand guns, shotguns, and rifles.
I received information from a reliable confidential informant who stated that the following men were involved in this burglary: JAMES MARIHART, ED-
WIN W. KINSLEY, AND MICHAEL GEREAU. At the time of this burglary, these men were driving a 1962 Blue Ford Station Wagon, 1971 Plates Iowa 47-4556. At the time, this car was registered to RAY MAGNUSON. This car was used in the commission of this crime.
THAT since that time I received the following information from DAVE OX-LER, SPECIAL AGENT FBI who stated that between 11:00 A.M. and 11:30 A.M. Wednesday, 10-20-71, that he had occasion to be in the area of the 1800 Block Jackson. That while at this location, he saw the blue 1962 Ford Station Wagon License Number 47-4556 stop in front of 1807 Jackson. That there were three men in this vehicle believed to be the men named in this affidavit and who perpetrated this crime. That these men unloaded a large pasteboard box approximately five feet in length, and it appeared to have tape around it. This blox [sic] is believed to contain some of the firearms which were stolen from the residence of GEORGE LORENGER on 10-16-71. MR. OXLER stated that these three men had difficulty carrying this box into the residence at 1807 Jackson. He stated they entered the north door of this multiple dwelling. Further investigation revealed that this door leads to Apartment No. 2, and this apartment is vacant.
We have reason to believe that these weapons are now concealed in this vacant apartment. A check with MARVIN DICUS, Apartment No. 6, 1807 Nebraska revealed that this multiple dwelling is under the custody and control of RAY MAGNUSON.
THAT DAVE OXLER is familiar with the vehicle and persons named herein, concerning investigations being made by the FBI.
(s) Frank O’Keefe
CAPTAIN FRANK O’KEEFE COMMANDING OFFICER DETECTIVE BUREAU
. At a suppression hearing in state court relating to this same warrant Captain O’Keefe testified in detail as to the contents of his oral testimony to the magistrate who issued the warrant. The transcript of this testimony was placed in evidence on the motion to suppress here at issue.
. See United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971) ; Whiteley v. Warden, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971) ; Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969) ; McCray v. Illinois, 386 U.S. 300, 301-305, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967) ; Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964) ; Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) ; Rugendorf v. United States, 376 U.S. 528, 84 S.Ct. 825, 11 L.Ed.2d 887 (1964) ; Jones v. United States, 362 U.S. 257, 267-273, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960) ; Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959) ; Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959).
. A number of the judges composing this court’s present majority were, like Mr. Justice Blackmun, members of the en banc majority reversed by the Supreme Court in Spinelli, see 382 F.2d 871 (8th Cir. 1967), and many of us agree with his statement that “Nothing this [the Supreme] Court said in Spinelli convinced me to the contrary.” 403 U.S. at 586, 91 S.Ct. at 2083. However, we will of course continue diligently to apply the law as announced in Spinelli so long as the Court adheres to it. Indeed, no relaxation of the Spinelli standards is needed to approve the present warrant.
. Contrary to the averment in the dissenting opinion, the majority does not decide this case as it has “because it senses ‘an inclination of the present Supreme Court to relax the standards by which the credibility of informer tips are to be judged.’ ” Nor do we think, as the dissent asserts, that our opinion “discards the second prong of the Aguilar test” or “suggests that Harris v. United States has destroyed the underpinnings of” Aguilar’s second prong. As we stated in the text above before the dissent was penned, we do think Harris indicates the present Supreme Court’s discomfort with Spinelli’s result, but we need not rely upon that view to decide the case as we have. It was the Spinelli opinion itself which authorized substituting the Draper test for Aguilar’s second prong; thus the present majority opinion has faithfully complied with Spinelli in relying upon Draper instead of Aguilar. As the dissenting opinion ultimately reveals, the real difference between the majority and dissenters in this case is not over the law as stated in Aguilar and Spinelli, but the conclusion one reaches after applying Draper to the facts of this ease. The dissent says that “Draper relaxes [Aguilar’s second prong] . . . only where the informant describes in sufficient detail future activities which subsequently occur.” As demonstrated in Part III B of this opinion, we do not believe Draper is limited to the degree of detail of tips of future activity. The question is the reliability of the method by which the informer acquired his information, not his talents as a prognosticator. Thus a combination of detail and corroboration of past and future incriminating conduct will suffice. The only reason it was important in Draper that the tip predicted future conduct was because the tip concerned a crime which had not yet occurred. Where, as here, the crime precedes the tip, we think it misreads Spinelli and Draper to say the tip is accurate only if it predicts additional future conduct by the suspected parties.
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)". 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_respond1_1_3
|
I
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed 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.
TRANE CO. v. NASH ENGINEERING CO.
Circuit Court of Appeals, First Circuit.
July 18, 1928.
No. 2181.
Appeal from the District Court of the United States for the District of Massachusetts; James M. Morton, Judge.
On petition for rehearing. Denied.
For former opinion, see 25 F.(2d) 267.
See, also, 20 F.(2d) 439; 22 F.(2d) 868.
Fred L. Chappell, of Kalamazoo, Mich., Samuel D. Elmore, of Boston, Mass., and Arthur T. Holmes, of La Crosse, Wis., for appellant.
Louis W. Southgate and Charles T. Hawley, both of Worcester, Mass., for appellee.
Before BINGHAM, JOHNSON and ANDERSON, Circuit Judges.
PER CURIAM.
The gist of the defendant’s elaborate petition for rehearing is that on this record prior use and sale are, as a matter of law, made out. This contention cannot be sustained. Of the three sales urged, we fully concur with what the court below found and ruled concerning the Chicago Pump transaction and the S. D. Warren Paper Mill transaction. The third alleged prior sale, the William Penn Hotel transaction, was nothing but an executory contract made in May, 1915, for the Jennings apparatus, not completed and delivered so as to constitute an actual sale until September, 1915. Taking the facts in this transaction, although open to-a somewhat different construction, exactly as defendant’s learned counsel state them, the ease is ruled by McCreery Engineering Co. v. Massachusetts Fan Co. (C. C. A.) 195 F. 498, in which the same learned counsel made an exactly reverse contention, which was sustained by this court in an able opinion by Judge Brown, concurred in by Judges Putnam and Aldrich. We have no disposition to overrule that case.
Petition denied.
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:
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sc_issue_8
|
33
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What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue of the Court's decision. Determine the issue of the case on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis.
FEDERAL COMMUNICATIONS COMMISSION v. AMERICAN BROADCASTING CO., INC.
NO. 117.
Argued February 1, 1954.
Decided April 5, 1954.
J. Roger Wollenberg argued the cause for appellant. With him on the brief was Daniel R. Ohlbaum.
Alfred McCormack argued the cause for appellee in No. 117. With him on the brief was George B. Turner.
Paul W. Williams argued the cause for appellee in No. 118. With him on the brief were Thomas E. Ervin and Dudley B. Tenney.
Max Freund argued the cause for appellee in No. 119. With him on the brief was Ralph F. Colin.
Mr. Chief Justice Warren
delivered the opinion of the Court.
These cases are before us on direct appeal from the decision of a three-judge District Court in the Southern District of New York, enjoining the Federal Communications Commission from enforcing certain provisions in its rules relating to the broadcasting of so-called “giveaway” programs. The question presented is whether the enjoined provisions correctly interpret § 1304 of the United States Criminal Code, formerly § 316 of the Communications Act of 1934. This statute prohibits the broadcasting of “. . . any lottery, gift enterprise, or similar scheme, offering prizes dependent in whole or in part upon lot or chance . ...”
The appellees are national radio and television broadcasting companies. They are, in addition, the operators of radio and television stations licensed by the Commission. Each of the appellees broadcasts, over its own and affiliated stations, certain programs popularly known as “give-away” programs. Generally characteristic of this type of program is the distribution of prizes to home listeners, selected wholly or in part on the basis of chance, as an award for correctly solving a given problem or answering a question.
The rules challenged in this proceeding, §§ 3.192, 3.292, and 3.656 of the Commission’s Rules and Regulations, were designed to prevent the broadcast of such programs. The rules are identically worded and apply, respectively, to standard radio broadcasting (AM), FM radio broadcasting, and television broadcasting. Paragraph (a) of each rule provides that “An application for construction permit, license, renewal of license, or any other authorization for the operation of a broadcast station, will not be granted where the applicant proposes to follow or continue to follow a policy or practice of broadcasting . . . ,” programs of a sort forbidden by § 1304. Paragraph (b) provides that a program will fall within the ban
“. . . if in connection with such program a prize consisting of money or thing of value is awarded to any person whose selection is dependent in whole or in part upon lot or chance, if as a condition of winning or competing for such prize:
“(1) Such winner or winners are required to furnish any money or thing of value or are required to have in their possession any product sold, manufactured, furnished or distributed by a sponsor of a program broadcast on the station in question; or
“(2) Such winner or winners are required to be listening to or viewing the program in question on a radio or television receiver; or
“(3) Such winner or winners are required to answer correctly a question, the answer to which is given on a program broadcast over the station in question or where aid to answering the question correctly is given on a program broadcast over the station in question. Eor the purposes of this provision the broadcasting of the question to be answered over the radio station on a previous program will be considered as an aid in answering the question correctly; or
“(4) Such winner or winners are required to answer the phone in a prescribed manner or with a prescribed phrase, or are required to write a letter in a prescribed manner or containing a prescribed phrase, if the prescribed manner of answering the phone or writing the letter or the prescribed phrase to be used over the phone or in the letter (or an aid in ascertaining the prescribed phrase or the prescribed manner of answering the phone or writing the letter) is, or has been, broadcast over the station in question.”
After promulgation of the rules, the present actions were brought by the appellees. The District Court sustained the Commission’s general authority to adopt such rules, and sustained subdivision (1) of paragraph (b) as a correct interpretation of § 1304. But, with one dissent, the court held that subdivisions (2), (3), and (4) were beyond the scope of § 1304 and hence invalid. The court was of the view that § 1304 applied only to contest programs requiring contestants to contribute a “price” or “thing of value.” We noted probable jurisdiction and consolidated the cases for argument.
Like the court below, we have no doubt that the Commission, concurrently with the Department of Justice, has power to enforce § 1304. Indeed, the Commission would be remiss in its duties if it failed, in the exercise of its licensing authority, to aid in implementing the statute, either by general rule or by individual decisions. But the Commission’s power in this respect is limited by the scope of the statute. Unless the “give-away” programs involved here are illegal under § 1304, the Commission cannot employ the statute to make them so by agency action. Thus, reduced to its simplest terms, the issue before us is whether this type of program constitutes a “lottery, gift enterprise, or similar scheme” proscribed by § 1304.
All the parties agree that there are three essential elements of a “lottery, gift enterprise, or similar scheme”: (1) the distribution of prizes; (2) according to chance; (3) for a consideration. They also agree that prizes on the programs under review are distributed according to chance, but they fall out on the question of whether the home contestant furnishes the necessary consideration.
The Commission contends that there is such consideration; in its brief, it urges that these programs
. . are nothing but age old lotteries in a slightly new form. The new form results from the fact that the schemes here are illicit appendages to legitimate advertising. The classic lottery looked to advance cash payments by the participants as the source of profit; the radio give-away looks to the equally material benefits to stations and advertisers from an increased radio audience to be exposed to advertising.”
It contends that consideration in the form of money or a thing of value is not essential, and that a commercial benefit to the promoter satisfies the consideration requirement:
. . Where a scheme of chance is successfully designed to reap profits for its promoter, there will ultimately be consideration flowing from the participants, and it is of no consequence whether such consideration be direct or indirect. In either event, the gambling spirit — the lure of obtaining something for nothing or almost nothing — is exploited for the benefit of the promoter of the scheme.”
As against this claim the appellees insist that something more is required than just a benefit to the promoter; that the participation of the home audience by merely listening to a broadcast does not constitute the necessary consideration.
Section 1304 itself does not define the type of consideration needed for a “lottery, gift enterprise, or similar scheme.” Nor do the postal lottery statutes from which this language was taken. The legislative history of § 1304 and the postal statutes is similarly unilluminating. For guidance, therefore, we must look primarily to American decisions, both judicial and administrative, construing comparable antilottery legislation.
Enforcing such legislation has long been a difficult task. Law enforcement officers, federal and state, have been plagued with as many types of lotteries as the seemingly inexhaustible ingenuity of their promoters could devise in their efforts to circumvent the law. When their schemes reached the courts, the decision, of necessity, usually turned on whether the scheme, on its own peculiar facts, constituted a lottery. So varied have been the techniques used by promoters to conceal the joint factors of prize, chance, and consideration, and so clever have they been in applying these techniques to feigned as well as legitimate business activities, that it has often been difficult to apply the decision of one case to the facts of another.
And so it is here. We find no decisions precisely in point on the facts of the cases before us. The courts have defined consideration in various ways, but so far as we are aware none has ever held that a contestant’s listening at home to a radio or television program satisfies the consideration requirement. Some courts — with vigorous protest from others — have held that the requirement is satisfied by a “raffle” scheme giving free chances to persons who go to a store to register in order to participate in the drawing of a prize, and similarly by a “bank night” scheme giving free chances to persons who gather in front of a motion picture theatre in order to participate in a drawing held for the primary benefit of the paid patrons of the theatre. But such cases differ substantially from the cases before us. To be eligible for a prize on the “give-away” programs involved here, not a single home contestant is required to purchase anything or pay an admission price or leave his home to visit the promoter’s place of business; the only effort required for participation is listening.
We believe that it would be stretching the statute to the breaking point to give it an interpretation that would make such programs a crime. Particularly is this true when through the years the Post Office Department and the Department of Justice have consistently given the words “lottery, gift enterprise, or similar scheme” a contrary administrative interpretation. Thus the Solicitor of the Post Office Department has repeatedly ruled that the postal lottery laws do not preclude the mailing of circulars advertising the type of “give-away” program here under attack. Similarly, the Attorney General— charged directly with the enforcement of federal criminal laws — has refused to bring criminal action against broadcasters of such programs. And in this very action, it is noteworthy that the Department of Justice has not joined the Commission in appealing the decision below.
It is true, as contended by the Commission, that these are not criminal cases, but it is a criminal statute that we must interpret. There cannot be one construction for the Federal Communications Commission and another for the Department of Justice. If we should give § 1304 the broad construction urged by the Commission, the same construction would likewise apply in criminal cases. We do not believe this construction can be sustained. Not only does it lack support in the decided cases, judicial and administrative, but also it would do violence to the well-established principle that penal statutes are to be construed strictly.
It is apparent that these so-called “give-away” programs have long been a matter of concern to the Federal Communications Commission; that it believes these programs to be the old lottery 'evil under a new guise, and that they should be struck down as illegal devices appealing to cupidity and the gambling spirit. It unsuccessfully sought to have the Department of Justice take criminal action against them. Likewise, without success, it urged Congress to amend the law to specifically prohibit them. The Commission now seeks to accomplish the same result through agency regulations. In doing so, the Commission has overstepped the boundaries of interpretation and hence has exceeded its rule-making power. Regardless of the doubts held by the Commission and others as to the social value of the programs here under consideration, such administrative expansion of § 1304 does not provide the remedy.
The judgments are
Affirmed.
Mr. Justice Douglas took no part in the decision of these cases.
18 U. S. C. § 1304 (derived from former § 316 of the Communications Act of 1934, 48 Stat. 1088-1089, repealed by 62 Stat. 862, 866):
“Whoever broadcasts by means of any radio station for which a license is required by any law of the United States, or whoever, operating any such station, knowingly permits the broadcasting of. any advertisement of or information concerning any lottery, gift enterprise, or similar scheme, offering prizes dependent in whole or in part upon lot or chance, or any list of the prizes drawn or awarded by means of any such lottery, gift enterprise, or scheme, whether said list contains any part or all of such prizes, shall be fined not more than $1,000 or imprisoned not more than one year, or both.
“Each day’s broadcasting shall constitute a separate offense.”
Examples of the “give-away” programs involved here are “Stop the Music” (American Broadcasting Company), “What’s My Name” (National Broadcasting Company), and “Sing It Again” (Columbia Broadcasting System).
“Stop the Music” is described in American’s complaint in No. 117 as follows: The home contestants are called on the telephone during the program. On the radio version, home contestants are selected at random from telephone directories. On the television version, home contestants are selected by lot from among those listeners who express in advance, through postcards sent to the network, their desire to participate. On both the radio and television versions, however, the home contestant is not required to be listening to the broadcast at the time he is called in order to participate. When called, the home contestant is asked to give the title of a musical selection that has just been played. In the event he was not listening, or for some other reason desires to have the tune repeated, the master of ceremonies hums or sings it to him over the telephone. If he answers correctly, he receives a merchandise prize; if not, he gets a less valuable “consolation” prize and a member of the studio audience is then given an opportunity to win the merchandise prize by identifying the same tune. If the home contestant answers correctly, he receives, in addition to the merchandise prize, an opportunity to identify another tune, called the “Mystery Melody.” If he identifies this tune, he wins the “jackpot” prize, usually valued at several thousand dollars. Should he fail to identify the “Mystery Melody," another home contestant is called and the process is repeated. Additions to the “jackpot” prize are made each week so long as the “Mystery Melody” remains unidentified.
“What’s My Name” is described in National’s complaint in No. 118 as follows: Prizes are awarded to contestants for correctly identifying famous persons on the basis of clues given by the master of ceremonies and in a short skit performed by professional actors. All but one of the contestants on the program are chosen from members of the studio audience. The remaining contestant is chosen at random from postcards sent in by listeners, and is called on the telephone during the program. For answering the telephone, he is awarded a watchband manufactured by the sponsor of the program and is also given the opportunity to win a valuable “jackpot” prize in Government bonds by identifying the famous person described in the “jackpot” clues. If the home contestant fails to make a correct identification, the amount of the “jackpot” is added to the “jackpot” for the following week’s program. The subject of the “jackpot” clues, however, is changed every week.
“Sing It Again” is described in Columbia’s complaint in No. 119 as follows: Performers sing a popular song and then repeat it but this time with parody lyrics describing some person, place, or event. Contestants, selected at random from telephone directories, are called by long distance telephone during the program. If the contestant correctly identifies the subject described by the parody lyrics, he wins a merchandise prize and an opportunity to win a “jackpot” prize by identifying the “Phantom Voice,” the voice of a famous but unrevealed person. Clues as to the identity of the “Phantom Voice” are given on the program and on other programs broadcast over the same network. The “jackpot” is increased week by week until the correct identification is made. If the home contestant fails to identify the subject of the parody lyrics, he receives a “consolation prize,” and a member of the studio audience is given the opportunity to answer and win the merchandise prize.
47 CFR, 1952 Cum. Supp., §§ 3.192, 3.292, 3.656. The language of the rules is broad enough to cover contest programs drawing contestants solely from members of the studio audience. In the court below, however, the Commission took the position that such coverage was not intended, and the controversy was delimited to programs involving the distribution of prizes to contestants participating from their homes. 110 F. Supp. 374, 381.
The actions were brought under § 402 (a) of the Communications Act of 1934, 48 Stat. 1093, 47 U. S. C. § 402 (a); 28 U. S. C. §§ 1336, 1398, 2284, 2321-2325; and § 10 of the Administrative Procedure Act, 60 Stat. 243, 5 U. S. C. § 1009. Pub. L. No. 901, 81st Cong., 2d Sess., 64 Stat. 1129, 5 U. S. C. § 1031, has since changed the procedure under § 402 (a), but is inapplicable to actions commenced prior to its enactment.
110 F. Supp. 374.
346 U. S. 808.
The Commission is authorized by § 4 (i) of the Communications Act to “make such rules and regulations, and issue such orders, . . . as may be necessary in the execution of its functions”; by § 303 (r) to “Make such rules and regulations and prescribe such restrictions and conditions, not inconsistent with law, as may be necessary to carry out the provisions of this chapter”; by § 307 (a) and § 309 (a) to grant station licenses and license renewals “if public convenience, interest, or necessity” would thereby be served; by § 312 (a) to revoke a license for a violation of any regulation authorized by the Act. 48 Stat. 1068, 47 U. S. C. § 154 (i); 50 Stat. 191, 47 U. S. C. § 303 (r); 48 Stat. 1083, 47 U. S. C. § 307 (a); 48 Stat. 1085, 47 U. S. C. § 309 (a); 48 Stat. 1086-1087, 47 U. S. C. § 312 (a). The “public interest, convenience, or necessity” standard for the issuance of licenses would seem to imply a requirement that the applicant be law-abiding. In any event, the standard is sufficiently broad to permit the Commission to consider the applicant’s past or proposed violation of a federal criminal statute especially designed to bar certain conduct by operators of radio and television stations. And if this consideration is a proper one in individual eases, there is no reason why it may not be stated in advance by the Commission in interpretative regulations defining the prohibited conduct with greater clarity. See National Broadcasting Co. v. United States, 319 U. S. 190, 222-224; cf. Southern Steamship Co. v. National Labor Relations Board, 316 U. S. 31, 46-47.
A typical “lottery” is a scheme in which tickets are sold and prizes are awarded among the ticket holders by lot. See Stone v. Mississippi, 101 U. S. 814. A typical “gift enterprise” differs from this in that it involves the purchase of merchandise or other property; the purchaser receives, in addition to the merchandise or other property, a “free” chance in a drawing. See Horner v. United States, 147 U. S. 449. But whatever may be the factual differences between a “lottery,” a “gift enterprise,” and a “similar scheme,” the traditional tests of chance, prize, and consideration are applicable to each. We are aware of no decision, federal or state, which has distinguished among them on the basis of their legal elements.
Section 1304 is one of five sections — § 1301 through § 1305 — which constitute “Chapter 61 — Lotteries” of Title 18. Section 1305, added in 1950, exempts certain "fishing contests” from the operation of the other four sections. Section 1301 prohibits the importing or transporting of lottery tickets; § 1302, the mailing of lottery tickets and related matter; § 1303, the participation in lottery schemes by postmasters and postal employees; and § 1304, the broadcasting of lottery information. These four sections use the same terminology— “any lottery, gift enterprise, or similar scheme, offering prizes dependent in whole or in part upon lot or chance.” This language first appeared in the 1909 amendments to the federal lottery laws. 35 Stat. 1129, 1130, 1136. It was adopted verbatim in § 316 of the Communications Act of 1934, which was the first federal statute to ban the broadcasting of lotteries. With only slight modifications not material here, § 316 became § 1304 of the Criminal Code in the 1948 revision of Title 18.
For the early history of lotteries in this country, see Spofford, Lotteries in American History, at p. 171 of 1892 Report of American Historical Association, S. Misc. Doc. No. 57, 52d Cong., 2d Sess.
See S. Rep. No. 1620, 80th Cong., 2d Sess. (1948); H. R. Rep. No. 304, 80th Cong., 1st Sess., p. A99 (1947); S. Rep. No. 781, 73d Cong., 2d Sess., p. 8 (1934); H. R. Rep. No. 1850, 73d Cong., 2d Sess. (1934); H. R. Rep. No. 1918, 73d Cong., 2d Sess., p. 49 (1934) ; S. Rep. No. 564, 72d Cong., 1st Sess., p. 10 (1932); H. R. Rep. No. 221, 72d Cong., 1st Sess., p. 8 (1932); S. Rep. No. 10, Part 1, 60th Cong., 1st Sess., p. 23 (1908); H. R. Rep. No. 2, Part 1, 60th Cong., 1st Sess., p. 22 (1908).
In the only previous decision on the legality of a “give-away” program of the type involved here, a state trial court held that the program did not constitute a lottery because the consideration element was lacking. Clef, Inc. v. Peoria Broadcasting Co., Equity No. 21368, Circuit Court of Peoria County, Illinois (1939).
Similarly, cases under the postal lottery laws (see note 9, supra) appear to be uniform in requiring a “valuable” consideration for a “lottery, gift enterprise, or similar scheme.” See Garden City Chamber of Commerce, Inc. v. Wagner, 100 F. Supp. 769 (E. D. N. Y.), stay denied, 192 F. 2d 240 (C. A. 2d Cir.); Post Publishing Co. v. Murray, 230 F. 773 (C. A. 1st Cir.), cert. denied, 241 U. S. 675. But cf. dictum in Brooklyn Daily Eagle v. Voorhies, 181 F. 579, 581-582 (C. C. E. D. N. Y.).
A leading case is Maughs v. Porter, 157 Va. 415, 161 S. E. 242; see also State ex rel. Regez v. Blumer, 236 Wis. 129, 294 N. W. 491. Contra, Cross v. People, 18 Colo. 321, 32 P. 821; cf. Garden City Chamber of Commerce, Inc. v. Wagner, 100 F. Supp. 769 (E. D. N. Y.), stay denied, 192 F. 2d 240 (C. A. 2d Cir.). For critical commentary on the Maughs decision, supra, see Notes, 18 Va. L. Rev. 465 and 80 U. of Pa. L. Rev. 744; Pickett, Contests and the Lottery Laws, 45 Harv. L. Rev. 1196, 1206.
E. g., Affiliated Enterprises, Inc. v. Waller, 40 Del. 28, 5 A. 2d 257; Affiliated Enterprises, Inc. v. Gantz, 86 F. 2d 597 (C. A. 10th Cir.). Contra, e. g., Darlington Theatres, Inc. v. Coker, 190 S. C. 282, 2 S. E. 2d 782; Affiliated Enterprises, Inc. v. Rock-Ola Mfg. Corp., 23 F. Supp. 3 (N. D. Ill.).
Some of the programs involved here (e. g., “Stop the Music,” described in note 2, supra) do not even make this requirement. As a practical matter, however, few home contestants on a “give-away” program would be in a position to answer correctly the questions asked of them unless they listened to the program.
In 1949 the Solicitor ruled that material relating to “Stop the Music” (described in note 2, supra) would be mailable. In 1950 he ruled that material relating to a comparable contest conducted on the program “Truth or Consequences” would be mailable. While earlier rulings on a “give-away” program called “Mu$ico” had been to the contrary, the Solicitor in 1949 informally advised that the material relating to the program would be mailable. These unreported rulings were made part of the record below.
In accord with these rulings, the Solicitor in 1947 had instructed local postmasters that at least “an expenditure of substantial effort or time” was required in order to find an enterprise to be a “lottery, gift enterprise, or similar scheme.” The instructions provided:
“In order for a prize scheme to be held in violation of this section, it is necessary to show (in addition to the fact that the prizes are awarded by means of lot or chance) that the ‘consideration’ involves, for example, the payment of money for the purchase of merchandise, chance or admission ticket, or as payment on an account, or requires an expenditure of substantial effort or time. On the other hand, if it is required merely that one’s name be registered at a store in order to be eligible for the -prize, consideration is not deemed to be present.” (Italics added.) Postal Bulletin, Feb. 13, 1947. The italicized language, supra, was judicially confirmed in Garden City Chamber of Commerce, Inc. v. Wagner, 100 F. Supp. 769 (E. D. N. Y.), stay denied, 192 F. 2d 240 (C. A. 2d Cir.). In 1953, on the basis of the Garden City case and the District Court decision in this case, the Solicitor issued new instructions further narrowing the meaning of “an expenditure of substantial effort or time.” Postal Bulletin, June 4, 1953.
Apparently no prosecutions have ever been instituted under either the former § 316 of the Communications Act or the present § 1304 of the Criminal Code. In a series of letters made part of the record below, the Chairman of the Commission in 1940 urged the Attorney General to institute criminal proceedings against a number of stations because of their broadcasting of “give-away” programs similar to those involved here. In response to each letter, the Attorney General advised that “careful consideration has been given to this matter and it has been concluded that no action is warranted by this Department.”
See note 16, supra.
In a letter made part of the record below, the Chairman of the Commission in 1943 urged the Senate Interstate Commerce Committee to approve a proposed amendment to § 316 of the Communications Act, later to become § 1304 of the Criminal Code. The proposed amendment would have retained the existing language as to “any lottery, gift enterprise, or similar scheme,” but would have extended the prohibition to “any program which offers money, prizes, or other gifts to members of the radio audience (as distinguished from the studio audience) selected in whole or in part by lot or chance.” No action was ever taken on the proposal.
Cf. United States v. Halseth, 342 U. S. 277, 280-281.
Question: What is the issue of the decision?
01. antitrust (except in the context of mergers and union antitrust)
02. mergers
03. bankruptcy (except in the context of priority of federal fiscal claims)
04. sufficiency of evidence: typically in the context of a jury's determination of compensation for injury or death
05. election of remedies: legal remedies available to injured persons or things
06. liability, governmental: tort or contract actions by or against government or governmental officials other than defense of criminal actions brought under a civil rights action.
07. liability, other than as in sufficiency of evidence, election of remedies, punitive damages
08. liability, punitive damages
09. Employee Retirement Income Security Act (cf. union trust funds)
10. state or local government tax
11. state and territorial land claims
12. state or local government regulation, especially of business (cf. federal pre-emption of state court jurisdiction, federal pre-emption of state legislation or regulation)
13. federal or state regulation of securities
14. natural resources - environmental protection (cf. national supremacy: natural resources, national supremacy: pollution)
15. corruption, governmental or governmental regulation of other than as in campaign spending
16. zoning: constitutionality of such ordinances, or restrictions on owners' or lessors' use of real property
17. arbitration (other than as pertains to labor-management or employer-employee relations (cf. union arbitration)
18. federal or state consumer protection: typically under the Truth in Lending; Food, Drug and Cosmetic; and Consumer Protection Credit Acts
19. patents and copyrights: patent
20. patents and copyrights: copyright
21. patents and copyrights: trademark
22. patents and copyrights: patentability of computer processes
23. federal or state regulation of transportation regulation: railroad
24. federal and some few state regulations of transportation regulation: boat
25. federal and some few state regulation of transportation regulation:truck, or motor carrier
26. federal and some few state regulation of transportation regulation: pipeline (cf. federal public utilities regulation: gas pipeline)
27. federal and some few state regulation of transportation regulation: airline
28. federal and some few state regulation of public utilities regulation: electric power
29. federal and some few state regulation of public utilities regulation: nuclear power
30. federal and some few state regulation of public utilities regulation: oil producer
31. federal and some few state regulation of public utilities regulation: gas producer
32. federal and some few state regulation of public utilities regulation: gas pipeline (cf. federal transportation regulation: pipeline)
33. federal and some few state regulation of public utilities regulation: radio and television (cf. cable television)
34. federal and some few state regulation of public utilities regulation: cable television (cf. radio and television)
35. federal and some few state regulations of public utilities regulation: telephone or telegraph company
36. miscellaneous economic regulation
Answer:
|
songer_habeas
|
A
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine whether the case was an appeal of a decision by the district court on a petition for habeas corpus. A state habeas corpus case is one in which a state inmate has petitioned the federal courts.
Barbara Jean BERRY et al., Plaintiffs-Appellees-Cross-Appellants, v. SCHOOL DISTRICT OF the CITY OF BENTON HARBOR, MICHIGAN, et. al., Defendants-Appellants-Cross-Appellees.
Nos. 71-1957 and 71-1958.
United States Court of Appeals, Sixth Circuit.
Nov. 1, 1974.
Robert P. Small, Small, Shaffer & Small, Benton Harbor, Mich., for defendant-appellant-cross-appellee.
Stuart J. Dunnings, Jr., Dunnings & Gibson, Lansing, Mich., Louis R. Lucas, Ratner, Sugarmon & Lucas, Memphis, Tenn., Nathaniel R. Jones, New York City, for plaintiffs-appellees-cross-appel-lants.
Before PHILLIPS, Chief Judge and EDWARDS and PECK, Circuit Judges.
PECK, Circuit Judge.
Plaintiffs instituted this desegregation action against the School District of the City of Benton Harbor, Michigan, members of the local school board and the district’s chief administrative officer in 1967, alleging unconstitutional segregation and inferior educational opportunities for black students. The case was tried before the late Judge W. Wallace Kent, Western District, Michigan, in February 1970. In the findings of fact and conclusions of law announced in July 1971 the court found that although a racial imbalance existed in the school district, defendants had not created it and had no affirmative legal duty to adopt a system wide remedial plan. The court, however, did find defendants guilty of discrimination in three areas: (1) assignment of teaching positions; (2) use of different systems to establish learning groups at three junior high schools; and (3) budgeting for operational expenses on a per-pupil basis. The court ordered defendants to discontinue discriminatory practices in the above areas. Defendants perfected this appeal from the above findings and from the orders to desist, and plaintiffs perfected a cross-appeal claiming that the court erred in not finding de jure segregation and in not providing adequate remedies for the discrimination it found.
Defendant school district was formed in 1965 by a process of consolidation, annexation and attachment of separate school districts in and around Benton Harbor. It encompasses an area of 57 square miles, and in 1969 it enrolled approximately 12,000 students in 28 regular schools. The professional staff consisted of 470 teachers and 50 administrators. At the time of consolidation the school board adopted the existing attendance area boundary lines of the predecessor districts, the result of which was that by 1970, seven of the 28 schools were more than 80% black and 14 more than 80% white. Only 7 of 28 schools could be termed mixed. The overall student population was approximately 49% black and 51% white. Both before and after consolidation, however, all area students attended Bénton Harbor High School, which during the 1969-1970 school year was 40% black and 60% white.
The district court attributed pupil population in the schools in the consolidated district to “the racial complexion of the area served by the individual schools.” It also pointed out that the number and density of the black population had increased between 1965 and 1970, and that with few exceptions the predominately black neighborhoods contained less than adequate housing. Although defendants were not held responsible for the segregated housing patterns, the court stated that the “containment of blacks [caused] the percentage of students attending schools with a student body of fifty percent or more of the same race [to increase].” The defendants made no effort to alter attendance boundaries to achieve a better racial balance.
In 1970 there were approximately 470 teachers in the district, 83 (17.7%) of whom were black. Black teachers were actively recruited by the school district and the years 1965 through 1970 saw a steady improvement in the percentage of black teachers employed. But the district court found that the method used to assign the teachers was racially motivated and that a disproportionate number of black and generally inexperienced teachers were assigned to predominantly black schools resulting in a denial of equal educational opportunity to black students. Nearly 70% of the black elementary and junior high teachers were assigned to predominantly black schools, while 15 schools had 100% white faculties. The district court ordered defendants to desist from assigning teachers on the basis of race.
The court also found that the physical conditions in a number of the schools turned over to the consolidated district in 1965 were grossly inadequate and that all of the buildings operated by the district were generally crowded. It further noted that the median age for predominantly black schools was 43 years, while the median age for predominantly white schools was 17 years. In spite of a well recognized need for improved facilities, no new construction or substantial remodeling was undertaken in the elementary or junior high schools after consolidation due to lack of funds. The court ascribed the differences among the various schools to different types of land and economic development and wide variances in assessed valuation for taxes in the predecessor districts.
Defendants operated three separate schools for junior high level students; Fairplain Junior High School (predominantly white), Hull School (mixed), and Benton Harbor Junior High School (predominantly black). Two different methods were used to establish learning groups in the three units and this led the district court to the following conclusion :
“The tracking system as used at Benton Harbor Junior High School as differentiated from that used at Fair-plain Junior High School and Hull Junior High School, results in a denial of equal opportunity to the students at Benton Harbor Junior High School to achieve the same level of education in junior high school and high school as is afforded to the students at Fair-plain Junior High School and at Hull Junior High School. This system is improper and denies equal opportunity to the children who are attending Benton Harbor Junior High School.”
The court ordered the tracking system used at Benton Harbor Junior High School discontinued.
The district court received extensive evidence regarding the district’s budgeting procedures. It found that the budgeting of funds for operational expenses was done on a per-pupil basis and that as a result predominantly white schools which were generally in good condition were able to maintain that status while the older and more dilapidated facilities in predominantly black schools were not upgraded due to lack of funds. Defendants were ordered to revise this budgeting procedure.
A thorough review of the record convinces us that the district court’s findings that defendants were guilty of discrimination in the assignment of teachers and in the use of two different methods of establishing learning groups in the junior high schools were supported by the evidence. However, it is clear that the district court erred in finding discrimination in the budgeting procedures.
The district court made the following finding of fact:
“[T]he budgeting of funds is done by the Defendant on a per-student basis, as a result of which many of the schools with majority white students which came into the consolidated district with good facilities are in a position to maintain good facilities, and those schools which came into the consolidated district without good facilities do not have sufficient funds to improve the situation. The budgeting provides for $10.00 per child for operational expense.”
The Superintendent explained that the per-student allocation was used only for “instructional supplies, library and office supplies.” Teachers’ salaries, maintenance and repairs, and capital expenditures all came from different and separate funds.
The conclusion reached by the district court was apparently based upon the erroneous assumption that the allocation of $10.00 per-pupil per year for operational expenses was spent to maintain the school buildings, or could have been spent to upgrade some of the older facilities. The only evidence of record, however, was that new construction, renovation, and regular .maintenance had nothing to do with the operating budget. Thus we must conclude that the district court was clearly erroneous in finding defendants guilty of discrimination in this regard.
It is clear from a recital of the facts of record in this case that a number of important indicia of de jure segregation were present even though a dual school system was neither compelled nor authorized by law. The school system was in fact racially imbalanced, teachers were assigned on the basis of race, the physical condition of the predominantly black schools was generally inferior to the conditions in the predominantly white schools, and the method of assigning students to learning groups in the black junior high school deprived black students of an equal opportunity for an education. The Supreme Court has stated that discrimination in these areas of education constitutes a prima facie case of the existence of a dual school system. Keyes v. School District No. 1, Denver, Colorado, 413 U.S. 189, 201, 93 S.Ct. 2686, 37 L.Ed.2d 548 (1973); Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 18, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971); Green v. County School Board, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968). We are satisfied that a prima facie case was made out in this instance.
We recognize the difficulty in determining the quantum of state participation which is a prerequisite to a finding of a constitutional violation. “[T]he necessary degree of state involvement is incapable of precise definition and must be defined on a case-by-case basis.” United States v. Texas Education Agency, 467 F.2d 848, 864 (5th Cir. 1972), cited with approval in Keyes v. School District No. 1, Denver, Colorado, supra, 413 U.S. at 215, 93 S.Ct. 2686 (Douglas, J., concurring). The district courts are not without guidance in this difficult .task, however, as there have been a number of appellate decisions addressed to this problem. Although the relevant standards have not changed since Judge Kent rendered his decision in 1971, the Supreme Court has attempted to clarify the law in this area. For this reason, the issues presented by this case are particularly well suited to fresh consideration by the district court in light of recent case law. The question on remand will be whether defendants can successfully negate the prima facie case of de jure segregation that has been made against them.
Plaintiffs ask that we hold defendants’ 1965 adoption of the previously existing school attendance boundaries an independent act of deliberate segregation sufficient in itself to warrant an order for “all-out” desegregation. We decline to do so.
The instant suit was commenced after consolidation and no court action was pending against the school district prior to that time. There had been no judicial finding that defendants were operating a dual school system and the defendants had made no determination that action ought to be taken. Further, the attendance lines had existed in substantially the same form for a number of years prior to consolidation and before any complaint of segregation. In light of the above, we cannot say as a matter of law that defendants were under a duty to alter the attendance lines in 1965. Defendants’ decision, however, not to adopt new attendance boundaries in the face of a readily discernable pattern of residential segregation may be considered part of the cumulative evidence of a possible constitutional violation.
We note in passing that the district court stated that except for the specific areas in which it found discrimination “there [was] no' evidence that race [had] been the sole consideration in any act, decision, assignment, choice or program of Defendant District or its Board.” (Emphasis supplied.) It is not necessary to prove discriminatory motive, purpose, or intent ás a prerequisite to establishing an equal protection violation when discriminatory effect has been demonstrated. The “sole criterion” test has been rejected by the Supreme Court. Wright v. Council of City of Emporia, 407 U.S. 451, 461-462, 92 S.Ct. 2196, 33 L.Ed.2d 51 (1971); see United States v. Texas Education Agency, supra; Mahaley v. Cuyahoga Metropolitan Housing Authority, 355 F.Supp. 1245 (N.D.Ohio 1973). The question to be considered by the district court is whether defendants’ official acts resulted in a constitutionally impermissible dual school system.
For the reasons set forth hereinabove, the findings of the district court are affirmed in part and reversed in part and the orders entered pursuant thereto are vacated, and the cause is remanded to the district court for further proceedings consistent with this opinion.
. The latest statistics of record are for the 1969-1970 school year.
. The predominantly black schools operated at 103.6% capacity; the predominantly white schools operated at 96% capacity.
. All building programs proposed by the school board were defeated by district voters,
. The six criteria most often listed as indicia are composition of the student bodies, faculty, staff, transportation, extra-curricular activities, and facilities.
Question: Was the case an appeal of a decision by the district court on a petition for habeas corpus?
A. no
B. yes, state habeas corpus (criminal)
C. yes, federal habeas corpus (criminal)
D. yes, federal habeas corpus relating to deportation
Answer:
|
songer_post_trl
|
B
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court's ruling on some post-trial procedure or motion (e.g., allocating court costs or post award relief) favor the appellant?" This doe not include attorneys' fees, but does include motions to set aside a jury verdict. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
William H. BORTHWICK and Frances N. Borthwick, Plaintiffs-Appellees, v. FIRST GEORGETOWN SECURITIES, INC. and Darrell Brookstein, Defendants-Appellants.
No. 312, Docket 89-7548.
United States Court of Appeals, Second Circuit.
Argued Oct. 19, 1989.
Decided Dec. 14, 1989.
Thomas C. Henry, St. Michaels, Md. (Roberts & Henry, St. Michaels, Md., of counsel), for defendants-appellants.
Howard M. Rosenfield, Bristol, Conn., for plaintiffs-appellees.
Before LUMBARD, MESKILL and WINTER, Circuit Judges.
MESKILL, Circuit Judge:
Appellant First Georgetown Securities, Inc. (First Georgetown), a District of Columbia corporation, is a discount securities broker. From September 2, 1982 through September 25, 1985, First Georgetown placed orders for the purchase of various penny stocks on behalf of appellees (the Borthwicks). However, neither First Georgetown nor appellant Brookstein, an officer and director of First Georgetown, was registered as a securities broker as required by the Connecticut Uniform Securities Act (CUSA), Conn.Gen.Stat. § 36-474 (1989). The subsequent sales of those stocks, also made through First Georgetown, resulted in substantial losses to the Borthwicks. On August 17, 1987, the Bor-thwicks brought suit against appellants for damages pursuant to Conn.Gen.Stat. § 36-498 (1989).
In the district court, the Borthwicks moved for partial summary judgment on count one of their complaint. After hearing oral argument on the motion, the district court ruled from the bench in favor of the Borthwicks on the issue of liability but reserved decision on the calculation of damages, requesting that the parties submit additional briefs on the matter. The Bor-thwicks filed a supplemental memorandum, including a proposed calculation of damages based on all of the stocks purchased and sold through First Georgetown. Appellants did not timely file a similar brief in opposition. In a written endorsement ruling, the district court accepted the Bor-thwicks’ proposed calculations and awarded total damages pursuant to Conn.Gen.Stat. § 36-498(a) in the amount of $109,210.05, which included interest and attorney’s fees. The Borthwicks subsequently moved for and were granted judgment in their favor on count one and dismissal of the remaining counts of their complaint.
DISCUSSION
A. Statute of Limitations
Securities brokers are required to register with the State Banking Commissioner before conducting business in Connecticut. Conn.Gen.Stat. § 36-474. Appellants admit that they were not registered when the purchases and sales of the securities in question were made. Nevertheless, they contend that the district court erred in its award of damages because the Borthwicks were barred by the statute of limitations from recovering a large portion of their alleged losses.
An action alleging violation of the broker registration requirement of Conn.Gen.Stat. § 36-474 must be brought no later than “two years after the contract of sale.” Conn.Gen.Stat. § 36 — 498(f) (1989). This action was commenced on August 17, 1987; thus, the operative date for purposes of the statute of limitations is August 17, 1985. All but four of the Borthwicks’ purchases were made before August 17, 1985. The Borthwicks nonetheless maintain that the remedy provided by Conn.Gen.Stat. § 36-498 is available when securities are purchased from or when sold to an unregistered broker. Thus, they contend that they may recover on not only those securities purchased within the two year period prior to the commencement of this action, but also on those sold through First Georgetown after August 17, 1985 but purchased through First Georgetown before that date. By contrast, appellants argue that the running of the statute of limitations commences with the purchase of the securities, and that therefore the Borthwicks are barred from recovering on all but four of the transactions in question.
Section 36-498 provides a cause of action based on violations of the broker registration requirement. It is entitled “Buyer’s remedies” and provides, in pertinent part, that
[a]ny person who: (1) Offers or sells a security in violation of subsection (a) of section 36-474 ... is liable to the person buying the security from him, who may sue either at law or in equity to recover the consideration paid for the security, together with interest at eight per cent per year from the date of payment, costs and reasonable attorneys’ fees, less the amount of any income received on the security, upon the tender of the security, or for damages if he no longer owns the security.
Conn.Gen.Stat. § 36-498(a). The language of this section refers only to purchases of securities from a broker, and not to sales to a broker.
We recognize that section 36-498 is a remedial statute, and as such should be construed liberally. MacPeg Ross O’Connell and Goldhaber, Inc. v. Castello, 686 F.Supp. 397, 399 (E.D.N.Y.1988); see Hartford Fire Ins. Co. v. Brown, 164 Conn. 497, 503, 325 A.2d 228, 232 (1973). However, the construction offered by the Borthwicks is untenable. If, as the Borthwicks suggest, an action under section 36-498 may be brought within two years after a purchase from or a sale to an unregistered broker, the statute of limitations would be effectively subverted. Purchasers of securities could, under the Borthwicks’ interpretation, wait to see how their investment pans out. If it results in a loss, they could sell the stocks through an unregistered broker regardless of how long they have held the securities and thereafter bring suit to recover damages.
The Borthwicks maintain that the legislature intended this bizarre result as a means of further deterring unregistered brokers from transacting business in violation of section 36-474. We cannot agree. They cannot point to anything in the language of CUSA or its legislative history that lends support to their interpretation of the statute. The only reasonable construction is that the two year statute of limitations provided in section 36 — 498(f) begins running at the time the securities are purchased from the unregistered broker. To accept a contrary interpretation would render the statute of limitations largely meaningless without substantially furthering the goal of protecting individuals from unregistered securities brokers.
A question remains, however, about whether appellants waived their statute of limitations defense. When ruling from the bench on the Borthwicks’ motion for partial summary judgment, the district court granted the motion on the issue of liability but requested that the parties submit additional briefs on the question of damages and in particular whether the Borthwicks were entitled to attorney’s fees as part of their award of damages. Although the Borthwicks submitted a supplemental memorandum including a proposed schedule of damages, appellants failed to file a brief in response. The district court, noting the absence of a supplemental brief from appellants, accepted the Borthwicks’ proposed damages calculations.
The failure to submit a supplemental brief, in this case, did not constitute a waiver of this otherwise proper defense against liability. The district court held appellants liable for all the transactions, even though only four of the purchase transactions took place after August 17, 1985. It did not specifically address appellants’ statute of limitations defense in either its bench ruling or subsequent endorsement ruling, even though the defense had been properly raised in their answer and their memorandum in opposition to the motion for partial summary judgment. The court’s request for additional briefing was not directed at the time frame of the various purchases and sales; rather, the court expressed concern about the scope of the remedy provided by section 36-498(a) when the plaintiff no longer owns the securities and sought assistance from the parties on the issue. Although appellants’ failure to respond to the court’s request is inexcusable, it was not a waiver of the tendered statute of limitations defense in this case. Under these circumstances, it was error for the district court to have found appellants liable for the purchases that occurred prior to August 17, 1985.
B. Commerce Clause
Appellants make a half-hearted claim that CUSA’s broker registration requirement imposes an unconstitutional burden on interstate commerce. They contend that a genuine issue of material fact, inappropriate for disposition by summary judgment, underlies this claim. Yet, they have failed to put forward any evidence of the nature of the burdens on interstate commerce created by the registration requirement. An opposing party may not escape summary judgment merely by vaguely asserting the existence of some unspecified disputed material facts. Once the moving party has come forward with support in the form of the pleadings, depositions, interrogatory answers, admissions or affidavits that no genuine issue of material fact remains to be tried, the opposing party has the burden of providing similar support setting forth specific facts about which a genuine triable issue remains. Fed.R. Civ.P. 56(e); Donahue v. Windsor Locks Board of Fire Comm’rs, 834 F.2d 54, 57 (2d Cir.1987). Appellants have not even attempted to meet this burden.
The broker registration requirement imposes a de minimis burden on interstate commerce. A person seeking to transact business as a securities broker in Connecticut must register with the State Banking Commissioner. Conn.Gen.Stat. § 36-474 (1989). An application for registration must be accompanied by a statement of financial condition, id. § 36-477, a photograph of each principal officer or director of a corporation, of each general partner of a partnership, or of the proprietor of a sole proprietorship, id. § 36-479, and a fee of $250, id. § 36-480(a). The annual renewal fee is $150. Id. § 36-481(a). These provisions do not affirmatively discriminate against interstate commerce, and their minimal and incidental burden on interstate transactions are outweighed by the protection registration affords the buyers and sellers of securities. See Maine v. Taylor, 477 U.S. 131, 138, 106 S.Ct. 2440, 2447, 91 L.Ed.2d 110 (1986); Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 90 S.Ct. 844, 847, 25 L.Ed.2d 174 (1970). CUSA’s broker registration requirement therefore does not violate the Commerce Clause.
CONCLUSION
The judgment of the district court is vacated, and the matter is remanded to the district court for entry of a new judgment awarding to the Borthwicks damages resulting from those purchases of securities made within the limitations period, along with costs and reasonable attorney’s fees as provided by Conn.Gen.Stat. § 36-498(a).
. The district court relied in part on its Local R.Civ.P. 9 (D.Conn.), which provides, in pertinent part: "Failure to submit a memorandum in opposition to a motion may be deemed sufficient cause to grant the motion, except where the pleadings provide sufficient grounds to deny the motion." Although appellants should have filed some kind of response to the district court’s request for supplemental briefing and assuming that Local Rule 9 pertains to these circumstances, we conclude that the pleadings and appellant’s prior submissions provided a sufficient basis for determining that they were not liable for the losses sustained in connection with the securities purchased prior to August 17, 1985.
Question: Did the court's ruling on some post-trial procedure or motion (e.g., allocating court costs or post award relief) favor the appellant? This doe not include attorneys' fees, but does include motions to set aside a jury verdict.
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_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.
TEXTILE WORKERS UNION OF AMERICA, AFL-CIO, LOCAL UNION NO. 1386, Appellant, v. AMERICAN THREAD COMPANY, Clover, South Carolina, Appellee.
No. 8189.
United States Court of Appeals Fourth Circuit.
June 5, 1961.
Theodore W. Law, Jr., Columbia, S. C. '(Henry W. Kirkland, Columbia, S. C., and Benjamin Wyle, New York City, on the brief), for appellant.
Frank A. Constangy, Atlanta, Ga. (Constangy & Prowell, Atlanta, Ga., Perrin & Perrin, Spartanburg, S. C., and Fred W. Elarbee, Jr., Atlanta, Ga., on the brief), for appellee.
Before SOBELOFF, Chief Judge, and HAYNSWORTH and BOREMAN, Circuit Judges.
BOREMAN, Circuit Judge.
In the present appeal, which is the second taken by the union in this labor arbitration case, it is asserted that the District Court erred in refusing to require the employer to comply with an arbitration award.
D. M. Arrowood, an employee of the American Thread Company, was discharged on November 11, 1957, for allowing, in the words of the company, “a cotton lap to run through a carding machine which he was supposed to be tending without properly straightening or tending to the lap or feeding in another lap so as to avoid damage to the machine or waste of production.” On two earlier occasions he had been reprimanded and was given what was determined to be a customary warning for similar offenses. Arrowood filed a grievance against the company, maintaining that he was unjustly discharged, although he did not deny letting the lap run through.
There was full compliance with the preliminary grievance procedures prescribed by the collective bargaining agreement between the company and the Textile Workers Union. However, as these steps failed to effect a satisfactory resolution of the grievance in accordance with the contract provisions, the union requested arbitration. The company agreed to arbitrate, the parties stipulated the terms of the submission of the dispute and a hearing was held. The arbitrator pointed out that there was no question of Arrowood’s guilt, since he did not deny the offense charged, but held that the offense did not amount to just cause for discharge. His award ordered suspension without pay for one week commencing November 11, 1957, and thereafter reinstatement without loss of seniority or other rights. He also awarded the employee back wages after the termination of the one week suspension, but limited to a maximum period of ninety days.
When the company refused to abide by the award, the union instituted this suit in the United States District Court for the Western District of South Carolina, seeking to compel compliance. The District Court dismissed the case for lack of jurisdiction and the union’s first appeal followed. This court remanded, 4 Cir., 271 F.2d 277, stating:
“This case presents substantially the same question decided by this court in Enterprise Wheel & Car Corporation v. United Steel Workers, 4 Cir., 1959, 269 F.2d 327, and Textile Workers Union of America v. Cone Mills Corp., 4 Cir., 1959, 268 F.2d 920. * * *
“Inasmuch as we decided Enterprise Wheel and Cone Mills after the District Court’s decision in this case, we think the appropriate action here is to remand the case to the District Court for reconsideration in light of our opinions in Enterprise Wheel and Cone Mills.”
On remand, the District Court again declined to order enforcement of the award, and the union again appealed.
A preliminary question concerns the District Court’s jurisdiction to enforce the award. When this court remanded, its opinion observed that there might possibly be a difference between this case and the Cone Mills and Enterprise Wheel decisions with respect to the rights of individual employees to control the processing of grievances. Of course, in calling attention to this possibility we-did not intend to rule in advance that there was a significant difference or what its legal effect would be. Upon remand, the employer renewed its motion to dismiss for lack of jurisdiction. The District Court, pointing out that employees could individually present their grievances in accordance with the grievance provisions of the collective bargaining-agreement, expressed the view that under the Supreme Court’s decision in Association of Westinghouse Salaried Employees v. Westinghouse Electric Corp., 1955, 348 U.S. 437, 75 S.Ct. 489, 99 L.Ed. 510, the-court did lack jurisdiction. However, instead of dismissing for lack of jurisdiction, the court proceeded to consider whether the arbitrator had exceeded the scope of the submission, and granted the defendant’s motion for summary judgment, apparently on the latter ground.
In its brief, The American Thread Company argues lack of jurisdiction, although in oral argument it seemed to concede that jurisdiction existed. We think that there can be no doubt that the District Court had jurisdiction. Westinghouse was not a suit to enforce an arbitration agreement in a collective bargaining contract but a union’s undertaking to recover back wages due individual employees. Here, we are dealing with a promise by the employer, in a contract with the union, to arbitrate. Unless the matter sought to be arbitrated falls outside the subject matter of the submission, the District Court has jurisdiction under section 301 of the Labor Management Relations Act of 1947, 29 U.S.C.A. § 185, to enforce both the promise to arbitrate and the promise to abide by the arbitrator’s award. Textile Workers Union of America v. Lincoln Mills, 1957, 353 U.S. 448, 77 S.Ct. 912, 923, 1 L.Ed.2d 972; Textile Workers Union of America v. Cone Mills Corp., 4 Cir., 1959, 268 F.2d 920, certiorari denied 361 U.S. 886, 80 S.Ct. 157, 4 L.Ed.2d 121.
On examination of the grievance procedure in this collective bargaining agreement, it is found to be not particularly unusual. Article VI provides a four step procedure for processing grievances. The first two steps permit either the employee and/or his union representative to bring a grievance before certain company officials. The third step, in the event the first two fail to bring a settlement, is for the Union Shop Committee to submit the grievance to the company. The fourth relates to grievances filed by the company against the union. Article VII of the contract then makes provision for arbitration in the event that disputes or grievances are “not satisfactorily adjusted under the Grievance Procedure set out in the preceding section.” This is one continuous process, leading to, arbitration, and the many decisions, beginning with Lincoln Mills, supra, holding that such provisions are enforceable in the courts, leave no room to question the District Court’s jurisdiction.
The union maintains, in accordance with the arbitrator’s interpretation of the agreement, that whether particular conduct constituted just cause for discharge is a question that may be submitted to arbitration. The company, on the other hand, contends that the arbitrator exceeded his authority and that the award here was in violation of the contract and the terms of the submission. In arriving at our ultimate conclusions, we are not unmindful of certain principles which are hereinafter noted.
Even in earlier days when courts were less hospitable to arbitration, it was decided that they would not set aside an arbitrator’s award for mere errors of fact or law; and mistakes in the admission of evidence or misinterpretation of the contract giving rise to the arbitration would not vitiate the award. It was only where the arbitrator clearly went beyond the scope of the submission that courts would interfere. Burchell v. Marsh et al., 1854, 17 How. 344, 15 L.Ed. 96. Later decisions are to the same effect: Georgia & F. Ry. Co. v. Brotherhood of Locomotive Engineers, 5 Cir., 1914, 217 F. 755; Firemen’s Fund Ins. Co. v. Flint Hosiery Mills, 4 Cir., 1935, 74 F.2d 533; Mutual Benefit Health & Acc. Ass’n v. United Casualty Co., 1 Cir., 1944, 142 F.2d 390; United Fuel Gas Co. v. Columbian Fuel Corporation, 4 Cir., 1948, 165 F.2d 746.
While these principles have met with general acceptance, factual situations do arise where it may be a close question whether the arbitrator actually exceeded his authority, or merely committed what a court might deem error of law or fact. Three recent decisions of the Supreme Court involving labor arbitration agreements, without departing from the above stated principles, have clarified the role of courts in such close cases when dealing with collective bargaining contracts. See: United Steelworkers of America v. American Mfg. Co., 1960, 363 U.S. 564, 80 S.Ct. 1363, 4 L.Ed.2d 1432; United Steelworkers of America v. Warrior & Gulf Co., 1960, 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409, and United Steelworkers of America v. Enterprise Wheel & Car Corp., 1960, 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424. In these cases, the court reaffirmed the long established doctrine that an arbitration award is unenforceable if it exceeds the scope of the submission, although where it is not “apparent that he [the arbitrator] went beyond the submission,” courts should enforce the promise to arbitrate.
We now look to the terms and conditions of submission to arbitration and certain pertinent provisions of the contract, all of which, in our opinion, should be read and considered together in determining the real question here presented.
The stipulation for arbitration is as follows:
“Under the terms of the contract and within the limits of those terms, including the restrictions on the power of the arbitrator, does Grievance 157 allege, and has the union proved, a violation of the contract? If so, and within the same limitations, what should be the remedy?” (Emphasis here and in the quoted contract provisions is supplied.)
Article III of the collective bargaining agreement, titled “Management Rights,” contains the following provisions:
“It is agreed that, except as expressly limited or modified in this Agreement, the Company has the right of management. This includes, among other things, the right to plan, direct, control, increase, decrease or discontinue operations; to change machinery or type of products, or demote employees subject to just cause, and to discipline or discharge employees for just cause; * * *; it is recognized further that all rights heretofore exercised by or inherent in the Management, and not expressly contracted away by the terms of this Agreement are retained solely by the Management. Any action by the Company under this Section may be made the subject of collective bargaining and grievance procedure, up to but not including arbitration, unless as otherwise hereinafter expressly provided in this Agreement. * * *.”
The last sentence of Article III which was omitted from the foregoing quotation is as follows:
“It is expressly agreed, however, that should the Company change existing work rules, that such changes are subject to the grievance and arbitration procedure under this Agreement.” (Emphasis supplied.)
This last quoted sentence clearly indicates the intent of the parties as to the manner in which changes in, or modifications of, the Management Rights Provisions will be expressly and unequivocally stated.
Article IV, Sections 1, 2 and 3, are, in pertinent part, as follows:
“1. Just Cause — Employees shall be disciplined or discharged only for just cause, which shall include, but not be limited to, insubordination; violation of valid plant rules; failure to obey instructions of supervisors; failure of an employee to properly perform Ms job in accordance with the Company standards, * * *_
“2. Procedure — In all cases of discharge or discipline, the Company will promptly present a written statement to the employee or employees involved giving the cause of the discharge or discipline. The employee or the Union shall have the right to make such matter a grievance, subject to the grievance procedure of this Agreement, * * *.
“3. Funding — Should it be determined that any employee was disciplined or discharged without just cause, such employee shall be restored to his former status provided, however, that no arbitrator may award back pay for a period exceeding ninety (90) days, *
Article VI, Section 1, of the contract provides:
“Should any employee have any grievance arising from the operation or interpretation of this Agreement an earnest effort to adjust such grievance satisfactorily to the parties shall be made immediately in the following manner: * *
The first part of Article VII, pertaining to arbitration procedures, provides:
“Disputes, grievances, or disagreements involving application or interpretation of this agreement other than those affecting revision of the wage schedules attached hereto, workloads or work assignments, not satisfactorily adjusted under the Grievance Procedure set out in the preceding section shall be promptly referred to arbitration under the following procedure: * *
But Article VII, Section 7, is as follows:
“It is mutually understood and agreed that the findings and decisions of the arbiter shall be final and binding on both parties hereto. The arbiter shall make no award affecting a change, modification or addition to this Agreement and shall confine himself strictly to the facts submitted in the hearing, the evidence before him and the terms of the contract, including any amendments. * *
Whether the arbitrator, in making his award, exceeded his authority derived from the stipulation of submission and from the contract under which the stipulation was framed, was an issue clearly-raised before the District Court. The employer contended that, to the extent the Award exceeded such authority, it was void and unenforceable.
It is impossible to overemphasize the terms and conditions of the submission which was the product of agreement between the parties and which was both the source and limit of the arbitrator’s authority and power. The submission was clearly made subject to the “terms of the contract and within the limits of those terms, including the restrictions on the power of the arbitrator.”
After reciting the fact that Arrowood was discharged for a third offense and after he had been given written warnings for the same offense on two prior occasions, the arbitrator found and stated:
“I am satisfied from the evidence that the offense is a very serious one, though a frequent one in all card rooms. If the lap is not replaced before the last of it comes off the pin, a lump at the end of it will go into the card and cause damage to the card, which in turn will cause inferior quality in the product until the damage to the card is repaired. There is no question that Arrowood is guilty of an offense. The only question is whether, under the circumstances of the case, that offense constituted ‘just cause’ within the meaning of the Contract.”
There was evidence produced at the hearing to show a long-standing policy in the “card room” of discharge following two warnings. This testimony was noted by the arbitrator who made no finding that such policy did not exist although he observed that one witness “admitted that disciplinary suspensions were sometimes employed,” not in the card room, but in the “Mill”. After a reference to the failure of an employee to properly perform his job in accordance with company standards, specified in Article IV of the contract as one of the “examples of just cause,” the arbitrator held that he was “not foreclosed from inquiring in this case whether just cause for discharge, rather than for a lesser disciplinary measure, existed.” There was no showing that the discharge was discriminatory in the sense that the company imposed a penalty on this employee different from that imposed upon other employees for like offenses.
We are not persuaded that the Supreme Court, in recent cases involving arbitration and the right to enforcement of arbitration agreements, intended that the courts should permit an arbitrator to render decisions which do such violence to the clear, plain, exact and unambiguous terms of the submission and the contract of the contending parties. By Article III the company had the right to discipline or discharge employees for just cause, surely a discretionary right, and more particularly when the offense is the “failure of an employee to properly perform his job in accordance with the Company standards,” an offense illustratively specified as “just cause” in Article IV, Section 1. We find nothing in any section of Article IV or any other provision of the contract to show an intent to expressly contract away the rights reserved to management. -The reservation of a right to either discipline or discharge for cause would be wholly ineffective and meaningless if the employer’s action, pursuant to such right, is subject to review by an arbitrator on the basis of appropriateness. If the reserved right is construed to mean that the employer can take no disciplinary action in excess of a reprimand, except at its own risk and subject to severe penalties in case an arbitrator should later be of the opinion that some milder action is appropriate, the effect would be that the employer’s inherent right which has not been expressly relinquished by contract is no right, at all. As was stated in United Steelworkers of America v. Warrior & Gulf Co., 363 U.S. 574, at page 583, 80 S.Ct. 1347, at page 1353, 4 L.Ed.2d 1409:
“Collective bargaining agreements regulate or restrict the exercise of management functions; they do not oust management from the performance of them. Management hires and fires, pays and promotes, supervises and plans. All these are part of its function, and absent a collective bargaining agreement, it may be exercised freely except as limited by public law and by the willingness of employees to work under the particular, unilaterally imposed conditions.”
The arbitrator found and declared that Arrowood was guilty of a serious offense. Implicit in this finding and his subsequent treatment of the case is the further finding that “just cause” for disciplinary action was established. But the contract itself provided that he could make no award which would change, modify or add to the agreement; that “all rights heretofore exercised by or inherent in the management,” and not expressly contracted away, were retained by management. The right to either discipline or discharge an employee for just cause, in the instant case for the failure of the employee to properly perform his job in accordance with company standards, was not, nor did the arbitrator find that it had been, expressly contracted away. It was a right, according to the evidence, theretofore exercised by management to discharge for the third failure to. properly perform according to job requirements and standards.
Arrowood’s grievance as formally filed by him stated: “The Company unjustly discharged me for letting a lap run through and I ask that I be reinstated on my job * * To this the company answered: “You were discharged for not paying proper attention to your job and thereby failing to perform your job duties in accordance with the Company’s standards.” The company was thus invoking the protection of Article III and Section 1 of Article IV in the exercise of its contractual right reserved to management.
Consistent with its answer to the grievance, the company agreed to arbitration under stated conditions. We do not understand the company’s contention to be that the existence of good cause for disciplinary action was not arbitrable under any circumstances, or that a discharge, .if challenged as discriminatory in the sense that lighter punishment was imposed upon others for similar offenses in similar circumstances, was not reviewable. But the company does contend that the arbitrator’s only function was to determine whether good cause for some disciplinary action existed, the determination of the appropriate action to be taken being expressly reserved to management. When the arbitrator found that Arrowood had permitted a lap to run through, that it was his third offense, that he had received written warnings of the consequence of a third offense, and recognizing the long-standing management policy of discharge for a third offense following written warning, the only possible remaining question was one of appropriateness of the employer’s consistent disciplinary practice. That is the question the arbitrator then undertook to decide and it is that question which we hold to be beyond the terms of the submission and the contract provision for arbitration. If the express limitation contained in Article III (that the employer’s exercise of his reserved right to discipline might be made the subject of a grievance and of collective bargaining, but not of arbitration) means anything, it means that the employer’s established disciplinary practices were not to be upset by an arbitrator on the ground of inappropriateness. Neither the contract nor the submission gave the arbitrator any right to disregard established disciplinary practices, consistently applied, and to dispense his own brand of industrial justice.
But our decision need not rest on the reasons hereinbefore assigned in support of our conclusion that the arbitrator violated the terms of the contract and exceeded the limits of his authority. There is even a more compelling reason. The arbitrator speculated that Arrowood’s offenses were due to mere negligence, or “to a workload so heavy that he could not properly cover it, or to not having his various job duties so lined up in time sequence that he could not cover them.” In the absence of an express finding to that effect, we must assume that the arbitrator was not undertaking to base a judgment on “mere negligence.” He did, however, disclose the real basis for his determination of the degree of what he had already found to be the employee’s “serious offense” and the propriety of the penalty imposed.
It appears from his award that, in another and wholly unrelated arbitration case which involved this same company, a different arbitrator, after determining that the workload was proper under the contract, had found that this company had been remiss in recognizing its responsibilities to train and supervise the “operators in the proper method and schedule of performing the card tender assignment.” It is perfectly clear that the arbitrator, without evidentiary support in the instant case, accepted and adopted this finding and decision of the other arbitrator in total disregard of the provisions of Article VII, Section 7, requiring that he confine himself strictly to the facts submitted in the hearing, the evidence before him and the terms of the contract. He went completely outside the record in an obvious effort to find some semblance of support for his award. Thus, in aid of his search for justification of his action, the arbitrator manifested a disregard for the terms of the submission and a determination to exceed, if necessary, the limits of the authority and power conferred upon him. This we cannot approve.
The District Court’s denial of enforcement of the award will be
Affirmed.
. The cases go even farther. It has been held in some jurisdictions that, although the particular issue between the employee and his employer is considered one involving a personal right, allowing the individual employee in those jurisdictions to sue the employer directly, yet if the collective bargaining agreement provides for arbitration of that type of dispute, the employee must at least attempt to invoke the arbitration procedure as a condition precedent to bringing his suit. See Jenkins v. Wm. Schluderberg-T. J. Kurdle Co., 1958, 217 Md. 556, 144 A.2d 88, and the authorities there reviewed.
. In the Enterprise case, this court had thought that the award, in part, gave relief which was beyond the authority of the arbitrator, and we held that to such extent only the award should not be enforced. See Enterprise Wheel & Car Corp. v. United Steelworkers, 4 Cir., 1959, 269 F.2d 327. The Supreme Court, however, took the view that the relief granted was within a permissible construction of the contract, and since, in such circumstances, the arbitrator’s construction should prevail, the award should have been enforced in its totality.
. a * * * Nevertheless, an arbitrator is confined to interpretation and application of the collective bargaining agreement; he does not sit to dispense his oion brand of industrial justice. He may of course look for guidance from many sources, yet his award is legitimate only so long as it draws its essence from the collective bargaining agreement. When the arbitrator’s loords manifest an infidelity to this obligation, courts have no choice but to refuse enforcement of the award.” (Emphasis supplied.) United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. at page 597, 80 S.Ct. at page 1361.
Question: Did the interpretation of federal rule of procedures, judicial doctrine, or case law by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
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songer_circuit
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case.
UNITED STATES of America, Appellee, v. Stanley SULLIVAN, Jr., Defendant, Appellant.
No. 82-1796.
United States Court of Appeals, First Circuit.
Argued March 10, 1983.
Decided June 23, 1983.
Rehearing and Rehearing En Banc Denied Aug. 25,1983.
J. Hilary Billings, Bangor, Me., with whom Stem & Goldsmith, Bangor, Me., was on brief, for appellant.
Jay P. McCloskey, Asst. U.S. Atty., Bangor, Me., with whom Richard S. Cohen, U.S. Atty., Portland, Me., was on brief, for ap-pellee.
Before CAMPBELL, Chief Judge, BREYER, Circuit Judge, and CAFFREY, District Judge.
Of the District of Massachusetts, sitting by designation.
CAFFREY,
District Judge.
This case is before us on appeal from the denial of a motion to suppress. Appellant waived a jury, was tried and found guilty by the District Court. United States v. Sullivan, 544 F.Supp. 701 (D.Me.1982). The question raised on appeal is whether appellant’s rights under the fourth and fourteenth amendments were violated when employees of Delta Airlines, aided by law enforcement agents, made warrantless searches of a package presented by appellant to Delta Airlines for air shipment. The District Court held that the searches did not violate constitutional requirements and our review of the record reveals no error. We affirm.
Facts
The facts as found by the District Court are as follows.
On November 17, 1981, Delta Airlines employees Davis and Johnson were on duty at the Delta Airfreight counter at the Bangor International Airport (BIA) in Bangor, Maine. Davis was waiting on airfreight customers shortly prior to the scheduled departure of Delta flight 323 when the appellant entered the airfreight-customer waiting area with a package. Johnson, who was engaged in overseeing airfreight counter operations, observed the appellant as appellant waited to present his package. Johnson noticed that appellant appeared a little bit nervous, walking from one side of the waiting area to the other while Davis was waiting on another customer. When appellant approached the counter to present his package, Davis explained to him the difference between regular Delta airfreight service and Delta Dash service. Davis told appellant that Delta Dash insured special handling with guaranteed, scheduled delivery at a substantially greater cost than the cost of regular airfreight, and that Delta Dash customarily was used to transport items such as priority documents, machine parts, and small pets. Appellant chose the Delta Dash service, naming “Sentry Associates” as the consignor, “Prince D. Beach” of “Trilby, Fla.” as the consignee, and the contents as “watches.” The destination of the shipment was shown as “Tampa, Florida.” Davis recorded this information on the Delta Dash airbill, which was signed by “Stan Sullivan,” and Davis gave appellant a copy. The wrapped package was slightly smaller than a shoe box and was very light. It bore the handwritten inscription “Do not open until Christmas.”
Davis’ suspicions were aroused, and after appellant departed, Davis brought the package to Johnson’s attention. Upon examining the pertinent paperwork, Johnson too, was suspicious for the following reasons. There was no business address given for the sender. The shipping charge was paid in cash, which Johnson considered unusual for a business shipment. Watches had never before, to Johnson’s knowledge, been shipped by either Delta Dash or by regular airfreight service. The package was marked “Do not open until Christmas” and yet it was being sent on November 17, by guaranteed, same-day delivery service. Finally, the District Court found that Johnson was particularly concerned about the contents of the package due to a rumored report of an incident, two days earlier, involving a recently released Bangor Mental Health Institute patient who had appeared at the airport and made numerous inquiries of airline personnel concerning flight departures and shipping.
Due to his suspicions, Johnson consulted the telephone book and directory assistance for the telephone number and address of “Sentry Associates.” Finding none, he summoned Bangor Police Lt. Medford Sea-brease who was in charge of the BIA security detail. Johnson informed Seabrease that he suspected the package did not contain watches, and he requested Seabrease to put it through the airport x-ray scanner used for passenger luggage. Seabrease did as he was requested and advised Johnson that the package did not contain watch parts. Johnson himself then subjected the package to a Geiger-count reading in his office and in the presence of Seabrease, with negative results.
Based on the testimony at trial the District Court found the following two facts. Johnson believed there might be an explosive in the package, and Seabrease believed it might contain either contraband or a plastic explosive with a nonmetallic detonation device, or a metallic detonation device so small as to be undetectable by the available x-ray equipment. Seabrease at this time attempted to contact a member of the Bangor Police Department’s two-man bomb squad for assistance, but the squad was unavailable. The District Court found that both Johnson and Seabrease independently decided the package would have to be opened, and that Seabrease, with the permission and assistance of Johnson, performed the actual opening. Inside was a dark blue sock, with traces of a white, powder-like substance upon its outer surface. Contained within the sock was a small transparent bag of what appeared to be the same white powder. Seabrease promptly requested the assistance of police personnel more familiar with what Sea-brease suspected was an illegal substance. After discussion with Johnson and Sea-brease, Detective Welch of the Bangor Police Department took the bag with its contents to a chemical expert, who determined that the powder was cocaine hydrochloride and weighed 28.35 grams.
On the basis of the District Court’s findings we affirm its ruling that Delta Airlines had an independent right, in light of the circumstances, to conduct the x-ray scan and Geiger-count examination, and that the technical assistance of Seabrease was enlisted directly and exclusively in aid of this legitimate, safety-related, private airline purpose. See United States v. Edwards, 602 F.2d 458, 463 (1st Cir.1979).
The Opening of the Package
By the time the opening of the package occurred, it was found by the District Court that Seabrease and Johnson were in possession of the following facts: 1) the sender appeared nervous; 2) the use of Delta airfreight service for the shipment of watches was unusual; 3) the use of Delta Dash guaranteed, same-day delivery service for a mid-November shipment not to be opened until Christmas appeared highly incongruous; 4) there was no telephone listing for the sender “Sentry Associates;” 5) cash payment of the shipping charge by a business shipper was unusual; 6) Lt. Seabrease was the only person immediately available having any expertise in dealing with explosives; 7) there were no suitable facilities available for the safe storage or removal of explosives; 8) the contents of the package had been incorrectly described by the sender and it in fact contained no watches, and; 9) the x-ray scan had not ruled out absolutely the presence of explosives.
The District Court found that Seabrease was by now suspicious of the contents of the package, having recognized that it might contain contraband or explosives. Seabrease was the first to mention the opening of the package and took the lead in doing so. Upon Seabrease’s inquiry to Johnson whether the airline would object to the opening of the package, Johnson stated that the package would have to be opened in any event.
The District Court found that Seabrease had a reasonable belief that explosives might have been present in appellant’s package and further found that this exigent circumstance justified Seabrease in opening the package without first procuring a search warrant. Under similar circumstances in United States v. Homburg, 546 F.2d 1350 (9th Cir.1977), the court upheld a search, not as a routine pre-boarding search, but as a reasonable public safety inspection, on the authority of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Accord, United States v. Legato, 480 F.2d 408 (5th Cir.1973). Even in the absence of a bomb threat or tip, the Court of Appeals for the Fourth Circuit has upheld the hand search of a briefcase that appeared black under an x-ray scan. United States v. DeAngelo, 584 F.2d 46, 47 (4th Cir.), cert. denied, 440 U.S. 935, 99 S.Ct. 1278, 59 L.Ed.2d 493 (1979).
Appellant contends that the finding of exigent circumstances based on the testimony at trial is error because the District Court ignored the weight of the testimony in finding Johnson’s and Seabrease’s explanation for their concerns reasonable. This contention is not tenable on all the evidence, which establishes that the District Court’s findings of fact relevant as to probable cause and exigent circumstances are not clearly erroneous. We accordingly affirm.
Question: What is the circuit of the court that decided the case?
A. First Circuit
B. Second Circuit
C. Third Circuit
D. Fourth Circuit
E. Fifth Circuit
F. Sixth Circuit
G. Seventh Circuit
H. Eighth Circuit
I. Ninth Circuit
J. Tenth Circuit
K. Eleventh Circuit
L. District of Columbia Circuit
Answer:
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songer_origin
|
A
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What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of court which made the original decision. Code cases removed from a state court as originating in federal district court. For "State court", include habeas corpus petitions after conviction in state court and petitions from courts of territories other than the U.S. District Courts. For "Special DC court", include courts other than the US District Court for DC. For "Other", include courts such as the Tax Court and a court martial.
UNITED STATES of America, Plaintiff-Appellee, v. Billy RIVERA, Defendant-Appellant.
No. 85-1081.
United States Court of Appeals, Tenth Circuit.
Dec. 5, 1985.
Peter Schoenburg, Asst. Federal Public Defender, Albuquerque, N.M., for defendant-appellant.
Presiliano Torrez, Asst. U.S. Atty. (William L. Lutz, U.S. Atty., and Larry Gomez, Asst. U.S. Atty., Albuquerque, N.M., were also on brief) for plaintiff-appellee.
Before HOLLOWAY, Chief Judge, and MOORE, Circuit Judge, and CROW, District Judge
The Honorable Sam A. Crow, of the United States District Court for the District of Kansas, sitting by designation.
HOLLOWAY, Chief Judge.
In this criminal action defendant Billy Rivera was convicted of possession of cocaine with intent to distribute, 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2, intentional distribution of cocaine, 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2, and unlawful, knowing or intentional use of a telephone to facilitate distribution of cocaine, 21 U.S.C. § 843(b). At trial, defendant admitted he committed each of the acts alleged in the three-count superseding indictment but asserted the sole defense that the Drug Enforcement Agency Special Agent who ultimately arrested him entrapped him into committing the acts. On appeal of his convictions on all three counts, defendant asserts several grounds for reversal.
I
Considered in the light favorable to the jury’s verdict, the Government proof tended to show the following facts.
On December 31, 1983 at a restaurant in Albuquerque, New Mexico, defendant sold four grams of cocaine to special Agent Ismael Fuentes of the Drug Enforcement Agency (DEA). Fuentes posed as “Jesse,” a wealthy investor interested in investing in legitimate real estate deals who also wanted to purchase a large quantity of cocaine. Before meeting defendant, Fuentes in mid-September 1983 met Jerry Jaramillo, an alleged co-conspirator and friend of defendant who dealt in drugs. Fuentes testified that in a conversation on December 13, 1983 after numerous meetings, Mr. Jaramillo allegedly told him that defendant was one of his three sources for cocaine. Jaramillo introduced Fuentes to defendant on December 21. On December 28, 1983 defendant telephoned Fuentes to arrange to meet with him to sell the cocaine.
On December 31, 1983, defendant met Jaramillo and Fuentes at the Albuquerque restaurant and, that day, defendant and Jaramillo transferred the cocaine to Fuentes. After further contacts with defendant on January 2, 3, and 5, 1984 Fuentes arrested him on January 6.
At trial, defendant admitted that he assisted Jaramillo in possessing cocaine and passing cocaine to Fuentes on December 31, 1983. Defendant also admitted he made the phone call on December 28, 1983 to set up the cocaine transaction. However, defendant claimed that Fuentes entrapped him into making the cocaine sale by luring him with promises of large real estate investments.
Defendant claims he is a legitimate businessman who deals in new and used Corvettes and real estate. Defendant also says that when Jaramillo first urged him to meet with “Jesse” to discuss a drug transaction, defendant declined to become involved. It was only when Jaramillo related to defendant on December 20 Jesse’s interest in purchasing a Corvette and some condominiums from defendant and in beginning a legitimate business relationship that defendant agreed to meet with Fuentes. Defendant further claims that, when he told Jesse he had connections in Miami and Pittsburgh, he lied to retain Jesse as a client and that, when Jesse asked him to sell him a sample of cocaine, he had to go to a bar to obtain the sample. Defendant says he sold Jesse the cocaine to keep from losing him as a client because Jesse’s business represented a once-in-a-lifetime opportunity.
The trial court permitted defendant to plead entrapment on Counts I and II of the indictment, but refused to permit him to assert the defense on Count III because defendant testified during cross-examination that he “did not intend to commit a crime” when he used the telephone on December 28 to set up his December 31, 1983 meeting with Fuentes. The jury convicted defendant on all three counts. The court later sentenced defendant to a merged six year prison sentence and an eight year special parole term on Counts I and II. On Count III, defendant received a four year prison sentence, to run concurrently with the merged six year sentence under Counts I and II.
II
The trial court’s admonition of counsel during his opening statement
As his first ground for reversal defendant says that the trial court committed prejudicial error when it admonished his counsel in front of the jury not to make statements the trial judge felt were appeals to sympathy and prejudice. We conclude the trial judge committed no reversible error.
Regulation of the scope, extent and timing of defense counsel’s opening statement rests within the district court’s sound discretion. United States v. Freeman, 514 F.2d 1184, 1192 (10th Cir.1975). “The function of the defendant’s opening statement is to enable him to inform the court and jury what he expects to prove, and the trial court may properly exclude irrelevant facts.” Id. at 1192. The trial judge has an obligation to keep the trial on track and to prevent unfair appeals to sympathy or prejudice.
The trial judge admonished counsel he should not attempt to generate bias, sympathy or prejudice during the trial but allowed him to tell the jury where defendant grew up and who his family members were. In his opening statement, defense counsel detailed defendant’s family background and his work history, including the sale of motorcycles and automobiles. II R. 33. Defendant’s counsel then sought to compare defendant with other Hispanics in his age group with similar backgrounds, and to point out how defendant had succeeded by “pulling himself up by his boot straps.” The court interrupted defendant’s attorney’s opening statement, advised him to go onto something else, and cautioned him about sympathy and prejudice. II R. 33. The single admonition in the jury’s presence was brief.
The trial court’s admonition to defense counsel in his opening statement was not an abuse of discretion.
Ill
Jaramillo’s Out of Court Statement Identifying Defendant as One of his Cocaine Sources
Defendant strenuously argues that the trial court improperly admitted, over a hearsay objection, Fuentes’ testimony relating a statement by Jaramillo identifying defendant as a source of cocaine for Jaramillo. II R. 84. Defendant argues that the trial judge improperly failed to follow the preferred order of proof to permit admission of the statement, that the court improperly made its determination of admissibility before giving defendant an opportunity to present evidence on the conspiracy question, and that the court’s findings on conspiracy and the admissibility of the statement were not supported by the evidence.
A
The order of proof on the conspiracy issue and the timing of the findings
It is convenient to consider both the defendant’s complaints about the order of proof and the timing of the trial judge’s findings on conspiracy together. We conclude there was no reversible error in either respect.
During his testimony, Special Agent Fuentes described several meetings he had in late 1983. He testified that on December 13 Jaramillo invited Fuentes to Santa Fe. When Fuentes was asked what the purpose of the meeting was, defense counsel objected on hearsay grounds, and the trial judge cautioned that the Government should approach the testimony in a different way to avoid hearsay. II R. 83-84. Fuentes then testified that a meeting occurred on December 13 at the Ramada Inn in Santa Fe with Jaramillo, Special Agent Kevin Small, and Fuentes being present at the motel.
At this point, Government counsel asked Fuentes whether Jaramillo identified his source of cocaine. Defense counsel again objected on hearsay grounds. The trial judge said that the testimony would go to the question of a predicate for the testimony about the meeting and its purpose, and overruled the objection. II R. 85. Fuentes testified that Jaramillo advised him of 3 sources and identified defendant Rivera as one of the sources for Jaramillo’s cocaine. The trial judge then directed that the jury be taken from the courtroom and the jury departed.
The trial judge next requested statements by counsel for both sides on the hearsay objection. He stated that ultimately the hearsay statements would come in, that the predicate had been laid according to the court’s notes, and that he wanted to know whether the Government relied on the co-conspirator theory. Government counsel confirmed that this was the case and that part and parcel of the conspiracy was the identification and introduction by Jaramillo of the defendant Rivera to Special Agent Fuentes; that through the testimony of Fuentes it would be shown that on December 21 Jaramillo did introduce the defendant to Fuentes and following that Jaramillo continued to be involved in the setting up of actual distribution of cocaine. II R. 85-86.
Still in the absence of the jury, the judge said that on the basis of cases before him, he would ask immediately that they move on to identification of the source, Rivera. The judge cited United States v. Petersen, 611 F.2d 1313 (10th Cir.1979), cert. denied, 447 U.S. 905, 100 S.Ct. 2985, 64 L.Ed.2d 854 (1980), and United States v. Andrews, 585 F.2d 961 (10th Cir.1978). The judge found that there was a separate basis for the court to hold there was a conspiracy, citing the testimony of Maestas. He stated he thought there was a basis for finding a conspiracy did exist; that the declarant and the defendant were members of it; and that Jaramillo’s statement (which identified one of Jaramillo’s cocaine sources) was made during the course and in furtherance of the conspiracy. These would be the court’s findings, the judge added, subject to identification of the introduction of Jaramillo, Rivera and Fuentes. II R. 86.
Immediately after the jury returned, Fuentes testified that Jaramillo was present at the December 31 meeting at the 4-B’s Restaurant. II R. 89.
After the Government rested, further findings were stated by the trial judge. After overruling a motion for judgment of acquittal on the basis of outrageous conduct, III R. 302, the judge stated that with reference to the hearsay and the co-conspirator hearsay exception, on the basis of the preponderance of the evidence, independent of the statements themselves, the court was satisfied that a conspiracy did exist; that the declarant (Jaramillo) and the defendant Rivera, against whom the conspirator’s statement was offered, were members of that conspiracy, and that the statement was made during the course of and in furtherance of the conspiracy. Ill R. 303-04. Defense counsel made no objection to the timing of these latter findings and the defense then proceeded with its case as soon as the jury returned to the courtroom. Ill R. 304-05.
We are not persuaded by the defendant’s objections to the procedure on the order of proof or the timing of the findings. In United States v. Petersen, 611 F.2d at 1330, we stated that although we determined it was preferable, whenever possible, to require the Government to first introduce independent proof of the conspiracy and subsequently to establish the connection of the defendant with it before admitting hearsay declarations, there was an exception recognized where it was not reasonably practicable to require the showing to be made before admitting the evidence; in such a case the trial judge could admit the hearsay statements, subject to their being connected up later. See also United States v. James, 590 F.2d 575, 582 (5th Cir.) (en banc), cert. denied, 442 U.S. 917, 99 5. Ct. 2836, 61 L.Ed.2d 283 (1979). Here the trial judge referred to Petersen when he was making his preliminary findings and was obviously aware of its exception to the required order of proof. The Government attorney had outlined the step-by-step proof that would be offered (the proof of the December 21 meeting, introduction of defendant to Fuentes by Jaramillo, and Jaramillo’s continued involvement in setting up the cocaine sale, II R. 86, 88). We are satisfied that the trial court had a reasonable basis for allowing an exception to the preferred order of proof in this instance, and did not abuse his discretion in doing so. United States v. Harenberg, 732 F.2d 1507, 1513 (10th Cir.1984).
Furthermore, as noted, the trial court also made the later statement of findings that on the totality of the record and the Government’s presentation, a conspiracy did exist, that the declarant and defendant were members of it, and that the statement of Jaramillo was made during the course and in furtherance of the conspiracy. Ill R. 304.
On consideration of the record and the findings of the trial judge initially and after the Government rested, we see no reversible error in the procedure followed and the timing of the findings. As mentioned earlier, there was no objection by the defense counsel when the later findings were made after the Government rested and the defendant instead proceeded immediately with his case. In Petersen, 611 F.2d at 1330, we stated that regardless of whether the proof had been made in the preferred order or the statement was admitted subject to later connection, “on appropriate motion” at the conclusion of all the evidence further findings were required. In the instant case no such motion was made at the conclusion of all the evidence. In these circumstances we do not feel that the defendant can complain as to the timing of the ultimate findings stated by the judge after the Government rested. Defendant did make proper objections challenging the actions of the trial judge in allowing an exception to the preferred order of proof of a conspiracy, but we find no reversible error in that regard.
In sum, we are satisfied there was no reversible error in the order of the taking of the evidence or the timing of the findings.
B
Sufficiency of the evidence to support the findings
The gist of defendant’s objections to the findings is that there was insufficient evidence to establish a conspiracy between defendant Rivera and Jaramillo to distribute cocaine, particularly with respect to the December 13, 1983 time when Jaramillo’s statement was made.
Under Rule 104 of the Federal Rules of Evidence the district judge must determine whether the prosecution has shown by a preponderance of the evidence, independent of the statement itself, that a conspiracy existed, that the co-conspirator and the defendant against whom the statement is offered were members of it, and that the statement was made during the course of and in furtherance of the conspiracy. See Rules 104(a) and 801(d)(2)(E), Federal Rules of Evidence; Petersen, 611 F.2d at 1330-31. Here the evidence to support the findings included the testimony of Detective Ault of the Santa Fe Police Department that on December 21 defendant was conducting countersurveillance to insure that no law enforcement personnel were observing a meeting that day between Jaramillo and Fuentes, (II R. 56-57, 61), Fuentes’ testimony about his contact with Jaramillo on December 20 when Jaramillo invited Fuentes to Santa Fe for the purpose of introducing him to Rivera so that Fuentes could make a purchase of a sample of cocaine, (II R. 90), and Fuentes’ testimony that Jaramillo made the introduction on December 21 (II R. 90). Fuentes identified defendant in court as the person who was in that December 21 meeting. II R. 90-91. The trial judge also referred to the transcripts containing defendant’s taped comments indicating that he wanted to be in on a scheme to launder drug money. Conversations between Rivera and Fuentes on December 21 showed an acquaintance already existed between Rivera and Jaramillo. Non-drug Exhibit C at 9, 14, 41. The record thus supports the inference that defendant had been involved with Jaramillo in drug related activities for some time.
We conclude that the record contains substantial evidence to support the trial court’s findings on the co-conspirator exception and reject the contention that reversible error was committed in the findings made.
IV
The refusal of an entrapment instruction on Count III
Defendant claims error in the refusal of the trial court to submit an entrapment instruction on Count III on the ground that the defendant in cross-examination made a statement he did not intend “to commit a crime” when he called Special Agent Fuentes on December 28, 1983, to set up a December 31 meeting. Defendant says that he had substantially admitted all the acts constituting the offense charged in Count III, that he did not violate the requirements of the rule that he must admit the offense to obtain an entrapment instruction, and that denial of his theory of defense was error. We must agree.
The trial judge announced after the trial concluded that he was not submitting an entrapment instruction on Count III because of a statement that the defendant had made during cross-examination. There was a statement made by defendant that he “didn’t intend to use the telephone to commit a crime.” Nevertheless, we must agree that on the basis of this one statement pin-pointed by the trial court, the defendant should not have been deprived of his entrapment defense.
We have held that where entrapment has been raised and the defendant has substantially admitted the essential elements of the crime charged, uncertainty by the defendant concerning immaterial details will not defeat a request for an entrapment instruction. United States v. Martinez, 749 F.2d 601, 606 (10th Cir.1984). We are mindful that an essential element of the offense charged in Count III was the knowing or intentional use of the telephone to facilitate the distribution of cocaine. However, considering the conduct of the defense as a whole, we cannot agree that defendant was properly denied an entrapment instruction on Count III.
We must look at the entire record of the defense case to determine whether defendant substantially admitted the essential elements of the crime charged. In his opening statement the defense attorney summarized the circumstances surrounding the critical December 31, 1983 transaction, admitting the calls back and forth in which Jaramillo and defendant agreed to go to Albuquerque to give Fuentes a sample of cocaine. Indeed, defense counsel stated that the day the cocaine was transferred, Rivera was driving a car with Jaramillo in the back seat of the car, that Fuentes was in the front seat, and that “Billy [Rivera] knew it was happening and, in fact, helped to set it up with a phone call.’’ II R. 38-39. (Emphasis added).
Then on direct examination at the outset of his testimony, defendant admitted the elements of the offense charged in Count III. He admitted that on December 31, 1983 at the restaurant he assisted Jaramillo in passing cocaine to Fuentes, that he helped Jaramillo possess the cocaine that he passed to Fuentes, and that two days before on December 28, he made a phone call. He was asked by his own counsel whether on December 28 he made “a phone call to help set up that passing of cocaine between Mr. Jaramillo and Mr. Fuentes”. Unequivocally, defendant Rivera replied “Yes, I did.” Ill R. 305-06. Finally, in closing arguments the Government stated that there was no dispute that the first two counts occurred and that with regard to Count III, “there is no dispute that that occurred.” IV R. 514. In no respect did the closing argument by defense counsel dispute the elements of Count III being shown, or place any reliance on the single statement in cross-examination referred to by the trial judge.
The law is well-settled in this circuit that if the defendant denies the commission of the crime charged, the defense of entrapment is not available to him. Munroe v. United States, 424 F.2d 243, 244 (10th Cir. 1970) (en banc); see also United States v. Mora, 768 F.2d 1197, 1198-99 (10th Cir. 1985) (per curiam). We have, however, recognized that the defense is available where a defendant has substantially admitted the essential elements of the crime charged and he was only uncertain about immaterial details. United States v. Martinez, 749 F.2d 601, 606 (10th Cir.1984). The element of intent is not immaterial, of course, but the single statement on cross-examination is more in the nature of technical confusion about the defendant’s position overall, rather than a denial of the essential element of knowing or intentional use of the phone to facilitate the distribution of cocaine. Having made such a broad admission about the phone call as he did at the outset of his testimony and in his attorney’s opening statement, we feel it was too technical to deny the entrapment defense because of the remark on cross-examination. As in Martinez, without an entrapment instruction, the defendant “was in a rather untenable position, having taken the stand and admitted [his] involvement.” 749 F.2d at 606.
We hold that it was error to deny an instruction on the entrapment defense to Count III, and the conviction on that Count must be set aside.
V
The claim of error in denial of acquittal sought on grounds of outrageous governmental conduct
Defendant Rivera complains that the district court erroneously refused to grant a judgment of acquittal which defendant sought on the ground of outrageous governmental conduct. He points to the extensive drug distribution network that Fuentes acknowledged the Government established in Texas, where undercover agents posed as associates of Columbians and Cubans; he also complains of Fuentes’ extravagant proposals to buy defendant’s Corvettes and condominiums at inflated prices, and his proposal to use defendant’s real estate services to find a location for a club and that they become partners in the club. He says these combined actions of the Government’s agents played the controlling role in causing defendant to distribute cocaine to the agent, in violation of due process principles. Appellant’s Brief in Chief 29-30.
The Supreme Court has stated that it “may someday be presented with a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction...” United States v. Russell, 411 U.S. 423, 431-32, 93 S.Ct. 1637, 1642-43, 36 L.Ed.2d 366 (1973). We are not persuaded, however, that the actions complained of here constitute such a constitutional wrong. Undercover activities are “a recognized and permissible means of investigation...” Russell, 411 U.S. at 432, 93 S.Ct. at 1643; United States v. Warren, 747 F.2d 1339, 1341 (10th Cir. 1984). The circumstances involved in United States v. Szycher, 585 F.2d 443 (10th Cir.1978), were somewhat similar to this case. There agents were presented as millionaires and a Government informer posed as the son of a prominent actor. We rejected a similar outrageous conduct claim there. Here we are also convinced that the undercover activities did not violate due process standards of governmental conduct.
We find no error in the denial of a judgment of acquittal and the rejection of the outrageous conduct claim by the trial judge.
VI
Defendant’s claim that his entrapment defense on Counts I and II was prejudiced by the denial of the entrapment defense as to Count III
Defendant claims that his entrapment defense as to Counts I and II was prejudiced by the refusal of an entrapment instruction on Count III, requiring reversal of his Count I and II convictions.
Defendant says we must reverse his conviction on Counts I and II since his entire case before the jury was based on the entrapment theory as to all counts; that the jury must have concluded the defense was not submitted as to Count III because the court had decided that there was no Government inducement as of December 28 — the time of the phone call — or that defendant was predisposed to commit the offense anyway, or both; and that if a juror logically concluded the judge had determined there was insufficient inducement on December 28, 1983 to entrap defendant into making the call, it was unlikely the juror would find enough inducement on December 31, 1983 to carry out the very transaction discussed, especially since there was no evidence of additional inducement between those dates by law enforcement agents. Thus the entrapment defense as a whole to Counts I and II was prejudiced so that the convictions on those charges must be reversed. Appellant’s Brief in Chief 35-37.
We are not persuaded by the argument. While the circumstances here give some strength to the factual contention, the fact is that nevertheless the trial judge did clearly submit an entrapment instruction as a theory of defense to Counts I and II. There was no comment by the trial judge in the charge that he found no inducement of the defendant in connection with Count III. The judge said in the opening of the entrapment instruction that “[t]he defendant asserts that he was a victim of entrapment as to the offenses charged in Count One and two of the indictment. IV R. 548. At the conclusion of the entrapment instruction the judge stated:
Just as it is your responsibility to consider each offense and the evidence applicable thereto separately, it is likewise your responsibility to consider the evidence concerning entrapment, as to the offenses charged in Count One and Two of the indictment separately.
You may not consider the defense of entrapment with respect to the offense charged in Count Three of the indictment.
IV R. 551. No articulation of the judge’s views on entrapment as a defense to Count III was expressed to the jury. And the entrapment defense remained clearly submitted as to Counts I and II.
“Our theory of trial relies upon the ability of a jury to follow instructions.” Opper v. United States, 348 U.S. 84, 95, 75 S.Ct. 158, 165, 99 L.Ed. 101 (1954). In the ab: sence of special considerations such as, for example, the consideration of a coerced confession, see Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), there is generally a presumption that juries will follow instructions. Watkins v. Sowders, 449 U.S. 341, 347, 101 S.Ct. 654, 658, 66 L.Ed.2d 549 (1981); see also Chase v. Crisp, 523 F.2d 595, 600 n. 5 (10th Cir. 1975), cert. denied, 424 U.S. 947, 96 S.Ct. 1418, 47 L.Ed.2d 354 (1976). The trial judge plainly charged the jury here that they should consider each count separately. IV R. 557.
“We will not impute to juries the inability to correctly understand the totality of their instruction ... nor will we impute nonfeasance to a jury in the form of a disregard of the Trial Court’s instructions ...” United States v. Pennett, 496 F.2d 293, 296 (10th Cir.1974). Accordingly we are not persuaded that the error in denying the entrapment instruction as to Count III requires the reversal of Counts I and II.
VII
Defendant’s claim of error in the admission of the tapes and transcripts of Fuentes’ telephone conversations with defendant containing conversations in Spanish
Defendant contends that the admission of the tapes containing telephone conversations between Special Agent Fuentes and defendant and the transcripts of them was error. More specifically, he says that submission of the tapes to the jurors placed the one Spanish-speaking juror in the position of an expert on translation of the almost entirely Spanish conversations in the tapes; that the jurors after approximately fifteen minutes of deliberation requested the tapes as well as the transcripts; that they thereafter deliberated for nearly five hours; and that the jurors had been made aware since early in the trial that one of their number was fluent in Spanish, with the result that the other jurors might have given undue weight to the Spanish-speaking juror’s interpretations of the taped conversations. Appellant’s Brief in Chief 39-41.
We are not convinced that any reversible error occurred. The jurors had the transcripts in English which each of them could examine. It is true that the jurors had the tapes and they were given equipment to play them, (IV R. 575), that the inflections and emphasis in the conversations may have been significant, and that the Spanish-speaking juror had the unique advantage of understanding the conversations in Spanish and the opportunity to relay and interpret the discussions to the jurors during their deliberation. However, with each juror having access to the transcripts, we are not persuaded that any prejudice should be presumed. Individual jurors bring different skills and backgrounds to the deliberations of juries in most cases. The circumstances involved here are not indicative of any impropriety. We “must not permit the integrity of the jury to be assailed by mere suspicion and surmise; it is presumed that the jury will be true to their oath and conscientiously observe the instructions and admonitions of the court.” Baker v. Hudspeth, 129 F.2d 779, 782 (10th Cir.), cert. denied sub nom., Baker v. Hunter, 317 U.S. 681, 63 S.Ct. 201, 87 L.Ed. 546, reh. denied, 317 U.S. 711, 63 S.Ct. 264, 87 L.Ed. 566 (1942) and 318 U.S. 800, 63 S.Ct. 767, 87 L.Ed. 1164 (1943).
We find no merit in the claim of error in connection with the admission of the tapes and transcripts in these circumstances.
VIII
The claims of error in the entrapment instruction
Defendant claims that the entrapment instruction given was confusing because it could be understood to shift the burden of production and proof to the defendant. He further complains that it gave the jury a list of law enforcement actions which the law considers proper.
In determining whether the entrapment instruction given with respect to Counts I and II was proper we must, of course, view the charge as a whole. And while a defendant is entitled to an instruction on his theory of defense if there is evidence supporting it, the court need not use a defendant's proposed instruction if the charge given adequately covers the issues of the case. United States v. Kapnison, 743 F.2d 1450, 1461 (10th Cir. 1984), cert. denied, — U.S. -, 105 S.Ct. 2017, 85 L.Ed.2d 299 (1985).
We are not persuaded that the instruction placed the burden of proof of inducement on the defendant. Defendant says that the trial judge rejected a proper instruction which had been proposed and instead submitted one requiring the jury to consider first whether defendant had produced “some evidence” of “inducement,” citing the entire entrapment instruction, R. 200-203. Appellant’s Brief in Chief 42-43. The portion of the charge apparently complained of is produced in the margin. Essentially it said that if the jurors found evidence “in this case” that the defendant was induced to commit the offense, then they must go on to consider whether he was predisposed to do so and whether he was ready and willing to commit a crime such as was alleged whenever an opportunity was afforded. The instruction merely recognized that the evidence of inducement may come from either party, and that the evidence “in this case” may show such inducement. We find no portion of the charge which improperly placed the burden of proof of the entrapment defense on the defendant. Recognizing that there must be some evidence of inducement for the defense to be considered was not error.
Further, defendant says that the trial judge inappropriately included a list of law enforcement actions which are proper. The portion of the instruction complained of is again produced in the margin. While the instruction should not refer in detail to conduct of specific sorts involved in the case and give approval to it, we do not feel that was the effect of the instruction here. A more general guide on such permissible conduct in terms similar to those used in Russell, 411 U.S. at 432, 434, 93 S.Ct. at 1643, 1644 and in the instruction upheld in United States v. Szycher, 585 F.2d 443, 450 n. 7 (10th Cir.1978), would have been preferable, but we do not find reversible error in the instruction given here in this respect.
In addition, defendant argues that nowhere in the instructions was the jury told that the Government had the entire burden to prove that the defendant was not entrapped. We agree that such a specific statement in the entrapment instruction would undoubtedly be preferable. United States v. Smegal, 772 F.2d 659, 660 (10th Cir.1985). Nevertheless the instructions as a whole did not constitute reversible error in this regard. The general discussion of the burden of proof told the jury that
The government has the burden of proving the defendant guilty beyond a reasonable doubt, and if it fails to do so, you must acquit him. Thus while the Government’s burden of proof is a strict and heavy one, it is not necessary that the defendant’s guilt be proved beyond all possible doubt. It is only required that the Government’s proof exclude any reasonable doubt concerning the defendant’s guilt.
IV R. 541. (Emphasis added).
In the concluding portion of the entrapment instruction the trial judge stated:
In summary, then, if you find no evidence that the Government induced the defendant to commit a crime with which he is charged here, there can be no entrapment. On the other hand, if you find some evidence that the defendant was induced to commit an offense with which he is charged, you must then go on to consider if the defendant was predisposed to commit such an offense.
If you find beyond a reasonable doubt that the defendant was predisposed to commit such an offense, then you should find that the defendant was not a victim of entrapment.
However, if the evidence in this case leaves you with a reasonable doubt whether the defendant was predisposed to commit an offense, then you must find him not guilty of the offense.
IV R. 550-51. (Emphasis added).
We are satisfied that the charge as a whole shows that there was no reversible error in connection with the placing of the burden of proof. In similar circumstances, we have rejected the claim that an entrapment instruction was reversible error. See United States v. Marty Martinez, 776 F.2d 1481, 1484 (10th Cir.1985); United States v. Smegal, 772 F.2d 659, 660-61 (10th Cir. 1985); United States v. Annie Martinez, 749 F.2
Question: What type of court made the original decision?
A. Federal district court (single judge)
B. 3 judge district court
C. State court
D. Bankruptcy court, referee in bankruptcy, special master
E. Federal magistrate
F. Federal administrative agency
G. Special DC court
H. Other
I. Not ascertained
Answer:
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sc_decisiontype
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A
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the 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.
DOUGLAS et al. v. CALIFORNIA.
No. 34.
Argued April 17, 1962.
Restored to the calendar for reargument June 25, 1962.
Reargued January 16, 1963.
Decided March 18, 1963.
Marvin M. Mitchelson and Burton Marks reargued the ■ cause for petitioners. With them on the briefs were A. L. Wirin, Fred Okrand and Nanette Dembitz.
William E. James, Assistant Attorney General of California, and Jack E. Goertzen, Deputy Attorney General, argued the cause for respondent. With them on the briefs was Stanley Mosk, Attorney General.
Mr. Justice Douglas
delivered the opinion of the Court.
Petitioners, Bennie Will Meyes and William Douglas, were jointly tried and convicted in a California court on an information charging them with 13 felonies. A single public defender was appointed to represent them. At the commencement of the trial, the defender moved for a continuance, stating that the case was very complicated, that he was not as prepared as he felt he should be because he was handling a different defense every day, and that there was a conflict of interest between the petitioners requiring the appointment of separate counsel for each of them. This motion was denied. Thereafter, petitioners dismissed the defender, claiming he was unprepared, and again renewed motions for separate counsel and for a continuance. These motions also were denied, and petitioners were ultimately convicted by a jury of all 13 felonies, which included robbery, assault with a deadly weapon, and assault with intent to commit murder. Both were given prison terms. Both appealed as of right to the California District Court of Appeal. That court affirmed their convictions. 187 Cal. App. 2d 802, 10 Cal. Rptr. 188. Both Meyes and Douglas then petitioned for further discretionary review in the California Supreme Court, but their petitions were denied without a hearing. 187 Cal. App. 2d, at. 813, 10 Cal. Rptr., at 195. We granted certiorari. 368 U. S. 815.
Although several questions are presented in the petition for certiorari, we address ourselves to only one of them. The record shows that petitioners requested, and were denied, the assistance of counsel on appeal, even though it plainly appeared they were indigents. In denying petitioners’ requests, the California District Court of Appeal stated that it had “gone through” the record and had come to the conclusion that “no good whatever could be served by appointment of counsel.” 187 Cal. App. 2d 802, 812,10 Cal. Rptr. 188,195. The District Court of Appeal was acting in accordance with a California rule of criminal procedure which provides that state appellate courts, upon the request of an indigent for counsel, may make “an independent investigation of the record and determine whether it would be of advantage to the defendant or helpful to the appellate court to have counsel appointed. . . . After such investigation, appellate courts should appoint counsel if in their opinion it would be helpful to the defendant or the court, and should deny the appointment of counsel only if in their judgment such appointment would be of no value to either the defendant or the court.” People v. Hyde, 51 Cal. 2d 152, 154, 331 P. 2d 42, 43.
We agree, however, with Justice Traynor of the California Supreme Court, who said that the “[d]enial of counsel on appeal [to an indigent] would seem to be a discrimination at least as invidious as that condemned in Griffin v. Illinois . . . .” People v. Brown, 55 Cal. 2d 64, 71, 357 P. 2d 1072, 1076 (concurring opinion). In Griffin v. Illinois., 351 U. S. 12, we held that a State, may not grant appellate review in such a way as to discriminate against some convicted defendants on account of their poverty. There, as in Draper v. Washington, post, p. 487, the right to a free transcript on appeal was in issue. Here the issue is whether or not an indigent shall be denied the assistance of counsel on appeal. In either case the evil is the same: discrimination against the indigent. For there can be no equal justice where the kind of an appeal a man enjoys “depends on the amount of money he has.” Griffin v. Illinois, supra, at p. 19.
In spite of California’s forward treatment of indigents, under its present practice the type of an appeal a person is afforded in the District Court of Appeal hinges upon whether or not he can pay for the assistance of counsel. If he can the appellate court passes on the merits of his case only after having the full benefit of written briefs and oral argument by counsel. If he cannot the appellate court is forced to prejudge the merits before it can even determine whether counsel should be provided. At this stage in the proceedings only the barren record speaks for the indigent, and, unless the printed pages show that an injustice has been committed, he is forced to go without a champion on appeal. Any real chance he may have had of showing that his appeal has hidden merit is deprived him when the court decides on an ex parte examination of the record that the assistance of counsel is not required.
We are not here concerned with problems that might arise from the denial of counsel for the preparation of a petition for discretionary or mandatory review beyond the stage in the appellate process at which the claims have once been presented by a lawyer and passed upon by an appellate court. We are dealing only with the first appeal, granted as a matter of right to rich and poor alike (Cal. Penal Code §§ 1235, 1237), from a criminal conviction. We need not now decide whether California would have to provide counsel for an indigent seeking a discretionary hearing from the California Supreme Court after the District Court of Appeal had sustained his conviction (see Cal. Const., Art. VI, § 4c; Cal. Rules on Appeal, Rules 28, 29), or whether counsel must be appointed for an indigent seeking review of an appellate affirmance of his conviction in this Court by appeal as of right or by petition for a writ of certiorari which lies within the Court’s discretion. But it is appropriate to observe that a State Can, consistently with the Fourteenth Amendment, provide for differences so long as the result does not amount to a denial of due process or an “invidious discrimination.” Williamson v. Lee Optical Co., 348 U. S. 483, 489; Griffin y. Illinois, supra, p. 18. Absolute equality is not required; lines can be and are drawn and we often sustain them. See Tigner v. Texas, 310 U. S. 141; Goesaert v. Cleary, 335 U. S. 464. But where the merits of the one and only appeal an indigent has as of right are decided without benefit of counsel, we think an unconstitutional line has been drawn between rich and poor.
When an indigent is forced to run this gantlet of a preliminary showing of merit, the right to appeal does not comport with fair procedure. In the federal courts, on the other hand, an indigent must be afforded counsel on appeal whenever he challenges a certification that the appeal is not taken in good faith. Johnson v. United States, 352 U. S. 565. The federal courts must honor his request for counsel regardless of what they think the merits of the case may be; and “representation in the role of an advocate is required.” Ellis v. United States, 356 U. S. 674, 675. In California, however, once the court has “gone through” the record and denied counsel, the indigent has no recourse but to prosecute his appeal on his own, as best he can, no matter how meritorious his case may turn out to be. The present case, where counsel was denied petitioners on appeal, shows that the discrimination is not between “possibly good and obviously bad cases,” but between cases where the rich man can require the court to listen to argument of counsel before deciding on the merits, but a poor man cannot. There is lacking that equality demanded by the Fourteenth Amendment where the rich man, who appeals as of right, enjoys the benefit of counsel’s examination into the record, research of the law, and marshalling of arguments on his behalf, while the indigent, already burdened by a preliminary determination that his case is without merit, is forced to shift for himself. The indigent, where the record is unclear or the errors are hidden, has only the right to a meaningless ritual, while the rich man has a meaningful appeal.
We vacate the judgment of the District Court of Appeal and remand the case to that court for further proceedings not inconsistent with this opinion.
It is so ordered.
While the notation of a denial of hearing by the California Supreme Court indicates that only Meyes petitioned that Court for a hearing, and is silent as to Douglas’ attempts at further review, the record shows that the petition for review was expressly filed on behalf of Douglas as well. Both Meyes and Douglas, therefore, have exhausted their state remedies and both cases are properly before us. 28 U. S. C. § 1257 (3).
“When society acts to deprive one of its members of his life, liberty or property, it takes its most awesome steps. No general re-, spect for, nor adherence to, the law as a whole can well be expected without judicial recognition of the paramount need for prompt, eminently fair and sober criminal law procedures. The methods we employ in the enforcement of our criminal law have aptly been called the measures by which the quality of our civilization may be judged.” Coppedge v. United States, 369 U. S. 438, 449.
Question: What type of decision did the court make?
A. opinion of the court (orally argued)
B. per curiam (no oral argument)
C. decrees
D. equally divided vote
E. per curiam (orally argued)
F. judgment of the Court (orally argued)
G. seriatim
Answer:
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songer_appel2_1_4
|
E
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "other". Your task is to determine what subcategory of business best describes this litigant.
COBLEIGH et al. v. WOODS, Housing Expediter.
No. 4392.
United States Court of Appeals First Circuit.
Jan. 26, 1949.
•.....*■-------
Alvin A. Lucier, of Nashua, N. H., for appellants.
William A. Moran, Sp. Litigation Atty., of Washington, D. C. (Ed Dupree, Jr., Gen. Counsel, and Hugo V. Prucha, Asst. Gen. Counsel, -both of Washington, D. C., on the brief), for appellee.
Before MAGRUDER, -Chief Judge, WOODBURY, Circuit Judge, and FORD, District Judge.
MAGRUDER, Chief Judge.
Appellants are the owners and operators of an apartment building in Nashua, New Hampshire, and as such had been subject to the Rent Regulation for Housing (8 F.R. 7323) issued under authority of the Emergency Price Control Ac-t of 1942, as amended, 50 U.S.C.A. Appendix § 901 et seq. Under § 4 of the regulation, -the rents which were being charged for the twenty- , eight apartments in question on March 1, 1942, became the lawful maximum rents, and these maximum rents continued in effect without change u-p to and including June 30, 1946. '
On June 30, 1946, the Emergency Price Control Act, as amended, terminated by its own limitation, Congress having failed to enact legislation for its furthur extension. During the period between July 1 and July 25, 1946, appellants caused to be served upon the tenants notices to the effect that on -the next rent date their rents were to be increased $2 per week, which notices were valid under the laws of the State of New Hampshire. During this period July 1 —July 25, 1946, appellants demanded and received from each tenant for the use and occupancy of his respective apartment $2 per week over and above the lawful maximum rent which had been in effect up to the lapse of rent control on June 30, 1946; and appellants continued to demand and receive this additional rent until they were restrained from doing so by interlocutory injunction of the court below on March 12, 1947.
Meanwhile, the Price Control Extension Act of 1946 had become law on July 25, 1946. 60 Stat. 664, 50 U.S.C.A. Appendix, § 901 et seq. Under § I of this Act, the Emergency Price Control Act of 1942, as amended, was extended for a year, by striking out the date “June 30, 1946” in § 1(b) of the latter Act and substituting “June 30, 1947”. Also, and more important for present purposes, § 18 of the Price Control Extension Act contained -the following explicit and unambiguous provision: “Sec. 18. (1) The provisions of this Act shall take effect as of June 30, 1946, and (2) all regulations, orders, price schedules, and requirements under the Emergency Price Control Act of 1942,- as amended '* * *, and the Stabilization Ac-t of 1942, as amended, which were in effect on June 30, 1946, shall be in effect in the same manner and to the same extent as if this Act had been enacted on June 30, 1946, * * *. Provided further, That no act or transaction, or omission or failure to act, occurring subsequent to June 30, 1946, and prior to the date of enactment of this Act shall be deemed to be a violation of the Emergency Price Control Act of 1942, as amended, or the Stabilization Act of 1942, as amended, or of any regulation, order, price schedule, or requirement under either of such Acts * *
Congress thus made clear in the proviso above quoted that it did not intend the Extension Act to be retroactive in the sense of rendering illegal the receipt of rents which had been lawfully collected during the interregnum period. But apart from that, Congress prescribed that the Rent Regulation for Housing was to be deemed to have remained in effect without interruption as if the Extension Act had been enacted on June 30, 1946, with the consequence that if a landlord had raised his rents during the brief period of no control, such rents, on and after July 25, 1946, were necessarily rolled back, and the lawful maximum rents reverted, to the levels fixed by the regulation in effect on June 30, 1946. The statutory language is crystal-clear, and its meaning is only confirmed by reference to the legislative history. See remarks by Senator Barkley, a member of the conference committee, in-explaining the bill on the Senate floor. 92 Cong. Rec. 9812 (1946). The constitutional power of Congress so to provide is none the less effective though it may involve prospective modification of existing agreements between landlords and tenants, valid when made. Fleming v. Rhodes, 1947, 331 U.S. 100, 107, 67 S.Ct. 1140, 91 L.Ed. 1368; Taylor v. Brown, Em.App. 1943, 137 F.2d 654, 659, certiorari denied 1943, 320 U.S. 787, 64 S. Ct. 194, 88 L.Ed. 473.
On October 7, 1946, the Price Administrator (the official predecessor of the present appellee) filed in the court below a complaint against appellants under § 205 of the Price Control Act, as amended, claiming that the landlords had overcharged their tenants an aggregate of $316 for the six-week period July 26-September 7, 1946. The complaint prayed for equitable relief under § 205(a) of the Act by way of injunction against continued violations and an incidental order directing the landlords to refund to the tenants the amounts of the respective overcharges. The complaint also asked for judgment for the plaintiff, on behalf of the United States, in the sum of $948 — or three times the amount of the overcharges. In support of this recovery of statutory damages, the complaint set forth that the tenants had failed to institute action under § 205(e) of the Act within thirty days after the dates of the overcharges, and therefore that under the provisions of such subsection the Administrator was authorized to sue for treble damages on behalf of the United States. Since the granting of the full relief thus asked for under these two heads would result in the landlords’ being mulcted in fourfold the amount- of the overcharges, the Administrator moderated his prayer by the further provision in the complaint that, “if restitution shall be granted by the Court, the prayer for judgment in favor of the Administrator shall be for twice the amount of overcharges.”
On January 13, 1948, the court (1) ordered appellants to make restitution to the tenants of the amount of their respective overcharges, which was found to be in the total sum of $328 rather than $316 as alleged in the complaint, and (2) gave judgment for plaintiff, on behalf of the United States, in the sum- of $328. This judgment is one of the two now under review in the present consolidated appeal. The other judgment, rendered on the same day, was upon a second complaint against these appellants filed by the Housing Expediter oil June 23, 1947. This complaint was in all essentials like the earlier one, except that it alleged overcharges of rent for the period September 7, 1946, to March 12, 1947, not covered by • the earlier complaint, It is unnecessary to say anything more about the second complaint or the judgment' which was rendered thereon. Our discussion is equally applicable to both complaints.
Though the tenants may -fail to institute actions for statutory damages under § 205(e) of the Act, it is nevertheless within the power of a court of equity, un-1 der a complaint filed by the Administrator pursuant to § 205(a), to order the landlord to make restitution to the tenants of the amount of the overcharges. This was held in Porter v. Warner Holding Co., 1946, 328 U.S. 395, 66 S.Ct. 1086, 90 L.Ed. 1332; see to the same effect Bowles v. Skaggs, 6 Cir., 1945, 151 F.2d 817; Creedon v. Randolph, 5 Cir., 1948, 165 F.2d 918. Where the Administrator (or his successor, the Housing Expediter) is also entitled to sue for statutory damages on behalf of the United States under § 205(e), he may join in a single complaint requests for appropriate relief both under '§ 205(a) and § 205(e).
It is apparent from the statutory scheme that the maximum liability contemplated by Congress, even of the most willful violator, was three times the amount of the overcharges. It would seem, therefore, that on a complaint filed by the Administrator, the. court would not have power to order restitution to the tenant in the amount of the overcharges as an incident of its equitable powers under § 205(a), and at the 'same time to give judgment to the Administrator, on behalf of the United States, for three times the amount of the overcharges. For this reason we think the Administrator probably was well-advised in asking the court to reduce his recovery of damages under § 205(e) to twice the amount of the overcharges in case the court should grant an order of restitution to the tenants under § 205(a). It might be objected that where the Administrator is entitled to sue for statutory damages under § 205(e), the Act provides that the whole of the recovery goes to the United States, and that therefore it would be improper to divert part of this recovery to,, the tenants in the guise of a restitution order under § 205(a), But if the result seems odd, it is still, we think, a logical consequence of the holding in Porter v. Warner Holding Co., 1946, 328 U.S. 395, 66 S.Ct. 1086, 90 L.Ed. 1332.
Section-205(e) provided that the amount of damages awarded thereunder “shall be the. amount of the overcharge or overcharges if the defendant proves that the violation of the regulation, order, or price schedule in question was neither willful nor the result-.of failure to take practicable precautions against the occurrence of the violation.” Suppose the defendant had proved, to the satisfaction of the court that his violation was not.willful nor the result of failure to take practicable precautions. Might the court nevertheless have awarded judgment to the Administrator under § 205(e) in the amount of the overcharges, and at the same time, under § 205(a), have ordered restitution of the overcharges to the tenants? We doubt it very much, but the point need not be decided in the case at bar, since we have concluded that on the facts the .district court properly held that appellants had failed to prove that their violation of the regulation “was neither willful nor the result of failure to take practicable precautions against the occurrence of the violation.” As pointed out above, under the Act and the regulation, it was no longer lawful for appellants, after the Price Control. Extension Act of 1946 was approved, to continue to demand the $2 a week increase in rent which they had put into effect during the interregnum, period. Notwithstanding that the provision of law was unambiguous, and that appellants’ obligation thereunder was called to-their attention by local officials of the OPA shortly after the Extension Act was passed, they continued to denjand and receive the extra $2 a week from the tenants until restrained by interlocutory injunction on March 12, 1947.
Whether the $2 per week increase was-“reasonable” or not in relation to the rents generally prevailing for comparable housing accommodations on the maximum rent date was not properly an issue before the district court. Under the regulation the maximum rents for appellants’ apartments remained frozen at the rents which were being charged on March 1, 1942, unless and .until changed by order of the Administrator. Perhaps appellants might have been entitled to administrative .relief under one of the adjustment provisions of the regulation. At any rate they could have filed a protest against the regulation as applied to themselves, under § 203(a) of the Act. Jurisdiction to pass- upon the validity of the regulation was vested exclusively in the Emergency Court of Appeals by § 204(d) of the Act. The district court in the case at bar therefore properly rejected an offer Of proof by appellants that the freeze-datc rents “were abnormally low” and that the $2 per week increase brought the rents to a reasonable level in comparison to other rents for similar facilities in the area.
The judgments of the District Court are .affirmed.
Question: This question concerns the second listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "other". What subcategory of business best describes this litigant?
A. medical clinics, health organizations, nursing homes, medical doctors, medical labs, or other private health care facilities
B. private attorney or law firm
C. media - including magazines, newspapers, radio & TV stations and networks, cable TV, news organizations
D. school - for profit private educational enterprise (including business and trade schools)
E. housing, car, or durable goods rental or lease
F. entertainment: amusement parks, race tracks, for profit camps, record companies, movie theaters and producers, ski resorts, hotels, restaurants, etc.
G. information processing
H. consulting
I. security and/or maintenance service
J. other service (including accounting)
K. other (including a business pension fund)
L. unclear
Answer:
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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.
GLOUCESTER MARINE RAILWAYS CORP., Plaintiff, Appellee, v. CHARLES PARISI, INC., et al., Defendants, Appellants. John Joseph Taylor and Trans-Atlantic Marine, Inc., Defendants, Appellees.
No. 87-1708.
United States Court of Appeals, First Circuit.
Heard Jan. 5, 1988.
Decided June 2, 1988.
Robert L. Burke with whom Robert P. Sullivan and Callan, Sullivan & Burke, P.C., Lowell, Mass., were on brief, for defendant, appellant Charles Parisi, Inc.
Mary P. Harrington with whom Ronan, Segal & Harrington, Salem, Mass., was on brief, for plaintiff, appellee Gloucester Marine Railways Corp.
Louis M. Rohrberg with whom Mendes & Mount, New York City, was on brief, for plaintiff, appellee John Joseph Taylor.
Leonard Rose, Falmouth, Mass., on brief, for plaintiff, appellee Trans-Atlantic Marine, Inc.
Before CAMPBELL, Chief Judge, ALDRICH and COFFIN, Circuit Judges.
COFFIN, Circuit Judge.
A Massachusetts ship repairer brought this action against its insurers and a Massachusetts shipowner, seeking a declaration that a state court tort judgment obtained against it by the shipowner was unenforceable and a declaration that its insurers were responsible for any portion of the judgment found to be outstanding. The ship repairer also sought an injunction preventing the shipowner from enforcing the state court judgment. The district court declared the judgment satisfied and enjoined its further enforcement; the court found no need to reach the claims against the insurers. The shipowner now appeals.
We hold that the Anti-Injunction Act barred the injunction and declaration that the district court granted against the shipowner. We therefore vacate the district court's order and remand with instructions to dismiss the ship repairer’s complaint against the shipowner and to consider the claims against the insurers.
I.
Initially, this case concerned the allocation of responsibility for a judgment obtained by the owner of a fishing vessel against a ship repairer in whose drydock the vessel was damaged by fire. As the case comes before us, however, and notwithstanding the absence of any briefing or discussion below, we discover that it unavoidably involves the application of the Anti-Injunction Act. We therefore review the rather complicated factual and procedural history of the case in summary fashion, adding details only where relevant to the Anti-Injunction Act issue. The facts, insofar as they are relevant to this appeal, are undisputed.
In February of 1975 the fishing vessel St. Anthony, which was owned by Charles Parisi, Inc. (Parisi), was being repaired in drydock on the premises of Gloucester Marine Railways Corp. (Gloucester) when it was damaged extensively by fire. At the time of the fire Parisi carried a $135,000 hull insurance policy on the St. Anthony, obtained through Trans-Atlantic Marine Co. (Trans-Atlantic), a marine insurance broker, and written by Glacier General Assurance Co. (Glacier). Gloucester carried a $100,000 ship repair insurance policy, which it too had obtained through Trans-Atlantic. The policy Trans-Atlantic issued to Gloucester described the actual insurers as “London and American Companies”; unbeknownst to Gloucester at the time, two-thirds of the policy was written by Glacier and one-third by various underwriters at Lloyd’s of London. Thus Glacier, acting through Trans-Atlantic, had written both Parisi’s entire hull policy and two-thirds of Gloucester’s ship repair policy.
In May of 1975 Parisi brought a negligence action against Gloucester in Massachusetts Superior Court, seeking damages for the fire on the St. Anthony. In September of 1975 Glacier, acting in its capacity as Parisi’s insurer, moved to intervene, alleging among other things that the hull policy gave it the right to control the litigation and that Parisi was failing to cooperate. In March of 1976 Parisi and Trans-Atlantic (acting on behalf of Glacier) reached an agreement whereby Glacier paid out $100,-000 under the hull policy and Parisi assigned to Glacier by way of subrogation $100,000 of its claim against Gloucester. Parisi, however, retained control of the pending action against Gloucester.
In January of 1982 Parisi won a $145,000 jury verdict against Gloucester, and a judgment was entered for that amount, plus prejudgment interest as authorized by Mass.Gen.Laws Ann. ch. 231 § 6B (1985). For rather complicated reasons having to do with Glacier’s position as an insurer of both Parisi and Gloucester, Gloucester filed and the Superior Court granted a motion to reduce the judgment to $45,000 plus interest. Parisi appealed this reduction to the Massachusetts Appeals Court, which reversed the Superior Court and ordered the judgment reinstated. Charles Parisi, Inc. v. Gloucester Marine Railways Corp., 16 Mass.App.Ct. 538, 453 N.E.2d 459 (1983).
In November of 1985, Gloucester, hoping to improve its chances of getting the judgment reduced once more to $45,000, obtained from Trans-Atlantic (acting as Glacier’s agent) an assignment of the $100,000 subrogation claim that Glacier had obtained through its March 1976 agreement with Parisi. Gloucester then filed this action in federal district court. The complaint named four defendants: Parisi, Trans-Atlantic, Glacier, and John Joseph Taylor, the American representative of the Lloyd’s underwriters.
In the complaint, Gloucester tendered to Parisi $45,000 plus interest (subject to a setoff not relevant here) and sought to enjoin Parisi from further efforts to enforce its state court judgment for $145,000 plus interest. As the basis for this injunction, Gloucester sought one of three alternative declarations:
(1) that Glacier’s assignment to Gloucester of its $100,000 subrogation claim was valid and that Gloucester had then waived that claim; or
(2) that Gloucester’s insurers had already paid Glacier $100,000 on account of Glacier’s subrogation claim, leaving nothing due Glacier (or whoever might have acquired that claim from Glacier); or
(3)that any amount due on account of the first $100,000 of Parisi’s judgment against Gloucester was the responsibility not of Gloucester but of its insurers.
In Gloucester’s view, the issuance of declarations (1) or (2) would render the subrogation claim valueless and thus remove any rationale for paying Parisi the first $100,-000 of the judgment; the issuance of declaration (3) would establish that if such a $100,000 payment were due, it would not be due from Gloucester. Parisi counterclaimed against Gloucester and Trans-Atlantic, alleging that the assignment constituted a tortious interference with Parisi’s contract rights under the subrogation agreement.
The district court dismissed Gloucester’s claims against Glacier, as Glacier was by now in receivership and had never properly been served. The court rejected Parisi’s argument that the action was barred by the res judicata and collateral estoppel effect of the state court judgment. After a bench trial, the court issued a declaration that the state court judgment had been satisfied and enjoined Parisi from taking further steps to enforce it. The court found no need to reach Gloucester’s claims against its insurers , and the court dismissed Pari-si’s counterclaims with prejudice. Parisi now appeals the district court’s refusal to give preclusive effect to the state court judgment. Parisi does not appeal the dismissal of its counterclaims.
II.
The Anti-Injunction Act declares:
A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.
28 U.S.C. § 2283 (1982). The Act is not strictly jurisdictional; it merely deprives the federal courts of the power to grant a particular form of equitable relief. Smith v. Apple, 264 U.S. 274, 278-79, 44 S.Ct. 311, 312-13, 68 L.Ed. 678 (1924) (construing predecessor to current section 2283); see 17 C. Wright, A. Miller & E. Cooper, Federal Practice & Procedure § 4222 at 322 & n. 30 (1978) (citing cases). We nevertheless think ourselves obligated to raise this issue, which went unnoticed by the parties or the district court, in order “to forestall the inevitable friction between the state and federal courts that ensues from the injunction of state judicial proceedings by a federal court.” Vendo Co. v. Lektro-Vend Corp., 433 U.S. 623, 630, 97 S.Ct. 2881, 2887, 53 L.Ed.2d 1009 (1977) (plurality opinion).
We note at the outset that the Act’s use of the term “proceedings” is comprehensive:
It includes all steps taken or which may be taken in the state court or by its officers from the institution to the close of the final process.... It applies alike to action by the court and by its ministerial officers; applies not only to an execution issued on a judgment, but to any proceeding supplemental or ancillary taken with a view to making the suit or judgment effective.
Hill v. Martin, 296 U.S. 393, 403, 56 S.Ct. 278, 282-83, 80 L.Ed. 293 (1935) (citations omitted). The Anti-Injunction Act “cannot be evaded by addressing the order to the parties or prohibiting utilization of the results of a completed state proceeding.” Atlantic Coast Line R. Co. v. Brotherhood of Locomotive Engineers, 398 U.S. 281, 287, 90 S.Ct. 1739, 1743, 26 L.Ed.2d 234 (1970).
We turn first to the injunction that the district court granted against Parisi’s attempts to enforce its state court judgment against Gloucester. That injunction would not appear to fall within any of the three exceptions to the Anti-Injunction Act. No Act of Congress expressly authorized the district court’s injunction, nor was the injunction necessary in aid of the court’s jurisdiction or to protect or effectuate its judgments. We therefore hold that the Act deprived the district court of the power to issue the injunction against Pari-si.
A second question is whether the Act also deprived the court of the power to issue declarations in support of this injunction. We have previously noted that the Act by its terms does not prohibit declaratory judgments. See Puerto Rico Int’l Airlines, Inc. v. Silva Recio, 520 F.2d 1342, 1344 n. 3 (1st Cir.1975). Nevertheless, we agree that “if a declaratory judgment would have essentially the same effect as an injunction, it should be refused if the injunction would be barred by § 2283.” 17 Wright & Miller § 4222 at 316 (citing cases).
Both of the declarations requested by Gloucester — that nothing was due whoever held the subrogated claim for $100,000, or that Gloucester had acquired and waived the right to $100,000 of the judgment against it, thereby extinguishing the judgment to that extent — would have had essentially the same effect as an injunction against enforcing the judgment beyond $45,000. And the declaration actually issued by the district court — that the state court judgment had been satisfied — paralleled even more clearly the effect of the injunction against enforcement of the judgment. These declarations would be useful to Gloucester primarily, if not exclusively, as the basis for seeking an injunction in state court against further enforcement of the judgment. Such an effort would produce the very friction between state and federal courts that the Act is designed to avoid. We therefore conclude that the Act barred the issuance of the declarations.
Finally, there is the question of how the Anti-Injunction Act might affect Gloucester’s claims against its insurers. As the district court never reached these claims, and as the parties have not focused on them either in the district court or on appeal, we have some doubt as to their true nature. We have only Gloucester’s rather meager, ambiguous complaint to assist us. The complaint alleged that Gloucester’s insurers were refusing to make any further payments on the ship repairer policy, and it sought a declaration that
the obligation to pay any sum [determined to be due to the holder of the subrogation claim on Parisi’s judgment] is the sole obligation of the insurer under to ship repairer policy ... and is to be promptly paid by said insurer in accordance with the terms of the said policy.
(R. 16.)
Two readings of the complaint are possible. The complaint could be read as alleging a simple breach of the insurance contract and requesting a declaration that the insurers were obligated to indemnify Gloucester for any payment that Gloucester made or might make in satisfaction of Pari-si’s judgment. Such a claim would raise no Anti-Injunction Act problems. Alternatively, the complaint could be read as requesting a declaration that Gloucester was under no obligation at all to pay the state court judgment entered against it and that this obligation rested, instead, solely with Gloucester’s insurers. Such a claim would involve a direct interference with the enforcement of a state court judgment — interference that the Anti-Injunction Act is meant to prohibit. As the district court never reached these claims, and their nature is unclear, a remand is appropriate so that Gloucester may clarify the claims and the district court may decide whether they fall within the prohibition of the Anti-Injunction Act.
III.
In sum, as the Act rendered the district court powerless to issue any of the relief that Gloucester requested against Parisi, the complaint against Parisi should have been dismissed for failure to state a claim upon which relief could be granted. Fed.R. Civ.P. 12(b)(6). We therefore vacate the district court’s judgment and remand with instructions to dismiss Gloucester’s claims against Parisi — without prejudice to Gloucester’s ability to reassert those claims in state court — and to consider Gloucester’s claims against its insurers. Of course, in view of our holding that Gloucester may not proceed upon its claims against Parisi in federal court, Gloucester may wish to take a voluntary dismissal of its claims against its insurers, so that the entire case may be brought in state court.
Vacated and remanded. No costs.
. Glacier paid $89,003.60 directly to the United States of America, which held a mortgage on the St. Anthony, and the remaining $10,996.40 to Parisi. For the sake of simplicity we will hereinafter treat the full $100,000 as having been paid to Parisi.
. The specific reasons for the court’s action need not detain us here. It suffices to note that the court's concern was to avoid double payment to Parisi of the first $100,000 of the judgment.
. The Massachusetts Appeals Court had indicated that if such an assignment had been made, it would have been inclined to affirm the reduction of the judgment to $45,000. Parisi, 16 Mass.App.Ct. at 540-41, 453 N.E.2d 459.
. By “insurers" we mean Trans-Atlantic and John Joseph Taylor. As noted above, Glacier was never properly served in this action, and we do not disturb the district court’s dismissal of Gloucester’s claims against Glacier.
.We pause to explain Parisi’s reason for taking this appeal. The original judgment entered for Parisi was for $145,000 plus interest. Parisi has now received $145,000 but has received interest on only $45,000 of that amount. Parisi pursues this appeal in hopes of recovering the remainder of the judgment, which represents interest on $100,000.
. We offer no opinion as to whether any of these claims is barred either by issue or claim preclusion.
Question: Are there two issues in the case?
A. no
B. yes
Answer:
|
songer_circuit
|
E
|
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.
Ramon MONTOYA, Petitioner-Appellant, v. James A. COLLINS, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee.
No. 90-7093.
United States Court of Appeals, Fifth Circuit.
Feb. 24, 1992.
Rehearing and Rehearing En Banc Denied March 24, 1992.
K. Duff Lewis, Washington, D.C. (Court-appointed), for petitioner-appellant.
Margaret Portman Griffey, Jim Mattox, Atty. Gen., Austin, Tex., for respondent-appellee.
Before POLITZ, Chief Judge, JOLLY and JONES, Circuit Judges.
EDITH H. JONES, Circuit Judge:
Petitioner Ramon Montoya was convicted of capital murder after a jury trial in the 282nd Judicial District Court of Dallas County, Texas, and sentenced to death on May 5, 1983. He appealed to the Texas Court of Criminal Appeals, which affirmed his conviction on February 18, 1987, and denied his motion for rehearing on October 28, 1987. Montoya v. State, 744 S.W.2d 15 (Tex.Crim.App.1987), cert. denied, 487 U.S. 1227, 108 S.Ct. 2887, 101 L.Ed.2d 921 (1988). After exhausting his post-conviction remedies in state court, Montoya filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the United States District Court for the Northern District of Texas. The district court denied relief but issued a certificate of probable cause. Montoya appeals, and we affirm.
The Court of Criminal Appeals set out the facts of this case in its original opinion:
The testimony revealed that Officer John Pasco of the Dallas Police Department was shot and killed while trying to apprehend appellant. On January 16, 1983, at approximately 4:00 p.m., appellant and others were drinking beer in the vicinity of 1800 Park in the City of Dallas. When Pasco arrived, appellant began to move away from the group of people. Then Pasco began to pursue appellant individually, and appellant started to run. Pasco chased him. Appellant testified that while Pasco was chasing him, he attempted to remove a pistol from his waistband and throw it away so Pasco would not catch him with it. The weapon discharged and Pasco, who according to appellant had grabbed appellant’s arm, was shot in the head. He died a few hours later.
Officer Jerry Loudermilk testified that, while on patrol duty, he received a call from Officer Pasco to “cover” him. When Loudermilk arrived at the scene, he saw that Pasco had been shot. Several other Dallas police officers were already at the scene: trying to help Pasco and interviewing witnesses. Loudermilk was informed that there was no description yet of the suspect.
Loudermilk returned to his patrol car and began to search the immediate area. While searching, he received information by radio describing the suspect as a short Latin male with a tattoo of a panther on his chest. He continued to search until 6:05 p.m. when he saw the appellant and stopped to talk to him “just for information.” At the time, Officer Loudermilk “didn’t have any idea” that the appellant was a suspect in the shooting. When Officer Loudermilk stepped out of his car and spoke in Spanish twice to the appellant, the appellant said nothing in response, but turned and started to run away. Officer Loudermilk pursued and detained the appellant. Loud-ermilk then lifted up the appellant’s shirt, and saw the tattoo of a panther on the appellant’s chest. He asked the appellant his name. After the appellant responded, Loudermilk placed him under arrest.
A subsequent search of appellant’s home uncovered a .25 caliber automatic pistol. Ballistics determined it to be the weapon that fired the fatal shot.
744 S.W.2d at 18 (footnote omitted).
After Montoya was arrested, he was taken before a magistrate and arraigned on the charge of attempted murder of a police officer. Officer Pasco died that evening, and Montoya was presented to a magistrate on the new charge of capital murder the following morning. Montoya was subsequently taken to the Dallas Police Department and questioned. After waiving his rights, he executed a written confession in Spanish. Translated, it stated:
Yesterday, January 16, 1983, I was at a parking lot of some apartments at Hickory and Park. A policeman arrived. He was a patrolman, and he got out of the patrol car. I was going to leave, and he pointed the pistol and said something to me. I was running from the policeman. He chased me through the alley. He was getting closer, and I had the pistol in my right hand. I had the pistol from the time he started chasing me. When the policeman was about to catch me, he pushed me, and I fell on my back. I pointed the pistol at him and shot the policeman. I pointed at his chest when I fired. The policeman fell to the side of me. I got up and ran. I threw the pistol. I ran to my apartment and changed pants.
At the same time, Montoya consented to a search of his apartment, which revealed the murder weapon.
From the seventeen points of error he argued before the Texas Court of Criminal Appeals and the twenty grounds for relief he alleged in the district court, Montoya has distilled the challenge to his conviction and sentence to three arguments. We examine each of them in turn and find none meritorious.
I.
Montoya argues first that his interrogation by the Dallas Police Department violated his right to counsel under the Sixth Amendment and the prophylactic rule of Michigan v. Jackson, 475 U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986). The state counters that Jackson does not apply to the facts of this case and that Montoya validly waived his right to counsel pursuant to Patterson v. Illinois, 487 U.S. 285, 108 S.Ct. 2389, 101 L.Ed.2d 261 (1988). The district court concluded that the interrogation did not violate Montoya’s constitutional rights. We agree with the district court.
When Montoya was taken before the magistrate, his Sixth Amendment rights attached. See Jackson, 475 U.S. at 629-30, 106 S.Ct. at 1407-08. Standing alone, however, the mere attachment of a defendant’s Sixth Amendment rights does not bar police from attempting to interrogate him. See Patterson, 487 U.S. at 290, 108 S.Ct. at 2394 (rejecting petitioner’s claim that “because his Sixth Amendment right to counsel arose with his indictment, the police were thereafter barred from initiating a meeting with him”). As long as the police administer Miranda warnings before proceeding, a defendant’s voluntary decision to answer questions without claiming his right to have a lawyer present to advise him constitutes a “knowing and intelligent,” and therefore valid, waiver of his Sixth Amendment right. Id. at 292-97, 108 S.Ct. at 2394-97. The district court found that “Montoya was fully advised of his rights under Miranda v. Arizona, and that he did not thereafter request appointment of counsel and proceeded to make the statement at issue.” Thus, Montoya validly waived any Sixth Amendment right to counsel that arose merely from his appearance before the magistrate.
If the police-initiated interrogation did not violate the Sixth Amendment itself, argues Montoya, it at least violated the rule laid down in Michigan v. Jackson. There the Supreme Court held: “if police initiate interrogation after a defendant’s assertion, at an arraignment or similar proceeding, of his right to counsel, any waiver of the defendant’s right to counsel for that police-initiated interrogation is invalid.” 475 U.S. at 636, 106 S.Ct. at 1411. It is undisputed that during Montoya’s appearance before the magistrate, the magistrate appointed counsel to represent Montoya. On direct review, the Texas Court of Criminal Appeals considered the conflicting trial testimony and concluded:
[T]he record indicates the appellant did not request counsel.... The magistrate stated that he decided to appoint counsel to represent appellant because the appellant was charged with capital murder, not because the appellant requested the assistance of counsel.
... We hold that appellant did not assert his right to counsel at the [magistrate’s] hearing.
Montoya, 744 S.W.2d at 26. Montoya’s brief yields no reason to disturb the presumption of correctness accorded this finding by 28 U.S.C. § 2254(d).
The rule of Jackson is invoked by the defendant’s “assertion ... of the right to counsel.” This language connotes an actual, positive statement or affirmation of the right to counsel. At no time did Montoya make such a statement or affirmation — as the state court found, he did not request counsel, and he said nothing at all when the magistrate appointed counsel for him. We do not say that by his silence Montoya “waived” any of his rights, for at any time subsequent to his appearance before the magistrate, including during, his interrogation, Montoya could have asked to see a lawyer and Jackson would have barred any further police-initiated interrogation. Bather, Montoya never asserted, or invoked, his right to counsel in the first place. Cf. Smith v. Illinois, 469 U.S. 91, 98, 105 S.Ct. 490, 494, 83 L.Ed.2d 488 (1984) (per curiam) (“Invocation and waiver are entirely distinct inquiries, and the two must not be blurred by merging them together.”). For purposes of Jackson, an “assertion” means some kind of positive statement or other action that informs a reasonable person of the defendant’s “desire to deal with the police only through counsel.” Jackson, 475 U.S. at 626, 106 S.Ct. at 1405 (quoting Edwards v. Arizona, 451 U.S. 477, 484, 101 S.Ct. 1880, 1885, 68 L.Ed.2d 378 (1981)). This holding does not require a defendant to utter the magic words, “I want a lawyer,” in order to assert his right to counsel. As Montoya points out, the Supreme Court “give[s] a broad, rather ,, than a narrow, interpretation, to a defendant’s request for counsel.” Connecticut v. Barrett, 479 U.S. 523, 529, 107 S.Ct. 828, 832, 93 L.Ed.2d 920 (1987). But interpretation, whether broad or narrow, is only required when there is a “request” or an “assertion” in the first place.
Montoya’s argument would in our view extend the prophylactic rule of Jackson to situations where the magistrate tells the defendant that he is appointing counsel for the defendant and the defendant does not reject the appointment but also does not seek to consult with counsel. He proffers snippets from three opinions, two by the Supreme Court and one by the Seventh Circuit, in support of this proposed extension. In Patterson v. Illinois, the Supreme Court held that although the defendant “had the right to have the assistance of counsel at his postindictment interviews with law enforcement authorities,” Jackson did not apply because the defendant “at no time sought to exercise his right to have counsel present.” 487 U.S. at 290, 108 S.Ct. at 2393-94. The Court noted “as a matter of some significance that [the defendant] had not retained, or accepted by appointment, a lawyer to represent him at the time he was questioned by authorities.” Id. n. 3 (emphasis added). Becausé Montoya assertedly had “accepted” a lawyer by appointment, he argues by negative implication that Jackson does apply to his case.
We disagree for three reasons. First, Patterson does not further Montoya’s case. The footnoted language immediately following the quotation makes clear that retention or acceptance of a lawyer gives rise to the substantive Sixth Amendment safeguards of Maine v. Moulton, 474 U.S. 159, 176, 106 S.Ct. 477, 487, 88 L.Ed.2d 481 (1985), but it' does not speak to the initial question what constitutes acceptance of or invocation of the right to counsel. On this point, Patterson said that Jackson applies when a defendant has “indicated he wanted the assistance of counsel,” and Patterson characterized the “essence” of Jackson as “[preserving the integrity of an accused’s choice to . communicate, with police only through counsel.” 487 U.S. at 291, 108 S.Ct. at 2394 (emphases added). If the rule of Jackson. is invoked by a defendant’s “indicating” his “choice,” then it makes little sense to apply the rule to this case, where Montoya indicated nothing, expressed no choices, and made not the slightest response to the magistrate’^ intention to appoint a lawyer for him.
Montoya also points to Michigan v. Harvey, 494 U.S. 344, 110 S.Ct. 1176, 1181, 108 L.Ed.2d 293 (1990), in which the Court stated: “To be sure, once a defendant obtains or even requests counsel as respondent had here, analysis of the waiver issue changes. But that change is due to the protective rule we created in Jackson_” This language does not help Montoya. It is reasonably construed to refer to situations where a defendant “obtains” counsel after, and because, he “requests” counsel. Indeed, this is precisely what happened in Harvey itself. Montoya, of course, never requested counsel at any time.
Third, the inevitable consequence of Montoya’s argument would equate the extent of Sixth Amendment protection with the prophylactic rule of Jackson, for he argues that his Jackson right took effect essentially when his right to counsel arose, i.e., at the arraignment for capital murder, even though Montoya stood mute on the matter of appointment. The Supreme Court rejected a similar argument in Patterson, observing that “the analysis in Jackson is rendered wholly unnecessary if petitioner’s position is correct.” Patterson, 487 U.S. at 290, 108 S.Ct. at 2394. To the extent that Montoya seeks an extension of Jackson in this manner, he would be urging a “new rule” of constitutional law within the purview of Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), a rule which would be inapplicable to Montoya’s habeas petition. We see no reason why either of the exceptions to Teague would apply here.
Finally, Montoya quotes an excerpt from United States v. Rodriguez, 888 F.2d 519, 526 (7th Cir.1989), in which the court identified a possible Jackson violation:
When a person appears before a judicial officer and emerges with a lawyer, it is á fair inference that he asked for counsel, thus asserting his Sixth Amendment right. Maybe the transcript will show otherwise, but the prosecutor — whose burden it is to demonstrate the waiver of constitutional rights — must establish that by evidence. Silence in the record is not enough to support, let alone to compel, an inference that Rodriguez did not invoke his right to counsel.
It is obvious that this passage offers no aid and comfort to Montoya. In the situation described, it is only a “fair inference,” not a certainty, that a defendant has requested counsel, and the court cautions, “[m]aybe the transcript will show otherwise.” There is much more than “silence” in this record — there is the live testimony of the police officer who translated for Montoya at his appearance before the magistrate. See note 2, supra. The Texas Court of Criminal Appeals credited this testimony and found that Montoya “did not assert his right to counsel at the [magistrate’s] hearing.” Montoya, 744 S.W.2d at 26. The prosecutor has met his burden of establishing by evidence that Montoya did not assert his right to counsel within the meaning of Jackson. We reject Montoya’s first argument.
II.
At trial, Montoya requested that the jury be instructed on the lesser included offenses of murder, involuntary manslaughter, and criminally negligent homicide. The trial court granted the request only as to criminally negligent homicide. Montoya argues that the court erred in not instructing the jury on the offense of involuntary manslaughter. Because his brief to this court does not cite Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), it is unclear whether he urges this error as a matter of constitutional or state law. We could not, of course, grant federal habeas relief solely for a violation of state law. The uncertainty is compounded here because Beck’s principal concern, that a state should not give the jury the options of death or acquittal when the defendant might be guilty of a lesser offense, is absent from this case. Id. at 642-43, 100 S.Ct. at 2392; Hopper v. Evans, 456 U.S. 605, 609, 102 S.Ct. 2049, 2052, 72 L.Ed.2d 367 (1982). Montoya’s jury had the option of finding criminally negligent homicide.
The Supreme Courts’ recent decision in Schad v. Arizona, — U.S. -, 111 S.Ct. 2491, 2504-05, 115 L.Ed.2d 555 (1991) convinces us, at any rate, that Montoya cannot state a Beck claim. In Schad, the capital defendant contended unsuccessfully that although the jury had the options of convicting him for capital murder or second-degree murder, he was constitutionally entitled to an additional instruction on the lesser offense of robbery. Schad dispatched this argument by stating:
The central concern of Beck is simply not implicated in the present case, for petitioner’s jury was not faced with an all-or-nothing choice between the offense of conviction (capital murder) and innocence.
Ill S.Ct. at 2505. In this case, any conceivable Beck problems was removed by a lesser-included offense instruction of negligent homicide. Montoya does not suggest that negligent homicide was unsupported by the evidence, compare Schad, 111 S.Ct. at 2505; that option presented a realistic alternative verdict for the jury.
By contrast, the opinion of the Texas Court of Criminal Appeals carefully explained why the facts related by Montoya at trial could not have raised a possibility of involuntary manslaughter under Texas law. Montoya, 744 S.W.2d at 29. Montoya’s version of events described an accidental shooting rather than an event in which he knew he had created a risk and consciously disregarded it. Thus, even if a second alternative lesser-included offense instruction were constitutionally mandated, it could not have been an instruction on involuntary manslaughter, for no rational juror, given all the facts, could have acquitted Montoya of capital murder and convicted him of involuntary manslaughter under Texas law. See Hill v. Black, 932 F.2d 369, 374 (5th Cir.1991).
III.
At the punishment phase of his trial, Montoya objected to a remark of the prosecutor as an impermissible comment on the exercise of his right not to testify, in violation of the Fifth Amendment. The Texas Court of Criminal Appeals originally held that the comment “did not directly or clearly refer to [Montoya’s] silence,” Montoya, 744 S.W.2d at 32, but on Montoya’s motion for rehearing, it “agree[d] with appellant’s assessment of the prosecutor’s comment,” id. at 34. The court concluded, however, that the error was harmless beyond a reasonable doubt. Id. at 38-40. The district court held that no Fifth Amendment violation had occurred and that if one had, it was harmless beyond a reasonable doubt. Montoya argues that the district court im-permissibly refused to accord the “factual finding” of the Court of Criminal Appeals the presumption of correctness mandated by 28 U.S.C. § 2254(d). He also argues that the prosecutor’s comment was not harmless error.
Section 2254(d) does not require deference to the Court of Criminal Appeals on this issue. The presumption of correctness applies only to “a determination ... of a factual issue.” The state court’s holding that the prosecutor’s comment violated the Fifth Amendment is “a mixed determination of law and fact that requires the application of legal principles to the historical facts of this case” and is therefore “open to review on collateral attack in federal court.” Cuyler v. Sullivan, 446 U.S. 335, 342, 100 S.Ct. 1708, 1715, 64 L.Ed.2d 333 (1980). See Bertolotti v. Dugger, 883 F.2d 1503, 1523, 1524 (11th Cir.1989) (decision of Florida court that prosecutor’s remark was “a comment on the defendant’s exercise of his right to remain silent” constituted “a non-binding opinion on a mixed question of law and fact”), cert. denied, — U.S. -, 110 S.Ct. 3296, 111 L.Ed.2d 804 (1990). Accordingly, the merits of Montoya’s Fifth Amendment issue must be addressed.
A statement violates the Fifth Amendment if “the prosecutor intended to comment on [the defendant’s] failure to testify or [if] a jury would naturally and necessarily interpret the prosecutor’s remarks in that light.” Brock v. McCotter, 781 F.2d 1152, 1159 (5th Cir.), cert. denied, 476 U.S. 1153, 106 S.Ct. 2259, 90 L.Ed.2d 704 (1986). Resolution of this issue depends heavily on the context in which the prosecutor’s remark was made. Id. We quote in the margin the full statements of counsel and court. Viewing the prosecutor’s statement in the larger context of his arguments both before the exchange and after Montoya had interrupted to object, it appears that he did not intend to comment on Montoya’s failure to testify at the punishment phase.
Montoya’s closing argument centered on how the jury should respond to Special Issue No. 1, which asked: “Do you find from the evidence beyond a reasonable doubt that the conduct of the defendant, Ramon Montoya, ... was committed deliberately ... ?” See Tex.Crim.Proc.Code art. 37.071(b)(1). The prosecutor began his rebuttal by arguing that a finding of deliberateness was consistent with Montoya’s violent character, as evidenced by his prior convictions for burglary and weapons possession. He then asked: “How else do you prove how somebody acts deliberately and what kind of man they really are? By his reputation_ Mr. Parks didn't talk to you about that but let’s go through them.” The prosecutor then nine times cited the testimony of witnesses who said Montoya had a “bad” reputation for being peaceful and law-abiding. After each citation, he emphasized that Montoya did not challenge the witnesses on cross-examination. “No questions,” he repeated each time.
Finally, the prosecutor asked another rhetorical' question: “What do we hear from this man over here that [the shooting] couldn’t be [done] deliberately, [given] all my prior conduct, all these past actions ... ?” He then answered himself: “[I]f he wanted to call [his father and cousins] or anyone else as witnesses to testify that he had a good reputation, they could have done that and we did not hear from those witnesses.” Furthermore, he pointed out, Montoya had not presented any testimony from his family, a friend, an employer, a neighbor.... How about a preacher, or a priest or a minister. A chaplain, how about anybody to come down and say anything good about the Defendant.” The logic of the prosecutor’s argument is apparent: the state called many witnesses to establish Montoya’s bad reputation; Montoya did not cross-examine them; he called no witnesses of his own to contradict the state’s evidence; therefore, the evidence is overwhelming in the state’s favor.
Viewed in this context, the prosecutor’s challenged remark was intended to be a “comment on the failure of the defense, as opposed to the defendant, to counter or explain the testimony presented or evidence introduced.” This kind of comment “is not an infringement of the defendant’s fifth amendment privilege.” United States v. Becker, 569 F.2d 951, 965 (5th Cir.), cert. denied, 439 U.S. 865, 99 S.Ct. 188, 58 L.Ed.2d 174 (1978). Reasonable jurors could interpret the prosecutor’s remark in the same manner as have we. Thus, having been instructed that it was “not to consider, discuss or even refer to the choice on the part of the defendant not to testify,” the jury would not “naturally and necessarily ” interpret the challenged remark as a comment on the defendant’s failure to testify.
Even if the prosecutor’s allusion directly implicated Montoya's failure to testify at the punishment phase, the error was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). It represented an isolated comment in a sea of evidence incriminating Montoya as a violent and erratic man. The state produced over a dozen witnesses who testified to his bad reputation with regard to peacefulness and lawful conduct. Witnesses also described numerous threats of violence by Montoya, including some directed at the police, his intimidating exhibition of knives, and his beating of women. Prior convictions for burglary and unlawfully carrying a weapon were introduced. Montoya offered no evidence at all in rebuttal. The case for his future dangerousness stood unanswered and amply documented. The district court correctly refused to grant habeas relief for this one prosecutorial comment on the evidence.
Finding no constitutional errors in either Montoya’s conviction or his sentence, we affirm the judgment of the district court and deny the petition for writ of habeas corpus.
AFFIRMED.
. On this point, Montoya's brief states only that at his appearance before the magistrate, “the defendant either asked for counsel or was told that counsel would be appointed to represent him (the witnesses called at the suppression hearing differed on this point)." We note that appellate review may constitute a "hearing" under § 2254(d). Sumner v. Mata, 449 U.S. 539, 545-47, 101 S.Ct. 764, 768-69, 66 L.Ed.2d 722 (1981).
. The Court of Criminal Appeals gave credence to the testimony of Officer Lawrence Cadena, who translated for Montoya at the magistrate’s hearing:
Q. (State): Did you have any problem communicating with [Montoya] in Spanish?
A. None whatsoever.
Q. Was there any conversation about whether or not he could afford a lawyer or wanted a lawyer appointed?
A. I asked him if he had an attorney and he said he did not. At that point ... Judge Middleton stated that he would appoint an attorney for him.
Q. Judge Middleton said that in English.
A. That’s correct.
,Q. Did you translate that in Spanish for the Defendant?
A. Yes, I did.
Q. Did you tell him the Judge says he will appoint an attorney for him or what did you tell him?
A. That’s exactly what I said. The Judge says he’ll appoint an attorney for you.
Q. Did Ramon Montoya respond to that?
A. He did not say anything.
Q: Was there any more conversation after that?
A. No, sir.
744 S.W.2d at 26.
. See People v. Harvey, No. 96420 (Mich.Ct.App. May 18, 1988) (per curiam) (emphasis added), reprinted in Petition for a Writ of Certiorari, Appendix A at 3a, Michigan v. Harvey, 494 U.S. 344, 110 S.Ct. 1176, 108 L.Ed.2d 293 (1990):
After defendant was arrested he made a statement to the police at 8:50 a.m. on July 2, 1986, apparently before he was arraigned. The statement was recorded by a police officer and does not indicate whether defendant was advised of or waived his [Miranda rights]. While defendant signed the first page of the three-page statement, he refused to sign the last two pages because the officer "wrote some stuff he didn't like[ — ]something that wasn’t pertaining to what happened.” Defendant then asked for an attorney.
Defendant was arraigned [the same day], and counsel was appointed. On September 9, 1986, six days before trial, [the Jackson violation occurred].
. Teague held that a habeas petitioner is not entitled to relief based on a “new" constitutional rules deduced after his conviction became final if a state court’s rejection of his claim was based on a "reasonable", "good faith” interpretation of constitutional law at the time of state court review. See Butler v. McKellar, 494 U.S. 407, 110 S.Ct. 1212, 1217, 108 L.Ed.2d 347 (1990). Teague admits of only two exceptions: if the “new rule" placed certain types of conduct or individuals beyond the state’s power to proscribe or punish, or if the "new rule" embraces a bedrock rule of criminal procedure necessary to assure an accurate conviction. Teague, 489 U.S. at 312, 109 S.Ct. at 1076. Neither exception applies to this case.
.The court was responding to the argument of the prosecutor that although the magistrate did appoint counsel for Rodriguez, "Rodriguez did not ‘invoke’ his right to counsel at his appearance [before the magistrate].” Id. at 525. The court declined to resolve this "contested issue” and remanded for findings by the district court. The passage quoted in the text follows the court’s admonition that even ”[i]f we had the power to find facts, we could not accept the prosecutor’s argument on the existing record." Id. (emphasis added).
. Having resolved this issue based on Schad and the inapplicability of the state law urged by Montoya, we do not reach the state’s contention that would distinguish Cordova v. Lynaugh, 838 F.2d 764 (5th Cir.), cert. denied, 486 U.S. 1061, 108 S.Ct. 2832, 100 L.Ed.2d 932 (1980), and would hold that the Texas death penalty scheme does not in this case raise any Beck issue.
. On direct review, the Texas Court of Criminal Appeals explained the applicable state law:
The difference between criminally negligent homicide and involuntary manslaughter is the culpable mental state required to prove each offense — criminal negligence for the former and recklessness for the latter. Criminal negligence involves inattentive risk creation, that is, the actor ought to be aware of the risk surrounding his conduct or the results thereof. On the other hand, reckless conduct involves conscious risk creation, that is, the actor is aware of the risk surrounding his conduct or the results thereof, but consciously disregards that risk. At the heart of reckless conduct is conscious disregard of the risk created by the actor's conduct. In contrast, the key to criminal negligence is found in whether the actor failed to perceive the risk.
Id. at 29 (citations omitted). Thus, to convict Montoya of involuntary manslaughter, the jury would have to find that he "recklessly” caused the death of Officer Pasco. See Tex.Pen.Code § 19.05(a)(1). It would have to find that Montoya was aware of a "substantial and unjustifiable” risk that withdrawing the pistol from his pants at the time he did so could result in the officer’s death, and that he consciously disregarded that risk. See id. § 6.03(c).
However, the evidence at trial did not explicitly or implicitly establish that the appellant knew there was a risk to the police officer, and then consciously disregarded that risk. His testimony at trial did not show that the gun was cocked or that he pointed the gun at the officer or in the officer’s general direction. The evidence did not show that he threw the gun at the officer. This is not a case like Simpkins v. State, 590 S.W.2d 129 (Tex.Cr.App.1979), where the defendant pointed a loaded gun at his victim and consciously disregarded the risk to the victim. This is a case where there was no evidence that the gun was used, or exhibited, in a threatening manner against the police officer. The evidence at trial did not raise the issue of reckless conduct and did not indicate that if the appellant was guilty, he was guilty only of involuntary manslaughter.
Montoya, 744 S.W.2d at 29.
. Mr. Banks is the prosecutor and Mr. Parks the defense counsel:
MR. BANKS: What do we hear from this man over here that it couldn't be deliberately, all my prior conduct, all these past actions, that the man that I am is not such that I'm going to commit acts of violence in the future and I did it?
MR. PARKS: I object to a comment on this Defendant’s failure to testify in the second phase of the trial.
THE COURT: Sustained.
MR. PARKS: Ask the jury be instructed to disregard.
MR. BANKS: I hadn’t finished the statement at that time.
THE COURT: All right. Let Mr. Banks finish the statement then I’ll permit you to finish your objection.
MR. BANKS: We know this man’s father and cousins were in Dallas, Texas in 1983, in January of this year and if he wanted to call them or anyone else as witnesses to testify that he had a good reputation they could have done that and we did not hear from.- those witnesses. That’s my entire statement.
MR. PARKS: I want the record to reflect when Mr. Banks was stating the words to the effect that he has not, whatever those exact words were, he was pointing directly at Mr. Montoya as he said those words and that he had finished his statement when I made my objection.
THE COURT: Well, the record may reflect that he gestured toward the Defendant. The record will speak for itself whether or not he finished the statement. In an abundance of caution I want to sustain your objection. I already have.
MR. PARKS: I respectfully move for a mistrial.
THE COURT: That’s denied.
MR. BANKS: Well, you haven’t heard from his family, a friend, an employer, a neighbor. Well, you’ve heard
Question: What is the circuit of the court that decided the case?
A. First Circuit
B. Second Circuit
C. Third Circuit
D. Fourth Circuit
E. Fifth Circuit
F. Sixth Circuit
G. Seventh Circuit
H. Eighth Circuit
I. Ninth Circuit
J. Tenth Circuit
K. Eleventh Circuit
L. District of Columbia Circuit
Answer:
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sc_authoritydecision
|
D
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What follows is an opinion from the Supreme Court of the United States. Your task is to determine the bases on which the Supreme Court rested its decision with regard to the legal provision that the Court considered in the case. Consider "judicial review (national level)" if the majority determined the constitutionality of some action taken by some unit or official of the federal government, including an interstate compact. Consider "judicial review (state level)" if the majority determined the constitutionality of some action taken by some unit or official of a state or local government. Consider "statutory construction" for cases where the majority interpret a federal statute, treaty, or court rule; if the Court interprets a federal statute governing the powers or jurisdiction of a federal court; if the Court construes a state law as incompatible with a federal law; or if an administrative official interprets a federal statute. Do not consider "statutory construction" where an administrative agency or official acts "pursuant to" a statute, unless the Court interprets the statute to determine if administrative action is proper. Consider "interpretation of administrative regulation or rule, or executive order" if the majority treats federal administrative action in arriving at its decision.Consider "diversity jurisdiction" if the majority said in approximately so many words that under its diversity jurisdiction it is interpreting state law. Consider "federal common law" if the majority indicate that it used a judge-made "doctrine" or "rule; if the Court without more merely specifies the disposition the Court has made of the case and cites one or more of its own previously decided cases unless the citation is qualified by the word "see."; if the case concerns admiralty or maritime law, or some other aspect of the law of nations other than a treaty; if the case concerns the retroactive application of a constitutional provision or a previous decision of the Court; if the case concerns an exclusionary rule, the harmless error rule (though not the statute), the abstention doctrine, comity, res judicata, or collateral estoppel; or if the case concerns a "rule" or "doctrine" that is not specified as related to or connected with a constitutional or statutory provision. Consider "Supreme Court supervision of lower federal or state courts or original jurisdiction" otherwise (i.e., the residual code); for issues pertaining to non-statutorily based Judicial Power topics; for cases arising under the Court's original jurisdiction; in cases in which the Court denied or dismissed the petition for review or where the decision of a lower court is affirmed by a tie vote; or in workers' compensation litigation involving statutory interpretation and, in addition, a discussion of jury determination and/or the sufficiency of the evidence.
UNITED STATES ex rel. TOUHY v. RAGEN, WARDEN, et al.
No. 83.
Argued November 27-28, 1950.
Decided February 26, 1951.
Robert B. Johnstone argued the cause for petitioner. With him on the brief were Edward M. Burke and Howard B. Bryant.
Robert S. Erdahl argued the cause for McSwain, respondent. With him on the brief were Solicitor General Perlman, Assistant Attorney General Mclnerney, Stanley M. Silverberg and Philip R. Monahan.
Mk. Justice Reed
delivered the opinion of the Court.
This proceeding brings here the question of the right of a subordinate official of the Department of Justice of the United States to refuse to obey a subpoena duces tecum ordering production of papers of the Department in. his possession. The refusal was based upon a regulation issued by the Attorney General under 5 U. S. C. § 22.
Petitioner, Roger Touhy, an inmate of the Illinois State penitentiary, instituted a habeas corpus proceeding in the United States District Court for the Northern District of Illinois against the warden, alleging he was restrained in violation of the Due Process Clause of the Federal Constitution. In the course of that proceeding a subpoena duces tecum was issued and served upon George R. McSwain, the agent in charge of the Federal Bureau of Investigation at Chicago, requiring the production of certain records which, petitioner Toühy claims, contained evidence establishing that his conviction was brought about by fraud. At the hearing that considered the duty of submission of the subpoenaed papers, the U. S. Attorney made representations to the court and to opposing counsel as to how far the Attorney General was willing for his subordinates to go in the production of the subpoenaed papers. The suggestions were not accepted. Mr. McSwain was then placed upon the witness stand and ordered to bring in the papers. He personally declined to produce the records in these words:
“I must respectfully advise the Court that under instructions to me by the Attorney General that I must respectfully decline to produce them, in accordance with Department Rule No. 3229.”
Thereupon, the judge found Mr. McSwain guilty of contempt of court in refusing to produce the records referred to in the subpoena and sentenced him to be committed to the custody of the Attorney General of the United States or his authorized representative until he obeyed the order of the court or was discharged by due process of law.
On appeal, the Court of Appeals reversed on the ground that Department of Justice Order No. 3229 was authorized by the statute and
“confers upon the Department of Justice the privilege of refusing to produce unless there has been a waiver of such privilege.” 180 F. 2d 321 at 327.
The court then considered whether or not the privilege of nondisclosure was waived. It quoted from Supplement No. 2 to Order No. 3229 this language:
“If questioned, the officer or employee should state that the material is at hand and can be submitted to the court for determination as to its materiality to the case and whether in the best public interests the information should be disclosed. The records should be kept in the United States Attorney’s office or some similar place of safekeeping near the court room. Under no circumstances should the name of any confidential informant be divulged.” 180 F. 2d at 328.
The Court of Appeals said that “this language contemplates some circumstances when the material called for must be submitted 'to the court for determination as to its materiality to the case and whether in the best public interests the information should be disclosed.’ ” The court found, however, that no such limited disclosure was requested but that Mr. McSwain was called upon “to produce all documents and material called for in the subpoena without limitation and that at no time was he questioned” as to his willingness to submit the papers for determination as to materiality and best public interests. Consequently, he was not guilty of contempt unless the law required the witness to make unlimited production. The court thought that, since this last would mean there was no privilege in the Department to refuse production, such a holding should not be made. It said:
“Submission could only have been required to the extent the privilege had been waived by the Attorney General and for the purpose and in the specific manner designated.” 180 F. 2d at 328.
We granted certiorari, 340 U. S. 806, to determine the validity of the Department of Justice Order No. 3229. Among the questions duly presented by the petition for certiorari was whether it is permissible for the Attorney General to make a conclusive determination not to produce records and whether his subordinates in accordance with the order may lawfully decline to produce them in response to a subpoena duces tecum.
We find it unnecessary, however, to consider the ultimate reach of the authority of the Attorney General to refuse to produce at a court’s order the government papers in his possession, for the case as we understand it raises no question as to the power of the Attorney General himself to make such a refusal. The Attorney General was not before the trial court. It is true that his subordinate, Mr. McSwain, acted in accordance with the Attorney General’s instructions and a department order. But we limit our examination to what this record shows, to wit, a refusal by a subordinate of the Department of Justice to submit papers to the court in response to its subpoena duces tecum on the ground that the subordinate is prohibited from making such submission by his superior through Order No. 3229. The validity of the superior’s action is in issue only insofar as we must determine whether the Attorney General can validly withdraw from his subordinates the power to release department papers. Nor are we here concerned with the effect of a refusal to produce in a prosecution by the United States or with the right of a custodian of government papers to refuse to produce them on the ground that they are state secrets or that they would disclose the names of informants.
We think that Order No. 3229 is valid and that Mr. McSwain in this case properly refused to produce these papers. We agree with the conclusion of the Court of Appeals that since Mr. McSwain was not questioned on his willingness to submit the material “to the court for determination as to its materiality to the case” and whether it should be disclosed, the issue of how far the Attorney General could or did waive any claimed privilege against disclosure is not material in this case.
Department of Justice Order No. 3229, note 1, supra, was promulgated under the authority of 5 U. S. C. § 22. That statute appears in its present form in Revised Statutes § 161, and consolidates several older statutes relating to individual departments. See, e. g., 16 Stat. 163. When one considers the variety of information contained in the files of any government department and the possibilities of harm.from unrestricted disclosure in court, the usefulness, indeed the necessity, of centralizing determination as to whether subpoenas duces tecum will be willingly obeyed or challenged is obvious. Hence, it was appropriate for the Attorney General, pursuant to the authority given him by 5 U. S. C. § 22, to prescribe regulations not inconsistent with law for “the custody, use, and preservation of the records, papers, and property appertaining to” the Department of Justice, to promulgate Order 3229.
Petitioner challenges the validity of the issue of the order under a legal doctrine which makes the head of a department rather than a court the determinator of the admissibility of evidence. In support of his argument that the Executive should not invade the Judicial sphere, petitioner cites Wigmore, Evidence (3d ed.), § 2379, and Marbury v. Madison, 1 Cranch 137. But under this record we are concerned only with the validity of Order No. 3229. The constitutionality of the Attorney General’s exercise of a determinative power as to whether or on what conditions or subject to what disadvantages to the Government he may refuse to produce government papers under his charge must await a factual situation that requires a ruling. We think Order No. 3229 is consistent with law. This case is ruled by Boske v. Comingore, 177 U. S. 459.
That case concerned a collector of internal revenue adjudged in contempt for failing to file with his deposition copies of a distiller’s reports in his possession as a subordinate officer of the Treasury. The information was needed in litigation in a state court to collect a state tax. The regulation upon which the collector relied for his refusal was of the same general character as Order No. 3229. After referring to the constitutional authority for the enactment of R. S. § 161, the basis, as 5 U. S. C. § 22, for the regulation now under consideration, this Court reached the question of whether the regulation centralizing in the Secretary of the Treasury the discretion to submit records voluntarily to the courts was inconsistent with law, p. 469. It concluded that the Secretary’s reservation for his own determination of all matters of that character was lawful.
We see no material distinction between that case and this.
The judgment of the Court of Appeals is
Affirmed.
Mr. Justice Black and Mr. Justice Douglas are of the opinion the judgment of the District Court should be affirmed.
Mr. Justice Clark took no part in the consideration or decision of this case.
Department of Justice Order No. 3229, filed May 2,1946, 11 Fed. Reg. 4920, reads:
“Pursuant to authority vested in me by R.S. 161 TJ.S. Code, Title 5, Section 22), It is hereby ordered:
“All official files, documents, records and information in the offices of the Department of Justice, including the several offices of United States Attorneys, Federal Bureau of Investigation, United States Marshals, and Federal penal and correctional institutions, of in. the custody or control of any officer or employee of the Department of Justice, are to be regarded as confidential. No officer or employee may permit the disclosure or use of the same for any purpose other than for the performance of his official duties, except in the discretion of the Attorney General, The Assistant to the Attorney General, or an Assistant Attorney General acting for him.
“Whenever a subpoena duces tecum is served to produce any of such files, documents, records or information, the officer or employee on whom such subpoena is served, unless otherwise expressly directed by the Attorney General, will appear in court in answer thereto and respectfully decline to produce the records specified there in, on the ground that the disclosure of such records is prohibited by this regulation.”
Supplement No. 2 to that order, dated June 6, 1947, provides in part:
“TO ALL UNITED STATES ATTORNEYS
“procedure to be followed upon receiving a subpoena DUCES TECUM
“Whenever an officer or employee of the Department is served with a subpoena duces tecum to produce any official files, documents, records or information he should at once inform his superior officer of the requirement of the subpoena and ask for instructions from the Attorney General. If, in the opinion of the Attorney General, circumstances or conditions make it necessary to decline in the interest of public policy to furnish the information, the officer or employee on whom the subpoena is served will appear in court in answer thereto and- courteously state to the court that he has consulted the Department of Justice and is. acting in accordance with instructions of the Attorney General in refusing to produce the records. . . .
. . It is not necessary to bring the required documents into the court room and on the witness stand when it is the intention of the officer or employee to comply with the subpoena by submitting the regulation of the Department (Order No. 3229) and explaining that he is not permitted to show the files. If questioned, the officer or employee should state that the material is at hand and can be submitted to the court for determination as to its materiality to the case and whether in the best public interests the information should be disclosed. The records should be kept in the United States Attorney’s office or some similar place of safe-keeping near the court room. Under no circumstances should the name of any confidential informant be divulged.”
“The head of each department is authorized to prescribe regulations, not inconsistent with law, for the government of his department, the conduct of its officers and clerks, the distribution and performance of its business, and the custody, use, and preservation of the records, papers, and property appertaining to it.”
The subpoena was also addressed to the Attorney General. There is no contention, however, that the Attorney General was personally served with the subpoena; nor did he appear. See Fed. Rules Civ. Proe., 45.
We take this answer to refer to both the original Department of Justice Order No. 3229 and the supplement.
Although in this record there are indications that the U. S. Attorney was willing to submit the papers to the judge alone for his determination as to their materiality, the judge refused to accept the papers for examination on that basis. There is also in the record indication that the U. S. Attorney thought of submitting the papers to the court and opposing counsel in chambers but changed his mind. For our conclusion none of these facts are material, as the final order adjudging Mr. McSwain guilty of contempt was based, as above indicated, on a refusal by Mr. McSwain to produce, as instructed by the Attorney General in accordance with Department Order No. 3229.
Cf. United States v. Andolschek, 142 F. 2d 503.
See Wigmore, Evidence (3d ed.), § 2378.
See Wigmore, Evidence (3d ed.), §2374.
Rescue Army v. Municipal Court of Los Angeles, 331 U. S. 549. For relatively recent consideration of the problem underlying governmental privilege against producing evidence, compare Duncan v. Cammell, Laird & Co., [1942] A. C. 624, with Robinson v. State of South Australia, [1931] A. C. 704.
That case has been generally followed. See, e. g., Ex parte Sackett, 74 F. 2d 922; In re Valecia Condensed Milk Co., 240 F. 310; Harwood v. McMurtry, 22 F. Supp. 572; Stegall v. Thurman, 175 F. 813; Walling v. Comet Carriers, Inc., 3 F. R. D. 442, 443.
The following excerpts will show the similarity:
“ 'Whenever such subpoenas shall have been served upon them, they will appear in court in answer thereto and respectfully decline to produce the records called for, on the ground of being prohibited therefrom by the regulations of this department. ... In all cases where copies of documents or records are desired by or on behalf of parties to a suit, whether in a court of the United States or any other, such copies shall be furnished to the court only and on a rule of the court upon the Secretary of the Treasury requesting the same. Whenever such rule of the court shall have been obtained collectors are directed to carefully prepare a copy of the record or document containing the information called for and send it to this office, whereupon it will be transmitted to the Secretary of the Treasury with a request for its authentication, under the seal of the department, and transmission to the judge of the court calling for it, unless it should be found that circumstances or conditions exist which makes it necessary to decline, in the interest of the public service, to furnish such a copy.’ ” 177 U. S. 461.
Question: What is the basis of the Supreme Court's decision?
A. judicial review (national level)
B. judicial review (state level)
C. Supreme Court supervision of lower federal or state courts or original jurisdiction
D. statutory construction
E. interpretation of administrative regulation or rule, or executive order
F. diversity jurisdiction
G. federal common law
Answer:
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songer_genapel1
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed appellant.
SAMMONS et al. v. COLONIAL PRESS, Inc., et al. COLONIAL PRESS, Inc., v. SAMMONS et al.
Nos. 3735, 3736.
Circuit Court of Appeals, First Circuit.
Feb. 20, 1942.
Rehearing Denied March 12, 1942.
Robert V. Jones, of Chicago, Ill. (Arthur Thad Smith, of Boston, Mass., on the brief), for Sammons and others.
Stanley G. Barker, of Worcester, Mass. (Thayer, Smith & Gaskill, of Worcester, Mass., on the brief), for Colonial Press, Inc.
No appearance or argument for other appellee.
Before MAGRUDER, MAHONEY, and WOODBURY, Circuit Judges.
MAGRUDER, Circuit Judge.
These are cross-appeals in a suit for copyright infringement.
The main question is whether under § 25(b) of the Copyright Act of 1909, 35 Stat. 1081, 17 U.S.C.A. § 25(b), a contract printer is jointly liable with the infringing publisher for the profits which the latter made from sales of the infringing book, the plaintiffs having offered no evidence of actual damages from the infringement. We think the district court correctly answered this question in the negative.
One Larkin got up a book called “Who’s Who in Massachusetts.” Through reference and introduction by the University Press, Larkin got in touch with the Colonial Press, Inc., and on May 8, 1939, a contract was made between them whereby Colonial Press agreed to print 3,000 copies of the book, of which 1,000 copies were to be bound, for a total price of $7,500. Colonial Press obligated itself to pay to University Press a commission of $994 for forwarding the job.
Colonial Press is a book manufacturer. It does the actual mechanical work' involved in producing books — the printing, electrotyping, stitching and binding — after receiving manuscripts from publishers. It is not engaged in the publication of books.
Larkin began furnishing manuscript in May, 1939. Colonial Press made its first delivery of books to Larkin on December 6 of that year.' On February 8, 1940, the plaintiffs (a partnership doing business' as the A. N. Marquis Co.) gave written notice to Colonial Press. that the book “Who’s Who in Massachusetts” ■ constituted an infringement of the plaintiffs’ copyrighted book “Who’s Who in New England.” Printing was stopped by Colonial Press on February 26. In the period between February 26 and April 12,1940, when deliveries ceased, Colonial Press delivered to Larkin between 1,500 and 2,000 books. In all, 2,-812 books were delivered. Larkin sold 2,-280 volumes of his work for $18,795.
The plaintiffs’ complaint, filed in the court below, j oined Larkin and the Colonial Press, Inc., as co-defendants, and after setting forth the ownership by plaintiffs of the copyright of the book “Who’s Who in New England,” charged that “the defendants infringed said copyright by printing, publishing, selling and placing upon the market a book entitled ‘Who’s Who in Massachusetts.’ ” A second count for trademark infringement and unfair competition by the defendants acting jointly and for their mutual profit was dismissed by the court with prejudice, upon motion by the plaintiffs.
The district court made findings that the accused book infringed the plaintiffs’ copyright ; that Larkin made a net profit of $7,-236.50 from sales of the book; that Colonial Press realized no net profit out of its printing contract. It ruled that Colonial Press, though it acted in good faith and was not a conscious and deliberate infringer, was nevertheless liable for infringement, along with the publisher Larkin, because it was “the combined effort of Colonial and Lar-kin that placed the infringing book upon the market.” However, the district court ruled that the Press was not jointly accountable with Larkin for the profits Larkin made.
, On the basis of the foregoing, the court permanently enjoined the two defendants from further infringement, gave judgment against Larkin for his profits of $7,236.50, •together with costs, including $1,500 for attorney’s fee, and gave judgment against Colonial Press ’ for $250 and. costs. The sum assessed against the Press was “in lieu-of actual damages and profits” and was the minimum amount permissible under § 25(b).
’ The plaintiffs and the defendant Colonial Press each took an appeal from this judgment'. Larkin did not’ appeal. The correctness of the finding of infringement- is not now challenged, nor is any issue raised as .to the amount of Larkin’s profits.
The chief contention of the plaintiffs in their appeal is that the court below should have held Colonial Press jointly liable for the profits madé by Larkin.
Under § 25(b) any person infringing copyright is liable “to pay to the copyright proprietor such damages as the copyright proprietor may have suffered due to the fringement, as well as all the profits which the infringer shall have made from such infringement * * In lieu of actual damages 'and profits such damages shall be assessed “as to the court shall appear to be just,” within prescribed maximum and minimum limits.
Damages ■ and profits are distinct items of recovery, and are awarded upon quite different legal principles.
In a case like the present, the measure of damages is the profits which the plaintiffs would have made upon additional sales of its copyrighted book, had not the infringing book been competing in the market. Gross v. Van Dyk Gravure Co., 2 Cir., 1916, 230 F. 412, 414. It is often difficult, for obvious reasons, to make satisfactory proof of such damages, and the plaintiffs did not attempt to do so in the case at bar. Where the copyright owner can show as damages his probable losses resulting from an infringement, it is clear, on familiar principles of tort liability, that all persons who unite in the infringement are jointly and severally liable for the damages resulting therefrom. Gross v. Van Dyk Gravure Co., 2 Cir., 1916, 230 F. 412.
On the other hand, accountability of an infringer for the profits he has made had its origin in equity. Stevens v. Gladding, 1854, 17 How. 447, 455, 15 L.Ed. 155. “Prior to the Copyright Act of 1909 * * * there had been no statutory provision for the recovery of profits, but that recovery had been allowed in equity both in copyright and patent cases as appropriate equitable relief incident to a decree for an injunction.” Sheldon v. Metro-Goldwyn Pictures Corp., 1940, 309 U.S. 390, 399, 60 S.Ct. 681, 684, 84 L.Ed. 825. The theory was that it was unconscionable for an infringer to retain a benefit which he had received by the appropriation and use of the plaintiff’s property right; and to prevent unjust enrichment the infringer was treated as a trustee ex maleficio of his ill gotten gains. As 'fhé court pointed out in L. P. Larson, Jr., Co. v. Wm. Wrigley, Jr., Co., 1928, 277 U.S. 97, 99, 100, 48 S.Ct. 449, 72 L.Ed. 800: “To call the infringer an agent or trustee is not to state a fact but merely to indicate a mode of approach and an imperfect analogy by which the wrongdoer will be made to hand over the proceeds of his wrong.” Accountability for profits is therefore peculiarly personal, as equity acts on the conscience of the infringer. The presupposition is that the infringer has gotten something which it is unconscionable for him to keep; and hence'it logically follows that the infringer is accountable only for the profits he received, not for the profits which may have been received by a co-infringer. Of course, when the infringement is by a partnership, the partners are jointly accountable for the whole profit made by the partnership on ordinary principles of partnership law. Callaghan v. Myers, 1888, 128 U.S. 617, 9 S.Ct. 177, 32 L.Ed. 547.
Liability of an infringer for profits is thus not by way of rough and ready reparation to the plaintiff for the damages which he is presumed to have suffered from the infringement. The profits which were made by the infringer may bear no relation to the damages suffered by the copyright proprietor. Thus the latter may have made no effort to exploit his copyright, in which case it would be apparent that he had not been deprived of a gain he otherwise would have made but for the infringement. Dam v. Kirk La Shelle Co., 2 Cir., 1910, 175 F. 902, 908, 41 L.R.A., N.S., 1002, 20 Ann.Cas. 1173. Again, if the copyrighted book is in an expensive de luxe edition and the infringing work a cheap edition, the profits from infringement might well come from sales in a market which the plaintiff would not have tapped anyway. Huebsch v. Arthur H. Crist Co., D.C.N.D.N.Y.1914, 209 F. 885, 894. And even where the two books are competing at the same market level, there may be substantial differences in the respective costs of the copyright proprietor and the infringer, in the effectiveness of their respective sales organizations and advertising, and in many other factors, all of which would render the profits made by the infringer wholly unreliable as an indication of the proprietor’s damages, that is, the profits which he would have made but for the infringement. See Weil, Copyright Law (1917) pp. 471-73.
The basic fallacy in the plaintiffs’ argument lies in their confusion of profits with damages. This is apparent from their brief: “The infringer or infringers, having preempted the position of the copyright owner and having sold or exploited the copyrighted material, should restore to the' copyright owner the profits he was so prevented from making for himself. For this purpose of reparation it makes no difference how the infringers (if there be more than one) may have divided the profits among themselves; the crux of the matter is not that they, the infringers, have receiyed profits but that they have wrongfully deprived someone else of profits which rightfully should have been his. The test of liability, that is, is not the extent of benefit received, but the extent of wrong done. The total profits resulting from the wrongful appropriation is a measure of the wrong done; admittedly it is not an entirely accurate measure, but an entirely accurate measure is impossible from the nature of the situation; * *
It must be conceded that expressions in some of the earlier Supreme Court cases lend countenance to the plaintiffs’ argument. Thus, in Dean v. Mason, 1857, 20 How. 198, 203, 15 L.Ed. 876, the court said:
“The rule in such a case is, the amount of profits received by the unlawful use of the machines, as this, in general, is the damage done to the owner of the patent.” Again, in Mowry v. Whitney, 1871, 14 Wall. 620, 653, 20 L.Ed. 860, the court said: “The profits which are recoverable against an infringer of a patent are in fact a compensation for the injury the patentee has sustained from the invasion of his right. They are the measure of his damages. Though called profits, they are really damages, and unliquidated until the decree is made.” Similarly, in Littlefield v. Perry, 1874, 21 Wall. 205, 230, 22 L.Ed. 577, it was said: “Profits actually realized are usually, in a case like this, the measure of unliquidated damages.”-
On the other hand, the more recent cases, and the better considered of the older cases, recognize clearly enough the divergent principles upon which recovery is had for damages and for profits. In Rubber Co. v. Goodyear, 1869, 9 Wall. 788, 804, 19 L.Ed. 566, the court explained the accountability of an infringer for profits as follows: “It makes the wrong-doer liable for actual, not possible, gains. The controlling consideration is, that he shall not profit by his wrong.” In Packet Co. v. Sickles, 1873, 19 Wall. 611, 617, 22 L.Ed. 203, Mr. Justice Miller, after referring to the measure of damages for infringement in an action at law, said: “The rule in suits in equity, of ascertaining by a reference to a master the profits which the defendant has made by the use of the plaintiff’s invention, stands on a different principle. It is that of converting the infringer into a trustee for the patentee as regards the profits thus made; * * *.” Again, in Burdell v. Denig, 1875, 92 U.S. 716, 720, 23 L.Ed. 764, Mr. Justice Miller stated: “Profits are not the primary or true criterion of damages for infringement in an action at law. That rule applies eminently and mainly to cases in equity, and is based upon the idea that the infringer shall be converted into a trustee, as to those profits, for the owner of the patent which he infringes, * * And see, to the same effect, a much quoted passage from the opinion of Mr. Justice Gray in Tilghman v. Proctor, 1888, 125 U.S. 136, 145, 146, 8 S.Ct. 894, 31 L.Ed. 664. In Duplate Corp. v. Triplex Safety Glass Co., 1936, 298 U.S. 448, 457, 56 S.Ct. 792, 796, 80 L.Ed. 1274, the court said: “The wrongdoer must yield the gains begotten of his wrong.” Without unduly multiplying citations, we may refer finally to the opinion of Chief Justice Hughes in Sheldon v. Metro-Goldwyn Pictures Corp., 1940, 309 U.S. 390, 399, 60 S. Ct. 681, 684, 84 L.Ed. 825, where he states that the remedy of accountability for profits “had been given in accordance with the principles governing equity jurisdiction, not to inflict punishment but to prevent an unjust enrichment * *
In patent cases it is well settled that co-infringers, unless they are partners, are severally accountable only for the profits each has received. Elizabeth v. Pavement Co., 1877, 97 U.S. 126, 24 L.Ed. 1000; Belknap v. Schild, 1896, 161 U.S. 10, 25, 26, 16 S.Ct. 443, 40 L.Ed. 599; Covert v. Sargent, C.C.S.D.N.Y.1889, 38 F. 237; Kissinger-Ison Co. v. Bradford Belting Co., 6 Cir., 1903, 123 F. 91, 93; Dowagiac Mfg. Co. v. Deere & Webber Co., 8 Cir., 1922, 284 F. 331, 337, 338; International Radio Telegraph Co. v. Atlantic Communication Co., 2 Cir., 1923, 290 F. 698, 703. See 3 Walker on Patents (Deller’s ed., 1937) § 841. In Belknap v. Schild, supra, the court said (pages 25, 26 of 161 U.S., page 448 of 16 S. Ct., 40 L.Ed. 599) : “In a suit in equity for the infringement of a patent, the ground upon which profits are recovered is that they are the benefits which have accrued to the defendants from their wrongful use of the plaintiff’s invention, and for which they are liable, ex ssquo et bono, to the like extent as a trustee would be who had used the trust property for his own advantage. The defendants, in any such suit, are therefore liable to account for such profits only as have accrued to themselves from the use of the invention, and not for those which have accrued to another, and in which they have no participation.”
We see no reason why the same rule should not apply in the case of copyright infringement. Accountability of an in-fringer for profits was enforced in equity, both in patent and copyright cases, on the same equitable principles, even before the patent and copyright laws specifically authorized this relief. When, by amendment, these laws did so authorize the recovery of profits, there was no change in the principle upon which such relief had theretofore been granted by courts of equity. See Sheldon v. Metro-Goldwyn Pictures Corp., 1940, 309 U.S. 390, 399, 400, 60 S.Ct. 681, 84 L.Ed. 825. In that case the court, though not having before it the particular point now in question, recognized (at page 400 of 309 U.S., at page 684 of 60 S.Ct., 84 L.Ed. 825) the similarity of the remedies provided in patent and copyright cases: “In passing the Copyright Act, the apparent intention of Congress was to assimilate the remedy with respect to the recovery of profits to that already recognized in patent cases. Not only is there no suggestion that Congress intended that the award of profits should be governed by a different principle in copyright cases but the contrary is clearly indicated by the committee reports on the bill.”
There could be no question about this, were it not for the decision of the Supreme Court in Belford v. Scribner, 1892, 144 U.S. 488, 12 S.Ct. 734, 36 L.Ed. 514, upon which the plaintiffs chiefly rely. The facts there were strikingly similar to those in the case at bar. The infringing publisher procured his book to be manufactured under contract with a printer. In a suit for infringement, brought against the publisher and printer jointly, it appeared that the publisher had made a net profit of $1,092. No proof was offered as to the profit, if any, made by the printer in the performance of his printing contract. The lower court decreed that the two defendants were jointly liable for the profits made by the publisher. Upon appeal it was contended by the printing firm (Donohue & Henneberry) that no decree for the payment of any profits could lawfully be entered against them in the absence of proof that they had made any profits. The Supreme Court in affirming the decree below said (pages 507, 508 of 144 U.S., at page 740 of 12 S.Ct., 36 L.Ed. 514) : “To this view it is replied by the plaintiff that, as the defendants Donohue & Henneberry printed the books by contract with the corporation defendant, and as, under the copyright law (Rev.St. § 4964), both the printer and the publisher are equally liable to the owner of the copyright for an infringement, and as it is to be inferred that Donohue & Henneberry made a profit from printing the piratical books, they were therefore sharers in the profits realized from the sale of the books, and were participes criminis with the defendant corporation in the infringement; that the two sets of defendants together printed and published the books, and were practically partners in doing it, — the corporation doing one part, and the other defendants the other part, of the printing and publishing; and that all the parties concerned ought to be held to an account to the owner of the copyright in respect to the profits derived from the printing, publishing, and selling, without all of which combined there could have been no infringement. We think these views are sound.”
It is to be noted that the court based its opinion upon the ground that the printer and the publisher were “practically partners” in putting the infringing book on the market, a conclusion hardly justified by the facts of the case. However, the case was distinguished on this ground in Dowagiac Mfg. Co. v. Deere & Webber Co., 8 Cir., 1922, 284 F. 331, 340, and by the court below in the case at bar. If Belford v. Scribner cannot fairly be distinguished on this ground we thin-k it is irreconcilable with the long line of cases, of which the latest is Sheldon v. Metro-Goldwyn Pictures Corp., supra, explaining the true equitable principles upon which an infringer is accountable for profits; hence we cannot accept Belford v. Scribner as a controlling authority in the instant case. But see, contra, Amdur, Copyright Law and Practice (1936) pp. 1158— 1162; Caplan, The Measure of Recovery in Actions for the Infringement of Copyright (1939) 37 Mich.L.Rev. 564, 571. Colonial Press was in no proper sense a partner with Larkin in marketing the infringing book and sharing profits from the sales thereof. Its relationship to Larkin was that of an independent contractor, manufacturing the book for a fixed contract price, which was payable whether or not Larkin made any profit from the sales of the book.
So far as we can find, no case since Bel-ford v. Scribner, involving either patent or copyright infringement, has held that co-infringers who are not partners are accountable for anything more than the profits which each infringer has individually received as a result of the infringement. In Gross v. Van Dyk Gravure Co., 2 Cir., 1916, 230 F. 412, 414, a copyright case, there was a dictum that one co-infringer “should not be charged with any part of the profits the other infringers made.” We do not find that anything to the contrary was held in Haas v. Leo Feist, Inc., D.C.S.D.N.Y.1916, 234 F. 105. In that case the defendant Leo Feist, Inc., was a publishing house which employed the defendant Piantadosi as a composer of melodies. Piantadosi composed a song which was held to be an infringement of the plaintiff’s' copyright. The infringing song was published by the corporate defendant. A decree for an accounting of profits went against both defendants. There is, however, nothing in the opinion to indicate that the individual defendant was to be held accountable for the net profits made by the publishing house; for all that appears, he was accountable only for what he received for the song from the corporate defendant. Nor does it appear that the corporate defendant was denied a deduction, as part of its costs, of what it paid to the individual defendant for the song. For an early case of copyright infringement in which it was recognized that each co-infringer was accountable only for the profits he received, see Stevens v. Gladding, C.C.R.I.1856, Fed. Cas.No. 13,399, 2 Curt. 608.
If the plaintiffs’ theory of joint accountability were correct, then in Sheldon v. Metro-Goldwyn Pictures Corp., 1940, 309 U.S. 390, 60 S.Ct. 681, 84 L.Ed. 825, Metro-Goldwyn would have been accountable not only for the profits it received but also for profits made by independent exhibitors to whom it rented the infringing picture. In the district court, 26 F.Supp. 134, 144, 145, it was ruled as follows:
“The question has been raised as to the liability of the several defendants for the profits made by their codefendants. Section 25 of the Copyright Act requires each infringer to account for the profits it received. The statute gives the complainant the right to recover those profits from that infringer, but no other infringer is jointly liable therefor. As to the damages sustained by a complainant through the infringement of his copyright, infringers who are joint tort feasors are jointly liable. * * *
“Loew’s, Inc. [an independent exhibitor], will not be held liable for the profits of the other defendants. The Pictures Corporation will not be held for the profits of Loew’s.”
The effort of the complainants to have each infringer charged with the aggregate profits made by all the infringers was apparently abandoned on appeal, for neither in the opinion of the circuit court of appeals (2 Cir., 106 F.2d 45) nor in that óf the Supreme Court was the point further alluded to.
We conclude, therefore, that the district court rightly refused to charge Colonial Press with the profits made by Larkin.
Plaintiffs challenge the finding of the district court that Colonial Press made no net profit on the printing contract. This point turns on the correctness of the court’s allowance of a deduction of $2,936.-25 for “overhead expenses.”
Colonial’s net bill to Larkin amounted to $8,091.93. Deducted from this was an item of $2,836.96 for direct labor cost in manufacturing the infringing book, an item of $1,588.24 for materials used, and an item of $994 which Colonial is obligated to pay University Press as commission for forwarding the job. Up to this point and disregarding any allowance for overhead expenses, Colonial shows an apparent profit of $2,672.73.
It might be suggested, with some force, that the profits for which an infringer is accountable should be calculated without any deduction of a fractional part of the fixed general overhead expenses which presumably would have been borne by him even had he not participated in the infringement complained of. Manufacturers are frequently glad to make a contract at a price which yields no net profit on a strict cost accounting basis but which does yield sufficient profit to carry a portion of the inescapable overhead. In such a case it would be difficult to deny that the infringer has reaped a benefit in dollars and cents from the infringement, for which he ought to be accountable. Possibly a deduction for overhead should be allowed in such a case when the infringement is innocent and denied when the infringement is conscious and deliberate. Cf. L. P. Larson, Jr., Co. v. Wm. Wrigley, Jr., Co., 1928, 277 U.S. 97, 48 S.Ct. 449, 72 L.Ed. 800; Sheldon v. Moredall Realty Corp., D.C.S.D.N.Y.1939, 29 F.Supp. 729, 730, 731.
We do not pursue this point because in the present case the plaintiffs say in their brief: “It is not contended that an in-fringer is barred from claiming credit for a particular expense which may be incurred in connection with the production of an infringing work simply because that expense is of a type included within ‘overhead expense.’ ” Furthermore, the cases seem to assume, without much discussion, that the infringer is entitled to a deduction of that portion of the overhead expense properly allocable to the particular job. Rubber Co. v. Goodyear, 1869, 9 Wall. 788, 804, 19 L.Ed. 566: “The calculation is to be made as a manufacturer calculates the profits of his business”; Myers v. Callaghan, C.C.N.D.Ill.1885, 24 F. 636, 638, 639, same case on appeal, sub nom. Callaghan v. Myers, 1888, 128 U.S. 617, 9 S.Ct. 177, 32 L.Ed. 547; Sheldon v. Metro-Goldwyn Pictures Corp., 2 Cir., 1939, 106 F.2d 45, 52, 53; Id., 1940, 309 U.S. 390, 409, 60 S.Ct. 681, 84 L.Ed. 825; Levin Bros. v. Davis Mfg. Co., 8 Cir., 1934, 72 F.2d 163; Ruth v. Stearns-Roger Mfg. Co., D.C.D. Colo.1935, 13 F.Supp. 697; Sheldon v. Moredall Realty Corp., D.C.S.D.N.Y.1939, 29 F.Supp. 729, 730, 731.
We assume that in a case like the present a deduction for overhead is allowable if properly established by proof. As stated in Sheldon v. Metro-Goldwyn Pictures Corp., 2 Cir., 1939, 106 F.2d 45, 54: “ ‘Overhead’ which does not assist in the production of the infringement should not be credited to the infringer; that which does, should be; it is a question of fact in all cases.” Section 25(b) provides that “in proving profits the plaintiff shall be required to prove sales only and the defendánt shall be required to prove every element of cost which he claims * * *.” The burden thus cast upon the defendant requires him to give evidence of more than a blanket undifferentiated item of “overhead”; he must give satisfactory evidence of each item of general expense or overhead, show that each item assisted in the production of the infringement, and offer a reasonably acceptable formula for allocating a portion of the general overhead to the particular job. A theoretically perfect allocation is impossible, but there must be a rough approximation within the limits of practicality.
The evidence offered by Colonial Press in respect to overhead did not, we 'think, meet its statutory burden of proof. Its only witness on this matter was the president of the corporation. He gave the figure of $278,382.82 as the total amount paid out for “productive labor” during 1939. $288,142.19 was the total amount of general overhead expenses for that year. Overhead for 1939 thus bore a relation of 103.5% to expenditures for productive labor. Taking 103.5% of $2,836.96 — the total direct labor cost of the job of printing the infringing book — the witness testified that $2,936.25 should be allocated as the overhead expense for the particular job. The above item of $288,142.19 for overhead was computed as follows: $365,128.71 (described as “cost of sales” less costs of material, paper and direct labor), plus a lump figure of $94,296.93 for “administrative costs”, less a lump figure of $171,283.45 for “house credits,” undefined. It was stated that “costs of sales” embraced “merchandise, non-productive labor, supplies, rent, depreciation, repairs, light and power, heat, insurance, house errors and other expenses.” The detailed breakdown of these items was not given, except for the sum of $24,200 as rent for the premises occupied by Colonial Press. “Administrative costs” were described as including “salaries;, clerical and executive, selling expense and provision for bad debts.” Here, again, there was no breakdown of the individual items, except that the witness testified that the “selling expenses” amounted to $24,600. No further specific figures were given. There seems to have been one duplication. Colonial was allowed to allocate to the particular job a portion of the 1939 “selling expenses” of $24,600. It was also allowed to deduct a specific item of $994 as commission payable to the University Press for forwarding the same job.
The foregoing evidence — unsatisfactory in its generality — is an insufficient basis for a finding as to which specific items of overhead expense assisted in the production of the infringement and which did not. See Kissinger-Ison Co. v. Bradford Belting Co., 6 Cir., 1903, 123 F. 91, 94, 95; Ruth v. Stearns-Roger Mfg. Co., D.C.D.Colo. 1935, 13 F.Supp. 697, 706. It is, for instance, not apparent how the items for “house errors” and “provision for bad debts” assisted in the manufacture of the infringing book. The amount and character of “other expenses” are left wholly to speculation. It is clear that it is impossible to tell on the present record whether the relationship of 103.5% is a reasonable basis for making the allocation of overhead. Therefore, the case will have to go back to the district court for further proof on the items of overhead as they may affect the computation of the net profit or loss made by Colonial Press on the printing job.
Counsel for the plaintiffs strenuously objected to the presentation of the evidence offered by Colonial Press on overhead, because of its indefiniteness. The district court suggested in its opinion that plaintiffs “could have asked for Colonial’s books and examined them in detail in order to disprove the defendant’s contentions. This they did not attempt to do.” [38 F.Supp. 649, 654.] We think they had no need to do so, until Colonial Press had made out a case for the claimed deduction.
One matter that may affect the calculation of Colonial’s net profit or loss is the fact that though Colonial’s net hill to Larkin amounted to $8,091.93, it has actually received from Larkin only $6,517.01, leaving a balance owing to it of $1,574.92. If this amount of $1,574.92 is uncollectible, as may well be the case in view of the district court’s finding that “Larkin was no financial colossus,” Colonial will be entitled to a deduction therefor in computing its net profits. However, in the absence of evidence that this account receivable is uncollectible, no deduction will be allowed. See Ruth v. Stearns-
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:
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songer_district
|
B
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What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable".
UNITED STATES of America, Plaintiff-Appellee, v. Jorge Manuel GARCIA, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Jorge Manuel GARCIA, Defendant-Appellant.
Nos. 87-5644(L), 87-6140.
United States Court of Appeals, Fourth Circuit.
Argued May 6, 1988.
Decided June 1, 1988.
John Flowers Mark, Jr. (Michael S. Lieberman, Zwerling, Mark, Sutherlund, Ginsberg and Lieberman, P.C., on brief), for defendant-appellant.
Michael D. Shepard, Sp. Asst. U.S. Atty. (Henry E. Hudson, U.S. Atty., James M. Sullivan, Asst. U.S. Atty., on brief), for plaintiff-appellee.
Before WINTER, Chief Judge, and SPROUSE and ERVIN, Circuit Judges.
HARRISON L. WINTER, Chief Judge:
A jury found Jorge Manuel Garcia, defendant, guilty of possession of marijuana in violation of 21 U.S.C. § 844(a) but not guilty either of possession of cocaine with intent to distribute, 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2, or travel in interstate commerce with intent to promote, manage, and establish distribution of cocaine, 18 U.S.C. § 1952(a)(3). Defendant appeals, claiming that the Drug Enforcement Administration (DEA) agents lacked probable cause to arrest him and therefore the marijuana found on his person in the search incident to that arrest was seized in violation of the fourth amendment and therefore could not be used as evidence to convict him. Defendant also challenges the validity of his sentence in several respects. However, defendant has already served his full sentence, and because we perceive no collateral consequences resulting from the sentence already served, we think that the challenges to the validity of the sentence are moot, and we decline to consider them. With respect to the probable cause determination, we affirm.
I.
On May 30, 1985, at around 10:15 a.m. Carlos Salas (Salas) and defendant deplaned at Washington National Airport from a flight originating in Miami, Florida. On that date, DEA agents Mark Measer, Dwight McKinney and John Lee were operating surveillance of flights arriving at the airport from cities known to be sources of illegal narcotics. As Salas deplaned, Meas-er and McKinney determined that he had characteristics fitting the drug courier profile. Specifically his flight originated from a known source of narcotics, he appeared nervous, wore sunglasses indoors, and was squeezing a white handkerchief in his hand. As Salas entered the central hall of the main terminal, Salas paused, then turned toward the claims area where he briefly conversed with defendant. While Salas and defendant had carry-on luggage, they picked up no additional baggage at the claims area. The two then proceeded toward the taxi area.
Agent Lee testified that as they left the terminal, Salas and defendant were separated by a distance of twenty to twenty-five feet with Salas in front. Lee further testified that another individual walked between Salas and defendant. Agent Meas-er, however, testified that the two men walked side by side. The district court concluded that the discrepency was not significant and simply resulted from the agents’ different visual perspectives. The district court reconciled the two versions, concluding that Salas and defendant were initially separated by a distance of ten feet, then walked together, and then apart by a distance of twenty to twenty-five feet.
While Salas was in line waiting for a taxi, the agents approached him, identified themselves, and asked Salas if defendant was with him. Salas said that he was. Agent Lee then explained to Salas that he looked like someone they might be looking for and asked if they could speak with him. Salas said that they could. Agent Lee asked defendant if they could speak with him as well. Defendant also agreed. The two stepped out of line and Lee asked Salas if he could search his bag. Salas agreed and began to rummage through the bag himself. Lee then said he would prefer to check the bag himself. Lee then found a clear plastic bag containing a large quantity of cocaine.
The agents then arrested Salas and defendant. Following a search incident to arrest, the agents seized two additional bags of cocaine from Salas’ luggage. In addition, they found twelve grams of marijuana on defendant’s person. Salas had $548 in cash on his person and defendant had no cash whatsoever.
Salas was convicted in a separate trial of possession of cocaine with intent to distribute and travel in interstate commerce with intent to promote, manage, and establish distribution of cocaine. Salas refused to testify against defendant. The court denied defendant’s motion to suppress evidence seized from Salas on the ground that defendant lacked standing to raise a fourth amendment claim on Salas’ behalf. The district court further denied defendant’s motion to suppress the marijuana found on defendant’s person. Defendant was found guilty of possession of marijuana and found not guilty of the cocaine-related charges.
II.
A finding of probable cause to arrest is proper when “at the time the arrest occurs, the facts and circumstances within the officer’s knowledge would warrant the belief of a prudent person that the arrestee had committed or was committing an offense.” United States v. Manbeck, 744 F.2d 360, 376 (4 Cir.1984), cert. denied, 469 U.S. 1217, 105 S.Ct. 1197, 84 L.Ed.2d 342 (1985); see also, Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225-26, 13 L.Ed.2d 142 (1964). A finding of probable cause is based upon a practical assessment of the totality of the circumstances. Illinois v. Gates, 462 U.S. 213, 230-31, 103 S.Ct. 2317, 2328, 76 L.Ed.2d 527 (1983).
Because the search of Salas’ bag was consensual, see Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S.Ct. 2041, 2047-48, 36 L.Ed.2d 854 (1973) (defendant need not have known of his right to refuse search for consent to be valid), the issue in this case involves whether at the time the officers discovered the cocaine in Salas’ bag, they had probable cause to arrest defendant. Defendant’s reliance upon United States v. Haye, 825 F.2d 32, 34 (4 Cir. 1987) is misplaced. In Haye, we explained that under Reid v. Georgia, 448 U.S. 438, 100 S.Ct. 2752, 65 L.Ed.2d 890 (1980), the presence of characteristics fitting a drug courier profile without more does not provide DEA agents with a reasonable suspicion, sufficient to justify an involuntary investigative detention. Haye, 825 F.2d at 34. In this case, by contrast, the agents engaged Salas and defendant in a voluntary exchange resulting in a consensual search. Once the officers arrested defendant, they were lawfully entitled to conduct a search incident to arrest to uncover weapons or evidence. New York v. Belton, 453 U.S. 454, 461, 101 S.Ct. 2860, 2864, 69 L.Ed. 2d 768 (1981). The issue in this case, therefore, is not whether at the time the agents approached Salas and defendant they had reasonable suspicion to justify an involuntary investigative detention of defendant, but rather whether the totality of the circumstances provided the agents with probable cause at the time of arrest. See Gates, 462 U.S. at 230-31, 103 S.Ct. at 2328.
Of course, the presence of characteristics fitting the drug courier profile is not alone sufficient to establish probable cause. Haye, 825 F.2d at 34 (4 Cir.1987); Reid v. Georgia, 448 U.S. 438, 440-41, 100 S.Ct. 2752, 2763-54, 69 L.Ed.2d 768 (1980). Nor is mere presence at the scene of a crime or in the company of a person engaging in criminal activity alone sufficient to establish probable cause. United States v. Di Re, 332 U.S. 581, 594, 68 S.Ct. 222, 228, 92 L.Ed. 210 (1948) (presence at scene of crime without more does not provide probable cause to arrest); Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979) (“[A] person’s mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person.”). Nonetheless, the confluence of factors independently susceptible of innocent explanation may provide the requisite basis for a finding of probable cause. See Gates, 462 U.S. at 244, n. 13, 103 S.Ct. at 2355 n. 13 (“[Ijnnocent behavior frequently will provide the basis for a showing of probable cause_”).
In this case the DEA agents knew the following at the time of arrest. First, Salas possessed several characteristics consistent with the drug courier profile. Second, Salas informed the agents that defendant was accompanying him and defendant did not refute that assertion. Third, the two men had engaged in an unusual walking pattern indicating that they preferred not to be identified together. Fourth, Salas possessed a sufficiently large quantity of cocaine to indicate that he was a likely drug trafficker rather than mere user. Taken together, these factors distinguish this case from Reid, 448 U.S. 438, 100 S.Ct. 2752, since they enabled the agents to infer that defendant knew of Salas’ illegal activity and that he therefore did not want to make known his association with Salas or that activity. Cf. Reid, 448 U.S. at 441, 100 S.Ct. at 2754 (finding of probable cause improper where at time of arrest DEA agents only knew that (1) defendant arrived from a known source city, (2) defendant arrived in early morning, (3) defendant’s companion tried to conceal the fact that they were together, and (4) defendant and companion had no luggage beyond carry-on bags).
Had the officers not found a sufficient quantity of cocaine to indicate that Salas was engaged in distribution, defendant could more readily assert that many people innocently travel with other individuals possessing personal-use cocaine without even knowing it and that the discovery of such contraband should not establish probable cause to arrest the person who accompanied the one on whom the drugs are found. But where, as here, the quantity of cocaine is sufficiently large to indicate an intent to distribute, and where the two men are together and engaged in suspicious conduct indicating that they did not wish to be seen together, we conclude that there was probable cause to arrest defendant.
AFFIRMED.
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_counsel1
|
D
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine the nature of the counsel for the appellant. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
SOUTHERN RAILWAY COMPANY et al., Plaintiffs-Appellants, v. Doyle COMBS et al., Defendants-Appellees.
Nos. 73-1525, 73-1526.
United States Court of Appeals, Sixth Circuit.
Aug. 14, 1973.
John A. Lloyd, Jr., Cincinnati, Ohio, for plaintiffs-appellants, Southern Railway Co. and others; Daniel P. Dooley, Cincinnati, Ohio, on brief; Frost & Jacobs, Cincinnati, Ohio, of counsel.
Covington & Burling, Charles A. Hor-sky, Washington, D. C., for plaintiff-appellant Brotherhood of Railway Airline & Steamship Clerks; Walter F. Smith and Thomas J. Kircher, Cincinnati, Ohio, on brief; William J. Donlon, Gen. Counsel, Brotherhood of Railway, Airline and Steamship Clerks, Rosemont, Smith, Latimer & Swing, Cincinnati, Ohio, of counsel.
Jonas B. Katz, Cincinnati, Ohio, for def endants-appellees.
Harlington Wood, Jr., Asst. Atty. Gen., William W. Milligan, U. S. Atty., Walter H. Fleischer, Judith S. Feigin, Attys., Dept, of Justice, Washington, D. C., on brief for the United States as amicus curiae.
Before PHILLIPS, Chief Judge, PECK, Circuit Judge, and MOYNA-HAN, District Judge.*
PHILLIPS, Chief Judge.
This is an appeal from the District Court’s denial of a motion for a preliminary injunction in a labor dispute. Plaintiff-appellant companies, the Southern Railway Company (Southern), the Cincinnati-New Orleans & Texas-Pacific Railway Company (C.N.O. & T.P.), Central of Georgia Railroad Company and Central of Georgia Motor Transport Company (Motor Transport) are highly interrelated components of an integrated rail system commonly referred to as the Southern Railway System. In Cincinnati, Ohio, these companies conduct extensive operations at a train yard and terminal facility known as the Gest Street Yards.
Plaintiff-appellant union is the Brotherhood of Railway, Airline & Steamship Clerks, Freight Handlers, Express and Station Employees, AFL-CIO (Brotherhood). The Brotherhood has been certified as the collective bargaining agent for the employees of all the appellant companies. Pursuant to this certification the Brotherhood entered into collective bargaining agreements with the individual corporations which agreements were in effect at the time of the present dispute.
The defendant-appellees include six former employees of K. & 0. Transportation Services and their collective bargaining agent, Local 100, Truck Drivers, Chauffeurs and Helpers Union (Local 100). Local 100 does not have any contract with any of the appellant companies. Nor have the six individual defendants-appellees ever been employed by any of the appellant companies.
The Southern Railway System’s Gest Street activities include the intra-yard transfer of freight and cargo incident to the carriers’ “piggy-back” operations. This involves the movement of goods, originally delivered to the Yard by independent motor carriers, to flat cars for rail movement and conversely the transfer of incoming cargo from flat cars to the trucks of awaiting consignees. Prior to March 15, 1973, this intra-yard transfer was performed by K. & O. Transportation Services. K. & O. was and is engaged in the general business of freight and cargo transfer in and about greater Cincinnati. K. & 0. employed eight individuals in connection with its Gest Street operations. These employees were represented by Local 100. Six of these individuals are appellees herein.
The carriers decided not to renew their contract with K. & 0. upon its expiration on March 15, 1973. Instead they entered into a new agreement with their own affiliate, Motor Transport. Substantially all of Motor Transport’s activities on a national level involve similar intra-yard operations at various Southern Railway System facilities.
When the termination of the K. & 0. contract was announced, all eight K. & 0. employees applied for jobs with Motor Transport. Because of the Motor Transport agreement with the Brotherhood only two K. & 0. employees were offered employment. Thereupon the remaining six applicants commenced peaceful picketing at both entrances to the Gest Street Yards.
On the same day that picketing began, C.N.O. & T.P. brought suit in the Common Pleas Court of Hamilton County, Ohio, to enjoin the picketing. An ex parte temporary restraining order was granted. Before a hearing on the motion for a temporary injunction could be held, the defendants removed the ease to the District Court. At that time the complaint was amended to include as plaintiffs all companies operating out of the Gest Street Yards. In addition the Brotherhood was permitted to intervene as a party plaintiff and Local 100 voluntarily became a party defendant.
The District Court conducted a hearing, made findings of fact, and on April 11, 1973, concluded that the motion for a preliminary injunction must be denied. On that same date appellants filed a notice of appeal to this court. On April 12, 1973, this court granted appellants’ motion for an injunction pending appeal. A subsequent application to stay the injunction was denied on May 15, 1973, by Circuit Justice Potter Stewart.
With respect to the picketing, the District Court made the following findings of fact:
“The defendants clearly will resume picketing if the state court order be dissolved and the injunction motions be denied.
“The brief picketing did
(a) interfere with the performance of work by plaintiff’s own employees, and
(b) deter shippers from entering and/or delivering freight to the yard.
“It will, if permitted to continue, result in shutting down the yards and in irreparable loss to the plaintiffs. The end objective of the picketing is to force Transport to comply with Local 100’s request that Transport employ six of its members and specifieally the six individual truck driver defendants who formerly did truck driving work in connection with the operation of Gest Street. The means to accomplish this objective as suggested by the picketing is to deter shippers from shipping across and drivers from driving across the picket line.
“Necessarily, the discharging of Brotherhood employees of Transport is an objective of the picketing. The same is true with respect to the application of the contract between Transport and Brotherhood to the Gest Street operation and/or the prevention of seniority job bidding under the seniority provisions of their contract. The defendants (individual and Local 100) have and do assert the claimed right of the Teamster members to employment and in that sense assert a right of recognition.”
The District Court properly recognized the general rule that federal courts do not have jurisdiction to enjoin picketing arising out of a labor dispute but that this rule is inapplicable where the parties may invoke the conciliatory procedures of the Railway Labor Act. Brotherhood of Locomotive Engineers v. L. & N. R. Co., 373 U.S. 33, 83 S.Ct. 1059, 10 L.Ed.2d 172 (1963); Southern Ry. Co. v. Brotherhood of Locomotive Firemen and Enginemen, 119 U.S.App. D.C. 91, 337 F.2d 127 (1964). The District Court held that the special exception for Railway Labor Act cases was inapplicable here as it found that Motor Transport was not a “carrier” and that the pickets were not “employees” under the Act.
The National Mediation Board first asserted jurisdiction over Motor Transport in 1958. At that time the International Brotherhood of Teamsters petitioned the National Labor Relations Board for a certification that the union was the bargaining agent for Motor Transport employees in Georgia. The N.L.R.B., as is its custom in cases where it appears that the N.M.B. may have jurisdiction, requested the N.M.B’s advice regarding possible coverage by the Railway Labor Act, 45 U.S.C. § 151 et seq. The N.M.B. conducted an extensive study and concluded that Motor Transport was a “carrier” under 45 U.S.C. § 151, First, and therefore subject to the Act. Thereafter the Teamsters voluntarily withdrew their petition.
In 1967 and in 1969 the N.M.B. again asserted jurisdiction over Motor Transport. Pursuant to the 1969 assertion, the Brotherhood was certified as the collective bargaining agent for the “carrier’s” employees. Under the authority of this certification, the Brotherhood entered into a “systemwide” collective bargaining agreement with Motor Transport.
We conclude that this is an appropriate situation to employ the doctrine of primary jurisdiction to obtain the views of the agency charged by Congress with the administration of the Act, the National Mediation Board.
The doctrine of primary jurisdiction does not determine whether a court or an administrative body ultimately shall be responsible for resolving an issue. Rather it is used to determine which tribunal shall make the initial determination. The doctrine permits courts to suspend the resolution of issues, which are originally cognizable in the courts, until such time as an administrative body, with special competence in the field, has an opportunity to present its views. United States v. Western Pac. RR. Co., 352 U.S. 59, 63-64, 77 S.Ct. 161, 1 L.Ed.2d 126 (1956); Crain v. Blue Grass Stockyards Co., 399 F.2d 868 (6th Cir. 1968); 3 K. Davis, Administrative Law § 19.01 (1958). This concept was recently summarized in Port of Boston Marine Terminal Ass’n v. Rederiaktiebolaget Transatlantic, 400 U.S. 62, 91 S.Ct. 203, 27 L.Ed.2d 203 (1970), wherein the Court stated:
“When there is a basis for judicial action, independent of agency proceedings, courts may route the threshold decision as to certain issues to the agency charged with primary responsibility for governmental supervision or control of the particular industry or activity involved.” 400 U.S. at 68, 91 S.Ct. at 208.
Here we are calling upon the agency to interpret the statute upon which its jurisdiction rests. This differs from the traditional primary jurisdiction ease wherein complex issues of fact or the interpretation of administrative rules are involved. Far East Conference v. United States, 342 U.S. 570, 72 S.Ct. 492, 96 L.Ed. 576 (1952). However, where the interpretation of specific statutory provisions involve consideration of broad national policies, courts have not hesitated to defer questions of jurisdiction to insure the most thoughtful resolution. Locust Cartage . Co., Inc. v. Transamerican Freight Lines, Inc., 430 F.2d 334 (1st Cir.), cert, denied, 400 U.S. 964, 91 S.Ct. 365, 27 L.Ed.2d 383 (1970); J. M. Huber Corp. v. Denman, 367 F.2d 104 (5th Cir. 1966). In J. M. Huber Corp. v. Denman, Judge Brown wrote:
“At the outset we recognize that this is a new application of the doctrine of primary jurisdiction. But considering the broad aim of this device and the consequent flexibility of it there is really nothing startling about submitting to an agency for initial decision the question of its own jurisdiction.
“That that question of law happens to be one of jurisdiction does not force a different result. To the contrary, justification for judicial deferral of the jurisdictional question for initial resolution by an agency is even stronger than for a non-jurisdietional question. This is demonstrated by the many cases upholding the jurisdiction of administrative agencies to determine the coverage of their respective statutes and barring all attempts through judicial proceedings to avoid such determination.” (Footnotes omitted.) 367 F.2d at 111-112.
We believe deference to the N. M.B. is appropriate in this case because far reaching considerations of national policy underlie the legal issues. The District Court decided that the “trucking service” exception to the Act’s definition of “carrier” precludes Motor Transport’s qualification. Research into the meaning of this exception indicates an inadequacy of recorded indicia of Congressional intent. By availing ourselves of the Board’s experience, we believe the groundwork will be laid for, “ . a more informed and precise determination by the Court of the scope and meaning of the statute. . . . ” Federal Maritime Board v. Isbrandtsen Co., Inc., 356 U.S. 481, 498-499, 78 S.Ct. 851, 862, 2 L.Ed.2d 926 (1958).
Another area in which the views of the National Mediation Board will be necessary .is the applicability of the Act to a situation where those individuals picketing the Yard have never been directly employed by any company presently operating at the Gest Street Yards. Here too we believe an expression of the Board’s position will facilitate the ultimate resolution of the controversy.
The injunction heretofore issued on April 12, 1973, by this court will remain in effect until the issuance of the mandate in this case and thereupon will be dissolved. Should any party desire further injunctive-relief pendente lite, application should be made before the District Court. See, Brawner Building, Inc. v. Shehyn, 143 U.S.App.D.C. 125, 442 F. 2d 847 (1971).
The decision of the District Court is vacated. The case is remanded for further proceedings not inconsistent with this opinion. No costs are taxed. Each party will bear his or its own costs.
Honorable Bernard T. Moynalian, Jr., Chief Judge, United States District Court for the Eastern District of Kentucky, sitting by designation.
. Local 100 is affiliated with the International Brotherhood of Teamsters.
. Signs carried during the initial stages of the picketing read:
“Central of Georgia Div. of Southern R.R. Refuses to Hire Members of Teamsters Local 100.”
. The Norris-LaGuardia Act, 29 U.S.O. § 101 et seq.
. 45 U.S.O. § 151, First, defines “carrier” as:
“First. The term ‘carrier’ includes any express company, sleeping-car company, carrier by railroad, subject to the Interstate Commerce Act, and any company which is directly or indirectly owned or controlled by or under common control with any carrier by railroad and which operates any equipment or facilities or performs any service (other than trucking service) in connection with the transportation, receipt, delivery, elevation, transfer in transit, refrigeration or icing, storage, and handling of property transported by railroad.....”
. 45 U.S.O. jj 151, Fifth, defines “employee” as:
“Fifth. The term ‘employee’ as used herein includes every person in the service of a carrier (subject to its continuing authority to supervise anti direct the manner of rendition of his service) who performs any work defined as that of an employee or subordinate official in the orders of the Interstate Commerce Commission, . . .”
Question: What is the nature of the counsel for the appellant?
A. none (pro se)
B. court appointed
C. legal aid or public defender
D. private
E. government - US
F. government - state or local
G. interest group, union, professional group
H. other or not ascertained
Answer:
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sc_caseorigin
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057
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court in which the case originated. Focus on the court in which the case originated, not the administrative agency. For this reason, if appropiate note the origin court to be a state or federal appellate court rather than a court of first instance (trial court). If the case originated in the United States Supreme Court (arose under its original jurisdiction or no other court was involved), note the origin as "United States Supreme Court". If the case originated in a state court, note the origin as "State Court". Do not code the name of the state. The courts in the District of Columbia present a special case in part because of their complex history. Treat local trial (including today's superior court) and appellate courts (including today's DC Court of Appeals) as state courts. Consider cases that arise on a petition of habeas corpus and those removed to the federal courts from a state court as originating in the federal, rather than a state, court system. A petition for a writ of habeas corpus begins in the federal district court, not the state trial court. Identify courts based on the naming conventions of the day. Do not differentiate among districts in a state. For example, use "New York U.S. Circuit for (all) District(s) of New York" for all the districts in New York.
MONROE et al. v. PAPE et al.
No. 39.
Argued November 8, 1960.
Decided February 20, 1961.
Donald Page Moore argued the cause for petitioners. With him on the brief were Morris L. Ernst, Ernst Liebman, Charles Liebman and John W. Rogers.
Sydney R. Drebin argued the cause for respondents. With him on the brief was John C. Melaniphy.
Mr. Justice Douglas
delivered the opinion of the Court.
This case presents important questions concerning the construction of R. S. § 1979, 42 U. S. C. § 1983, which reads as follows:
“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”
The complaint alleges that 13 Chicago police officers broke into petitioners’ home in the early morning, routed them from bed, made them stand naked in the living room, and ransacked every room, emptying drawers and ripping mattress covers. It further alleges that Mr. Monroe was then taken to the police station and detained on “open” charges for 10 hours, while he was interrogated about a two-day-old murder, that he was not taken before a magistrate, though one was accessible, that he was not permitted to call his family or attorney, that he was subsequently released without criminal charges being preferred against him. It is alleged that the officers had no search warrant and no arrest warrant and that they acted “under color of the statutes, ordinances, regulations, customs and usages” of Illinois and of the City of Chicago. Federal jurisdiction was asserted under R. S. § 1979, which we have set out above, and 28 U. S. C. § 1343 and 28 U. S. C. § 1331.
The City of Chicago moved to dismiss the complaint on the ground that it is not liable under the Civil Rights Acts nor for acts committed in performance of its governmental functions. All defendants moved to dismiss, alleging that the complaint alleged no cause of action under those Acts or under the Federal Constitution. The District Court dismissed the complaint. The Court of Appeals affirmed, 272 F. 2d 365, relying on its earlier decision, Stift v. Lynch, 267 F. 2d 237. The case is here on a writ of certiorari which we granted because of a seeming conflict of that ruling with our prior cases. 362 U. S. 926.
I.
Petitioners claim that the invasion of their home and the subsequent search without a warrant and the arrest and detention of Mr. Monroe without a warrant and without arraignment constituted a deprivation of their “rights, privileges, or immunities secured by the Constitution” within the meaning of R. S. § 1979. It has been said that when 18 U. S. C. § 241 made criminal a conspiracy “to injure, oppress, threaten, or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution,” it embraced only rights that an individual has by reason of' his relation to the central government, not to state governments. United States v. Williams, 341 U. S. 70. Cf. United States v. Cruikshank, 92 U. S. 542; Ex parte Yarbrough, 110 U. S. 651; Guinn v. United States, 238 U. S. 347. But the history of the section of the Civil Rights Act presently involved does not permit such a narrow interpretation.
Section 1979 came onto the books as § 1 of the Ku Klux Act of April 20, 1871. 17 Stat. 13. It was one of the means whereby Congress exercised the power vested in it by § 5 of the Fourteenth Amendment to enforce the provisions of that Amendment. Senator Edmunds, Chairman of the Senate Committee on the Judiciary, said concerning this section:
“The first section is one that I believe nobody objects to, as defining the rights secured by the Constitution of the United States when they are assailed by any State law or under color of any State law, and it is merely carrying out the principles of the civil rights bill, which has since become a part of the Constitution,” viz., the Fourteenth Amendment.
Its purpose is plain from the title of the legislation, “An Act to enforce the Provisions of the Fourteenth Amendment to the Constitution of the United States, and for other Purposes.” 17 Stat. 13. Allegation of facts constituting a deprivation under color of state authority of a right guaranteed by the Fourteenth Amendment satisfies to that extent the requirement of R. S. § 1979. See Douglas v. Jeannette, 319 U. S. 157, 161-162. So far petitioners are on solid ground. For the guarantee against unreasonable searches and seizures contained in the Fourth Amendment has been made applicable to the States by' reason of the Due Process Clause of the Fourteenth Amendment. Wolf v. Colorado, 338 U. S. 25; Elkins v. United States, 364 U. S. 206, 213.
II.
There can be no doubt at least since Ex parte Virginia, 100 U. S. 339, 346-347, that Congress has the power to enforce provisions of the Fourteenth Amendment against those who carry a badge of authority of a State and represent it in some capacity, whether they act in accordance with their authority or misuse it. See Home Tel. & Tel. Co. v. Los Angeles, 227 U. S. 278, 287-296. The question with which we now deal is the narrower one of whether Congress, in enacting § 1979, meant to give a remedy to parties deprived of constitutional rights, privileges and immunities by an official’s abuse of his position. Cf. Williams v. United States, 341 U. S. 97; Screws v. United States, 325 U. S. 91; United States v. Classic, 313 U. S. 299. We conclude that it did so intend.
It is argued that “under color of” enumerated state authority excludes acts of an official or policeman who can show no authority under state law, state custom, or state usage to do what he did. In this case it is said that these policemen, in breaking into petitioners’ apartment, violated the Constitution and laws of Illinois. It is pointed out that under Illinois law a simple remedy is offered for that violation and that, so far as it appears, the courts of Illinois are available to give petitioners that full redress which the common law affords for violence done to a person; and it is earnestly argued that ho “statute, ordinance, regulation, custom or usage” of Illinois bars that redress.
The Ku Klux Act grew out of a message sent to Congress by President Grant on March 23, 1871, reading:
“A condition of affairs now exists in some States of the Union rendering life and property insecure and the carrying of the mails and the collection of the revenue dangerous. The proof that such a condition of affairs exists in some localities is now before the Senate. That the power to correct these evils is beyond the control of State authorities I do not doubt; that the power of the Executive of the United States, acting within the limits of existing laws, is sufficient for present emergencies is not clear. Therefore, I urgently recommend such legislation as in the judgment of Congress shall effectually secure life, liberty, and property, and the enforcement of law in all parts of the United States. . . .”
The legislation — in particular the section with which we are now concerned — had several purposes. There are threads of many thoughts running through the debates. One who reads them in their entirety sees that the present section had three main aims.
First, it might, of course, override certain kinds of state laws. Mr. Sloss of Alabama, in opposition, spoke of that object and emphasized that it was irrelevant because there were no such laws:
“The first section of this bill prohibits any invidious legislation by States against the rights or privileges of citizens of the United States. The object of this section is not very clear, as it is not pretended by its advocates on this floor that any State has passed any laws endangering the rights or privileges of the colored people.”
Second, it provided a remedy where state law was inadequate. That aspect of the legislation was summed up as follows by Senator Sherman of Ohio:
“. . . it is said the reason is that any offense may be committed upon a negro by a white man, and a negro cannot testify in any case against a white man, so that the only way by which any conviction can be had in Kentucky in those cases is in the United States courts, because the United States courts enforce the United States laws by which negroes may testify.”
But the purposes were much broader. The third aim was to provide a federal remedy where the state remedy, though adequate in theory, was not available in practice. The opposition to the measure complained that “It overrides the reserved powers of the States,” just as they argued that the second section of the bill “absorb [ed] the entire jurisdiction of the States over their local and domestic affairs.”
This Act of April 20, 1871, sometimes called “the third ‘force bill,’ ” was passed by a Congress that had the Klan “particularly in mind.” The debates are replete with references to the lawless conditions existing in the South in 1871. There was available to the Congress during these debates a report, nearly 600 pages in length, dealing with the activities of the Klan and the inability of the state governments to cope with it. This report was drawn on by many of the speakers. It was not the unavailability of state remedies but the failure of certain States to enforce the laws with an equal hand that furnished the powerful momentum behind this “force bill.” Mr. Lowe of Kansas said:
“While murder is stalking abroad in disguise, while whippings and lynchings and banishment have been visited upon unoffending American citizens, the local administrations have been found inadequate or unwilling to apply the proper corrective. Combinations, darker than the night that hides them, conspiracies, wicked as the worst of felons could devise, have gone unwhipped of justice. Immunity is given to crime, and the records of the public tribunals are searched in vain for any evidence of effective redress.”
Mr. Beatty of Ohio summarized in the House the case for the bill when he said:
“. . . certain States have denied to persons within their jurisdiction the equal protection of the laws. The proof on this point is voluminous and unquestionable. . . . [M]en were murdered, houses were burned, women were outraged, men were scourged, and officers of the law shot down; and the State made no successful effort to bring the guilty to punishment or afford protection or redress to the outraged and innocent. The State, from lack of power or inclination, practically denied the equal protection of the law to these persons.”
While one main scourge of the evil — perhaps the leading one — was the Ku Klux Klan, the remedy created was not a remedy against it or its members but against those who representing a State in some capacity were unable or unwilling to enforce a state law. Senator Osborn of Florida put the problem in these terms:
“That the State courts in the several States have been unable to enforce the criminal laws of their respective States or to suppress the disorders existing, and in fact that the preservation of life and property in many sections of the country is beyond the power o'f the State government, is a sufficient reason why Congress should, so far as they have authority under the Constitution, enact the laws necessary for the protection of citizens of the United States. The question of the constitutional authority for the requisite legislation has been sufficiently discussed.”
There was, it was said, no quarrel with the state laws on the books. It was their lack of enforcement that was the nub of the difficulty. Speaking of conditions in Virginia, Mr. Porter of that State said:
“The outrages committed upon loyal men there are under the forms of law.”
Mr. Burchard of Illinois pointed out that the statutes of a State may show no discrimination:
“If the State Legislature pass a law discriminating against any portion of its citizens, or if it fails to enact provisions equally applicable to every class for the protection of their person and property, it will be admitted that the State does not afford the equal protection. But if the statutes show no discrimination, yet in its judicial tribunals one class is unable to secure that enforcement of their rights and punishment for their infraction which is accorded to another, or if secret combinations of men are allowed by the Executive to band together to deprive one class of citizens of their legal rights without a proper effort to discover, detect, and punish the violations of law and order, the State has not afforded to all its citizens the equal protection of the laws.”
Mr. Hoar of Massachusetts stated:
“Now, it is an effectual denial by a State of the equal protection of the laws when any class of officers charged under the laws with their administration permanently and as a rule refuse to extend that protection. If every sheriff in South Carolina refuses to serve a writ for a colored man and those sheriffs are kept in office year after year by the people of South Carolina, and no verdict against them for their failure of duty can be obtained before a South Carolina jury, the State of South Carolina, through the class of officers who are its representatives to afford the equal protection of the laws to that class of citizens, has denied that protection. If the jurors of South Carolina constantly and as a rule refuse to do justice between man and man where the rights of a particular class of its citizens are concerned, and that State affords by its legislation no remedy, that is as much a denial to that class of citizens of the equal protection of the laws as if the State itself put on its statute-book a statute enacting that no verdict should be rendered in the courts of that State in favor of this class of citizens.”
Senator Pratt of Indiana spoke of the discrimination against Union sympathizers and Negroes in the actual enforcement of the laws:
“Plausibly and sophistically it is said the laws of North Carolina do not discriminate against them; that the provisions in favor of rights and liberties are general; that the courts are open to all; that juries, grand and petit, are commanded to hear and redress without distinction as to color, race, or political sentiment.
“But it is a fact, asserted in the report, that of the hundreds of outrages committed upon loyal people through the agency of this Ku Klux organization not one has been punished. This defect in the administration of the laws does not extend to other cases. Vigorously enough are the laws enforced against Union people. They only fail in efficiency when a man of known Union sentiments, white or black, invokes their aid. Then Justice closes the door of her temples.”
It was precisely that breadth of the remedy which the opposition emphasized. Mr. Kerr of Indiana referring to the section involved in the present litigation said:
“This section gives to any person who may have been injured in any of his rights, privileges, or immunities of person or property, a civil action for damages against the wrongdoer in the Federal courts. The offenses committed against him may be the common violations of the municipal law of his State. It may give rise to numerous vexations and outrageous prosecutions, inspired by mere mercenary considerations, prosecuted in a spirit of plunder, aided by the crimes of perjury and subornation of perjury, more reckless and dangerous to society than the alleged offenses out of which the causé of action may have arisen. It is a covert attempt to transfer another large portion of jurisdiction from the State tribunals, to which it of right belongs, to those of the United States. It is neither authorized nor expedient, and is not calculated to bring peace, or order, or domestic content and prosperity to the disturbed society of the South. The contrary will certainly be its effect.”
Mr. Voorhees of Indiana, also speaking in opposition, gave it the same construction:
“And now for a few moments let us inspect the provisions of this bill, inspired as it is by the waning and decaying fortunes of the party in power, and called for, as I have shown, by no public necessity whatever. The first and second sections are designed to transfer all criminal jurisdiction from the courts of the States to the courts of the United States. This is to be done upon the assumption that the courts of the southern States fail and refuse to do their duty in the punishment of offenders against the law.”
Senator Thurman of Ohio spoke in the same vein about the section we are now considering:
“It authorizes any person who is deprived of any right, privilege, or immunity secured to him by the Constitution of the United States, to bring an action against the wrong-doer in the Federal courts, and that without any limit whatsoever as to the amount in controversy. The deprivation may be of the slightest conceivable character, the damages in the estimation of any sensible man may not be five dollars or even five cents; they may be what lawyers call merely nominal damages; and yet by this section jurisdiction of that civil action is given to the Federal courts instead of its being prosecuted as now in the courts of the States.”
The debates were long and extensive. It is abundantly clear that one reason the legislation was passed was to afford a federal right in federal courts because, by reason of prejudice, passion, neglect, intolerance or otherwise, state laws might not be enforced and the claims of citizens to the enjoyment of rights,, privileges, and immunities guaranteed by the Fourteenth Amendment might be denied by the state agencies.
Much is made of the history of § 2 of the proposed legislation. As introduced § 2 was very broad:
. . if two or more persons shall, within the limits of any State, band, conspire, or combine together to do any act in violation of the rights, privileges, or immunities of any person, to which he is entitled under the Constitution and laws of the United States, which, committed within a place under the sole and exclusive jurisdiction of the United States, would, under any law of the United States then in force, constitute the crime of either murder, manslaughter, mayhem, robbery, assault and battery, perjury, subornation of perjury, criminal obstruction of legal process or resistance of officers in discharge of official duty, arson, or larceny; and if one or more of the parties to said conspiracy or combination shall do any act to effect the object thereof, all the parties to or engaged in said conspiracy or combination, whether principals or accessories, shall be deemed guilty of a felony . . .
It was this provision that raised the greatest storm. It was § 2 that was rewritten so as to be in the main confined to conspiracies to interfere with a federal or state officer in the performance of his duties. 17 Stat. 13. Senator Trumbull said:
“Those provisions were changed, and as the bill passed the House of Representatives, it was understood by the members of that body to go no further than to protect persons in the rights which were guarantied to them by the Constitution and laws of the United States, and it did not undertake to furnish redress for wrongs done by one person upon another in any of the States of the Union in violation of their laws, unless he also violated some law of the United States, nor to punish one person for an ordinary assault and battery committed on another in a State.”
But § 1 — the section with which we are here concerned — was not changed as respects any feature with which we are presently concerned. The words “under color of” law were in the legislation from the beginning to the end. The changes hailed by the opposition — indeed the history of the evolution of § 2 much relied upon now— are utterly irrelevant to the problem before us, viz., the meaning of “under color of” law. The vindication of States’ rights which was hailed in the amendments to § 2 raises no implication as to the construction to be given to “color of any law” in § 1. The scope of § 1 — under any construction — is admittedly narrower than was the scope of the original version of § 2. Opponents of the Act, however, did not fail to note that by virtue of § 1 federal courts would sit in judgment on the misdeeds of state officers. Proponents of the Act, on the other hand, were aware of the extension of federal power contemplated by every section of the Act. They found justification, however, for this extension in considerations such as those advanced by Mr. Hoar:
“The question is not whether a majority of the people in a majority of the States are likely to be attached to and able to secure their own liberties. The question is not whether the majority of the people in every State are not likely to desire to secure their own rights. It is, whether a majority of the people in every State are sure to be so attached to the principles of civil freedom and civil justice as to be as much desirous of preserving the liberties of others as their own, as to insure that under no temptation of party spirit, under no political excitement, under no jealousy of race or caste, will the majority either in numbers or strength in any State seek to deprive the remainder of the population of their civil ■rights.”
Although the legislation was enacted because of the conditions that existed in the South at that time, it is cast in general language and is as applicable to Illinois as it is to the States whose names were mentioned over and again in the debates. It is no answer that the State has a law which if enforced would give relief. The federal remedy is supplementary to the state remedy, and the latter need not be first sought and refused before the federal one is invoked. Hence the fact that Illinois by its constitution and laws outlaws unreasonable searches and seizures is no barrier to the present suit in the federal court.
We had before us in United States v. Classic, supra, § 20 of the Criminal Code, 18 U. S. C. § 242, which provides a
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
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Answer:
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songer_casetyp1_2-3-1
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A
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "civil rights - civil rights claims by prisoners and those accused of crimes".
Gregg Fitzgerald BAILEY and Lizzie Shirley Bailey, Plaintiffs-Appellants-Cross-Appellees, v. BOARD OF COUNTY COMMISSIONERS OF ALACHUA COUNTY, FLORIDA, Eugene T. Whitworth, State Attorney of the Eighth Judicial Circuit of Florida, in his individual and official capacities, L.J. “Lu” Hindery, Sheriff of Alachua County, Florida, in his individual and official capacities, City of Gainsville, Florida, John Stanton Tileston, Sr., James Strauss, Farnell Cole, Gary Brown, Charles Jerkins, Tom L. Allison, Spencer Mann, Stephen Garrahan, Defendants-Appellees, Nathaniel Caldwell, Colleen Hayes, Defendants-Appellees, Cross-Appellants.
No. 91-3275.
United States Court of Appeals, Eleventh Circuit.
March 31, 1992.
Peter J. Hurtgen, Morgan, Lewis & Bockius, Miami, Fla., for Caldwell.
Thomas A. Bustin, Alachua Co. Atty’s Office, Gainesville, Fla., for Hayes.
Robert C. Widman; Nelson, Hesse & Cyril, Sarasota, Fla., Joseph W. Little, Gaines-ville, Fla., for Bailey.
Ronald A. Labasky; Parker, Skelding, Labasky & Corry, Jennifer Parker La via, Tallahassee, Fla., for Cole.
Louis F. Hubener, III, Atty. Gen., Dept, of Legal Affairs, Tallahassee, Fla., for Tile-ston.
H. Jack Klingensmith; Jorden, Schulte & Burchette, Miami, Fla., for City of Gaines-ville.
Thomas H. Duffy, Tallahassee, Fla., for Allison.
Before ANDERSON and DUBINA, Circuit Judges, and ESCHBACH , Senior Circuit Judge.
Honorable Jesse E. Eschbach, Senior U.S. Circuit Judge for the Seventh Circuit, sitting by designation.
ESCHBACH, Senior Circuit Judge:
Near the end of his graveyard work shift on May 14, 1987, Gregg Fitzgerald Bailey was arrested as the result of an undercover investigation at the Alachua County Detention Center (ACDC). Bailey had been a corrections officer (a prison guard) at ACDC since 1985. Based on his .arrest and subsequent events, which included Bailey’s suspension without pay from ACDC, Bailey and his wife (Lizzie Shirley Bailey) began this § 1983 action against two governmental entities (Alachua County and the City of Gainesville) and twelve individuals (Stephen Garrahan, James Strauss, Gary Brown, Tom L. Allison, John S. Tileston, Nate Caldwell, Colleen Hayes, Farnell Cole, Charles Jerkins, Spencer Mann, Eugene Whitworth and L.J. “Lu” Hindery) (collectively, “the defendants”). Most of the defendants exited this litigation either through summary judgments or dismissal motions prior to trial or through directed verdicts at the close of testimony, leaving only three defendants (Caldwell, Hayes and Alachua County) to go to the jury on Bailey’s then-remaining claims. The jury returned a verdict in favor of Bailey against Caldwell and Hayes, awarding Bailey damages of $2,182,406. The jury exonerated Alachua County from liability. Bailey now appeals many of the summary judgments and directed verdicts as well as the jury’s verdict for Alachua County; Caldwell and Hayes cross appeal the jury verdict against them. As discussed below, we affirm in part, reverse in part, and remand for a new trial against Caldwell, Hayes and Allison solely on Bailey’s procedural due process claims stemming from his suspension.
I. FACTS
A. Background
On April 22, 1987, several inmates attempted to escape from ACDC by sawing a window with hacksaw blades. Lieutenant Brown, with the assistance of another ACDC officer, investigated the attempted escape and discovered that an inmate-trustee (Tribuani) had obtained the blades from a tool box in a maintenance room to which he had been allowed access. Tribuani had concealed the blades in his pants until he was able to pass the blades to other inmates, one of which was Charles Jerkins. Subsequently, Jerkins twice informed Brown that persons who were not inmates had assisted in the escape attempt. After consultation with Allison, who was then Assistant Director of ACDC, Brown contacted the State Attorney’s Office to investigate the potential wrongdoing by ACDC employees.
As a result of Brown’s contact, Tileston, who was serving as a Special Prosecutions Investigator with the State Attorney’s Office, was assigned to investigate Jerkins’ allegations. Tileston spoke with Brown, who told him that Jerkins’ had said that a “professional person” had assisted in the April escape attempt. Tileston was familiar with Jerkins because Jerkins was well known as both a criminal and a “snitch” to local law enforcement authorities. Tileston testified that Jerkins was a “known credible police source” and that he had verified through city and county law enforcement officers that Jerkins had provided reliable information in the past. Tr. 38-575-12, 13; Tr. 27-561-129, 130.
On May 8,1987, Tileston interviewed Jerkins and Jerkins named Bailey as a participant in bringing hacksaw blades into the jail. Jerkins described letters he had written to his girlfriend in which he had urged her to contact Bailey to arrange to bring hacksaw blades into the jail. Jerkins said that he and Bailey had developed a prior personal relationship. Jerkins knew Bailey’s phone number and told Tileston that he had offered Bailey both $500 and $1000 for hacksaw blades.
Tileston decided that he needed to test whether Bailey would accept money from Jerkins, and devised an undercover plan for this purpose. Because his office did not have the necessary equipment for his plan, Tileston obtained $500 cash and a body bug from the combined Gainsville/Alachua County Narcotics and Organized Crime Unit (NOCU). Furthermore, NOCU’s Deputy Cole was assigned to provide Tileston technical assistance with the listening equipment. Tileston’s plan was to give Jerkins the $500 with instructions to offer it to Bailey. A body bug would be placed on Jerkins so that any conversations between Bailey and Jerkins could be heard and recorded. Cole’s responsibility was to monitor the listening equipment.
B. Bailey’s Arrest
Tileston elected to conduct his test during Bailey's May 14 work shift. Brown, who was serving as Tileston’s liaison with ACDC, arranged to wire Jerkins and to give him the $500 before Bailey came on duty. One of Brown’s Lieutenants (Strauss) actually placed the body bug on Jerkins and gave him the $500. Jerkins was instructed to tell Bailey he had the money and to try to get into a conversation with Bailey about hacksaw blades. Although Bailey had access to Jerkins throughout his shift because he was responsible for the jail area in which Jerkins was housed, a further opportunity for conversation between the two men was contrived when Tileston had one of Bailey’s superiors instruct Bailey to remove Jerkins from his cell (ostensibly for more fingerprinting and charges) and then put him back.
Reception from the body bug was poor; Cole reported hearing a few snippets of conversation through his listening device, but a tape recording made of this conversation was later found to be inaudible. Specifically, at 12:08 a.m. Cole reported hearing Jerkins mention the “$500.” Tileston, Brown and Cole, who were stationed in Allison’s office, continued their monitoring throughout the night. At 6:21 a.m., Cole reported that he heard mention of “hacksaw blades” transmitted through Jerkins’ body bug. At this time, Tileston wanted to know if the money had passed from Jerkins to Bailey. Brown ascertained through Sullivan that the money had passed to Bailey and relayed this information to Tileston. After a brief discussion, and wanting to capture the money before Bailey's shift ended at 7:00 a.m., Tileston and crew headed for the part of the jail where Bailey was stationed.
After locating Bailey, who was supervising the morning feeding of the prisoners, Tileston and Cole showed Bailey their badges and were introduced by Brown. Tileston then asked Bailey to accompany them to Allison’s office to answer questions. No conversation transpired between Bailey and these officers during the five to ten minute walk to Allison’s office. In Allison’s office, Tileston informed Bailey that he was under arrest and Cole read Bailey his Miranda rights. After being asked about the money, Bailey removed it from his right front pants pocket, put it on the desk, and made a statement that no fingerprints would be found on the money. The money was wrapped in white paper. Bailey also said that he had talked to two officers about what was happening, but gave no specific information about these contacts. Tr. 38-575-47, 36-568-34 to 36. Bailey then requested an attorney and questioning ceased.
What Bailey’s version of the arrest and the events leading up to it add to this account is insubstantial. Bailey’s story reveals that Jerkins handed him a sock full of money, which he took because he knew he was supposed to confiscate contraband in the jail. According to Bailey, he dumped the money onto a piece of white paper, hoping to preserve the fingerprints of whomever had given the money to Jerkins. At first, Bailey put this bundle into a desk, and then twice tried with no avail to reach a supervisor. When Bailey noticed several inmate-trustees approaching, however, he feared for the money’s security and removed it from the desk and placed it in his pocket. He then went about his duties of overseeing inmate feeding, thinking that he would notify a supervisor once that duty was finished. He was arrested while attending to this duty.
C. Bailey’s Suspension
On the morning of his arrest, Bailey was given a letter written by Allison suspending him without pay “as of 0700 hours May 14, 1987” and stating that dismissal proceedings would be taken against him if he had not “rectified the prerequisites of his job within 15 days.” Bailey was then notified a second time that he was suspended without pay. By letter dated May 26,1987, Allison advised Bailey that “effective today, you are hereby placed on suspension without pay until further notice.” The parties’ third communication was a November 19, 1987 letter from Bailey to Caldwell (Alachua County’s Director of Corrections) asking for reinstatement, or a hearing if reinstatement was denied, or information on how to request a hearing if he was proceeding improperly. A decision by the State Attorney’s Office to enter a nolle prosequi as to all criminal charges filed against Bailey had prompted this letter to Caldwell. Caldwell directed Bailey’s letter to Allison, who responded on December 7, 1987 by denying Bailey’s request and noting that his “leave without pay” would continue pending the completion of an investigation. ACDC had requested that the Florida Department of Law Enforcement (FDLE), the body charged with certifying Florida’s law enforcement officers, investigate the possibility of decertifying Bailey.
The FDLE informed Caldwell that there was no basis for further action against Bailey via letter on June 9, 1988. Garra-han then requested that FDLE reopen its investigation, the status of which was uncertain at the time of trial. Caldwell, however, instructed Edward A. Royal, who replaced Allison when he left ACDC on February 13, 1988, to order Bailey back to work. By letter dated June 15,1988, Royal informed Bailey that he would receive back pay and ordered him to report to work on June 20, 1988.
D. Bailey’s Reinstatement
Bailey reported to work on June 20, with his lawyer and a letter from his psychiatrist in tow. Dr. Waldman, who had been treating Bailey since March 1988, Tr. 24-572-177, advised Bailey against returning to work at ACDC at that time. Thus, Bailey requested his back pay and asked that he be placed on sick leave until his benefits were exhausted, then placed on annual leave. See Plaintiffs Exhibit 13-A (Bailey’s counsel’s letter); Deposition Exhibit 52 (Bailey’s hand-delivered letter to this effect). The following day, Dr. Wald-man initiated an involuntarily commitment to Shands Hospital on behalf of Bailey. Dr. Waldman diagnosed Bailey as suffering from a psychotic breakdown and considered him to be a threat to himself and others (particularly at ACDC). Bailey’s status at Shands was subsequently converted to voluntary and he remained there for about five weeks.
Although Royal’s June 15, 1988 letter promised Bailey “any and all back pay and entitlements,” no monies were tendered to Bailey until September 29, 1989, almost a year after Bailey filed this lawsuit. See Defendant’s Exhibit 4. The record is unclear as to whether this was an unconditional tender of back pay or an effort at settlement. See Defendant’s Exhibit 5. In any case, it is uncontroverted that the check (wherever and whatever it may be) has not been cashed. Tr. 32-480-29 to 32. The record also leaves unclear Bailey’s status with ACDC at the time of trial. No hearings have been held regarding Bailey’s employment status with ACDC.
II. PROCEDURAL HISTORY
Bailey's First Amended Complaint (the “Complaint”) sought compensatory, punitive and injunctive relief pursuant to 42 U.S.C. § 1983 and state law. The Complaint alleged under § 1983 that the defendants deprived Bailey of liberty and property without due process of law, and conspired to do so, by arresting him without probable cause, publicizing the arrest, and subsequently suspending him. The Complaint also alleged pendent state-law causes of action based on false arrest, malicious prosecution, civil conspiracy, and violation of state civil rights. For analytical ease we have classified Bailey’s claims into five categories: (1) Bailey’s § 1983 claim that various defendants violated his due process rights by depriving him of a protected property interest in his employment by suspending him without pay and without granting him a hearing (the “procedural due process claim”); (2) Bailey’s § 1983 claim that various defendants violated his due process rights by depriving him of a protected liberty interest by maintaining stigmatizing information in his personnel file and not granting him a name-clearing hearing (the “name-clearing hearing claim”); (3) Bailey’s § 1983 claim that various defendants conspired to deprive him of his civil rights (the “conspiracy claim”); (4) all of Bailey’s claims concerning his allegedly unlawful arrest and the publication to the news media of the arrest (the “arrest-related claims”); and (5) all of Bailey’s remaining state claims and all of Lizzie Shirley Bailey’s loss of consortium claims, none of which has been raised on appeal. Accordingly, we deem waived any challenge to the district court’s orders on this final category of claims.
All defendants filed motions to dismiss and/or motions for summary judgment in response to Bailey’s Complaint. In July 1990, the district court entered an omnibus order granting in part motions to dismiss or for summary judgment filed by various defendants. In that order, the district court granted summary judgment on the basis of qualified immunity as follows: to Brown, Allison, Caldwell, Cole and Hayes on Bailey’s conspiracy and arrest-related claims; to Brown and Cole on Bailey’s procedural due process claim; and to Allison, Caldwell and Hayes on part of Bailey’s procedural due process claim (his “initial” suspension). The district court denied Allison, Caldwell, Hayes and Alachua County qualified immunity as to Bailey’s procedural due process claim regarding his “continued” suspension; denied Tileston, City of Gainsville, Alachua County, Garrahan, Strauss and Hindery qualified immunity as to Bailey’s conspiracy and arrest-related claims; and denied Caldwell, Hayes, Ala-chua County, City of Gainsville, Hindery, Tileston, Strauss, Garrahan, and Brown qualified immunity with respect to Bailey’s name-clearing hearing claim. The district court also dismissed all of Lizzie Shirley Bailey’s loss of consortium claims, none of which is at issue in this appeal.
A five-week jury trial on Bailey’s remaining claims began on July 9, 1990. On that date, the district court orally granted Allison summary judgment on all remaining claims, dismissing him from this litigation. At the close of Bailey’s case, all defendants moved for directed verdicts on various grounds; the district court deferred ruling on the motions until the close of all evidence. At that time, the remaining defendants renewed their directed verdict motions and Bailey moved for directed verdict as well. The district court denied Bailey’s motion, 'but granted directed verdicts for Tileston, Alachua County, City of Gains-ville, Strauss, Garrahan and Hindery as to Bailey’s conspiracy and arrest-related claims. The basis of the district court’s ruling was that Tileston had probable cause to arrest Bailey. The district court also directed verdicts in favor of all defendants on all of Bailey’s state claims, none of which is at issue in this appeal. Furthermore, the district court directed verdicts in favor of Tileston, City of Gainsville, Strauss, Brown, Garrahan and Hindery on Bailey’s name-clearing hearing claim. These directed verdicts left three defendants (Caldwell, Hayes and Alachua County) and two claims (procedural due process and name-clearing hearing) for the jury. After the jury returned its verdict for Ala-chua County, and for Bailey against Caldwell and Hayes on both claims, Bailey, Caldwell and Hayes filed motions for directed verdicts, judgments notwithstanding the verdict, or a new trial. The district court denied all motions and this appeal followed.
III. DISCUSSION
A. Bailey’s Appeal
1. Arrest-Related Claims
Bailey asserts that the district court erred in granting directed verdicts in favor of City of Gainsville, Alachua County, Hindery, Garrahan, Strauss and Tile-ston on his arrest-related claims. In granting these six defendants directed verdicts, the district court first found that Tileston had probable cause to arrest Bailey. Bailey argues, however, that Tileston did not have probable cause to arrest him of any crime and that the defendants conspired to, and did, falsely arrest and prosecute him. Furthermore, Bailey asserts that the defendants “individually and collectively possessed information that would lead a reasonable and honest person to know that he was innocent.” Brief of Appellant 24. If Tileston had probable cause for the arrest, then these defendants did not violate Bailey’s Fourth Amendment rights against false arrest as protected through § 1983. See Marx v. Gumbinner, 905 F.2d 1503, 1505-06 (11th Cir.1990) (existence of probable cause is an absolute bar to a § 1983 action premised on false arrest). Specifically, Bailey argues that the district court erred by taking the question of probable cause from the jury. We disagree. When considering whether a directed verdict should be upheld, our standard is the same as that applied by the district court. Carter v. City of Miami, 870 F.2d 578, 581 (11th Cir.1989). Thus, we consider all the evidence and resolve all inferences in the light most favorable to the nonmoving party. If the facts and inferences point overwhelmingly in favor of one party, such that reasonable people, in the exercise of impartial judgment, could not arrive at a contrary verdict, then the motion was properly granted. Id. A mere scintilla of evidence does not create a jury question; there must be a substantial conflict in evidence to create a jury question. Id.
We (and the district court) must evaluate these facts and inferences according to the legal standard for probable cause. Simply stated, that standard requires that an arrest be objectively reasonable under the totality of the circumstances. See Illinois v. Gates, 462 U.S. 213, 229, 103 S.Ct. 2317, 2327, 76 L.Ed.2d 527 (1983). A familiar formulation holds that a “law enforcement officer has probable cause to arrest a suspect if the facts and circumstances within the officer’s knowledge, of which he or she has reasonably trustworthy information, would cause a prudent person to believe, under the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense.” Von Stein v. Brescher, 904 F.2d 572, 578 (11th Cir.1990). Probable cause requires more than mere suspicion, but does not require convincing proof. Indeed, “[t]he Constitution does not guarantee that only the guilty will be arrested. If it did, § 1983 would provide a cause of action for every defendant acquitted.” Baker v. McCollan, 443 U.S. 137, 145, 99 S.Ct. 2689, 2695, 61 L.Ed.2d 433 (1979).
The district court properly found that Tileston had probable cause to arrest Bailey by examining what the evidence revealed that Tileston knew at the time of the arrest. Tileston knew that an escape attempt had occurred at ACDC in April and that one of the inmates involved in that escape attempt had implicated Bailey. Tile-ston had investigated this tip by interviewing Jerkins personally and by checking Jerkins’ reliability with city and county law enforcement officers even though Tileston was already familiar with Jerkins. Bailey did not controvert this at trial. Tileston also knew that Cole had heard a comment regarding the $500 transmitted through Jerkins' body bug around midnight. At trial, Bailey admitted that around midnight Jerkins had said “I want out. I want to get out. I’ve got $500 for you now and $1,000 for you Sunday night,” and that Bailey had responded by telling him to “stay cool.” Tr. 24-572-140. Bailey also admitted that he never notified anyone of Jerkins’ midnight bribe attempt during his shift. Tr. 25-573-61 to 65. Although Bailey testified that he had twice attempted to notify his sergeant after taking the money from Jerkins, he admitted that he did not succeed in communicating with anyone. The district court accepted Bailey’s testimony regarding his notification attempts as true, but correctly noted that it was also true that Bailey did not communicate this fact to anyone “at, near, or after his arrest.” Tr. 39-576-109. Furthermore, Tile-ston knew that the money had passed to Bailey through Brown’s verification. Id. at 112-13. And finally, Tileston knew that Bailey said nothing about having the money in his pocket when confronted in his work area, when walking to Allison’s office, and when informed he was under arrest in Allison’s office. Only when asked did Bailey turn over the $500.
Moreover, in directing a verdict for these defendants based on probable cause, the district court properly accepted as true Bailey’s version of the events. See Tr. 39-576-107 to 114. The flaw in Bailey’s efforts to undermine Tileston’s probable cause is that Bailey’s version of the facts failed to create a substantial conflict in what Tileston knew at the time of the arrest. For instance, Bailey makes much of his prior communications with Strauss, Garrahan and Phillips regarding inmate contacts. Bailey testified that he had previously talked with Strauss regarding inmate contacts and that he had written Gar-rahan a letter in February 1987 regarding inmate contacts, which Garrahan referred to Strauss. Bailey also testified that he told Strauss that he had been approached again by an inmate as Strauss was leaving ACDC and Bailey was arriving the evening prior to Bailey’s arrest. Furthermore, Bailey testified that he told Phillips, the corrections officer on duty with Bailey the night of his arrest, generally about prior inmate contacts and his communications with Strauss and Garrahan. Although the lack of communication among ACDC personnel is unfortunate, none of Bailey’s prior discussions was reported to Tileston. The record is clear that Tileston did not know of these prior communications until months after the arrest. It was also uncontroverted that Strauss told no one of Bailey’s comment during shift change the evening prior to Bailey’s arrest. Bailey also points to the fact that Brown had not given Tileston his written investigative report concerning the April escape attempt, and argues that had he done so Tileston would have known that he was innocent. Bailey, however, overstates the significance of this omission. Brown’s written report, apparently unlike his oral report to Tileston, would have told Tileston that Tribuani had confessed to his role in the April escape attempt. The report would not have definitively established the source of the hacksaw blades used in that escape attempt, nor would it have ruled out the possibility that another escape attempt (involving Bailey) was being formulated. Thus, none of these factors that Bailey points to undermine what Tileston did know at the time of the arrest; none of these factors undermine the district court’s determination that Tileston had probable cause to make that arrest. Accordingly, we agree that Tileston had probable cause to arrest Bailey and we affirm the district court’s final judgments for all defendants with respect to all of Bailey’s arrest-related claims.
2. Conspiracy Claims
As noted above, Bailey’s theory of this case was not only that the defendants had falsely arrested him, but also that they had conspired to deprive him of his civil rights by arresting, jailing and suspending him without due process of law. The district court, however, found that there was a “total lack of evidence” to support Bailey’s theory that Alachua County, Hindery, City of Gainsville, Strauss, Tileston and Garrahan conspired to deprive him of his property and liberty by falsely arresting him, jailing him, and suspending him from his job. Tr. 39-576-114. Our de novo review of the record supports the district court’s conclusion. No reasonable juror could have found a conspiracy because Bailey presented no evidence of one. To prove a 42 U.S.C. § 1983 conspiracy, a plaintiff “must show that the parties ‘reached an understanding’ to deny the plaintiff his or her rights [and] prove an actionable wrong to support the conspiracy.” Bendiburg v. Dempsey, 909 F.2d 463, 468 (11th Cir.1990), cert. denied, — U.S.-, 111 S.Ct. 2053, 114 L.Ed.2d 459 (1991). This, Bailey did not do. Indeed, the record in this case reveals just the opposite of conspiracy. Whereas the linchpin for conspiracy is agreement, which presupposes communication, the defendants in this case suffered from an extreme lack of communication. Thus, we agree with the district court that Bailey failed to establish his conspiracy theory of liability and affirm the district court’s final judgments for all defendants on this claim.
3. Procedural Due Process Claims
a. Against Caldwell, Hayes and Allison
As a public employee, Bailey possessed a property right in his continued employment with ACDC. See, e.g., Board of Regents v. Roth, 408 U.S. 564, 576-78, 92 S.Ct. 2701, 2708-10, 33 L.Ed.2d 548 (1972). Indeed, this question does not seem to have been disputed below. What is disputed is whether Bailey was deprived of that property right without due process of law — that is, what process was Bailey due and what did he receive? In answering that question, we note that neither the personnel policies of Alachua County nor the state law of Florida provides the answer. Rather, federal constitutional standards determine what process Bailey was due. Cleveland Board of Educ. v. Loudermill, 470 U.S. 532, 541, 105 S.Ct. 1487, 1492, 84 L.Ed.2d 494 (1985); Logan v. Zimmerman Brush Co., 455 U.S. 422, 432, 102 S.Ct. 1148, 1155, 71 L.Ed.2d 265 (1982). Bailey challenges several issues related to his suspension without pay from ACDC. First, the district court initially granted Allison, Caldwell, Hayes and Alachua County summary judgment as to Bailey’s “initial suspension” without pay in its July order. Confusion has reigned since. Bailey argues that by “initial suspension,” the district court meant Allison’s May 14th letter. Thus, according to Bailey, the court left open a window of potential liability beginning on May 26th when Allison wrote Bailey a second letter suspending him without pay. Bailey, however, argues that the district court erred in not leaving this window open as of May 14. Caldwell, Hayes and Alachua County argue that the district court’s “initial suspension” freed them from liability up to the point at which Bailey’s criminal charges were dropped and he requested reinstatement and a hearing (November 19, 1987). Although the parties participated in a lengthy argument on this point in chambers, the district court did not resolve the dispute at that time or thereafter. See Tr. 20-569-3 to 11. Caldwell and Hayes also assert that perhaps their window of liability opened as late as February 13, 1988. On that date Allison left ACDC: since the district court had granted summary judgment to Allison on the procedural due process claims because “he was already gone,” Caldwell and Hayes reason that they, too, must be free from liability for this period because it was Allison who actually wrote all three letters to Bailey.
Fortunately, we need not affix dates to Bailey’s procedural due process claims to resolve this confused issue. Rather, as developed below, we separate Bailey’s procedural due process claim into two strands: (1) his claim that he was deprived of due process when he was suspended without pay at the time of his arrest on May 14, 1987 without notice or an opportunity for a hearing (the “predeprivation procedural due process claim”), and (2) his claim that he was deprived of due process when ACDC continued his suspension without pay after May 14, 1987 without notice and an opportunity for a hearing (the “postdeprivation procedural due process claim”). The district court stated in its July order that “they [Allison, Caldwell and Hayes] reasonably believed that Bailey’s suspension without pay without a predeprivation hearing was lawful, considering the seriousness of the charges against him.” R. 388. The district court then granted qualified immunity to Allison, Caldwell, and Hayes for Bailey’s initial suspension. We think that the proper interpretation of the district court’s ruling is that Bailey had not carried his burden of demonstrating that the law was clearly established that he had a constitutional right to a predeprivation hearing before being suspended. To defeat a qualified immunity defense, Bailey was required to show that the defendants violated a clearly established statutory or constitutional right of which a reasonable person would have known. Mitchell v. Forsyth, 472 U.S. 511, 528, 105 S.Ct. 2806, 2816, 86 L.Ed.2d 411 (1985); see also Rich v. Dollar, 841 F.2d 1558, 1563-64 (11th Cir.1988) (explaining shifting burdens of proof once defendant raises affirmative defense of qualified immunity). In deciding whether a constitutional right is clearly established, we must judge the contours of the law at the time the employment decision was being made, irrespective of subsequent developments in the law. Thus, public officials are charged with keeping abreast of the current state of the law, not with anticipating changes. Whether the law is “clearly established” is a question of law that we review de novo. Courson v. McMillian, 939 F.2d 1479, 1487 (11th Cir.1991). We agree with the district court that Bailey did not carry his burden of establishing that he had a clearly established constitutional right to a predeprivation hearing.
In Parratt v. Taylor, 451 U.S. 527, 539-40, 101 S.Ct. 1908, 1914-15, 68 L.Ed.2d 420 (1981), overruled in part on other grounds, Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986), the Supreme Court stated that the requirement of a hearing does not always require the state to provide a hearing prior to the initial deprivation. “[T]he necessity of quick action by the State or the impracticality of providing any meaningful predeprivation process, when coupled with the availability of some meaningful means by which to assess the propriety of the State’s action at some time after the initial taking, can satisfy the requirements of procedural due process.” Id. 451 U.S. at 539, 101 S.Ct. at 1915. After noting that the “fundamental requirement of due process is the opportunity to be heard and it is an ‘opportunity which must be granted at a meaningful time and in a meaningful manner,’ ” the Court confirmed that it had “rejected the proposition that ‘at a meaningful time and in a meaningful manner’ always requires the State to provide a hearing prior to the initial deprivation of property.” Id. at 540, 101 S.Ct. at 1915 (quoting Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62 (1965)); see also Cleveland Board of Educ. v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985) (delay of nine months in providing postdeprivation hearing not constitutionally infirm).
In applying this flexible legal standard regarding predeprivation due process to the facts of this case, we conclude that Bailey did not establish that Caldwell, Hayes and Allison reasonably would have known their action in initially suspending him without pay upon his arrest was unlawful. A corrections facility’s paramount concern is security; a guard suspected of corruption compromises that security. Therefore, the defendants could have reasonably believed that this was a situation with a “necessity for quick action” that made a predeprivation hearing impracticable. Furthermore, the defendants were all aware that Alachua County’s personnel regulations provided an appeal procedure for employees to contest disciplinary action taken against them. It would have been reasonable for the defendants to believe that these procedures were capable of providing Bailey an adequate postdeprivation remedy. Thus, we agree with the district court’s ruling that Caldwell, Hayes and Allison are entitled to qualified immunity with respect to Bailey’s procedural due process claims regarding his right to a predeprivation hearing.
The district court correctly allowed Bailey’s postdeprivation procedural due process claim to remain viable, however, and it ultimately went to the jury against Caldwell, Hayes and Alachua County. It should also have gone to the jury against Allison. Section 1983 requires proof of an affirmative causal connection between the official act or omission complained of and the alleged constitutional deprivation. See Williams v. Bennett, 689 F.2d 1370, 1380-81 (11th
Question: What is the specific issue in the case within the general category of "civil rights - civil rights claims by prisoners and those accused of crimes"?
A. suit for damages for false arrest or false confinement
B. cruel and unusual punishment
C. due process rights in prison
D. denial of other rights of prisoners - 42 USC 1983 suits
E. denial or revocation of parole - due process grounds
F. other denial or revocation of parole
G. other prisoner petitions
H. excessive force used in arrest
I. other civil rights violations alleged by criminal defendants
Answer:
|
songer_casetyp1_7-2
|
E
|
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".
ACTION FOR CHILDREN’S TELEVISION, Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, CBS, Inc., National Association of Broadcasters, Washington Association for Television and Children, Office of Communication of the United Church of Christ, American Broadcasting Companies, Inc., Communication Commission of the National Council of Churches of Christ in the U.S.A., Association of Independent Television Stations, Inc., Forward Communications Corp., et al., National Broadcasting Company, Inc., Intervenors.
No. 84-1052.
United States Court of Appeals, District of Columbia Circuit.
Argued Jan. 18, 1985.
Decided March 19, 1985.
See also, 546 F.Supp. 872.
Petition for Review of an Order of the Federal Communications Commission.
Henry Geller, Washington, D.C., with whom William August, Cambridge, Mass., was on the brief, for petitioner.
C. Grey Pash, Jr., Counsel, F.C.C., Washington, D.C., with whom Bruce E. Fein, Gen. Counsel, and Daniel M. Armstrong, Associate Gen. Counsel, F.C.C., Washington, D.C., were on brief, for respondents. George Edelstein and Robert B. Nicholson, Dept, of Justice, Washington, D.C., entered appearances for respondent Dept, of Justice.
Sally Katzen, Washington, D.C., with whom Carl R. Raney, Joel Rosenbloom, Carol H. Fishman, Valerie G. Schulte, Washington, D.C., Corydon B. Dunham, New York City, and Howard Monderer, Washington, D.C., were on joint brief, for intervenors American Broadcasting Companies, Inc., et al. Erwin G. Krasnow, Washington, D.C., also entered an appearance for intervenor Nat. Ass’n of Broadcasters.
Barbara R. Shufro, Wilhelmina Reuben Cooke, Washington, D.C., and Donna De-mac, New York City, were on brief, for intervenors Wash. Ass’n for Television and Children, et al.
J. Laurent Scharff, Jack N. Goodman and Robert J. Aamoth, Washington, D.C., were on brief, for intervenor Ass’n of Independent Television Stations, Inc. James M. Smith, Washington, D.C., also entered an appearance for intervenor Ass’n of Independent Television Stations, Inc.
Robert M. Gurss and Andrew Jay Schwartzman, Washington, D.C., were on brief, for amicus curiae Nat. Educ. Ass’n urging reversal.
Before WRIGHT, GINSBURG, and SCALIA, Circuit Judges.
Judge Ginsburg took no part in the decision of this case.
Opinion PER CURIAM.
PER CURIAM.
Petitioner Action for Children’s Television and supporting intervenors (“petitioners”) challenge the Federal Communications Commission’s January 4, 1984 Report and Order defining the obligations of television broadcast licensees to their child audiences. See In re Children’s Television Programming and Advertising Practices, 96 F.C.C.2d 634 (1984) (“1984 Order”). There the Commission found that the video market, considered as a whole, does not exhibit a clear failure to serve the needs and interests of the child audience, and that mandatory programming rules (including flexible processing guidelines for license renewal applications) raise serious problems of law and policy; and accordingly elected simply to reaffirm “the general licensee obligations emphasized by the Commission in its [Children’s Television Report and Policy Statement, 50 F.C.C.2d 1 (1974) (“1974 Statement”), aff'd sub nom., Action for Children’s Television v. FCC, 564 F.2d 458 (D.C.Cir.1977) ] and ... the general requirement that stations provide programming responsive to the needs and interests of the communities they serve.” 96 F.C.C.2d at 655 (footnote omitted). Petitioners assert that the agency improperly considered the children's programming available from all video sources in finding no market failure warranting more intensive regulation of commercial broadcasting; that it gave insufficient consideration to flexible processing guidelines; that it arbitrarily and without explanation dropped the 1974 Statement’s requirement that licensees make a reasonable effort to provide age-specific, informational, and educational children’s programming; and that it ignored relevant evidence.
After carefully considering petitioners’ arguments, we conclude that the Commission’s decision was within the broad scope of its discretion and was adequately explained by the 1984 Order. See FCC v. WNCN Listeners Guild, 450 U.S. 582, 593-96, 101 S.Ct. 1266, 1273-75, 67 L.Ed.2d 521 (1981); NAACP v. FCC, 682 F.2d 993, 998 (D.C.Cir.1982). The differences between the 1984 Order and the 1974 Statement are attributable to changes in the Commission’s judgment about how best to serve the public interest, convenience and necessity, and the reasons for these changes are stated in the Order with sufficient clarity to withstand judicial scrutiny. See Motor Vehicle Manufacturers Ass’n, Inc. v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29, 42-43, 103 S.Ct. 2856, 2866-67, 77 L.Ed.2d 443 (1983).
Only two issues raised by petitioners require brief discussion. First, petitioners assert that it was improper for the Commission, in making its determination of public needs for children’s programming, to take into account such programming available on cable television or on noncommercial television broadcasting stations. We think not. As to cable: While that medium is not available in all areas or to all segments of the viewing community, it has a sufficiently broad and increasing presence that the Commission may appropriately consider its offerings in determining the necessity for such nationwide rules as petitioners favored. This does not mean, and we do not interpret the Commission to suggest, that in a particular service area where cable penetration is insubstantial or nonexistent that medium can have any effect upon the broadcaster’s assessment of the most significant needs of his community; or that the broadcaster in any community can disregard the needs of those not served by cable. We also see no need for the Commission to blind itself to the contribution of noncommercial television. To be sure, Congress did not intend noncommercial broadcasting to “relieve commercial broadcasters of their responsibilities to present public affairs and public service programs, and in general to program their stations in the public interest,” S.Rep. No. 222, 90th Cong., 1st Sess. 6, reprinted in 1967 U.S.Code Cong. & Ad.News 1772, 1777. But that does not mean that the Commission must require commercial broadcasters to pursue those responsibilities in disregard of the fact that some gaps in the public interest may have been filled by that source while other needs remain entirely unmet.
The second issue relates to age-specific programming. The 1974 Statement set forth the Commission’s expectation that broadcast licensees would henceforth make a reasonable effort “to present programming designed to meet the needs of three specific age groups: (1) pre-school children, (2) primary school aged children, and (3) elementary school aged children.” 50 F.C.C.2d at 7. Petitioners express the fear that the 1984 Order, which does not explicitly discuss age-specific programming, will relieve licensees of that obligation, echoing concerns voiced by Commissioner Rivera in his dissent from the Order. See 96 F.C.C.2d at 660 n. 11. We do not read the 1984 Order that way — nor, based on their representations at oral argument, do the broadcasters or the Commission. While it imposes no detailed age-specific requirements on licensees, and expresses doubts about a number of the programming categories relied on by the 1974 Statement (e.g., “informational” and “educational”), it explicitly affirms that “there is a continuing duty, under the public interest standard, on each licensee to examine the program needs of the child part of the audience and to be ready to demonstrate at renewal time its attention to those needs.” 96 F.C.C.2d at 656. It is absurd to believe that “the program needs of the child part of the audience” were thought to be uniform, from pre-school through elementary school. It seems clear to us that under the 1984 Order broadcasters faced with renewal challenges based on the adequacy of their children’s programming can be called upon to explain why they chose to focus on the needs and interests of certain age groups or other segments of the child audience, or why they emphasized emotional rather than cognitive needs. Licensees can expect the Commission to defer to reasonable programming decisions in this field, but that is a far cry from the wholesale abolition of licensee responsibility perceived by petitioners.
Petition denied.
Question: What is the specific issue in the case within the general category of "economic activity and regulation"?
A. taxes, patents, copyright
B. torts
C. commercial disputes
D. bankruptcy, antitrust, securities
E. misc economic regulation and benefits
F. property disputes
G. other
Answer:
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songer_search
|
E
|
What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court below improperly rule for the prosecution on an issue related to an alleged illegal search and seizure?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless". If a civil suit brought by a prisoner or a criminal defendant in another action that alleges a tort based on an illegal search and seizure, also consider the issue to be present in the case.
Kurt Karl Friedrich HEGERICH, Appellant, v. Albert DEL GUERCIO, District Director, Immigration and Naturalization Service, Los Angeles, California, Appellee.
No. 15577.
United States Court of Appeals Ninth Circuit.
May 12, 1958.
Harry Wolpin, Los Angeles, Cal., for appellant.
Laughlin E. Waters, U. S. Atty., Richard A. Lavine, Burton C. Jacobson, Asst. U. S. Attys., Los Angeles, Cal., for ap-pellee.
Before CHAMBERS and BARNES, Circuit Judges, and CHASE A. CLARK, District Judge.
PER CURIAM.
Hegerich is a national and citizen of Germany. He was properly admitted at New York City on February 18, 1956. His permit authorized him to stay until May 20, 1956. With his passport was a visa from the United States consul in Munich, Germany, reciting that he had until May, 1957, to apply for permanent admission to the United States.
On May 23, 1956, he went for the second time to the immigration and naturalization office in Los Angeles to clear up his status, to seek extension of the time of his stay. The office’s reply to his request was to arrest him on the spot. Subsequently, administrative proceedings were held to determine his deportability and to consider his application for voluntary departure. The result was an order directing his deportation and denying his application for voluntary departure.
The administrative proceedings were upheld on review by the district court. This appeal followed.
As to deportability, the facts would seem to positively support the administrative conclusion. However, as tc the ruling on voluntary departure which would affect Hegerich’s right to apply for readmission, this court is of the opinion that there was an abuse of discretion. No suggestion is made that appellant is not a person of good moral character. His overstaying was de minimis in time. Blunderingly, he was trying to comply with the law. It is clear that his conduct was neither slick nor foxy. In this field of voluntary departure, ordinarily action unfavorable to the deportee must be upheld. But the government, as it should, seems to concede that there can be a case where the denial of voluntary departure can be an abuse of administrative discretion. This court holds that this is it.
Reversed for proceedings which will permit appellant’s voluntary departure.
Question: Did the court below improperly rule for the prosecution on an issue related to an alleged illegal search and seizure?
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
Answer:
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sc_issue_2
|
12
|
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.
HEIKKINEN v. UNITED STATES.
No. 89.
Argued December 10, 1957.
Decided January 6, 1958.
David Rein argued the cause for petitioner. With him on the brief were Joseph Forer and M. Michael Essin.
J. F. Bishop argued the cause for the United States. With him on the brief were Solicitor General Rankin, Assistant Attorney General Olney and Beatrice Rosenberg.
Mr. Justice Whittaker
delivered the opinion of the Court.
This case involves the legality of convictions of petitioner, an alien previously ordered deported, for (1) willful failure to depart from the United States, and (2) willful failure to make timely application in good faith for travel or other documents necessary to his departure, within six months from the date of the final order of deportation.
Section 20 (c) of the Immigration Act of 1917, 39 Stat. 890, as amended, 57 Stat. 553, 64 Stat. 1012, 8 U. S. C. (1946 ed., Supp. IV) § 156 (c), provided, in pertinent part, that “[a]ny alien against whom an order of deportation is outstanding . . . who shall willfully fail or refuse to depart from the United States within a period of six months from the date of such order of deportation, or from the date of the enactment of the Subversive Activities Control Act of 1950, whichever is the later, or shall willfully fail or refuse to make timely application in good faith for travel or other documents necessary to his departure, . . . shall upon conviction be guilty of a felony, and shall be imprisoned not more than ten years . . . .” It is the above-quoted provisions of § 20 (c) that are involved here.
Petitioner, a native of Finland, went to Canada in 1910 and later acquired Canadian citizenship. He entered the United States in 1916 and, except for several foreign trips, has since resided here. A final order of deportation was entered against him on April 9, 1952, under the Act of October 16,1918, 40 Stat. 1012, as amended, 41 Stat. 1008, 54 Stat. 673, 64 Stat. 1006, 1008, 8 U. S. C. (1946 ed., Supp. IV) § 137, by reason of his membership in the Communist Party of the United States from 1923 to 1930.
On November 10, 1953, petitioner was indicted, in two counts, in the United States District Court for the Western District of Wisconsin. The first count charged him with willful failure to depart from the United States within six months from the date of the deportation order. The second count charged him with willful failure to make timely application in good faith for travel or other documents necessary to his departure from the United States within six months from the date of the deportation order. Upon a trial before a jury he was convicted on both counts. He was sentenced to imprisonment for a term of five years on Count T, and imposition of sentence on Count 2 was suspended until completion of service of the sentence on Count 1. The Court of Appeals affirmed. 240 F. 2d 94. We granted certiorari. 353 U. S. 935.
Petitioner challenges the judgments of conviction on a number of grounds, but in the view we take of the case it is necessary to consider only the first ground, namely, that the evidence is insufficient to support the verdict on either count.
This is a criminal case. It is therefore necessary that the prosecution adduce evidence sufficient to support a finding of guilt beyond a reasonable doubt. This is no less true when the defendant is an alien. Harisiades v. Shaughnessy, 342 U. S. 580, 586. The crucial element of the crime charged in the first count is that petitioner "did willfully fail to depart from the United States” within six months from the deportation order of April 9, 1952. (Emphasis supplied.) A thorough review of the record discloses no evidence that any country was willing, in that period, to receive petitioner. There can be no willful failure to depart until “the country willing to receive the alien is identified.” United States v. Spector, 343 U. S. 169, 171. It therefore cannot be said that there was any evidence to support the jury’s finding that petitioner “did willfully fail to depart from the United States” within six months from the deportation order. The evidence on Count 1 is thus insufficient to support the verdict, and the judgment of conviction thereon must fall.
The Government argues that petitioner willfully failed to make timely application to Finland, or to some other country, to receive him, and that if he had done so he might have been able to identify, within the time prescribed, a country to which he could go. While this argument has some relation to Count 1, it mainly involves, and therefore brings us to a consideration of, the adequacy of the evidence to support the verdict on Count 2. On April 18, 1952, nine days after entry of the order of deportation, the officer in charge of the Immigration and Naturalization Service at Duluth, Minnesota, at the request of the District Director of Immigration at Chicago, sent Inspector Maki to interview petitioner and obtain “personal data, usually called passport data.” Maki admitted at the trial that, in that interview, he “told [petitioner] that [he] had been instructed to get this personal history; that [he] was going to prepare this on the Passport Data form, and that it would [be sent to Chicago where it] would be considered by [the] Service down there with a view towards [the] Service obtaining some travel document or other in [petitioner’s] case,” and that this was common procedure in such cases. Petitioner furnished the information requested, and it was forwarded by Maki, on April 21, 1952, to the District Director at Chicago. On April 30, 1952, petitioner received a letter from the officer in charge of the Immigration and Naturalization Office in Duluth, which, after reciting that an order directing petitioner’s deportation from the United States had been entered on April 25, 1952, said:
“Arrangements to effect your deportation pursuant to such order are being made and when completed you will be notified when and where to present yourself for deportation.”
The letter continued, summarizing pertinent provisions of §'20 (c) of the Immigration Act of 1917, as amended, and concluded: “Therefore, you will recognize the importance of making every effort in good faith to obtain passport or other travel documents so that you may effect your departure pursuant to the said order of deportation within the time prescribed by the quotation above from the [Immigration Act of 1917, as amended].”
On February 12, 1953, an investigator of the Service interviewed and took a written and signed statement from petitioner, which was put in evidence by the Government at the trial. In that statement petitioner corroborated Maki’s statement to him of April 9, 1952, acknowledged receipt of the letter of April 30, 1952, and stated, in substance, that he had not applied for travel documents because, relying on Maki’s statement and the letter mentioned, he had “been waiting for instructions from the immigration authorities” or “from Mr. Maki as to when [he] should start to make application for a passport, in case the Service had failed to get a visa or a passport.” Petitioner’s statement further recited that he had never received any request from the Service “to execute any passport application” and that he had not willfully refused to depart from the United States nor to apply in good faith for travel documents, but wanted “to cooperate [with the Attorney General to get] a passport to Finland . . . .”
Is this evidence sufficient to support the jury’s finding that petitioner “did willfully fail to make timely application in good faith for travel or other documents necessary to his departure from the United States”? We believe that it is not. There can be no willful failure by a deportee, in the sense of § 20 (c), to apply to, and identify, a country willing to receive him in the absence of evidence, or an inference permissible under the statute, of a “bad purpose” or “[non-]justifiable excuse,” or the like. Cf. United States v. Murdock, 290 U. S. 389, 394; Spies v. United States, 317 U. S. 492, 497, 498. Inspector Maki had informed petitioner that his purpose, in procuring the “passport data” on April 9, 1952, was to send it to the District Director at Chicago, where it “would be considered . . . with a view towards . . . obtaining some travel document or other in his case.” Moreover, the letter of April 30, 1952, from the officer in charge of the Duluth office, told petitioner, in the plainest language, that the Service was making the arrangements to effect his deportation and, when completed, he would be notified when and where to present himself for deportation. Surely petitioner was justified in relying upon the plain meaning of those simple words, and it cannot be said that he acted “willfully” — i. e., with a “bad purpose” or without “justifiable excuse”- — in doing so, until, at least, they were in some way countermanded, which was never done within the prescribed period. It is true that the last paragraph of that letter drew attention to the importance of making good-faith efforts to obtain the documents necessary to effect departure within the time prescribed, but that language did not in terms negate, and cannot fairly be said implicitly to have negated, the earlier paragraph of the letter, because, as stated, that paragraph of the letter plainly told petitioner that the Service was itself making the necessary arrangements for his deportation and, when completed, he would be notified when and where to present himself for deportation. In this factual setting we believe there was not sufficient evidence to support the jury’s finding that petitioner acted willfully in failing to apply for documents necessary to his departure within the time prescribed. The evidence on Count 2 is thus insufficient to support the verdict, and the judgment of conviction on that count must also fall.
Reversed.
That Act provided, in pertinent part:
“[Sec. 1] That any alien who is a member of any one of the following classes shall be excluded from admission into the United States:
“ (2) Aliens who, at any time, shall be or shall have been members of any of the following classes:
“(C) Aliens who are members of or affiliated with (i) the Communist Party of the United States . . . .” (64 Stat. 1006.)
“Sec. 4. (a) Any alien who was at the time of entering the United States, or has been at any time thereafter, ... a member of any one of the classes of aliens enumerated in section 1 (2) of this Act, shall upon the warrant of the Attorney General, be taken into custody and deported in the manner provided in the Immigration Act of February 5, 1917. The provisions of this section shall be applicable to the classes of aliens mentioned in this Act, irrespective of the time of their entry into the United States.” (64 Stat. 1008.)
He was asked at the deportation hearing to specify the country to which he would prefer to go, if deported from the United States, and he answered: “To my native country, Finland.” Deportees are authorized to designate the country of their first choice by § 20 (a) of the Immigration Act of 1917, as amended.
There was evidence that after expiration of the period of six months from the issue of the deportation order on April 9, 1952, petitioner obtained a passport to Canada. But this evidence was irrelevant to the issue whether Canada was willing to receive petitioner ' during the period covered by the indictment, 'and, in fact, counsel for the Government objected to this evidence upon the ground that the Canadian passport did not show Canada’s willingness to accept petitioner “within the six months’ period [after April 9, 1952], which is the . . . period that we are concerned with in this indictment.”
This was, in fact, not the date of the deportation order, which was April 9, 1952, but, rather, was the date of the warrant of deportation ordering petitioner deported to Finland.
That summary read as follows: “In this connection you are reminded that [§ 20 (e) of the Immigration Act of 1917, as amended] . . . declares that any such alien 'who shall willfully fail or refuse to depart from the United States within a period of six months from the date of such order of deportation, ... or shall willfully fail or refuse to make timely application in good faith for travel or other documents necessary to his departure, or who shall connive or conspire, or take any other action, designed to prevent or hamper or with the purpose of preventing or hampering his departure pursuant to such order of deportation, or who shall willfully fail or refuse to present himself for deportation at the time and place required by the Attorney General pursuant to such order of deportation, shall upon conviction be guilty of a felony. . .
Question: What is the issue of the decision?
01. voting
02. Voting Rights Act of 1965, plus amendments
03. ballot access (of candidates and political parties)
04. desegregation (other than as pertains to school desegregation, employment discrimination, and affirmative action)
05. desegregation, schools
06. employment discrimination: on basis of race, age, religion, illegitimacy, national origin, or working conditions.
07. affirmative action
08. slavery or indenture
09. sit-in demonstrations (protests against racial discrimination in places of public accommodation)
10. reapportionment: other than plans governed by the Voting Rights Act
11. debtors' rights
12. deportation (cf. immigration and naturalization)
13. employability of aliens (cf. immigration and naturalization)
14. sex discrimination (excluding sex discrimination in employment)
15. sex discrimination in employment (cf. sex discrimination)
16. Indians (other than pertains to state jurisdiction over)
17. Indians, state jurisdiction over
18. juveniles (cf. rights of illegitimates)
19. poverty law, constitutional
20. poverty law, statutory: welfare benefits, typically under some Social Security Act provision.
21. illegitimates, rights of (cf. juveniles): typically inheritance and survivor's benefits, and paternity suits
22. handicapped, rights of: under Rehabilitation, Americans with Disabilities Act, and related statutes
23. residency requirements: durational, plus discrimination against nonresidents
24. military: draftee, or person subject to induction
25. military: active duty
26. military: veteran
27. immigration and naturalization: permanent residence
28. immigration and naturalization: citizenship
29. immigration and naturalization: loss of citizenship, denaturalization
30. immigration and naturalization: access to public education
31. immigration and naturalization: welfare benefits
32. immigration and naturalization: miscellaneous
33. indigents: appointment of counsel (cf. right to counsel)
34. indigents: inadequate representation by counsel (cf. right to counsel)
35. indigents: payment of fine
36. indigents: costs or filing fees
37. indigents: U.S. Supreme Court docketing fee
38. indigents: transcript
39. indigents: assistance of psychiatrist
40. indigents: miscellaneous
41. liability, civil rights acts (cf. liability, governmental and liability, nongovernmental; cruel and unusual punishment, non-death penalty)
42. miscellaneous civil rights (cf. comity: civil rights)
Answer:
|
songer_district
|
B
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable".
PLASCO, INC., Appellee, v. FREE-FLOW PACKAGING CORPORATION, Appellant, v. NIXDORFF-KREIN MANUFACTURING COMPANY, Appellee.
No. 76-1069.
United States Court of Appeals, Eighth Circuit.
Submitted Oct. 12, 1976.
Decided Jan. 5, 1977.
Dominic Troiani, St. Louis, Mo., for appellant; Michael R. Turley, of Lewis, Rice, Tucker, Allen & Chubb, St. Louis, Mo., on brief.
Morton D. Baron, St. Louis, Mo., for appellees; Norman W. Pressman, of Baron & Liberman, St. Louis, Mo., on brief.
Before LAY, ROSS .and HENLEY, Circuit Judges.
LAY, Circuit Judge.
Defendant Free-Flow Packaging Corporation (Free-Flow) appeals from the judgment of the United States District Court for the Eastern District of Missouri, finding it in breach of an express warranty of sale by sample, and liable to plaintiff Plasco, Inc. (Plasco) in the amount of $38,519.21. Plasco brought this diversity action to recover damages for alleged breach of warranty and fraud arising out of a contract to purchase polystyrene from Free-Flow. Free-Flow counterclaimed alleging breach of contract of sale.
The basic facts are undisputed. Plasco produces plastic products, including clear terrariums, through an injection molding process, using polystyrene in pellet form as its basic raw material. In early 1974, when the supply was limited, Plasco learned that Free-Flow .had polystyrene available for sale. Vernon Sappington, Plasco’s plant manager, contacted John Howe, assistant to the president at Free-Flow, to discuss the possibility of Plasco purchasing some of this material. Sappington testified, and the district court found, that during this conversation, Sappington informed Howe that Plasco was an injection molder, and the material it sought would be used to produce clear terrariums. Being unfamiliar with Free-Flow and knowing Free-Flow’s product was in bead form rather than pellets, Plasco requested a sample and received 13 pounds to test. When the sample fed through Plasco’s machines satisfactorily and produced first-quality clear terrariums, Plasco issued a purchase order for 500,000 pounds of material that was to be general purpose, high heat, crystal polystyrene, “per sample.” At Howe’s request, Nixdorff-Krein Manufacturing Co., 70% stockholder of Plasco, guaranteed Plasco’s performance of the purchase order.
On March 22, 1974, Plasco received the first shipment of approximately 41,000 pounds of polystyrene beads. On March 26, 1974, it issued an inspection certificate accepting and approving that shipment. On April 8, 1974, a second shipment, approximately 30,000 pounds, was received, and a certificate of inspection was issued on April 15, 1974.
The district court found that from the outset there were feeding problems with the polystyrene beads and the terrariums produced were cloudy. Plasco contacted Free-Flow about the problems and Free-Flow suggested several methods of overcoming them. None of Plasco’s efforts at correcting the problems was completely effective. On April 24, 1974, Plasco, by letter, cancelled its purchase order because the polystyrene beads supplied by Free-Flow would not feed properly into its injection molding machines.
The district court concluded that Free-Flow expressly warranted that the materials supplied would conform to the sample provided Plasco; that the sample provided fed through the machines satisfactorily and produced clear terrariums; that the materials supplied under the contract neither fed satisfactorily nor produced clear terrariums; and, accordingly, Free-Flow was in breach of its express warranty.
Actual damages of $38,519.21 were awarded based on Plasco’s testimony of 801 lost machine hours of production time at an actual cost of $25.30 per hour, and $18,-253.82 spent by Plasco in an effort to adapt its machinery and the materials supplied to its needs. The district court refused to award punitive damages because, although it believed all the elements of fraud were established, it found that Plasco failed to prove malice.
On appeal Free-Flow contends: (1) that there was insufficient evidence to support the district court’s conclusion, and the district court erred in concluding that there was a breach of warranty by sample; (2) that the evidence was insufficient to support the district court’s finding that Plasco was damaged in the amount of $38,519.21; and (3) that the district court erred in dismissing Free-Flow’s counterclaim and in not entering judgment in favor of Free-Flow, and against Plasco and Nixdorff, on its counterclaim.
Although we find the evidence was sufficient to support the district court’s holding that Free-Flow breached its contract with Plasco and may not recover on its counterclaim, we find that Plasco failed to prove that its damages were causally related to that breach or to any breach of warranty.
Free-Flow’s Counterclaim.
The evidence sustains the trial court’s finding that Free-Flow failed to furnish Plasco with a crystal-clear product as required by the purchase order. It is undisputed that Free-Flow obtained the beads it furnished Plasco from Crest Container Corporation (Crest). Furthermore, an official of Crest testified that the raw material it supplied to Free-Flow was “off-grade” and contaminated. Although Plasco originally accepted the raw material as satisfactory, when the material was processed cloudiness and contamination were apparent in the terrarium parts. It would appear that tests by third persons verified this contamination even though the evidence is somewhat conclusory. Under the circumstances we find sufficient evidence to sustain a denial of recovery on Free-Flow’s counterclaim against Plasco for breach of contract by failing to accept the remaining material.
Plasco’s Damages.
We turn now to Plasco’s claim for damages allegedly caused by Free-Flow’s breach of warranty by sample. Missouri law provides:
(1) Express warranties by the seller are created as follows:
(c) Any sample or model which is made part of the basis of the bargain creates an express warranty that the whole of the goods shall conform to the sample or model.
Mo.Rev.Stat. § 400.2-313(l)(c).
Plasco urges that since the material supplied contained impurities and the sample did not, under the statute, Free-Flow breached an express warranty of sale by sample. We agree. Contrary to the district court’s findings and Plasco’s arguments on appeal, however, this finding does not resolve the controversy. We do not find, at least on the basis of this record, that Plasco proved any damages caused by the impurities. The record shows that Plasco was able to color the impure material and sell the terrariums made from it.
Plasco’s entire claim for damages, as found by the trial court, is related to its “down-time” and extra costs in adapting its machinery and the polystyrene beads supplied to meet its needs. The court awarded Plasco a total of $20,265.30 for loss of production time, and $18,253.82 for the additional expenses it incurred. We find this award to be clearly erroneous.
The evidence is undisputed that these costs arose from Plasco’s problems in feeding the polystyrene beads into its machines. Furthermore, the district court found that Free-Flow failed to provide a raw material which would work in Plasco’s machines. Nevertheless, we fail to find any evidence on the record to support a claim for damages for breach of warranty by sample which can be related to the feeding problem Plasco encountered.
The evidence shows that Plasco tested a sample and ordered the material knowing it would be in bead form. The 13 pound sample of the beads, because of the small amount, hand-fed satisfactorily into Plasco’s machines. Plasco’s own employees acknowledged that to conduct a proper test it should have had a larger sample. Nevertheless, based on its inadequate testing, Plasco assumed that the bead material would work. However, the use of large quantities of the beaded material in the injection molding process created feeding problems resulting in lost production time. After Plasco made several attempts to correct the problem, Free-Flow suggested that Plasco pelletize the material and run it through in pellet form. Plasco did this and, even though the material contained impurities, the polystyrene pellets worked and Plasco no longer had feeding problems.
William Kreling, Plasco’s president, wrote Free-Flow on April 24, 1974:
At the time we purchased the material you were advised that we intended to run it through our injection molding machines. Whereas it is normal to try a 50-100 pound sample before purchase, we were furnished with a 13-pound sample. As we have found out from our own experience and learned upon talking to others, small samples of this material will run through the machine; but when used in amounts required for production runs, the material will flow through the machine for several minutes but thereafter will stop flowing. We have tried numerous suggestions to correct this condition, all to no avail.
In checking with others in our industry we have found that the material cannot be used in the normal type of injection molding machine which operates with a screw-type feed. We have now been advised by you that your company has found that it connot (sic) use this material in its screw feed extruding machines. We were not advised of this prior to purchase.
James Harrison, president of Crest, testified:
Q. Do you know whether this material is suitable for injection moulding?
A. Well, I would say, no, I don’t think it is suitable for injection moulding. I would not like to run it in my injection machine.
Q. Why do you say that, sir?
A. Well, because we didn’t tailor the material to be put into an injection machine.
Injection moulding machines by nature need to have a specific type of material with lubricants. Basically, it should be pelletized. The requirements for injection moulding do not fit the material in its entirety that we make.
Q. Mr. Harrison, when you said that you wouldn’t use it in your machine, was that based upon your physical observation of what these beads looked like, or your knowledge of the process which led to the generation of these outfall beads?
A. I have one reservation in using beads primarily, period, and it is that the material has a tendency to scar the barrels of injection moulding machines, and I would look for this immediately; that if I had to use this material, it would probably scar my barrel.
As I say, this is not normal. Injection moulding machines, 99 to 100 percent, require pelletized material, so it would not be normal for me to use it in there.
With this evidence the only fair conclusion is that the size and form of the material, not its impurity, caused Plasco’s feeding problems and the resulting “downtime.”
Thus, the question remaining is whether Free-Flow is liable to Plasco under any theory for the problems created by the size or form of the material supplied. The trial court made no such finding and the record fails to substantiate any such claim.
Breach of warranty by sample was the only theory Plasco relied on in the trial court and the only basis of recovery found by the trial judge. In regard to the size and shape of the material, we find there was no breach of warranty by sample under Mo.Rev.Stat. § 400.2-313(l)(c) since the material received generally conformed in size and shape with the beads furnished as a sample.
Beyond this the record demonstrates no other basis for liability. We find no implied warranty of fitness for particular purpose under Mo.Rev.Stat. § 400.2-315 (1969). The statute requires that before there is an implied warranty the buyer must rely on the “seller’s skill or judgment to select or furnish suitable goods.” Here, although Plasco informed Free-Flow of its needs and that it had a screw type injection machine, there is no evidence that Free-Flow knew more about the machine than did Plasco, who owned and operated it and was aware that it had always used pellet size material. Although there is evidence that Free-Flow’s Howe informed Sapping-ton that they had had feeding problems in the past but had overcome them, Free-Flow made no representation that the bead material would work in Plasco’s machine. In fact there is no evidence that Free-Flow even knew the exact type of machine Plasco intended to use. The evidence demonstrates that Plasco conducted its own tests from the admittedly inadequate sample. In this record there is no proof that Plasco relied on any representation by Free-Flow that the beads would work in its machine.
Even if Free-Flow knew Plasco’s particular purpose and the exact type of machine to be used, Missouri law holds:
[T]he mere fact of knowledge by the seller of the purpose for which the buyer desired the article is not sufficient to show a reliance by the buyer upon the skill, judgment and experience of the seller to raise an implied warranty of fitness. [Citations omitted]. Where the buyer understands what he wants and makes an independent examination of the product and tests the product in order to determine its fitness for the intended use, there can be no implied warranty of fitness for a particular purpose. Under the aforesaid circumstances the buyer does not rely on the seller’s skill and judgment, but instead relies on his own judgment formed as a result of his examination and tests of the product.
Interstate Folding Box Co. v. Hodge Chile Co., 334 S.W.2d 408, 414 (Mo.Ct.App.1960). See also, Price Bros. Lithographic Co. v. American Packing Co., 381 S.W.2d 830 (Mo. 1964). There is no evidence of reliance and therefore no warranty of fitness for use.
We reverse the award of damages and direct the trial court to enter judgment in favor of Free-Flow for failure of Plasco to prove any related damage. The judgment dismissing the counterclaim is sustained.
The costs shall be divided evenly between the parties.
. The district court classified the contract as an installment contract within Mo.Rev.Stat. § 400.2-612 (1969). Since it found Free-Flow to be in breach of the entire contract when the first two installments failed to conform to the warranty, it held that, under Mo.Rev.Stat. § 400.2-703 (1969), there could be no recovery on the counterclaim.
. In fact Plasco’s Sappington testified to the contrary:
Q. Now, when you were with Plasco, did you always request a sample from a manufacturer when you were purchasing raw material?
A. Not from the major suppliers, no.
Q. Did you on occasion request samples?
A. If it was from an unknown supplier, yes, sir.
Q. And in the instances when you requested samples, why did you do that?
A. Because I was unsure of the material, whether it would perform satisfactorily.
Q. So, in those instances where you weren’t certain about the material, you didn’t rely on the manufacturer, you got a sample and you looked at the results of the samplings, is that true?
A. Only from brokers or unknown suppliers. Q. But as to brokers and unknown suppliers that is true, is it not?
A. That I got samples from them, yes.
Q. And the reason why you got the sample is you didn’t want to rely on the broker or the supplier, you wanted to see the material for yourself, isn’t that true?
A. Yes, sir.
Subsequent testimony indicates that at the time of the transaction in question Sappington was completely unfamiliar with Free-Flow.
Question: From which district in the state was this case appealed?
A. Not applicable
B. Eastern
C. Western
D. Central
E. Middle
F. Southern
G. Northern
H. Whole state is one judicial district
I. Not ascertained
Answer:
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songer_casetyp1_7-2
|
A
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation".
SECOND CAREY TRUST v. HELVERING, Commissioner of Internal Revenue.
No. 7865.
United States Court of Appeals for the District of Columbia.
Argued Jan. 7, 1942.
Decided March 9, 1942.
Mr. George E. H. Goodner, of Washington, D. C., with whom Miss Helen Goodner, of Washington, D. C., was on the brief, for petitioner.
Mr. Lee A. Jackson, Special Assistant to the Attorney General, with whom Mr. Samuel O. Clark, Jr., Assistant Attorney General, and Mr. J. Louis Monarch, Special Assistant to the Attorney General, were on the brief, for respondent.
Mr. Sewall Key, Special Assistant to the Attorney General, and Mr. J. P. Wen-chel, General Counsel, Bureau of Internal Revenue, of Washington, D. C., and Mr. Charles E. Lowery, Special Attorney, Bureau of Internal Revenue, of Washington, D. C., also entered appearances for respondent.
Before GRONER, Chief Justice, and MILLER, and EDGERTON, Associate Justices.
GRONER, C. J.
The case requires an answer to three questions: (1) Did the Board err in holding petitioner not a trust but an association taxable as a corporation; (2) Did the Board err in refusing to exclude the amount of $36,882.84 from petitioner’s gross income; (3) Did the Board err in denying petitioner’s motion to grant further hearing or a new trial?
Briefly stated, the facts are these: In 1934 Messrs. Dififie, Brown, and Shanks, presumably of the State of Oklahoma, having acquired the right to receive one-eighth of seven-eighths of the net proceeds of the sale of oil and gas produced from five Oklahoma wells, organized petitioner, Second Carey Trust, and designated themselves as trustees. The trust was organized as an “express trust” under the Oklahoma laws. In addition to the one-eighth interest in the producing wells, it acquired mineral leases on four tracts of land located in four different Oklahoma counties. The trust estate was divided into 5,000 units of beneficial interests, for which nonassessable certificates were to be sold. The owner of each unit was entitled to receive a one five-thousandth part of the net income of the trust. The certificates were transferable only on the books of the trust. The trustees were authorized to manage the trust; to receive, collect, and distribute the income; to sell the property with the consent of two-thirds of the holders of beneficial units; to deduct from gross receipts expenses in management and administration, including five per cent of the net as compensation to themselves; and then to distribute the balance of the net equally among the unit holders monthly. The trust instrument further provided that neither the trustees nor the unit holders should be personally liable for the obligations of the trust and that the death of a unit owner or the transfer of his interest should not affect continuity of the trust, which should continue for a period of twenty years but might be terminated at any time upon written direction of the owners of two-thirds of the beneficial units. Upon termination, the trustees were empowered to sell the property without procuring consent of the unit holders. The trustees were required to keep correct records and accounts and were authorized to fill any vacancies in the trusteeship. The trust had no part in the operation of the producing wells, which had been drilled by an oil company on an oil lease from the owners of the land, but was liable for its pro rata share of the operating expenses, which the trustees were to verify and pay. The trust, however, was sole owner of the four nonproducing leases which, in the event of production, were to be operated by the trust for its benefit. The leases, however, were never developed, but two or three years after the formation of the trust were discontinued by nonpayment of the agreed rentals. Under the terms of the trust instrument, the trustees were entitled to receive for themselves the proportionate part of the net income applicable to unsold units of beneficial interest. In 1934, which is the taxable year in question, this amounted to the sum of $48,382.84. Of this, however, the trustees relinquished to the trust $36,882.84, which constitutes the item mentioned under the second heading above.
Petitioner for the year 1934 made its income tax return as a trust, showing a net loss of over $7,000. Subsequently the Commissioner held that petitioner was taxable as a corporation and determined a deficiency. Petitioner appealed. The Board sustained the finding that petitioner was an association taxáble as a corporation within the meaning of the applicable law. It held, contrary to the Commissioner, that petitioner was entitled to depletion in the amount of 27% per cent of its gross income and was also entitled to a deduction of 12% per cent of the declared value of its capital stock in the computation of excess profits tax. The result of the Board’s decision was to reduce the amount of the deficiency, but to leave a substantial sum due, for which judgment was entered.
First. The first and most important question is — Was petitioner a trust, for if it was, admittedly no tax is due. It is conceded by,the Commissioner that under the laws of Oklahoma petitioner is an express trust. On the basis of this, counsel argue that the federal government must tax entities as it finds them. And there is much reason in the contention — particularly in cases in which Congress has not specially declared otherwise. But unfortunately for petitioner, the rule as determined by the Supreme Court is to the contrary. “State law may control only when the federal taxing act, by express language or necessary implication, makes its own operation dependent upon state law”. Burnet v. Harmel, 287 U.S. 103, 110, 53 S.Ct. 74, 77, 77 L.Ed. 199, and see Heiner v. Mellon, 304 U.S. 271, 279, 58 S.Ct. 926, 82 L.Ed. 1337. The applicable federal act defines the' term “corporation” as including associations, joint-stock companies, and insurance companies, and the Supreme Court in illustrating the statutory concept of association in Morrissey v. Commissioner, Helvering v. Combs, and Helvering v. Coleman-Gilbert Associates, so fully covered the field of group business activity, that greater “ingenuity” than petitioner has shown or we can provide is required to place this trust outside the taxable pale.
Petitioner, however, thinks otherwise, and insists that here, unlike the cases we have cited, there were no “associates” and accordingly the Supreme Court rule does not fit. The basis of this is two-fold; that when this trust was created the trustees did not know who-would buy the certificates, and that the trust and not the trustees was the seller. But if the basis is admitted to be true, it is still a distinction without a difference. The trustees as individuals transferred • the property rights to the trust, and as trustees retained the beneficial interest in all the unsold shares, and the fact that they received these benefits as trustees rather than as owners does not change the true nature of the transaction. They held on until other associates took their places. To adopt petitioner’s view that because of this method of organization and sale they were not “associates” would be giving substance to pure fiction. Nor is petitioner’s argument that it is a strict or liquidating trust and is not a business trust any more convincing. Certainly, it has the characteristics as well as the powers of the latter and that, as the Supreme Court has declared, is enough. It cannot escape taxation by declining to exercise the powers which the instrument of its creation permits. Helvering v. Coleman-Gilbert Associates, supra, 296 U.S. at page 374, 56 S. Ct. 285, 80 L.Ed. 278.
But even if this view of petitioner’s contention be put to one side, there is here at least some evidence of actual business activity. The trust held,' in addition to its right of participation in the earnings of the producing wells, outright leases to four parcels of potential oil land, obviously for purposes of development or sale. The powers of the trust instrument permitted either. Equally obviously, the right of management and control was in fact exercised in the decision to abandon the.leases and discontinue the payment of rentals thereon. The determination by the trustees that the prospects of striking oil would not justify the cost of exploration was the exercise of business judgment in the control of properties acquired for profit and gain. Nashville Trust Co. v. Cotros, 6 Cir., 120 F.2d 157, certiorari denied 62 S.Ct. 181, 86 L.Ed. _. If the discretion had been affirmatively exercised, business activity would have followed. That it was negatively exercised is wholly different from its non-exercise. The fact of exercise at all is the expression of business judgment in an enterprise for profit. Considered in relation to the cases we have cited, petitioner’s argument that the trust does not resemble a corporation is not sustainable. On the contrary, we think it has all the main characteristics which the Supreme Court has named as distinguishing a corporation and a trust, namely, persons associated in carrying on a business enterprise, title in a continuing body — the trustees — to the property, both opportunity and the exercise of centralized management, continuity of existence, with ability to transfer interests without affecting continuity, and limited liability. And see Bert v. Helvering, 67 App.D.C. 340, 92 F.2d 491.
Second. Did the Board err in failing to exclude an item of $36,882.84 from petitioner’s gross income?
As we have seen, petitioner’s financial set-up is represented by 5,000 units of beneficial interest. The plan contemplated the sale of these units as opportunity offered, but provision was made to retain for the benefit of the creators of the trust — the trustees — all income payable on all such units as were not then sold to the public. In the taxable year in question some forty-eight thousand odd dollars thus accrued, but of this amount the trustees took only $11,-500 and surrendered to the trust the remaining $36,882.84, and petitioner collected and included this amount in its return of gross income. Its position here is that the item did not constitute income to petitioner, should have been excluded by the Board, and not computed in the amount of its income. The Board said:
“There is some evidence to the effect that during the taxable year approximately $36,882.84 of income applicable to unsold units was permitted by the trustees to be retained by the trust for distribution to the unit holders. The reason for this action does not appear. This amount was. included in income by the respondent in determining the deficiency, here in question. The petitioner has raised no issue as to this in the pleadings. Under the evidence before us, we cannot disturb this determination.”
Petitioner does not seriously question the validity of the decision as to this item in the circumstances under which it was made, but insists that the Board should have permitted an amendment to its petition, which some weeks after- the Board’s decision it requested permission to file. If the item was not “gains, profits, and income”, it should not have been taxed and while, as the Board said, not much appears in relation to it, for present purposes we assume it was no more than a voluntary payment by the trustees and therefore a mere gratuity. In such a case, my own view has always been, the government should waive technicalities rather than insist upon the exaction from one of its citizens of more than he owes. But unfortunately this is not the rule. To the contrary, the government, through its officers, invariably insists, in its law suits, upon any and every legal right it has, and sometimes the legal right and the moral right clash, in which case I have always thought the former should give way to the latter. But nothing is accomplished in stressing the point, first because it is not the prevailing view and, second, because it is well settled that a taxpayer on appeal to the Board is limited to the issues raised by his pleadings, and the position now contended for, admittedly, was not alleged. In justification of its dilemma, petitioner points out that its purpose in refusing to file alternative pleadings was to avoid embarrassment to its main position, i. e., that it was a trust and therefore not taxable as a corporation. But petitioner having made its election, it was discretionary with the Board after it had lost its main contention to permit it to mend its hold and try the case over again. Roberts v. Commissioner, 19 B.T.A. 351, 355; Hanby v. Commissioner, 4 Cir., 67 F.2d 125, 127; Popular Price T. Co. v. Commissioner, 7 Cir., 33 F.2d 464, 465.
And there is still another reason which militates here against petitioner in the application of a rule of right and fairness rather than the strict rule of law. For it seems clear that if the $36,000 item was income to the trustees, it was taxable to them as such. When they relinquished their right to it, it is a fair assumption that they wholly disregarded it as income for which they were taxable, with the result now that if it be disregarded in petitioner’s income, the government will have lost on a transaction which petitioner was wholly responsible for. In this state of facts, it would be going too far to say that the action of the Board was not correct in refusing to allow the amendment to the petition.
Third. What has just been said disposes of a part of petitioner’s point that the Board erred in refusing a further hearing and leave to amend its petition. In addition to the item we have just disposed of, petitioner sought by its amendment to set up new and different grounds on which to claim the deduction of an item of approximately $20,000 as expenses growing out of development costs. Granting that this item was allowable in reduction of gross income, which in the paucity of the record is going pretty far, we are nevertheless confronted here with the rule we have already spoken of, namely, that new issues not included in the pleadings submitted to the Board and decided by the Board may not, of right, be included after decision by amendment. Steele-Wedeles Co. v. Commissioner, 7 Cir., 63 F.2d 541, 543. Clearly, therefore, a petition to amend after final decision is to be considered subject to the discretion of the Board.
On the whole case, we are of opinion that the Board’s decision should be, and it is, affirmed.
Affirmed.
EDGERTON, J., concurs in the result, and in the first part of the opinion.
Sec. 801(a) (2), Revenue Act of 1934, 26 U.S.C.A. Int.Rev.Acts, page 790.
Sec. 114(b) (3), of the Act of 1934, 26 U.S.C.A. Int.Rev.Code, § 114(b) (3).
Sec. 11820 Oklahoma Statutes, 1931, 60 O.S.1941, § 171. State v. Prairie Cotton Oil Co., 180 Okl. 608, 71 P.2d 988.
Revenue Act 1934, ch. 277, 48 Stat. 680, 26 U.S.C.A. Int.Rev.Acts, page 664 et seq.
296 U.S. 344, 56 S.Ct 289, 80 L.Ed. 263.
296 U.S. 365, 56 S.Ct. 287, 80 L.Ed. 275
296 U.S. 369, 56 S.Ct. 285, 80 L.Ed. 278.
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_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.
Michael H. P. O’DWYER, Appellant, v. John R. CRANOR, Superintendent of the Washington State Penitentiary, at Walla Walla, Washington, Appellee.
No. 13758.
United States Court of Appeals Ninth Circuit.
Aug. 24, 1953.
Michael H. P. O’Dwyer, in pro. per.
Don Eastvold, Atty. Gen., and Cyrus A. Dimmick, Asst. Atty. Gen., of Wash., for appellee.
Before MATHEWS, HEALY and BONE, Circuit Judges.
PER CURIAM.
This appeal is from an order denying a petition of appellant, Michael H. P. O’Dwyer, for a writ of habeas corpus. No error appearing, the order is affirmed.
Question: What is the total number of respondents in the case? Answer with a number.
Answer:
|
songer_r_natpr
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
CONSOLIDATED LEAD & ZINC CO. v. CORCORAN.
Circuit Court of Appeals, Tenth Circuit.
January 6, 1930.
Rehearing Denied February 17, 1930.
No. 8.
Stewart Lynch, of Tulsa, OH. (A. C. Wallace, of Miami, OH., and Herbert D. Mason, of Tulsa, OH., on the brief), for appellant.
Frank Nesbitt, of Miami, OH., for appellee.
Before LEWIS, COTTERAL, and PHILLIPS,, Circuit Judges.
COTTERAL, Circuit Judge.
The Consolidated Lead & Zinc Company appeals from an adverse judgment rendered upon the verdict of a jury in a suit of Karl Corcoran, a minor, brought by a next friend, to recover damages for personal injuries sustained by him on the premises of the company. The errors assigned are mainly (1) overruling a demurrer to the petition for failure to allege a cause of action, (2) refusal to direct a verdict for the company, and (3) instructions given and refused. We find it necessary to reverse the judgment, because of an instruction relative to damages, but as the other questions now presented will likely arise at another trial, we proceed also to determine them.
A preliminary averment of the petition is that the company owned at Picher, OH., a city of 15,000 inhabitants, a mill, transformer house, and other equipment, known as the “Piokee Mine,” located one block north of the high school building, passed by a public road long traveled by many inhabitants and used daily by sehool children. The transformer house, it is alleged, 15 by 20 feet in dimensions, located near and in plain view from the road, was maintained by the company with electrical equipment for the operation of the mine, and for several months before the accident, without fence or guard, with the front and a small side door open, the equipment consisting of rheostats, transformers, and switch connections, attractive and easily accessible to children, exciting their curiosity and interest, without notice it carried a dangerous charge of electricity.
It is alleged that for several months before the accident it had been the custom of the plaintiff and other boys who attended the school and lived in the neighborhood to play around the transformer house and mine, haul refuse from around the house, and to use it and the premises around the mine as a playground, as the company well knew, or could easily have known, and further, on the day of accident there was no day watchman at the mine, and the company had recently cut the wiring in the transformer house, leaving one cord loose and unwrapped on the floor, but connected with the electrical power.
It is then alleged that on February 22, 1927, while these conditions were known to and permitted by the company, the plaintiff and another boy were playing in the transformer house, the latter pushed a switch, connecting the power with the wire on the floor, and shortly they engaged in a friendly scuffle in which plaintiff fell to the floor with his hands on the exposed wire, whereby the eleetrie current burned his arms, necessitating amputation of both, with the attendant pain and suffering, permanently depriving him of earning capacity and rendering him an object of pity; that the injury was due to the negligence of the company in failing to fence, guard, protect, or lock the transformer house, or close it for several months, and to have a watchman there to notify children of the danger, well knowing it contained machinery interesting and alluring to children and higHy dangerous, and they had customarily played around the house and equipment; and that the injury would not have occurred but for defendant’s negligence.
An objection to the petition is it shows the plaintiff was a trespasser on the company’s property, whereby the company could be liable only for a willful or wanton injury, not complained of in the petition. Many eases are cited to so fix plaintiff’s status, particularly United Zinc Company v. Britt, 258 U. S. 268, 42 S. Ct. 299, 300, 66 L. Ed. 615, 36 A. L. R. 28, where the allurement was a poisonous pool of water, without evidence that it attracted the children to the premises. That ease distinguished Railroad Company v. Stout, 17 Wall. 657, 21 L. Ed. 745, where an unlocked turntable in an open space and near two roads was the attraction, and the company had reason to anticipate children would resort to it, and Union Pacific Railway v. McDonald, 152 U. S. 262, 14 S. Ct. 619, 38 L. Ed. 434, where a frightened boy ran and fell into burning slack, on an open lot near a path. Both of those eases are more nearly applicable here. The Britt Case was essentially different in the facts, which were held not to impose the duty of care. The court said: “There can be no general duty on the part of a landowner to keep his land safe for children, or even free from Hdden dangers,” but was careful to add, “if he has not directly or by implication invited or licensed them to come there.” The ease is obviously not in point. The “attractive nuisance” doctrine is also said to be inapplicable, and eases are cited as a demonstration. Of these, Hardy v. Missouri Pacific (C. C. A.) 266 F. 860, 36 A. L. R. 1, is typical. It was held there must be a reasonable expectation of the presence of children at the time and place of danger to impose the duty of protection, and there was no sufficient evidence on which to found it.
But it is alleged in this ease that habitual use as a playground had been made of the premises and transformer house, as the company knew or might easily have known, and in that situation the plaintiff w.as a licensee, and being there as such, with the acquiescence of the company, it owed him the duty of protection against danger in the transformer house known to- the company, to which he might be attracted and to which it might reasonably anticipate he would resort and be injured. Escanaba Mfg. Co. v. O’Donnell (C. C. A.) 212 F. 648; The Ansonia v. Sullivan (C. C. A.) 239 F. 296; Atlanta & W. P. R. Co. v. Green (C. C. A.) 246 F. 676; Felton v. Aubrey (C. C. A.) 74 F. 350; Clark v. Long-view Public Service Co., 143 Wash. 319, 255 P. 380; Sweeten v. Pacific P. & L. Co., 88 Wash. 679, 153 P. 1054; Smith v. Windsor Reservoir & Canal Co., 78 Colo. 169, 240 P. 332; Cahill v. Stone & Co., 153 Cal. 571, 96 P. 84, 19 L. R. A. (N. S.) 1094; 45 C. J. 802, 803, 806, 807.
The plaintiff’s ease as made by the petition rests on his position as a licensee at the grounds and transformer house, and we are of the opinion a cause of action was sufficiently alleged. The petition is challenged as not alleging direetly he was attracted to the machinery in the power house. We regard the pleading as so intended, but the defect is subject to remedy by amendment, which doubtless should be made.
It is urged the petition does not show the negligence of the company was the proximate cause of the injury, since it left the wires in a safe condition, and they were rendered unsafe by the intervening act of plaintiff’s companion in 'throwing the switch and making the connection with the wire that wrought the injury, and, furthermore, that the evidence (which we may notice at this point) is likewise deficient in showing that his companion pushed him upon the wire. Assuming these facts, the contention is. unsound. The injury was attributed in the petition direetly to defendant’s negligence. It was a question of fact whether the injury was the natural and probable consequence of such negligence, and could have been foreseen and anticipated by the defendant, as a reasonably prudent company. Johns-Manville v. Pocker (C. C. A.) 26 F.(2d) 204. The acts of plaintiff’s companion were not essentially different from the operation by another of the turntable in the Stout Case, 17 Wall. 657, 21 L. Ed. 745. Leaving the machinery at a playground so unguarded in the open house that ehildren might reasonably be expected to operate it was the primary negligence charged, for which a recovery was authorized. Edgington v. Burlington, C. R. & N. R. Co., 116 Iowa, 410, 90 N. W. 95, 57 L. R. A. 561; Herman v. Markham Air Rifle Co. (D. C.) 258 F. 475; Milwaukee R. Co. v. Kellogg, 94 U. S. 469, 24 L. Ed. 256; 45 Cyc. 931, 932. As accentuating the responsible cause of the injury, it was alleged that the company had shortly changed the wires and left them in a condition dangerous to ehildren engaged in play. 45 Cyc. 802, 803.
The motion to direct a verdict was not well founded, as the evidence fully substantiated the averments of the petition. We note the more prominent facts the evidence proved or tended to prove at the trial.
Most of the evidence was undisputed. The physical conditions at the mine premises and transformer house were depicted and illustrated by exhibits. There was no day watchman, fencing, or warning sign. The doors of the house were open. Two of the wires carried high voltage, when the switch was open. The defendant’s electrician knew before the accident they were bare in places. Children had played at the mine and about the transformer house for 9 years. The night watchman saw them and never interfered. Plaintiff, a youth 13 years old, had played about the house seven or eight times before the accident and had played there when workmen were present, and the door of the house was then open. Other ehildren played there at the time. On the day of the aeeident, plaintiff first went to play at the house of his companion, L. D. Ray. Both were school ehildren in the neighborhood, of about the same age. They went to Treeee, Kan., playing about the box ears. In the afternoon, they went to the mine, passing the transformer house with the door open, climbed on the jack bins, rode on a car, and saw the machinery. At plaintiff’s suggestion they went into the house as they had done before to play with a handle, attached to a wire and fastened on a tin box. Both played with the machinery. Plaintiff did not know the hidden danger. His account was that after he had sat down and was putting some bolts through a hole, Ray took some gloves from his (plaintiff’s) pocket and as the plaintiff arose to get them Ray pushed him down on the wires, which so badly burned his .arms that amputation of both was necessary. The accounts of tbe youths varied to an extent, Ray claiming that plaintiff climbed upon an 8-foot platform and pulled a switch. Tbe public bad for years used without objection a path running across tbe mine premises within 15 feet of tbe transformer bouse door, and thence across a bridge spanning across a pond. About a week before tbe accident tbe apparatus in tbe bouse was repaired and new hoist wires added.
Tbe foregoing and other details omitted for tbe sake of brevity were in evidence. For tbe like reason tbe petition is deemed sufficient, we bold tbe evidence ample to withstand tbe motion to direct a verdict for tbe defendant, and that motion was properly overruled.
We have examined tbe instructions to tbe jury and find them free from any material error, with one exception. Tbe issues were explained and tbe jury advised as to tbe duty of reasonable care of tbe company toward tbe plaintiff, if it permitted tbe children to use tbe transformer bouse and immediate premises as a playground, and acquiesced therein; and, further, that if it negligently omitted that duty, and this proximately caused tbe injury to plaintiff, it was liable in damages therefor. Tbe instructions tendered appear to us either to have been not justified or substantially given to tbe jury.
Tbe court charged tbe jury that in fixing damages it should consider plaintiff’s impaired earning capacity as well as tbe pain and suffering due to tbe injury. Tbe defendant duly excepted to this part of tbe charge. This request was refused: “Tbe jury is not to consider in connection with any damages which it may award tbe plaintiff, any sums expended or indebtedness incurred by tbe parent or parents of tbe plaintiff as a result of plaintiff’s injuries in the way of doctor’s bills, medicine, hospital bills, etc., nor tbe value of bis services to such parent or párente from tbe date of bis injury to tbe date of bis majority.”
There was no prejudicial error in not so charging tbe jury. No claim was made for tbe expenses referred to, and they were necessarily excluded by tbe court. Tbe value of plaintiff’s services to bis parents was not claimed in any way, and it is to be presumed they were rendered gratuitously, so that no loss in that connection could reasonably have been allowed.
But tbe instructions were broad enough to warrant an allowance for lost earning capacity prior to the time plaintiff reached bis majority. Section 8026, Compiled Oklahoma Statutes 1921, provides that tbe earnings of a minor belong to bis father, or, if be be dead, to bis mother. However unfortunate this error may have been, and although we may consider tbe verdict in this case for $15,000 was meager compensation for tbe injury to tbe plaintiff, we are unable to determine that a substantial part of tbe award was not a sum due tbe mother, which tbe plaintiff was not entitled to recover. Shawnee Gas & Electric Company v. Hunt, 32 Okl. 368, 122 P. 673; Farrar v. Wheeler (C. C. A.) 145 F. 482. For this error, tbe judgment is reversed, and tbe cause is remanded to tbe District Court, with direction to grant a new trial.
Question: What is the total number of respondents in the case that fall into the category "natural persons"? Answer with a number.
Answer:
|
songer_genresp2
|
H
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
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.
Florence Palting HAIR; Priscilla Palting Ragland; Portia Palting Seely; Jeannie Palting Wimett; Estate of Mildred Palting, Plaintiff-Appellee, v. Marciano V. PANGILINAN, Defendant-Appellant.
No. 86-2581.
United States Court of Appeals, Ninth Circuit.
Submitted April 16, 1987.
Decided May 7, 1987.
Edward S. Terlaje, Agana, Guam, for defendant-appellant.
Mark S. Beggs, Agana, Guam, for plaintiff-appellee.
Before HUG, NELSON and NOONAN, Circuit Judges.
NELSON, Circuit Judge:
Pangilinan asks this court to set aside a decision of the Appellate Division of the United States District Court for the District of Guam that affirmed a judgment of the Guam Superior Court. The Guam court’s decision granted Hair’s claims aris- ' ing from the encroachment on Hair’s lot by Pangilinan’s building in an adjoining lot and from Pangilinan’s use of two other buildings on Hair’s lot. We have jurisdiction under 48 U.S.C. § 1424-3(c) (Supp. Ill 1985) and determine that the case is appropriate for submission without oral argument. We affirm.
I. BACKGROUND
This dispute concerns the boundaries and use of two adjoining lots in Guam. Pangilinan acquired title to lot 2116 in 1968 and constructed the Guam Tribune Building on that lot shortly thereafter. The adjoining lot, number 2121-1-R3, was part of the estate of Paul D. Palting. In 1975, while the estate was in probate proceedings, Rosalia Palting (an heir and surviving spouse of Paul Palting) entered an agreement with Pangilinan conveying her interest in lot 2121-1-R3 to him for $150,000. Pangilinan and his agents thereafter occupied two buildings on lot 2121-1-R3 at various times until May 1982. At the conclusion of the probate proceedings in May 1980, however, the plaintiffs were awarded full title to lot 2121-1-R3. Rosalia Palting received no interest in that lot.
The plaintiffs sued Pangilinan in September 1982, charging that the Guam Tribune Building was built on part of their lot (2121-1-R3) and seeking rent for Pangilinan’s occupation of the two buildings on that lot. After a two-day bench trial, the Guam Superior Court found that the Guam Tribune Building encroached a total of 73.-76 square meters on the plaintiffs’ lot. Because the building could not be partially demolished, the court ordered the plaintiffs to convey clear title to the 73.76 square meters to Pangilinan at an appraised rate of $47 per square meter. Second, the court ordered Pangilinan to remove an encroaching gas tank and compressor from lot 2121-1-R3. Finally, Pangilinan was ordered to pay the plaintiffs rent for the use of the two buildings on lot 2121-1-R3 for a period of occupancy between July 1980 and September 1982. Judgment was entered on August 22, 1985. The United States District Court of Guam, Appellate Division, affirmed.
II. DISCUSSION
This court reviews decisions of the Appellate Division of the District Court of Guam on matters of local law, custom, or policy for “ ‘manifest error.’ ” Electrical Constr. & Maintenance Co. v. Maeda Pac. Corp., 764 F.2d 619, 620 (9th Cir.1985) (quoting Schenck v. Government of Guam, 609 F.2d 387, 390 (9th Cir.1979)). This court must affirm the appellate division’s interpretations of local law “ ‘if they are based upon a tenable theory and are not manifestly erroneous.’ ” Guam v. Yang, 800 F.2d 945, 946 (9th Cir.1986) (quoting Laguana v. Guam Visitors Bureau, 725 F.2d 519, 520 (9th Cir.1984)). This degree of deference is accorded because the appellate division sits as a territorial Guam court, not as a federal court. Electrical Constr., 764 F.2d at 620 n. 1; Schenck, 609 F.2d at 390. The de novo review of a district court’s interpretation of state law set forth in In re McLinn, 739 F.2d 1395, 1397 (9th Cir.1984) (en banc), is inapplicable here. Electrical Constr., 764 F.2d at 620 n. 1. Thus, “[i]f the decision is based on a tenable theory, we may not reverse even if we disagree with the ruling or believe that the territorial court’s conclusion is the least desirable of several possible alternatives.” Schenck, 609 F.2d at 390.
Pangilinan first argues that the Guam court should have considered his certificate of clear title to lot 2116, which is conclusive as to his claim to that lot in an action for ejectment, partition, or possession. See Guam Civ.Code § 1157.40. He claims that a remand for consideration of this fact is required under Guam Scottish Rite Bodies v. Flores, 486 F.2d 748 (9th Cir.1973) (per curiam).
There is no dispute in this case about whether Pangilinan has clear title to lot 2116. His argument seems to proceed on the premise that lot 2116 in fact includes all of the land under the Guam Tribune Building. The Guam court, however, made a factual finding to the contrary, based on the evidence produced at trial. Pangilinan has presented no evidence on appeal that would indicate that this finding was in error.
Even assuming that the certificates of title to the adjoining lots in fact established overlapping claims to the disputed strip of land, the appellate division held that, under the relation back provision of Guam Civ. Code § 1157.30, the certificate of title to lot 2121-1-R3 (first registered in 1919) would have priority over the certificate of title to lot 2116 (first registered in 1929). This construction of local Guam law is based on a tenable theory and is not manifestly erroneous. See Minnetonka State Bank v. Minnesota State Sunshine Soc., 189 Minn. 560, 250 N.W. 561, 562 (1933).
Guam Scottish Rite is distinguishable. In that case, the district court, sitting as a trial court, did not address the effect of the defendant’s certificate of title in a factual situation similar to the one involved in this appeal. See 486 F.2d at 748-49. Because the district court failed to address the effect of the certificate, the Ninth Circuit vacated and remanded for consideration of that issue. Id. at 750. In the instant case, however, though the Guam Superior Court did not explicitly address the issue, the appellate division — sitting as a local court — clearly did. Hence, a remand to either the appellate division or the trial court would serve no purpose.
Second, Pangilinan argues that the appellate division erred in holding that Rosalia Palting could not transfer lot 2121-1-R3 to Pangilinan during the probate of Paul Palting’s estate. He argues that Rosalia could effect the conveyance and thus that he was lawfully entitled to occupy the two buildings on lot 2121-1-R3.
Guam law provides that “[u]pon a person’s death, the title to such person’s property ... passes immediately to the person ... to whom it is devised or bequeathed ... or, in the absence of such disposition, to the person ... who succeed[s] to such person’s estate as provided in Division 2 of this Title.” 15 Guam Code Ann. § 1401(a) (1983). It continues:
Notwithstanding the provisions of subsection (a) of this Section, and except as otherwise provided by law, all of such person’s property shall be subject to the possession of such person’s personal representative and to the control of the Superior Court of Guam for the purpose of administration, sale or other disposition under the provisions of Division 3 of this Title, and shall be chargeable with the expenses of administering such person’s estate, and the payment of such person’s debts and the allowance to such person’s family.
Id. § 1401(b). Finally, Guam law provides:
In its order or decree of final distribution, the Superior Court must name the persons and the proportions or parts to which each is entitled, and such persons may demand, sue for, and recover their respective shares from the personal representative, or from any person having the same in possession. Such order or decree, when it becomes final, is conclusive as to the rights of heirs, devisees, and legatees.
Id. § 3013.
These provisions make clear that Rosalia Palting’s attempted conveyance of lot 2121-1-R3 to Pangilinan during Paul Palting’s probate was subject to the outcome of the probate proceedings. The appellate division relied on California law in concluding that Pangilinan took the conveyance “subject to the perils of the proceeding.” In re Estate of Dobbins, 36 Cal.App.2d 536, 541, 97 P.2d 1051, 1054 (1940). This determination of Guam law is not manifestly erroneous. The Guam provision is based on California Probate Code § 300, and the appellate division’s citation to a California case was appropriate. See Guam v. Ojeda, 758 F.2d 403, 406 (9th Cir.1985); Roberto v. Aguon, 519 F.2d 754, 755 (9th Cir.1975). Other California cases reach the same conclusion. See In re Estate of Harabedian, 220 Cal.App.2d 1, 3, 34 Cal.Rptr. 668, 669 (1963); In re Kennedy’s Estate, 87 Cal. App.2d 795, 797, 197 P.2d 844, 846 (1948). The lone California case cited by Pangilinan actually supports Hair’s position. See In re Estate of Michels, 18 Cal.App.2d 201, 204, 63 P.2d 333, 334 (1936) (stating that a sole heir may assign an interest in the estate “subject only to her right of possession as administratrix for the purpose of administration”).
Thus, Rosalia Palting could not convey lot 2121-1-R3 to Pangilinan. She conveyed her interest in the lot, which turned out to be nothing. As the appellate division concluded, Pangilinan may have recourse against Rosalia Palting, but not against any of the plaintiffs-appellees.
Finally, Pangilinan argues that the claim arising from the encroachment of the Guam Tribune Building should have been barred by a statute of limitations. Guam law establishes a five-year statute of limitations for an action for the recovery of real property or an action for title, rents, or profits concerning real property. Guam Civ.Proc.Code §§ 318, 319. The limitations period begins when the plaintiff (or his predecessor) is “seized” or “possessed” of the property.
The appellate division held that the statute of limitations did not apply because, absent any adverse possession by Pangilinan, see Guam Civ.Code § 1157.34 (providing that adverse possession may not be made against registered land), no seizure occurred. Before the appellate division, Hair cited several California cases interpreting the similar California statute of limitations, Cal.Civ.Proc.Code § 325, in the same way. See Schoenfeld v. Pritzker, 257 Cal.App.2d 117, 64 Cal.Rptr. 592 (1967); People’s Water Co. v. Boromeo, 31 Cal.App. 270, 160 P. 574 (1916). Pangilinan does not argue that he had adverse possession. The appellate division’s construction of Guam Civ.Proc.Code §§ 318, 319 is not manifestly erroneous.
Pangilinan again relies on Guam Scottish Rite, which is again distinguishable. That case involved a choice between a three-year statute of limitations and the five-year statute in §§ 318, 319. See 486 F.2d at 749. The Ninth Circuit upheld the lower court’s decision to apply the longer statute of limitations, which did not bar the action, because there was a “substantial question” about which statute of limitations should apply. Id. at 750. The court did not have to reach the question whether the five-year statute in §§ 318, 319 would have barred an action in which the encroachment had begun more than five years previously.
III. ATTORNEYS’ FEES
Appellees request this court to award them attorneys’ fees for this appeal under Fed.R.App.P. 38 and 28 U.S.C. § 1912 (1982) on the ground that the appeal is frivolous. An appeal is frivolous “if the result is obvious or if the claims of error are wholly without merit.” Malhiot v. Southern Cal. Retail Clerks Union, 735 F.2d 1133, 1137 (9th Cir.1984), cert. denied, 469 U.S. 1189, 105 S.Ct. 959, 83 L.Ed.2d 965 (1985). Appellant’s arguments on appeal, though nonmeritorious, do not meet this standard. We therefore decline to award fees.
CONCLUSION
For the reasons given above, the decision of the appellate division is AFFIRMED.
Question: What is the nature of the second listed respondent whose detailed code is not identical to the code for the first listed respondent?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_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.
Carl J. DODSWORTH, Appellant, v. Anthony CELEBREZZE, Secretary of Health, Education and Welfare of the United States of America, Appellee.
No. 21731.
United States Court of Appeals Fifth Circuit.
July 26, 1965.
Robert O’Conor, Jr., Laredo, Tex., for appellant.
James R. Gough, Asst. U. S. Atty., Houston, Tex., for appellee.
Before MARIS RIVES and BROWN, Circuit Judges.
Of the Third Circuit, sitting by designation.
JOHN R. BROWN, Circuit Judge:
The issue here is whether the District Court was correct in holding that there was substantial evidence to support the Administrator’s decision denying to Dodsworth disability insurance benefits under the freeze provisions of the Social Security Act, 42 U.S.C.A. §§ 416(i), 423(c), on the ground that as of the critical date his disability was not of such severity that he could engage in no “substantial gainful activity.” We have concluded the Appellant is right and the case must be remanded for further administrative proceedings.
Dodsworth applied to the Social Security Administration in October 1961 to establish a period of disability and for insurance benefits stating that he had become unable to work in March 1961. The Board of Old Age and Survivors Insurance denied the application and on its refusal to reconsider, Dodsworth requested a hearing which was held on January 8, 1963 before a Hearing Examiner at the VA Hospital in Temple, Texas, where Dodsworth was a resident at the Veterans Domiciliary. The medical reports and testimony of the Applicant revealed these facts about the man and his background.
Dodsworth was born in 1908, received an 8th grade education, and had worked most often as a laborer in construction jobs. During World War II, he was in the service for three years and was discharged in 1945. Between 1946 and 1950, he was a victim of pulmonary tuberculosis — most of this time being hospitalized in Denver. In the five or six years prior to the filing of his application he did heavy construction work, but by March 1961 found himself unable to continue in this kind of work. Dods-worth had applied for one of the many salaried positions at the VA Domicilary in Temple, but had been turned down because he “wasn’t in condition to do it.” At the time of the hearing, he, as did all residents of the Domiciliary, had a work duty — his job being to sort laundry a few hours, several days each week. He was unable to obtain outside employment for the simple reason that due to his inability to pass employer imposed pre-em-ployment medical examinations, no employer would hire him. He testified that he could no longer do construction work because he was short-winded, and that his inability to pass medical examinations prevented him from doing lighter work in machine shops. He recounted an instance in the past when he was dismissed from employment as a railroad signalman (termed light work by him) after examination by the company doctor. He had been refused employment in a Temple meat market because of his prior TB condition.
He obviously felt that his tubercular condition had reactivated for his chief complaints were shortness of breath and swelling of the chest. The medical reports offered little objective substantiation for a claim of reactivated tuberculosis. They do, however, make it quite clear that we are by no means dealing with a hale and well man.
Dr. Kitchens examined Dodsworth on October 16, 1961, diagnosing his condition as pulmonary tuberculosis (inactive) and amblyopia, left eye, cause unknown. He apparently has been without the use of his left eye all his life. Following discharge in Memphis he took up residence at the domiciliary at the VA Center in Biloxi, Mississippi where on March 1, 1962, he was again examined, this time by Dr. Hall. The diagnoses were:
“1. Tuberculosis, pulmonary, minimal, inactive.
“2. Amblyopia, left eye, cause unknown.
“3. Hiatus hernia.
“4. Paranoid personality.”
Inquiry leading to the fourth conclusion was the result of an impression formed by the Domicilary physician “that his disability was more mental than physical.” Dr. Knox, a staff psychologist, confirmed this hypothesis. She concluded that while Dodsworth appeared to be of low-normal intelligence, his reasoning was defective.
“His rigid, suspicious manner of thinking interferes markedly with his functioning on this type of task. He is quite evasive on the Rorschach Test and in the few associations he produces, a thinking disorder is suggested [though none was demonstrated by symptoms]. * * * this man appears to employ schizophrenic modes of thinking.”
The Hearing Examiner’s decision, dated March 28, 1963, was that Dodsworth was not disabled within the meaning of the statute and after denial of review by the Appeals Council, this decision became final. The Examiner, after reviewing the data contained in the medical reports, concluded that there was no objective substantiation for the asserted disability. Strong reliance was made on Dodsworth’s own statement that he could “work now if they will eliminate compensation boards so that they will pass you so that you can work” (emphasis supplied). The qualification following the big “if” was given short shrift by the Examiner’s explanation that: “ * * this is not in accordance with the estab lished facts in this case. There is no evidence of reactivation of the tubercular process since 1950 and he has had the left eye condition all his life, yet he worked regularly with construction companies for more than ten years after 1950.” (Emphasis supplied.) This far we think there is ample basis for the fact findings of the Hearing Examiner. Although the post-hearing medical reports submitted to the Appeals Council of Dr. Eanes reveals that Dodsworth’s physical condition was perhaps worsened, the Examiner was entitled to conclude that there was no real evidence that any physical, medically determinable condition is preventing Dodsworth from engaging in some form of light but substantial gainful activity.
But here we reach a point of departure. For what is shown by the record is that Dodsworth quite obviously has some serious psychosomatic difficulties which may render him unemployable.
With regard to the psychologist’s report that Dodsworth had a paranoid personality which inhibited his reasoning ability, the Examiner first emphasized that Dodsworth “was not considered to he psychotic”, and then wrote:
“ * * * even if it be assumed that from time to time there have been, or are, clouds on claimant’s horizon, so to speak, claimant is in that respect in the company of a large, perhaps predominant segment of the human population, and cannot be considered merely by reason thereof to have earned entitlement to full social security benefits.”
It is therefore quite apparent that the Hearing Examiner viewed this evidence from the standpoint of determining whether Dodsworth was, by virtue of a mental condition alone, statutorily incapacitated. Tying this in to the unrevealing statement that the evidence showed “no phychosis,” the Examiner lapsed into the notion so often rejected by us, that unless Dodsworth was suffering from conditions beyond that which life calls on many to bear, there can be no compensable disability. This was error. This was far too limited an approach. See Page v. Celebrez-ze, 5 Cir., 1963, 311 F.2d 757, 762-763; Hayes v. Celebrezze, 5 Cir., 1963, 311 F.2d 648. No attempt was made to evaluate the uncontradicted evidence of paranoid personality in the light of the clear impression, afforded by both the medical and clinical records and the testimony of Dodsworth himself, that Dods-worth had psychosomatic difficulties which in fact kept him from obtaining work. See Englander v. Flemming, S.D. N.Y., 1960, 186 F.Supp. 773. The question is not what man must bear, nor what men generally bear. The question is whether in the light of all of the evidence it is medically demonstrable that from the operation of these mental-psychological defects on his general physical condition, it was improbable that he could obtain and hold gainful employment.
As the fact findings of the Administrator carry such awesome weight, it is essential that the proper legal standard be employed in the appraisal of the evidence. This was not done here. Accordingly, the case must be reversed and remanded for further and consistent administrative proceedings.
In remanding this case, as in Hayes v. Celebrezze, supra, 311 F.2d at 654, “ [w] e do not undertake to blueprint these proceedings on remand.” The present record may be used with both parties being free to supplement it, and a new decision should be reached on that total record, in light of the guidelines here laid down.
Reversed and remanded.
. This is the only ground involved as it was recognized by everyone that Dods-worth clearly met the earnings requirement.
. The record shows that his work record was very sporadic for health reasons between 1951 and 1956, but was fairly consistent between 1956 and 1961.
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:
|
sc_issue_1
|
13
|
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.
SMITH, WARDEN v. SPISAK
No. 08-724.
Argued October 13, 2009 —
Decided January 12, 2010
Breyer, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Kennedy, Thomas, Ginsburg, Alito, and Sotomayor, JJ., joined, and in which Stevens, J., joined as to Part III. Stevens, J., filed an opinion concurring in part and concurring in the judgment, post, p. 156.
Richard Cordray, Attorney General of Ohio, argued the cause for petitioner. With him on the briefs were Benjamin C. Mizer, Solicitor General, Alexandra T. Schimmer, Chief Deputy Solicitor General, and Kimberly A. Olson and David M. Lieberman, Deputy Solicitors.
Michael J. Benza, by appointment of the Court, 557 U. S. 965, argued the cause for respondent. With him on the brief was Alan Rossman.
A brief of amici curiae urging reversal was filed for the Commonwealth of Pennsylvania et al. by Thomas W. Corbett, Jr., Attorney General of Pennsylvania, and Amy Zajrp, Chief Deputy Attorney General, by Richard S. Gebelein, Chief Deputy Attorney General of Delaware, and by the Attorneys General for their respective States as follows: Troy King of Alabama, Terry Goddard of Arizona, Edmund G. Brown, Jr., of California, John Suthers of Colorado, Lawrence G. Wasden of Idaho, Lisa Madigan of Illinois, Steve Six of Kansas, Jack Conway of Kentucky, Steve Bullock of Montana, Catherine Cortez Mosto of Nevada, W. A Drew Edmondson of Oklahoma, Henry D. McMaster of South Carolina, Lawrence E. Long of South Dakota, Greg Abbott of Texas, Mark L. Shurtleff of Utah, William C. Mims of Virginia, and Bruce A Salzburg of Wyoming.
Roy T. Englert, Jr., filed a brief for Steven Lubet et al. as amici curiae.
Justice Breyer
delivered the opinion of the Court.
Frank G. Spisak, Jr., the respondent, was convicted in an Ohio trial court of three murders and two attempted murders. He was sentenced to death. He filed a habeas corpus petition in federal court, claiming that constitutional errors occurred at his trial. First, Spisak claimed that the jury instructions at the penalty phase unconstitutionally required the jury to consider in mitigation only those factors that the jury unanimously found to be mitigating. See Mills v. Maryland, 486 U. S. 367 (1988). Second, Spisak claimed that he suffered significant harm as a result of his counsel’s inadequate closing argument at the penalty phase of the proceeding. See Strickland v. Washington, 466 U. S. 668 (1984). The Federal Court of Appeals accepted these arguments and ordered habeas relief. We now reverse the Court of Appeals.
I
In 1983, an Ohio jury convicted Spisak of three murders and two attempted murders at Cleveland State University in 1982. The jury recommended, and the judge imposed, a death sentence. The Ohio courts denied Spisak’s claims, both on direct appeal and on collateral review. State v. Spisak, 36 Ohio St. 3d 80, 521 N. E. 2d 800 (1988) (per curiam); State v. Spisak, No. 67229, 1995 WL 229108 (Ohio App., 8th Dist., Cuyahoga Cty., Apr. 13, 1995); State v. Spisak, 73 Ohio St. 3d 151, 652 N. E. 2d 719 (1995) (per curiam).
Spisak then sought a federal writ of habeas corpus. Among other claims, he argued that the sentencing phase of his trial violated the U. S. Constitution for the two reasons we consider here. The District Court denied his petition. Spisak v. Coyle, Case No. 1:95CV2675 (ND Ohio, Apr. 18, 2003), App. to Pet. for Cert. 95a. But the Court of Appeals accepted Spisak’s two claims, namely, his mitigation instruction claim and his ineffeetive-assistance-of-counsel claim. Spisak v. Mitchell, 465 F. 3d 684, 703-706, 708-711 (CA6 2006). The Court of Appeals consequently ordered the District Court to issue a conditional writ of habeas corpus forbidding Spisak’s execution. Id., at 715-716.
The State of Ohio then sought certiorari in this Court. We granted the petition and vacated the Court of Appeals’ judgment. Hudson v. Spisak, 552 U. S. 945 (2007). We remanded the case for further consideration in light of two recent cases in which this Court had held that lower federal courts had not properly taken account of the deference federal law grants state-court determinations on federal habeas review. Ibid.; see 28 U. S. C. § 2254(d); Carey v. Musladin, 549 U. S. 70 (2006); Schriro v. Landrigan, 550 U. S. 465 (2007). On remand, the Sixth Circuit reinstated its earlier opinion. Spisak v. Hudson, 512 F. 3d 852, 853-854 (2008). The State again sought certiorari. We again granted the petition. And we now reverse.
II
Spisak’s first claim concerns the instructions and verdict forms that the jury received at the sentencing phase of his trial. The Court of Appeals held the sentencing instructions unconstitutional because, in its view, the instructions, taken together with the forms, “require[d]” juror “unanimity as to the presence of a mitigating factor” — contrary to this Court’s holding in Mills v. Maryland, supra. 465 F. 3d, at 708. Since the parties do not dispute that the Ohio courts “adjudicated” this claim, i. e., they considered and rejected it “on the merits,” the law permits a federal court to reach a contrary decision only if the state-court decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U. S. C. § 2254(d)(1). Unlike the Court of Appeals, we conclude that Spisak’s claim does not satisfy this standard.
The parties, like the Court of Appeals, assume that Mills sets forth the pertinent “clearly established Federal law.” While recognizing some uncertainty as to whether Mills was “clearly established Federal law” for the purpose of reviewing the Ohio Supreme Court’s opinion, we shall assume the same. Compare Williams v. Taylor, 529 U. S. 362, 390 (2000) (Stevens, J., for the Court) (applicable date for purposes of determining whether “Federal law” is “established” is when the “state-court conviction became final”), with id., at 412 (O’Connor, J., for the Court) (applicable date is “the time of the relevant state-court decision”); see State v. Spisak, 36 Ohio St. 3d 80, 521 N. E. 2d 800 (decided Apr. 13, 1988), cert. denied, 489 U. S. 1071 (decided Mar. 6, 1989); Mills v. Maryland, supra (decided June 6, 1988).
A
The rule the Court set forth in Mills is based on two well-established principles. First, the Constitution forbids imposition of the death penalty if the sentencing judge or jury is “‘“precluded from considering, as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.” ’ ” 486 U. S., at 374 (quoting Eddings v. Oklahoma, 455 U. S. 104, 110 (1982), in turn quoting Lockett v. Ohio, 438 U. S. 586, 604 (1978) (plurality opinion)). Second, the sentencing judge or jury “ ‘may not refuse to consider or he prechided from considering “any relevant mitigating evidence.” ’ ” Mills, 486 U. S., at 374-375 (quoting Skipper v. South Carolina, 476 U. S. 1, 4 (1986), in turn quoting Eddings, supra, at 114).
Applying these principles, the Court held that the jury instructions and verdict forms at issue in the case violated the Constitution because, read naturally, they told the jury that it could not find a particular circumstance to be mitigating unless all 12 jurors agreed that the mitigating circumstance had been proved to exist. Mills, 486 U. S., at 380-381, 384. If, for example, the defense presents evidence of three potentially mitigating considerations, some jurors may believe that only the first is mitigating, some only the second, and some only the third. But if even one of the jurors believes that one of the three mitigating considerations exists, but that he is barred from considering it because the other jurors disagree, the Court held, the Constitution forbids imposition of the death penalty. See id., at 380, 384; see also McKoy v. North Carolina, 494 U. S. 433, 442-443 (1990) (“Mills requires that each juror be permitted to consider and give effect to . . . all mitigating evidence in deciding . . . whether aggravating circumstances outweigh mitigating circumstances . . . ”). Because the instructions in Mills would have led a reasonable juror to believe the contrary, the Court held that the sentencing proceeding violated the Constitution. 486 U. S., at 374-375.
B
In evaluating the Court of Appeals’ determination here, we have examined the jury instructions and verdict forms at issue in Mills and compared them with those used in the present case. In the Mills sentencing phase, the trial judge instructed the jury to fill out a verdict form that had three distinct parts. Section I set forth a list of 10 specific aggravating circumstances next to which were spaces where the jury was to mark “yes” or “no.” Just above the list, the form said:
“Based upon the evidence we unanimously find that each of the following aggravating circumstances which is marked ‘yes’ has been proven . . . and each aggravating circumstance which is marked ‘no’ has not been proven....” Id., at 384-385 (emphasis added; internal quotation marks omitted).
Section II set forth a list of eight potentially mitigating circumstances (seven specific circumstances and the eighth designated as “other”) next to which were spaces where the jury was to mark “yes” or “no.” Just above the list the form said:
“Based upon the evidence we unanimously find that each of the following mitigating circumstances which is marked ‘yes’ has been proven to exist . . . and each mitigating circumstance marked ‘no’ has not been proven ....” Id., at 387 (emphasis added; internal quotation marks omitted).
Section III set forth the overall balancing question, along with spaces for the jury to mark “yes” or “no.” It said:
“Based on the evidence we unanimously find that it has been proven . . . that the mitigating circumstances marked ‘yes’ in Section II outweigh the aggravating circumstances marked ‘yes’ in Section I.” Id., at 388-389 (emphasis added; internal quotation marks omitted).
Explaining the forms, the judge instructed the jury with an example. He told the jury that it should mark “ ‘yes’ ” on the jury form if it “ ‘unanimously’ ” concluded that an aggravating circumstance had been proved. Id., at 378. Otherwise, he said, “‘of course you must answer no.’” Ibid. (emphasis deleted). These instructions, together with the forms, told the jury to mark “yes” on Section IPs list of mitigating factors only if the jury unanimously concluded that the particular mitigating factor had been proved, and to consider in its weighing analysis in Section III only those mitigating factors marked “yes” in Section II. Thus, as this Court found, the jury was instructed that it could consider in the ultimate weighing of the aggravating and mitigating evidence only the mitigating factors that the jury had unanimously found to exist. See id., at 380-381.
The instructions and jury forms in this case differ significantly from those in Mills. The trial judge instructed the jury that the aggravating factors it would consider were the specifications that the jury had found proved beyond a reasonable doubt at the guilt phase of the trial — essentially, that each murder was committed in a course of conduct including the other crimes, and, for two of the murders, that the murder was committed with the intent to evade apprehension or punishment for another offense. 8 Tr. 2967-2972 (July 19, 1983).
He then explained the concept of a “mitigating factor.” After doing so, he listed examples, including that “the defendant because of a mental disease or defect . . . lacked substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law.” Id., at 2972-2973. The court also told the jury that it could take account of “any other” mitigating consideration it found “relevant to the issue of whether the defendant should be sentenced to death.” Id., at 2973. And he instructed the jury that the State bore the burden of proving beyond a reasonable doubt that the aggravating circumstances outweighed the mitigating factors. Id., at 2965.
With respect to “the procedure” by which the jury should reach its verdict, the judge told the jury only the following:
“[Y]ou, the trial jury, must consider all of the relevant evidence raised at trial, the evidence and testimony received in this hearing and the arguments of counsel. From this you must determine whether, beyond a reasonable doubt, the aggravating circumstances, which [Spisak] has been found guilty of committing in the separate counts are sufficient to outweigh the mitigating factors present in this case.
“If all twelve members of the jury find by proof beyond a reasonable doubt that the aggravating circumstance in each separate count outweighs the mitigating factors, then you must return that finding to the Court.
“On the other hand, if after considering all of the relevant evidence raised at trial, the evidence and the testimony received at this hearing and the arguments of counsel, you find that the State failed to prove beyond a reasonable doubt that the aggravating circumstances which [Spisak] has been found guilty of committing in the separate counts outweigh the mitigating factors, you will then proceed to determine which of two possible life imprisonment sentences to recommend to the Court.” Id., at 2973-2975.
The judge gave the jury two verdict forms for each aggravating factor. The first of the two forms said:
“ We the jury in this case ... do find beyond a reasonable doubt that the aggravating circumstance . . . was sufficient to outweigh the mitigating factors present in this case.
“ ‘We the jury recommend that the sentence of death be imposed....’” Id., at 2975-2976.
The other verdict form read:
“‘We the jury ... do find that the aggravating circumstances . . . are not sufficient to outweigh the mitigation factors present in this case.
‘“We the jury recommend that the defendant ... be sentenced to life imprisonment....’” Id., at 2976.
The instructions and forms made clear that, to recommend a death sentence, the jury had to find, unanimously and beyond a reasonable doubt, that each of the aggravating factors outweighed any mitigating circumstances. But the instructions did not say that the jury must determine the existence of each individual mitigating factor unanimously. Neither the instructions nor the forms said anything about how — or even whether — the jury should make individual determinations that each particular mitigating circumstance existed. They focused only on the overall balancing question. And the instructions repeatedly told the jury to “considefr] all of the relevant evidence.” Id., at 2974. In our view the instructions and verdict forms did not clearly bring about, either through what they said or what they implied, the circumstance that Mills found critical, namely,
“a substantial possibility that reasonable jurors, upon receiving the judge’s instructions in this case, and in attempting to complete the verdict form as instructed, well may have thought they were precluded from considering any mitigating evidence unless all 12 jurors agreed on the existence of a particular such circumstance.” 486 U. S., at 384.
We consequently conclude that the state court’s decision upholding these forms and instructions was not “contrary to, or... an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States” in Mills. 28 U. S. C. § 2254(d)(1).
We add that the Court of Appeals found the jury instructions unconstitutional for an additional reason, that the instructions “require[d] the jury to unanimously reject a death sentence before considering other sentencing alternatives.” 465 F. 3d, at 709 (citing Mapes v. Coyle, 171 F. 3d 408, 416-417 (CA6 1999)). We have not, however, previously held jury instructions unconstitutional for this reason. Mills says nothing about the matter. Neither the parties nor the courts below referred to Beck v. Alabama, 447 U. S. 625 (1980), or identified any other precedent from this Court setting forth this rule. Cf. Jones v. United States, 527 U. S. 373, 379-384 (1999) (rejecting an arguably analogous claim). But see post, at 158-160 (Stevens, J., concurring in part and concurring in judgment). Whatever the legal merits of the rule or the underlying verdict forms in this case were we to consider them on direct appeal, the jury instructions at Spisak’s trial were not contrary to “clearly established Federal law.” 28 U. S. C. § 2254(d)(1).
III
Spisak’s second claim is that his counsel’s closing argument at the sentencing phase of his trial was so inadequate as to violate the Sixth Amendment. To prevail, Spisak must show both that “counsel’s representation fell below an objective standard of reasonableness,” Strickland, 466 U. S., at 688, and that there is a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different,” id., at 694.
The Ohio Supreme Court held that Spisak’s claim was “not well-taken on the basis of our review of the record.” State v. Spisak, 36 Ohio St. 3d, at 82, 521 N. E. 2d, at 802 (citing, inter alia, Strickland, supra). The District Court concluded that counsel did a constitutionally adequate job and that “[tjhere simply is not a reasonable probability that, absent counsel’s alleged errors, the jury would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.” Spisak v. Coyle, Case No. 1:95CV2675 (ND Ohio, Apr. 18, 2008), App. to Pet. for Cert. 204a. The Court of Appeals, however, reached a contrary conclusion. It held that counsel’s closing argument, measured by “‘an objective standard of reasonableness,’” was inadequate, and it asserted that “a reasonable probability exists” that adequate representation would have led to a different result. Spisak v. Mitchell, 465 F. 3d, at 703, 706 (quoting Strickland, supra, at 688). Responding to the State’s petition for certiorari, we agreed to review the Court of Appeals’ terse finding of a “reasonable probability” that a more adequate argument would have changed a juror’s vote.
In his closing argument at the penalty phase, Spisak’s counsel described Spisak’s killings in some detail. He acknowledged that Spisak’s admiration for Hitler inspired his crimes. He portrayed Spisak as “sick,” “twisted,” and “demented.” 8 Tr. 2896 (July 19, 1983). And he said that Spisak was “never going to be any different.” Ibid. He then pointed out that all the experts had testified that Spisak suffered from some degree of mental illness. And, after a fairly lengthy and rambling disquisition about his own decisions about calling expert witnesses and preparing them, counsel argued that, even if Spisak was not legally insane so as to warrant a verdict of not guilty by reason of insanity, he nonetheless was sufficiently mentally ill to lessen his culpability to the point where he should not be executed. Counsel also told the jury that, when weighing Spisak’s mental illness against the “substantial” aggravating factors present in the case, id., at 2924, the jurors should draw on their own sense of “pride” for living in “a humane society” made up of “a humane people,” id., at 2897-2900, 2926-2928. That humanity, he said, required the jury to weigh the evidence “fairly” and to be “loyal to that oath” the jurors had taken to uphold the law Id., at 2926.
Spisak and his supporting amici say that this argument was constitutionally inadequate because: (1) It overly emphasized the gruesome nature of the killings; (2) it overly emphasized Spisak’s threats to continue his crimes; (3) it understated the facts upon which the experts based their mental illness conclusions; (4) it said little or nothing about any other possible mitigating circumstance; and (5) it made no explicit request that the jury return a verdict against death.
We assume for present purposes that Spisak is correct that the closing argument was inadequate. We nevertheless find no “reasonable probability” that a better closing argument without these defects would have made a significant difference.
Any different, more adequate closing argument would have taken place in the following context: Spisak admitted that he had committed three murders and two other shootings. Spisak’s defense at the guilt phase of the trial consisted of an effort by counsel to show that Spisak was not guilty by reason of insanity. And counsel, apparently hoping to demonstrate Spisak’s mentally defective condition, called him to the stand.
Spisak testified that he had shot and killed Horace Rickerson, Timothy Sheehan, and Brian Warford. He also admitted that he had shot and tried to kill John Hardaway, and shot at Coletta Dartt. He committed these crimes, he said, because he was a follower of Adolf Hitler, who was Spisak’s “spiritual leader” in a “war” for “survival” of “the Aryan people.” 4 id., at 1343-1344, 1396 (July 5, 1983). He said that he had purchased guns and stockpiled ammunition to further this war. Id., at 1406-1408. And he had hoped to “create terror” at Cleveland State University, because it was “one of the prime targets” where the “Jews and the system ... are brainwashing the youth.” Id., at 1426-1428.
Spisak then said that in February 1982 he had shot Rickerson, who was black, because Riekerson had made a sexual advance on Spisak in a university bathroom. He expressed satisfaction at having “eliminated that particular threat.. . to me and to the white race.” 5 id., at 1511 (July 7, 1983). In June he saw a stranger, John Hardaway, on a train platform and shot him seven times because he had been looking for a black person to kill as “blood atonement” for a recent crime against two white women. 4 id., at 1416 (July 5, 1983). He added that he felt “good” after shooting Hardaway because he had “accomplished something,” but later felt “[k]ind of bad” when he learned that Hardaway had survived. Id., at 1424-1425. In August 1982, Spisak shot at Coletta Dartt because, he said, he heard her “making some derisive remarks about us,” meaning the Nazi Party. Id., at 1432-1435. Later that August, he shot and killed Timothy Sheehan because he “thought he was one of those Jewish professors . . . that liked to hang around in the men’s room and seduce and pervert and subvert the young people that go there.” 5 id., at 1465-1466 (July 7,1983). Spisak added that he was “sorry about that” murder because he later learned Sheehan “wasn’t Jewish like I thought he was.” Ibid. And three days later, while on a “search and destroy mission,” he shot and killed Brian Warford, a young black man who “looked like he was almost asleep” in a bus shelter, to fulfill his “duty” to “inflict the maximum amount of casualties on the enemies.” Id., at 1454-1455, 1478.
Spisak also testified that he would continue to commit similar crimes if he had the chance. He said about Warford’s murder that he “didn’t want to get caught that time because I wanted to be able to do it again and again and again and again.” Id., at 1699 (July 8, 1983). In a letter written to a friend, he called the murders of'Rickerson and Warford “the finest thing I ever did in my whole life” and expressed a wish that he “had a human submachine gun right now so I could exterminate” black men “and watch them scream and twitch in agony.” Id., at 1724-1725. And he testified that, if he still had his guns, he would escape from jail, “go out and continue the war I started,” and “continue to inflict the maximum amount of damage on the enemies as I am able to do.” Id., at 1780-1781.
The State replied by attempting to show that Spisak was lying in his testimony about the Nazi-related motives for these crimes. The State contended instead that the shootings were motivated by less unusual purposes, such as robbery. See id., at 1680, 1816-1818.
The defense effort to show that Spisak was not guilty by reason of insanity foundered when the trial judge refused to instruct the jury to consider that question and excluded expert testimony regarding Spisak’s mental state. The defense’s expert witness, Dr. Oscar Markey, had written a report diagnosing Spisak as suffering from a “schizotypal personality disorder” and an “atypical psychotic disorder,” and as, at times, “unable to control his impulses to assault.” 6 id., at 1882-1883,1992 (July 11, 1983). His testimony was somewhat more ambiguous during a voir dire, however. On cross-examination, he conceded that he could not say Spisak failed Ohio’s sanity standard at the time of the murders. After Markey made the same concession before the jury, the court granted the prosecution’s renewed motion to exclude Markers testimony and instructed the jury to disregard the testimony that it heard. And the court excluded the defense’s proffered reports from other psychologists and psychiatrists who examined Spisak, because none of the reports said that Spisak met the Ohio insanity standard at the time of the crimes. Id., at 1898-1899, 1911-1912, 1995; id., at 2017, 2022 (July 12, 1983).
During the sentencing phase of the proceedings, defense counsel called three expert witnesses, all of whom testified that Spisak suffered from some degree of mental illness. Dr. Sandra McPherson, a clinical psychologist, said that Spisak suffered from schizotypal and borderline personality disorders characterized by bizarre and paranoid thinking, gender identification conflict, and emotional instability. She added that these defects “substantially impair his ability to conform himself” to the law’s requirements. 8 id., at 2428-2429, 2430-2441 (July 16, 1983). Dr. Kurt Bertschinger, a psychiatrist, testified that Spisak suffered from a schizotypal personality disorder and that “mental illness does impair his reason to the extent that he has substantial inability to know wrongfulness, or substantial inability to refrain.” Id., at 2552-2556. Dr. Markey, whose testimony had been stricken at the guilt phase, again testified and agreed with the other experts’ diagnoses. Id., at 2692-2693, 2712-2713 (July 18, 1983).
In light of this background and for the following reasons, we do not find that the assumed deficiencies in defense counsel’s closing argument raise “a reasonable probability that,” but for the deficient closing, “the result of the proceeding would have been different.” Strickland, 466 U. S., at 694. We therefore cannot find the Ohio Supreme Court’s decision rejecting Spisak’s ineffective-assistance-of-eounsel claim to be an “unreasonable application” of the law “clearly established” in Strickland. § 2254(d)(1).
First, since the sentencing phase took place immediately following the conclusion of the guilt phase, the jurors had fresh in their minds the government’s evidence regarding the killings — which included photographs of the dead bodies, images that formed the basis of defense counsel’s vivid descriptions of the crimes — as well as Spisak’s boastful and unrepentant confessions and his threats to commit further acts of violence. We therefore do not see how a less descriptive closing argument with fewer disparaging comments about Spisak could have made a significant difference.
Similarly fresh in the jurors’ minds was the three defense experts’ testimony that Spisak suffered from mental illness. The jury had heard the experts explain the specific facts upon which they had based their conclusions, as well as what they had learned of his family background and his struggles with gender identity. And the jury had heard the experts draw connections between his mental illness and the crimes. We do not see how it could have made a significant difference had counsel gone beyond his actual argument — which emphasized mental illness as a mitigating factor and referred the jury to the experts’ testimony — by repeating the facts or connections that the experts had just described.
Nor does Spisak tell us what other mitigating factors counsel might have mentioned. All those he proposes essentially consist of aspects of the “mental defect” factor that the defense experts described.
Finally, in light of counsel’s several appeals to the jurors’ sense of humanity — he used the words “humane people” and “humane society” 10 times at various points in the argument — we cannot find that a more explicit or more elaborate appeal for mercy could have changed the result, either alone or together with the other circumstances just discussed. Thus, we conclude that there is not a reasonable probability that a more adequate closing argument would have changed the result, and that the Ohio Supreme Court’s rejection of Spisak’s claim was not “contrary to, or ... an unreasonable application of,” Strickland. 28 U. S. C. §2254(d)(1).
Spisak contends that the deferential standard of review under § 2254(d)(1) should not apply to this claim because the Ohio Supreme Court may not have reached the question whether counsel’s closing argument caused Spisak prejudice. That is, the Ohio Supreme Court’s summary rejection of this claim did not indicate whether that court rested its conclusion upon a finding (1) that counsel was not ineffective, or (2) that a better argument would not have made a difference, or (3) both. See State v. Spisak, 36 Ohio St. 3d, at 82, 521 N. E. 2d,
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_appfiduc
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "fiduciaries". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
UNITED MINE WORKERS OF AMERICA, Petitioner, v. FEDERAL MINE SAFETY & HEALTH REVIEW COMMISSION, Respondent, Kitt Energy Corporation, Intervenor.
No. 84-1428.
United States Court of Appeals, District of Columbia Circuit.
Argued April 29, 1985.
Decided Aug. 2, 1985.
Dennis D. Clark, Washington, D.C., with whom Michael H. Holland and Mary Lu Jordan, Washington, D.C., were on brief, for petitioner.
Linda L. Leasure, Atty. Dept, of Labor, Arlington, Va., with whom Cynthia L. Attwood, Associate Sol., Arlington, Va., and Michael A. McCord, Counsel, Dept, of Labor, Washington, D.C., were on brief, for amicus curiae, Dept, of Labor, urging reversal.
Bronius K. Taoras, Meadow Lands, Pa., for intervenor.
James A. Lastowka, Washington, D.C., entered an appearance for respondent Federal Mine Safety & Health Review Comn.
Before ROBINSON, Chief Judge, GINSBURG, Circuit Judge, and WEIGEL, Senior District Judge.
The Honorable Stanley A. Weigel, Senior District Judge for the United States District Court tor the Northern District of California, sitting by designation pursuant to 28 U.S.C. § 294(d).
Opinion for the Court filed by Senior District Judge WEIGEL.
WEIGEL, Senior District Judge:
This case arises from a citation issued by a Mine Safety and Health Administration (MSHA) inspector on December 1, 1982, to Kitt Energy Corporation (Kitt) at its Kitt No. 1 Mine, a large underground coal mine located in Barbour County, West Virginia. Issued pursuant to Section 104(d)(1) of the Federal Mine Safety and Health Act of 1977 (the Act), 30 U.S.C. § 814(d)(1) (1982), the citation alleged that Kitt had failed properly to guard certain moving machine parts. After determining that there had been no complete regular inspection of the mine since Kitt had last been issued a withdrawal order, the inspector modified the citation to a Section 104(d)(2) order of withdrawal.
After an administrative law judge of the Federal Mine Safety and Health Review Commission (Commission) upheld the withdrawal order, Kitt petitioned for discretionary review by the Commission itself. The Commission overturned the order. It noted that there had been multiple inspections of the Kitt No. 1 Mine since the prior withdrawal order and held that the Secretary of Labor had failed to meet his burden of proving that there had been no intervening “clean” inspection of the mine as required under Section 104(d)(2). 30 U.S.C. § 814(d)(2).
The collective bargaining representative of the miners at the Kitt No. 1 Mine, the United Mine Workers (UMWA), which was not a party to the proceedings below, now petitions for review of the Commission decision. The Secretary of Labor appeared as amicus curiae.
Statutory Framework
This case involves the proper interpretation of Section 104(d)(2) of the Act, 30 U.S.C. § 814(d)(2). This section is part of a comprehensive legislative scheme which empowers the Secretary of Labor to promulgate mandatory health and safety standards for mines and requires the Secretary, acting through MSHA, to conduct mine inspections.
Section 103(a) of the Act, 30 U.S.C. § 813(a), requires the Secretary to conduct frequent inspections of mines to determine if they are in compliance with mandatory health and safety standards. For underground coal mines, the inspections must include four “regular” inspections each year, during which the mine is inspected in its entirety. In addition, Section 103(a) requires the Secretary to “develop guidelines for additional inspections of mines.” Pursuant to these guidelines, the Secretary of Labor conducts numerous “spot” inspections, also known as special or technical inspections, which focus on particular kinds of safety hazards (electrical, structural, mechanical, toxic fumes, etc.).
When an inspection reveals that a mine operator has violated the Act or a mandatory health or safety standard thereunder, the Secretary must, “with reasonable promptness, issue a citation to the operator” which must “fix a reasonable time for the abatement of the violation.” Section 104(a), 30 U.S.C. § 814(a).
Under section 104(d) of the Act, 30 U.S.C. § 814(d), the Secretary is required specially to note when a violation is “caused by an unwarrantable failure of [the mine] operator to comply with ... mandatory health and safety standards.” An “unwarrantable failure” citation commences a probationary period: If a second violation resulting from an “unwarrantable failure” is found within 90 days, the Secretary must issue a “withdrawal order” requiring the mine operator to remove all persons from the area (except those needed to fix the problem) until the violation has been abated. Such withdrawl orders are among the Secretary’s most powerful instruments for enforcing mine safety.
Once a withdrawal order has been issued, any subsequent unwarrantable failure results in another such order. This “chain” of withdrawal order liability remains in effect until broken by an intervening “clean” inspection. That is, “an inspection of such mine [which] discloses no similar violations.” 30 U.S.C. § 814(d)(2).
The Present Petition
Before the Commission, the Secretary argued that only a complete regular inspection could constitute an intervening “clean” inspection sufficient to break a withdrawal order liability “chain.” The Commission rejected this argument, ruling that a “clean” inspection could be comprised of any type of inspection (“regular” or “spot”) or any combination of various inspections, so long as the mine was completely inspected. On this basis, the Commission reversed the withdrawal order, holding:
Because of his view that a complete regular inspection was necessary to remove the operator from the effect of section 104(d)(2), maintained despite CF & I, U.S. Steel, and Old Ben [see supra, note 1], the Secretary did not attempt to establish that portions of Kitt’s mine had gone uninspected since the issuance of the [previous withdrawal] order. Therefore, the Secretary failed to establish an essential element of his prima facie case.
Secretary of Labor v. Kitt Energy Corp., mem. op. at 6 (July 18, 1984), reprinted in Joint Appendix (J.A.) at 100.
In this appeal, neither the UMWA nor the Secretary of Labor any longer argues that only a complete regular inspection can break a withdrawal order liability “chain.” They acknowledge that portions of regular inspections, as well as spot inspections, can break the “chain” if these inspections, cumulatively, cover the entire mine and examine for all hazards.
However, the UMWA and the Secretary read the Commission’s decision as holding that an inspector’s physical presence in each area of the mine — regardless of the object of the inspection or the hazards actually examined for in each particular area— qualifies as an intervening “clean” inspection. Based on this reading, they request this Court to reverse the Commission’s decision and remand the case for renewed consideration.
While portions of the Commission’s decision appear to support such a reading, we do not attribute to the Commission such a mechanical interpretation of the statute. The Commission is well aware that many, if not most, safety hazards in a mine are neither obvious nor even visible.
To cite some examples: To determine whether a mine is complying with its roof control plan, an inspector generally must consult a copy of that plan — merely walking through the mine tells him nothing! To determine whether there are unsafe concentrations of gases or dust an inspector must employ special monitoring equipment. Likewise, an electrical inspector may notice a mechanical violation that is out in the open, but an inspector examining a mine’s roof support system is unlikely to open an electrical junction box to see whether the wiring inside is safe.
Congress’ intent was that the withdrawal order liability “chain” should remain in effect “until an inspection of the mine in its entirety shows ‘no similar violations.’ ” S.Rep. No. 181, 95th Cong., 1st Sess. 31 (1977), U.S.Code Cong. & Admin.News, 1977 p. 3401. The Mine Act provides for safeguards against unseen, as well as visible, hazards. To hold that the Secretary need only inspect for obvious hazards to break the “chain” would disregard those safeguards.
The only rational reading of the intervening “clean” inspection requirement is that all areas of a mine must be inspected for all hazards during the time period in question — a question to be decided on a case-by-case basis. We find no indication that the Commission has adopted any different interpretation of Section 104(d).
Accordingly, UMWA’s petition is denied.
. This was consistent with Commission precedent. See Old Ben Coal Corp., 3 FMSHRC 1186 (May 18, 1981); U.S. Steel Corp., 3 FMSHRC 5 (January 9, 1981); CF & I Steel Corp., 2 FMSHRC 3459 (December 2, 1980).
. The Commission wrote:
The fact that during a particular inspection an inspector may give emphasis to particular types of hazards does not serve to place blinders on the inspector or prevent the issuance of citations for other violations. For example, an inspector is required to cite roof control violations he observes even if he is present for an electrical inspection.
Secretary of Labor v. Kitt Energy Corp., supra, mem. op. at 4, reprinted in J.A. at 98.
. The mechanical violation that triggered the withdrawal order under review was cited by an inspector conducting an “electrical” spot inspection.
Question: What is the total number of appellants in the case that fall into the category "fiduciaries"? Answer with a number.
Answer:
|
songer_usc1sect
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1125
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 15. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".
U.S. HEALTHCARE, INC., United States Health Care Systems of Pennsylvania, Inc. and Health Maintenance Organization of New Jersey, Inc., Appellants in 88-1180, v. BLUE CROSS OF GREATER PHILADELPHIA, Pennsylvania Blue Shield and David Markson. Appeal of BLUE CROSS OF GREATER PHILADELPHIA (“BLUE CROSS”) and Pennsylvania Blue Shield (“Blue Shield”), in No. 88-1205.
Nos. 88-1180, 88-1205.
United States Court of Appeals, Third Circuit.
Argued Oct. 18, 1988.
Decided March 9, 1990.
Rehearing and Rehearing In Banc Denied April 4, 1990.
David F. Simon (argued), David I. Book-span, Gary L. Leshko, Wolf, Block, Schorr & Solis-Cohen, Philadelphia, Pa., for appellants-cross-appellees, U.S. Healthcare, Inc., U.S. Health Care Systems of Pennsylvania, Inc. and Health Maintenance Organization of New Jersey, Inc.
Jay H. Calvert, Jr. (argued), John H. Lewis, Jr., Ronald B. Hauben, Morgan, Lewis & Bockius, Philadelphia, Pa., for ap-pellees-cross-appellants, Blue Cross of Greater Philadelphia and David S. Mark-son.
Henry Kolowrat, Dechert, Price & Rhoads, Philadelphia, Pa., James A. Young (argued), Timothy I. McCann, Sprecher, Felix, Visco, Hutchison & Young, Philadelphia, Pa., for appellee-cross-appellant, Pennsylvania Blue Shield.
Before STAPLETON, SCIRICA and COWEN, Circuit Judges.
OPINION OF THE COURT
SCIRICA, Circuit Judge.
U.S. Healthcare, Inc. and its subsidiaries, United States Health Care Systems of Pennsylvania, Inc. and Health Maintenance Organization of New Jersey, Inc. (collectively, “U.S. Healthcare”), appeal from the district court’s post-trial entry of judgment in favor of Blue Cross of Philadelphia, its president David Markson, and Pennsylvania Blue Shield (collectively, “Blue Cross/Blue Shield”), directed under Fed.R. Civ.P. 50(b) on U.S. Healthcare’s federal and pendent state law claims alleging violations of § 43(a) of the Lanham Act, 15 U.S.C. § 1125(a) (1982), commercial disparagement, defamation and tortious interference with contractual relations. Blue Cross/Blue Shield, in turn, appeals from the entry of judgment on the verdict in favor of U.S. Healthcare on Blue Cross/Blue Shield’s counterclaims alleging the same causes of action brought by U.S. Healthcare. Additionally, Blue Cross/Blue Shield appeals the pre-trial dismissal of the abuse of process counts in its counterclaims. We will reverse the grant of the Rule 50(b) motions, the judgment on the verdict in favor of U.S. Healthcare on Blue Cross/Blue Shield’s counterclaims and the dismissal of the counts on abuse of process.
I.
FACTS AND PROCEDURAL HISTORY
These cross appeals arise from a comparative advertising war between giants of the health care industry in the Delaware Valley — U.S. Healthcare on the one side and Blue Cross/Blue Shield on the other. The thrust of these claims is that each side asserts the other’s advertising misrepresented both parties’ products.
For over fifty years, Blue Cross/Blue Shield operated as the largest health insurer in Southeastern Pennsylvania by offering “traditional” medical insurance coverage. Traditional insurance protects the subscriber from “major” medical expenses, with the insurer paying a negotiated amount based upon the services rendered, and the subscriber generally paying a deductible or some other amount. The subscriber has freedom in choosing hospitals and health care providers (i.e., doctors).
In the early 1970’s, U.S. Healthcare began providing an alternative to traditional insurance in the form of a health maintenance organization, generically known as an “HMO.” An HMO acts as both an insurer and a provider of specified services that are more comprehensive than those offered by traditional insurance. Generally, HMO subscribers choose a primary health care provider from the HMO network who coordinates their health care services and determines when hospital admission or treatment from a specialist is required. Usually, subscribers are not covered for services obtained without this permission or from providers outside this network. By 1986, U.S. Healthcare was the largest HMO in the area, claiming almost 600,000 members. During the same period, Blue Cross/Blue Shield experienced a loss in enrollment of over 1% per year, with a large number of those subscribers choosing HMO coverage over traditional insurance, and a majority of those defectors choosing a U.S. Healthcare company.
Blue Cross/Blue Shield considered a number of strategies to regain its market position, including the acquisition of its own HMO. In late 1985, in an admitted attempt to compete with HMO, Blue Cross/Blue Shield introduced a new product that it called “Personal Choice,” known generically as a preferred provider organization or “PPO.” PPO insurance provides subscribers with a “network” of health care providers and hospitals, and generally “covers” subscribers only for services obtained from the network providers and administered at the network hospitals. Subscribers must obtain permission to receive treatment from providers outside the network, and in such instances receive at most only partial coverage.
Thereafter, Blue Cross/Blue Shield consulted with two separate advertising agencies before arriving at a marketing strategy for its new product. In July 1986, Blue Cross/Blue Shield launched what it termed a deliberately “aggressive and provocative” comparative advertising campaign calculated “to introduce and increase the attractiveness of its products” — in particular, Personal Choice — at the expense of HMO products. Blue Cross/Blue Shield’s campaign, which included direct mailings, as well as television, radio and print advertisements, ran for about six months at a total cost of approximately $2,175 million. According to a Blue Cross memorandum that purported to reflect the directions of Markson, the campaign was designed specifically to “reduce the attractiveness of [HMO].”
The Blue Cross/Blue Shield advertising campaign consisted of eight different advertisements for the print media, seven different advertisements for television, three different advertisements for radio, and a direct mailing including a folding brochure. The eight print advertisements compare the features of HMO and Personal Choice. Seven of the eight represent that with HMO, the subscriber selects a “primary care physician” who, in turn, must give permission before HMO will provide coverage for examination by a specialist. (The eighth print advertisement simply states that with Personal Choice, the subscriber may be examined by a specialist whenever he chooses, without “permission.”) After describing HMO’s referral procedure, however, three of the eight print advertisements — as well as the brochure — say the following:
You should also know that through a series of financial incentives, HMO encourages this doctor to handle as many patients as possible without referring to a specialist. When an HMO doctor does make a specialist referral, it could take money directly out of his pocket. Make too many referrals, and he could find himself in trouble with HMO.
One of the print advertisements and the brochure also feature a senior citizen under the banner heading “Your money or your life,” juxtaposed with Blue Cross/Blue Shield’s description of “The high cost of HMO Medicare.”
Of the seven television advertisements run by Blue Cross/Blue Shield, four are innocuous, mentioning HMO only in the closing slogan common to all seven of the ads: “Personal Choice. Better than HMO. So good, it’s Blue Cross and Blue Shield.” The fifth features an indignant every man, who simply states “I resent having to ask my HMO doctor for permission to see a specialist,” before a spokesperson extols the benefits of Personal Choice without reference to HMO until, again, the closing slogan. The sixth features a cab driver who says, “I don’t like those HMO health plans. You get one doctor, no choice of hospitals,” before a shopper tells him about the virtues of Personal Choice — again, without reference to HMO until the closing slogan. The seventh television advertisement used by Blue Cross/Blue Shield, while following the same general format, seems to us a dramatic departure from the others in that it appears consciously designed to play upon the fears of the consuming public. The commercial features a grief-stricken woman who says, “The hospital my HMO sent me to just wasn’t enough. It’s my fault.” The implication of the advertisement is that some tragedy has befallen the woman because of her choice of health care.
The three radio advertisements of Blue Cross/Blue Shield compare the features of HMO and Personal Choice. All represent that HMO limits choice of hospitals and physicians and requires plan permission to see a specialist, but that Personal Choice provides unlimited choice of network hospitals and physicians and affords unrestricted access to specialists.
U.S. Healthcare responded immediately to Blue Cross/Blue Shield’s promotional campaign. Within a week, U.S. Healthcare filed suit in Philadelphia County Court of Common Pleas alleging commercial disparagement, defamation and tortious interference with contractual relations. U.S. Healthcare also issued concurrent press releases describing the basis of the litigation. In addition, the company embarked upon its own aggressive, comparative advertising blitz.
The responsive advertising campaign, which began sometime after the Blue Cross/Blue Shield campaign and ran until late February 1987, cost $1,255 million. U.S. Healthcare’s campaign consisted of five different advertisements for the print media, four different television advertisements, and two different radio advertisements. Of these, two advertisements were adapted for all three media as a response to Blue Cross/Blue Shield’s most serious criticisms.
The first of these multi-media advertisements — apparently attempting to counteract the Blue Cross/Blue Shield message that HMO doctors sacrificed quality of care for higher profit — emphasizes the length to which U.S. Healthcare will go to provide its subscribers with the best treatment available. It features an HMO doctor with a little girl who, it quickly becomes apparent, is both very healthy and a former HMO patient. While the exact text varies according to the medium, all versions feature the HMO doctor saying that this girl, who required a unique wrist operation, was sent to Baltimore to be operated on by “the best [surgeon] in the country” rather than one of HMO’s fine surgeons.
The second multi-media advertisement addresses HMO’s practice of allowing examination by specialists only when the subscriber is referred by his primary care physician. The advertisement features just such a physician, explaining that the purpose of a primary care physician is to help the subscriber decide what type of specialist should be consulted, so that the subscriber can be sure of receiving the treatment he needs. Neither multi-media advertisement makes any reference to Blue Cross/Blue Shield.
U.S. Healthcare’s responsive campaign did not just highlight the positive characteristics in its own product, but also featured “anti-Blue Cross” advertisements. Of the three remaining print advertisements, one simply shows a comparative list of the features available under HMO and Personal Choice, with a banner heading that reads “It’s your choice.” The other two explain that under Personal Choice, the number of hospitals available to the subscriber is limited and, moreover, that many Personal Choice doctors do not have admitting privileges at even those few. One of these advertisements ran under a banner heading of “When it Comes to Being Admitted to a Hospital, There’s Something Personal Choice May Not Be Willing to Admit”; the other ran under a banner heading of “If You Really Look Into ‘Personal Choice,’ You Might Have a Better Name For It.”
One of the two remaining television advertisements shows a person flipping through the Hospitals and Physicians Directory of Personal Choice, pointing out the “gray area” of physicians without admitting privileges — essentially making the same point as the two print advertisements. The final television commercial was U.S. Healthcare’s own attempt to play upon the fears of the consuming public. As solemn music plays, the narrator lists the shortcomings of Personal Choice while the camera pans from a Personal Choice brochure resting on the pillow of a hospital bed to distraught family members standing at bedside. The advertisement closes with a pair of hands pulling a sheet over the Personal Choice brochure.
Thereafter, U.S. Healthcare re-filed its state claims in federal court in the Eastern District of Pennsylvania, adding its § 43(a) Lanham Act claim. Federal subject matter jurisdiction was premised on the assertion of a federal question, 28 U.S.C. § 1331 (1982), and on claims of unfair competition, 28 U.S.C. § 1338(a) (1982). Pendant jurisdiction was exercised over the state law claims. Blue Cross/Blue Shield counterclaimed on the same theories of liability, while also alleging abuse of process and malicious use of process. Before trial, the district court dismissed the abuse of process and malicious use of process counts in Blue Cross/Blue Shield’s counterclaims.
After a fourteen-day trial, followed by eight days of deliberations, the jury announced it was deadlocked on all issues of liability and damages. The district court declared a mistrial and then, before excusing the jurors, invited them to share their thoughts on the case for the benefit of the lawyers. It became apparent that, with regard to the counterclaims, the jurors were not far from unanimity. Consequently, the district court sent the jury back to deliberate whether Blue Cross/Blue Shield could recover damages on its counterclaims. Only then did the jury return a verdict against Blue Cross/Blue Shield on its counterclaims. The district court thereafter entered judgment for U.S. Healthcare on the counterclaims and scheduled a new trial on U.S. Healthcare’s own claims.
The case was never retried. Instead, Blue Cross/Blue Shield filed a motion under Fed.R.Civ.P. 50(b) requesting the court to direct entry of judgment in its favor, on the grounds that the advertisements were entitled to heightened constitutional protection under the First Amendment, and that U.S. Healthcare had not met the applicable standard of proof, set forth in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), et seq. The district court granted the motion. U.S. Healthcare, Inc. v. Blue Cross, No. 86-6452, 1988 WL 21830 (E.D.Pa. Mar. 7, 1988). The court held that because the objects of the advertisements are “public figures,” and because the matters in the advertisements are “community health issues of public concern,” heightened constitutional protections attach to this speech. The court reasoned that the First Amendment limited the power of the state and of Congress to award damages resulting from the allegedly false and misleading advertisements. Accordingly, the district court held that in order to prevail on their respective claims of Lanham Act violation, commercial disparagement, defamation and tor-tious interference with contract, both parties were required to prove each claim by clear and convincing evidence: (1) that the other side published the advertisements with knowledge or with reckless disregard of their falsity, and (2) that the advertisements were false. Applying this standard of proof, the court concluded that “[ajlthough the jury could reasonably have concluded that both sides had proven falsity and actual malice by a preponderance of the evidence, neither side has presented clear and convincing evidence [of this].”
This appeal followed.
II.
THE ACTIONABLE CLAIMS AND COUNTERCLAIMS UNDER APPLICABLE SUBSTANTIVE FEDERAL AND STATE LAW
We note initially that federal law governs the substantive issues of the parties’ Lanham Act claims, while Pennsylvania law governs the commercial disparagement, defamation and tortious interference with contract claims. Although the district court granted the Rule 50(b) motions on constitutional grounds, we must first determine whether the statements are actionable under the substantive law governing the case before addressing whether the First Amendment prohibits the imposition of liability, since a determination of the former may obviate the need to examine the latter. See McDowell v. Paiewonsky, 769 F.2d 942, 945 (3d Cir.1985); Avins v. White, 627 F.2d 637, 642 (3d Cir.), cert. denied, 449 U.S. 982, 101 S.Ct. 398, 66 L.Ed.2d 244 (1980); Steaks Unlimited, Inc. v. Deaner, 623 F.2d 264, 270 (3d Cir.1980). Furthermore, Blue Cross/Blue Shield argues that the “challenged advertisements are not actionable regardless of the standard of proof.” Therefore, we turn to the federal and state substantive law governing the parties’ claims to determine whether there might exist a genuine issue of material fact.
A. Applicable Federal and Pennsylvania Common Law.
As a threshold matter, we note that the burden of proof for the applicable substantive law is a preponderance of the evidence. On appeal, the parties contest the burden of proof on the Lanham Act claim only. Unless New York Times applies, the burden of proof here is a preponderance of the evidence.
1. Section 43(a) of The Lanham Act.
Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a) (1988), which was recently amended, creates a cause of action for any false description or representation of a product. This proscription extends to misleading descriptions or representations. Id.; see Ames Publishing Co. v. Walker-Davis Publications, Inc., 372 F.Supp. 1, 11 (E.D.Pa.1974); see also McNeilab, Inc. v. Bristol-Myers Co., 656 F.Supp. 88, 90 (E.D.Pa.1986). “While it has been stated that a failure to disclose facts is not actionable under § 43(a), it is equally true that a statement is actionable under § 43(a) if it is affirmatively misleading, partially incorrect, or untrue as a result of failure to disclose a material fact.” 2 J. McCarthy, Trademarks and Unfair Competition § 27:7B (2d ed. 1984).
The pre-amendment version, which controlled when the district court considered the matter, applied only to statements made by a defendant about its own products, not to statements about the plaintiffs products. Eden Toys, Inc. v. Florelee Undergarment Co., 697 F.2d 27, 37 (2d Cir.1982); Bernard Food Indus., Inc. v. Dietene Co., 415 F.2d 1279, 1283 (7th Cir.1969), cert. denied, 397 U.S. 912, 90 S.Ct. 911, 25 L.Ed.2d 92 (1970). As amended, however, § 43(a) encompasses statements made by a defendant about “his or her or another person’s” products. 15 U.S.C. 1125(a) (emphasis added).
When analyzing a challenged advertisement, the court first determines what message is conveyed. Plough, Inc. v. Johnson & Johnson Baby Prods. Co., 532 F.Supp. 714, 717 (D.Del.1982); McCarthy § 27:7B. Sometimes this determination may be made from the advertisement on its face. Stiffel Co. v. Westwood Lighting Group, 658 F.Supp. 1103, 1110 (D.N.J.1987); e.g., Ames Publishing, 372 F.Supp. at 12. Nonetheless, “[cjontext can often be important in discerning the message conveyed.” Plough, 532 F.Supp. at 717.
After determining the message conveyed, the court must decide whether it is false or misleading. Stiffel, 658 F.Supp. at 1110; McCarthy § 27:7B; see Plough, 532 F.Supp. at 717. Mere puffing, advertising “ ‘that is not deceptive for no one would rely on its exaggerated claims,’ ” is not actionable under § 43(a). Toro Co. v. Tex-tron, Inc., 499 F.Supp. 241, 253 n. 23 (D.Del.1980) (quoting 1 R. Callmann, Unfair Competition, Trademarks and Monopolies § 19.2(b)(2) (3d ed. 1967 & 1979 Supp.)). If the advertisement is literally true, the plaintiff “must persuade the court that the persons ‘to whom the advertisement is addressed’ would find that the message received left a false impression about the product.” Id. at 251 (citation omitted); see Stiffel, 658 F.Supp. at 1110. Finally, establishing lack of substantiation of defendant’s claim is insufficient without also establishing falsity or deception. Toro, 499 F.Supp. at 253.
The plaintiff must also show that defendant’s misrepresentation is “ ‘material, in that it is likely to influence the purchasing decision.’ ” Id. at 251 (citation omitted); see McCarthy § 27:4D. However, “there is no requirement that the falsification occur wilfully and with intent to deceive.” Parkway Baking Co. v. Freihofer Baking Co., 255 F.2d 641, 648 (3d Cir.1958).
Next, § 43(a) requires that the defendant use the false or misleading description or representation “in commerce.” 15 U.S.C. § 1125(a); see SK & F, Co. v. Premo Pharmaceutical Laboratories, Inc., 625 F.2d 1055, 1065 (3d Cir.1980). The commerce requirement has been broadly interpreted. McCarthy § 27:6C.
Finally, § 43(a) provides a remedy to one who “is or is likely to be damaged by [the false or misleading description or representation].” 15 U.S.C. § 1125(a). To' recover damages, a plaintiff must show that the “falsification [or misrepresentation] actually deceives a portion of the buying public.” Parkway Baking, 255 F.2d at 648; Walker-Davis Publications, Inc. v. Penton/IPC, Inc., 509 F.Supp. 430, 435 (E.D.Pa.1981) (citing Parkway Baking). “This does not place upon the plaintiff a burden of proving detailed individualization of loss of sales. Such proof goes to quantum of damages and not to the very right to recover.” Parkway Baking, 255 F.2d at 648.
Judge Poliak has summarized well this area of the law in the following test:
1) that the defendant has made false or misleading statements as to his own product [or another’s]; 2) that there is actual deception or at least a tendency to deceive a substantial portion of the intended audience; 3) that the deception is material in that it is likely to influence purchasing decisions; 4) that the advertised goods travelled in interstate commerce; and 5) that there is a likelihood of injury to the plaintiff in terms of declining sales, loss of good will, etc.
Max Daetwyler Corp. v. Input Graphics, Inc., 545 F.Supp. 165, 171 (E.D.Pa.1982) (citing American Home Prods. Corp. v. Johnson & Johnson, 577 F.2d 160, 165-66 (2d Cir.1978)).
2. Defamation.
Under Pennsylvania law, a defamatory statement is one that “ ‘tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.’ ” Birl v. Philadelphia Elec. Co., 402 Pa. 297, 303, 167 A.2d 472 (1960) (quoting Restatement of Torts § 559 (1938)); accord Thomas Merton Center v. Rockwell Int’l Corp., 497 Pa. 460, 464, 442 A.2d 213 (1981), cert. denied, 457 U.S. 1134, 102 S.Ct. 2961, 73 L.Ed.2d 1351 (1982). It is for the court to determine, in the first instance, whether the statement of which the plaintiff complained is capable of a defamatory meaning; if the court decides that it is capable of a defamatory meaning, then it is for the jury to decide if the statement was so understood by the reader or listener. Corabi v. Curtis Publishing Co., 441 Pa. 432, 442, 273 A.2d 899 (1971). To ascertain the meaning of an allegedly defamatory statement, the statement must be examined in context. Baker v. Lafayette College, 516 Pa. 291, 296, 532 A.2d 399 (1987).
The test is the effect the [statement] is fairly calculated to produce, the impression it would naturally engender, in the minds of the average persons among whom it is intended to circulate. The words must be given by judges and juries the same signification that other people are likely to attribute to them.
Corabi, 441 Pa. at 447, 273 A.2d 899 (citation omitted). Opinion that fails to imply underlying defamatory facts cannot support the cause of action. Baker, 516 Pa. at 297, 532 A.2d 399.
In an action for defamation, the plaintiff has the burden of proving 1) the defamatory character of the communication; 2) its publication by the defendant; 3) its application to the plaintiff; 4) an understanding by the reader or listener of its defamatory meaning; and 5) an understanding by the reader or listener of an intent by the defendant that the statement refer to the plaintiff. 42 Pa. Cons. Stat. § 8343(a)(l)-(5) (1988). Additionally, in order to recover damages, the plaintiff must demonstrate that the statement results from fault, amounting at least to negligence, on the part of the defendant. Geyer v. Steinbronn, 351 Pa.Super. 536, 554-55, 506 A.2d 901 (1986); Rutt v. Bethlehems’ Globe Publishing Co., 335 Pa.Super. 163, 186, 484 A.2d 72 (1984); 42 Pa. Cons. Stat. § 8344 (1988). Finally, the plaintiff has the burden of proving any special harm resulting from the statement. 42 Pa. Cons. Stat. § 8343(a)(6) (1988); see Restatement of Torts § 575 comment b (defining special harm).
The defendant, in turn, can defend against a defamation action by proving the truth of the statement, that the subject matter of the statement was of public concern, or that the occasion on which the statement was made or published was of privileged character. Spain v. Vicente, 315 Pa.Super. 135, 140, 461 A.2d 833 (1983); 42 Pa. Cons. Stat. § 8343(b) (1988); cf. Corabi, 441 Pa. at 450 n. 6, 273 A.2d 899. When the last of these defenses is raised, the burden shifts to the plaintiff to show abuse of the conditionally privileged occasion. Baird v. Dun & Bradstreet, Inc., 446 Pa. 266, 275, 285 A.2d 166 (1971); Rutt, 335 Pa.Super. at 186-87, 484 A.2d 72; 42 Pa. Cons. Stat. § 8343(a)(7) (1988).
3. Commercial Disparagement.
A commercially disparaging statement — in contrast to a defamatory statement — is one “which is intended by its publisher to be understood or which is reasonably understood to cast doubt upon the existence or extent of another’s property in land, chattels or intangible things, or upon their quality, ... if the matter is so understood by its recipient.” Menefee v. Columbia Broadcasting Sys., Inc., 458 Pa. 46, 54, 329 A.2d 216 (1974) (quoting Restatement of Torts § 629 (1938)). In order to maintain an action for disparagement, the plaintiff must prove 1) that the disparaging statement of fact is untrue or that the disparaging statement of opinion is incorrect; 2) that no privilege attaches to the statement; and 3) that the plaintiff suffered a direct pecuniary loss as the result of the disparagement. See Menefee, 458 Pa. at 53, 329 A.2d 216 (quoting Restatement of Torts introductory note to Chapter 28).
The distinction between actions for defamation and disparagement turns on the harm towards which each is directed. An action for commercial disparagement is meant to compensate a vendor for pecuniary loss suffered because statements attacking the quality of his goods have reduced their marketability, while defamation is meant protect an entity’s interest in character and reputation. In Menefee, the Pennsylvania Supreme Court made the following observation:
One of the most important purposes for which liability for the publication of matter derogatory to another’s personal reputation is imposed is to enable the person defamed to force his accuser into open court so that the accusation, if untrue, may be branded as false by the verdict of a jury. The action for disparagement has no such purpose and cannot be used merely to vindicate one’s title to or the quality of one’s possessions....
Id. (quoting Restatement of Torts introductory note to Chapter 28).
Given the similar elements of the two torts, deciding which cause of action lies in a given situation can be difficult. The Court of Appeals for the Eighth Circuit gave the following time-honored explanation of when impugnation of the quality of goods crosses the line from disparagement of products to defamation of vendors:
[Wjhere the publication on its face is directed against the goods or product of a corporate vendor or manufacturer, it will not be held libelous per se as to the corporation, unless by fair construction and without the aid of extrinsic evidence it imputes to the corporation fraud, deceit, dishonesty, or reprehensible conduct in its business in relation to said goods or product.
National Ref. Co. v. Benzo Gas Motor Fuel Co., 20 F.2d 763, 771 (8th Cir.), cert. denied, 275 U.S. 570, 48 S.Ct. 157, 72 L.Ed. 431 (1927).
An examination of state court decisions indicates that Pennsylvania law tracks the National Refining distinction. See, e.g., Cosgrove Studio and Camera Shop, Inc. v. Pane, 408 Pa. 314, 319, 182 A.2d 751 (1962) (defamation action lay when competitor’s advertisement accused plaintiff of using unnecessary haste and unskilled workmanship in development of customers’ film, resulting in its ruin, and implied plaintiff was dishonest in its business practice by inflating prices); Will v. Press Publishing Co., 309 Pa. 539, 544, 164 A. 621 (1932) (defamation action lay for accusation that plaintiff did not pay accounts of his business, as words implied dishonesty); Pfeifly v. Henry, 269 Pa. 533, 535, 112 A. 768 (1921) (defamation action lay for statement that plaintiff miller dishonestly weighed flour he sold); see also Steaks Unlimited, Inc. v. Deaner, 623 F.2d 264, 271 (3d Cir.1980) (news report that plaintiff corporation deceived customers as to both price and quality of its product capable of defamatory meaning under Pennsylvania law).
4. Tortious Interference with Contract
The Restatement of Torts described this tort fifty years ago: “[O]ne who, without a privilege to do so, induces or otherwise purposely causes a third person not to (a) perform a contract with another, or (b) enter into or continue a business relation with another is liable to the other for the harm caused thereby.” Restatement of Torts § 766 (1939). Pennsylvania has adopted this prescription while recognizing two distinct branches of the tort: one concerning existing contractual rights, and another regarding prospective contractual relations.
Regarding existing contractual rights, the Pennsylvania Supreme Court has adopted the test set forth in the Restatement (Second) of Torts:
One who intentionally and improperly interferes with the performance of a contract (except a contract to marry) between another and a third person by inducing or otherwise causing the third person not to perform the contract, is subject to liability to the other for the pecuniary loss resulting to the other from the third person’s failure to perform the contract.
Adler, Barish, Daniels, Levin and Creskoff v. Epstein, 482 Pa. 416, 431, 393 A.2d 1175 (1978), cert. denied, 442 U.S. 907, 99 S.Ct. 2817, 61 L.Ed.2d 272 (1979); accord Daniel Adams Assocs., Inc. v. Rimbach Publishing, Inc., 360 Pa.Super. 72, 78, 519 A.2d 997 appeal denied, 517 Pa. 599, 535 A.2d 1057 (1987). Thus, as a threshold matter, a contract right must be established. Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 208, 412 A.2d 466 (1979). In determining the propriety of the actor’s conduct, the court is “guided” by the following factors from the Restatement (Second) of Torts:
(a) The nature of the actor’s conduct,
(b) The actor’s motive,
(c) The interests of the other with which the actor’s conduct interferes,
(d) The interests sought to be advanced by the actor,
(e) The proximity or remoteness of the actor’s conduct to the interference and
(f) The relations between the parties.
Adler, Barish, 482 Pa. at 433, 393 A.2d 1175.
With respect to prospective contractual relations, the following elements must be demonstrated:
(1) a prospective contractual relation;
(2) the purpose or intent to harm the plaintiff by preventing the relation from occurring;
(3) the absence of privilege or justification on the part of the defendant; and
(4) the occasioning of actual damage resulting from the defendant’s conduct
Question: What is the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 15? Answer with a number.
Answer:
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songer_district
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B
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What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable".
BUDER et al. v. FRANZ et al., and three other cases.
Circuit Court of Appeals, Eighth Circuit.
May 16, 1928.
Nos. 7903, 7904, 7906, 7911.
1. Action <@=>62 — Suit by remaindermen against trustees of life tenant before life tenant’s death, for accounting as to securities, held not premature, where trustees denied interest of remaindermen.
Where life tenant placed securities in trust under agreement that all of the life tenant’s property should be held by the trustees to be administered as part of life tenant’s estate, and trustees’ bond was fixed at an amount far below the worth of the securities, and trustees’ power extended to sale and transfer thereof, remaindermen had right to sue the trustees for an accounting before death of life tenant; trustees having refused accounting and denied remaindermen’s interest.
2. Judgment <©=>736 — Decree that life tenant was entitled to usufruct, benefit, income, profits, and earnings of property held not res judicata of right of remaindermen to have increases in corporate securities added to corpus of estate.
In suit brought by remaindermen in state court to determine nature and extent of their interests under devise, adjudication that testator’s widow became “entitled to all of the usufruct and benefit of all of the property of the said deceased, and to all the income, profits, and earnings thereof,” as life tenant, held not res judicata of right of remaindermen to have stock dividends and other increases in corporate securities decreed a part of the corpus of the estate, as distinguished from the property of the life tenant.
3. Judgment <©=>736 — Amount of bond required of trustees in suit by remaindermen held not res judicata of value of remaindermen’s in- ' terest.
Requirement by court, in remaindermen’s suit for determination of their interests under will, that trustees give bond in specified amount, held not res judicata of issue of value of remaindermen’s estate, where court made no finding that the amount of the bond was the amount of the value of the remainder of the estate or of the entire estate, and bond was given partly to protect the life tenant.
4. Estoppel <@=>78( I) — Remaindermen held not estopped to claim interest in property and securities held by life tenant’s trustees, by agreement for exercise of rights to purchase additional stock.
Agreement between trustees of life tenant, life tenant, and remaindermen for exercise of certain rights given by corporation, in which estate held stock, to take additional stock, and agreement to save trustees harmless in making advancements for purpose of exercising such rights, held not to estop remaindermen from asserting claims to remainder interest under will in property held by the trustees, since the right to subscribe for additional stock was that of the remaindermen, and not of the life tenant.
5. Trusts <©=>272(3) — Life tenant and her trus- ■ tee had no right to additional stock purchased pursuant to stock rights attached to stock constituting part of corpus of trust.
Rights given estate as stockholder to purchase additional stock in corporation constituted part of corpus of estate belonging to remainder-men, and only interest of life tenant therein was to the income from the stock purchased under such rights, if such purchase was by funds from the corpus of the trust, and life tenant and her trustees could not appropriate these rights through exercise thereof with the life tenant’s money.
6. Estoppel <©=>78(1) — Remaindermen held not estopped to assert interest in securities by agreement of life tenant, or by assumption of life tenant’s trustees, relative to exercise of rights to take additional stock.
Remaindermen held not estopped to assert interest in securities held by trustees of life tenant on account of agreement of life tenant that the stock distributed under exercise of rights to take additional stock might be treated as a partial distribution of her estate, or by assumption indulged in by trustees at time of agreement for exercise of right to take additional stock.
7. Trusts <©=>272(3) — Dividends on stock in trust estate are part of corpus of estate.
Stock dividends on stock held in trust estate are part of corpus, and not income from the estate.
8. Wills <@=>684(3) — Increase in stock in residuary estate through exchange and stock dividends held part of corpus, not passing to life tenant as income.
Under will whereby testator gave widow residue of estate during period of her natural life, and devised remainder in equal shares to his children after her death, shares of stock reeeived in exchange for shares constituting part of residuary estate, increase resulting in the exchange, and increase in amount of stock in form of stock dividends constituted part of corpus of estate, to be held for remaindermen, and did not pass to life tenant as income.
9. Wills <@=>684(3) — In absence of contrary direction, testator is' presumed to have bequeathed stock subject to regular action of corporation as regards determination of principal and income on stock.
Owner of stock may make such disposition thereof as he sees fit, but, where he has given no special direction on the question of what shall be considered principal and what income, it is presumed that he intended question should depend on the regular action of the corporation with regard to its shares.
10. Life estates <@=>5 — Life tenant is in a sense trustee for remaindermen, and is liable for waste.
Life tenant is, in a sense, a trustee for the remaindermen, with right to possess the property and enjoy income during lifetime, and with liability for waste to the corpus of the estate.
11. Executors and administrators <@=>3(I)— Remainderman, on life tenant’s death, takes directly without administration.
Remainderman, on death of life tenant, is entitled to receive directly property as to which tenant had only life estate and no administration can be had.
12. Trusts <@=>225 — Determination as to who shall bear expense of trustees’ bonds rests largely in sound discretion of chancellor!
Determination as to who shall pay expense of procuring bonds for trustees is matter resting largely in sound discretion of chancellor, expense being usually placed on trust estate.
13. Trusts <@=>225 — Court properly required remaindermen specifically protected by additional bond from life tenant’s trustees to bear expense of bond.
Where trustees appointed by life tenant to care for property of estate were required to give additional bond solely for protection of interests of specified remaindermen, requirement that the remaindermen so protected bear the expense of the bond was proper.
14. Trusts <@=>161 — Decree that life tenant’s trustees give joint bond for protection of remaindermen’s interests should be modified, by providing bond separate as to each interest at election of owners of such interests.
Where trial court in suit by remaindermen against life-tenant’s trustees for accounting required joint bond iu sum considerably below the value of the remaindermen’s interests, decree should be modified by giving remaindermen opportunity to require separate bonds in sums not exceeding that of the joint bond.
15. Trusts <@=>227 — Life tenant’s trustees, denying right of remaindermen, held chargeable individually with costs in accounting suit by remaindermen.
In suit by remaindermen against life tenant’s trustees for an accounting as to remaindermen’s interest, which the trustees and life tenant denied, trustees, whose course of conduct compelled litigation, were properly chargeable with costs in their individual capacity, on re- • maindermen’s.recovery.
Appeal from the District Court of the United States for the Eastern District of Missouri; Charles B. Faris, Judge.
Suit by Ehrhardt W. Franz against Gustavus A. Buder, the Mississippi Valley Trust Company, as administrator of the estate of Walter G. Franz, deceased, Earl F. Nelson, as guardian ad litem, and others, in which -the two defendants last named and others joined in the plaintiff’s prayer for relief. From the decree, the defendant first named and others appeal, and plaintiff and the two last-named defendants and others cross-appeal.
Modified and affirmed.
Osear E. Buder and G. A. Buder, Jr., both of St. Louis, Mo. (A. W. Wenger and E. E. Schowengerdt, both of St. Louis, Mo., on the brief), for Gustavus A. Buder and others.
S. Mayner Wallace, of St. Louis, Mo. (Allen MeReynolds, of Carthage, Mo., on the brief), for Ehrhardt W. Franz.
T. M. Pierce, of St. Louis, Mo. (Samuel H. Liberman, of St. Louis, Mo., John B. Hollister, of Cincinnati, Ohio-, and A. Holt Roudebush, of St. Louis, Mo., on the brief), for Mississippi Valley Trust Co.
Earl F. Nelson, of St. Louis, Mo. (Wilfley, Williams, McIntyre & Nelson, of St. Louis, Mo., on the brief), for Earl F. Nelson.
Before STONE and VAN VALKENBURGH, Circuit Judges, and PHILLIPS, District Judge.
STONE, Circuit Judge.
This litigation has been before this court three times — once, on questions of jurisdiction and parties (11 F. [2d] 854); once, on questions of practice and procedure, involving the modification of the order of this court on the above appeal (11 F.[2d] 854, 858); once, on an ancillary bill to protect and preserve the jurisdiction of the trial court (15 F.[2d] 797). The first trial was upon the merits but, as the decree thereon was a dismissal of the bill for lack of necessary and indispensable parties, there was no determination of the merits. On that appeal [our No. 7019,11 F.(2d) 854], counsel argued various points on the merits but, as this court, thought that necessary and indispensable parties were lacking, it did not examine the merits except so far as to answer the questions as to parties and jurisdiction. On the return to the trial court, the bill was amended bringing in all interested parties .and the second trial and decree were upon the merits. Generally speaking, the result of that decree was to grant the relief sought in the bill and by the interveners. From that result, the main appeal herein is taken. There are cross-appeals on costs and concerning the bonds required to be given under the decree. •
I. The Main Appeal.
These appellants argue their assignments under five headings. There is no material conflict in the evidence. The issues are as to the legal effect of the evidence. For an understanding of these issues an outline will be given of the material evidence with such further detailed statement, in connection with each issue, as may be necessary to develop the situation.
Prior to February 11, 1898, Ehrhardt D. Franz died testate in St. Louis, Mo., leaving an estate consisting (besides household goods and a small amount of cash) of (1) an undetermined interest in bonds, inventoried at $2,543.50; (2) bonds, inventoried at $24,-750; (3) shares in various corporations, valued at $55,185; (4) notes, inventoried at $14,307.50; (5) insurance, inventoried at $1,000; (6) thirteen pieces of real estate. The residuary portion of his will was as follows :
“The rest, residue and remainder of my estate, whether real, personal or mixed property, I give, bequeath and devise unto my beloved wife Sophie Franz, for and during the period of her natural life.
“After the termination of the life estate of my wife, I give, bequeath and devise the remainder in equal shares, share and share alike, unto my children, Minna, Johanna, Ehrhardt, Ernest, Amanda, Gustav, Walter, Otto, Henrietta and Adelheide, and unto their heirs and assigns forever.”
The estate was administered; the executrix discharged on March 10, 1900; and the residuary assets turned over to the wife (Sophie Franz) who was then 59 years old.
Among the assets of the estate turned over to Sophie Franz (in 1898) were 210 shares of the American Arithmometer Company. Thereafter, that company declared stock dividends of a like amount and, still later, the Burroughs Adding Machine Company acquired the assets and business of the Arithmometer Company and exchanged 4,-200 of its shares for the above 420 shares in the Arithmometer Company. All of this took place by 1905.
January 30, 1909, Sophie Franz executed a trust agreement with G. A. Franz (one of the sons) and G. A. Buder (who had been counsel for the deceased, the estate, and later, of Mrs. Franz).. This instrument conveyed from her to Franz and Buder, as trustees:
“All her right, title and interest of every kind and nature of, in and to the following described stocks, bonds, notes, mortgages, deeds of trust, obligations, securities, and assets now held, owned and controlled by her in her own right as her absolute property, or as life tenant under the last will and testament of E. D. Franz, deceased, to which reference is hereby made, or whether held, owned or controlled in either one or both of said capacities and more particularly described as follows, to wit: * *
“3. Forty-two hundred (4200) shares of the capital stock of the Burroughs Adding Machine Company, evidenced by certificate No.-, issued to Sophie Franz, said certificate including and embracing two hundred ten (210) shares of the capital stock of the American Arithmometer Company of St. Louis, Missouri, of the par value of one hundred dollars ($100.00), per share, inventoried as part of the estate of E. D. Franz, deceased; the said American Arithmometer Company having changed its name to Burroughs Adding Machine Company, and being now located in the city of Detroit, Michigan, reference being hereby made to the inventory of the estate of the said E. D. Franz, deceased. * * *
“7. Any and all other assets, securities, bonds, stocks, notes) mortgages, deeds of trust, collaterals, commercial paper, or other obligations received, acquired, held or owned by the undersigned, under and by virtue of the last will and testament of Ehrhardt D. Franz, deceased, dated August 9th, 1897, and duly filed and admitted to probate in the probate court of the eity of St. Louis, Missouri, said court having jurisdiction of said estate, said will appearing of record in the recorder’s office, of said city of St. Louis, Missouri, in Book No. 1441, page 443, to which said last will and testament reference is hereby made, and the same by such reference for all necessary purposes made part thereof.”
The powers of the trustees were to collect and recover:
“All profits, and income, dividends, interest, earnings, and principal of the said stocks * * * or other assets, * * * and shall have and are hereby given. and granted full power and authority, so far as is possible under the will and testament of said Ehrhardt D. Franz, deceased, to sell, assign, exchange, transfer, convey, mortgage, pledge, incumber, or otherwise dispose of any or all of the said stocks, bonds, notes, obligations, mortgages, deeds of trust, collaterals, and securities, and the principal and proceeds thereof to them hereby transferred, assigned, conveyed and delivered, whenever in their judgment they deem it proper to do so,-upon such terms, conditions, and provisions as they may deem best and for the best interests of the trust estate of the undersigned hereby created.
“In ease of such conveyance, transfer, assignment, exchange, or other disposal of any of the assets, or any part of the assets, to them hereby conveyed, assigned, transferred, and delivered, they shall have and are hereby granted full power, right, and authority, and are hereby empowered, directed and authorized to invest and reinvest the proceeds of any such sale, transfer, or exchange, including principal, in such manner and in such form and securities as they may deem proper and for the best interests of said party of the first part and the trust estate hereby created.”
Also they were empowered:
“To expend, disburse, retain, and pay out of said trust estate and funds, any and all assessments, charges and taxes, ■whether general or special, attorneys’ fees, outlays, compensation, charges and costs of administration, necessary, incident or essential to and for the care, protection, preservation, administration, management and distribution of the assets hereby conveyed or hereafter acquired and are authorized and empowered to make, create, and pay all necessary debts, expenses and outlays for repairs, betterments, or improvements, which they may deem necessary or proper for the protection, preservation, improvement, sale or transfer of any and all real estate of which they may become owners as such trustees, whether acquired by foreclosure or otherwise, and are authorized and empowered to make any and all such other payments, outlays, and expenditures as they may deem necessary, expedient or proper for the protection of such real estate and the assets of such trust estate.”
Certain disbursements to Mrs. Franz and to the children (or their heirs) were provided for as follows: $4,000 annually “shall” be paid to Mrs. Franz “providing the income, rents, earnings, and profits of the estate which they may hold and securities hereby conveyed, admit of such payments being made,” with the power, in named emergencies, to “in their discretion increase said quarterly payment to her to such an amount, and for such time and upon such terms and conditions as they may deem best and proper”; after these payments to Mrs. Franz, the trustees “may pay” $625.00 quarterly to each of the ten children (or the heirs thereof) but:
“In the event the earnings, income, rents, receipts and profits received by said trustees are not sufficient to admit of such payment quarterly to each of the distributees above named and cannot be conveniently made, then the said trustees, after so making payment to said Sophie Franz, of one thousand dollars ($1,000.00) quarterly, or such other sum as they may deem necessary as aforesaid may pay to each of the said distributees such sum as they may deem proper, but in no event and under no circumstances shall the said payment encroach upon or impair the principal and assets of the trust estate hereby created.”
The instrument provided, also, that semiannual statements of the condition of the trust estate should be made to Mrs. Franz and:
“If it appears from the statement of said trustees that there remains on hand any earnings, income, rents, receipts and profits from the said trust estate, which have not been drawn by or set aside, or paid out for account of said Sophie Franz, or to the distributees above mentioned or otherwise expended as herein provided, such sums shall be invested and become and remain as part principal of said trust estate hereby created.”
The payments were to be made to Mrs. Franz during her life:
“And upon her death all these stocks, bonds, notes, collaterals, commercial paper, mortgages, deeds of trust, securities or other assets to them hereby conveyed or hereafter acquired or by them held, owned or controlled as such trustees, and any and all real estate by them acquired as such trustees, shall be held by them for account of the estate of said Sophie Franz, to be administered by the probate court of the city of St. Louis, Missouri, in accordance with the last will and testament of said Sophie Franz, and in accordance with the laws of the state of Missouri in such ease made and provided.”
The trustees were required to employ “Buder & Buder as their counsel and attorneys in the management and administration of said estate” and to appoint Oscar E. Buder (member of Buder & Buder) as the successor of either trustee. The certificates of stock in the Burroughs Company (and in two other companies — 30 shares of the Germania Savings Institution and 50 shares of the Third National Bank of St. Louis, Mo.) were to remain in a designated safety deposit box which could not be opened unless Mrs. Franz and both trustees were present-^he to have no power to remove any of such stock without “the consent and in the presence of both of said trustees.” What was to be done with other securities or valuable papers is not designated although 300 shares in two other companies and 20 bonds ($1,000 each) are described therein. Also an irrevocable power of attorney given the trustees to vote the Burroughs, Germania and Third National stock at all stockholders’ meetings and for all purposes — nothing said as to the stock in other companies. There was no requirement that any bond be given by the trustees.
About sixty days after this trust deed was executed, Ehrhardt W. Franz (one of the sons) brought an action in the state court, at St. Louis, Missouri, attacking the validity of the trust agreement, seeking to have it set aside, a receiver appointed and for other relief. The decree therein sustained and construed the trust agreement and required the trustees to give a bond of $100,000 “for the use and benefit of any and all parties interested in said trust estate” and to charge the cost and expense thereof to the trust estate.
Thereafter, dissention arose between Ehrhardt W. Franz (one of the sons) and the trustees which resulted in this suit. The parties defendant were Mrs. Franz, the trustees, the six children then living and the heirs, guardians of heirs and administrators (or executors) of three children who had died after the father, Ehrhardt D. Franz. The amended bill sets forth that the trust estate, coming from the estate of the father, exceeds three million dollars in value and includes 31,-500 non-par shares and 7,875 preferred shares in the Burroughs Adding Machine Company besides other stocks, bonds and securities; that the bond of $100,000 is “wholly inadequate in amount”; that the trustees refuse to give plaintiff “any information or account” concerning the “present nature, condition, extent and value of the various properties taken by them as aforesaid from the life tenant”; that the trustees are asserting and contending that “plaintiff no longer has or owns his said remainder interest in said properties.” The prayer is for disclosure and accounting, for restraint in disposing of the Burroughs stock, for a bond to plaintiff to protect his remainder interest, for an adjudication of the vested interest of plaintiff, and for general relief.
The administrator of the estates of Ernest H. Franz and of Walter G. Franz (two deceased sons) and the guardians ad litem of several grandchildren (heirs of deceased children of Ehrhardt D. Franz) answered, praying substantially the same relief as sought in the amended bill.
Answers were filed by G. A. Buder (one of the trustees), jointly by Mrs. Franz and the trustees, G. A. Franz and G. A. Buder, by the other defendants jointly. In so far as the issues presented on this main appeal are involved, those answers were as follows: First, that the action was premature because the parties seeking relief have, until the death of Mrs. Franz, “no right to the possession or enjoyment of any remainder interest, if any he has, and no right to have the amount or value of such interest, if any, determined or ascertained.” Second, denies the right of such parties to “demand any security.” Third, denies any duty to furnish any information or account. Fourth, estoppel to assail trust agreement and bound thereby because of receipt of payments thereunder. Fifth, that the decree in the state court suit found that “any and all stock dividends were part of the earnings, usufruct, profits and income of said estate to which the life-tenant was entitled in her own right,” which made the interest of the children res adjudieata. Sixth, estoppel because of agreements made January 7 and 30,1920. Seventh, the parties seeking relief have “no interest, remainder or otherwise, under the will of * * * Ehrhardt D. Franz” because of certain advancements and payments in excess of the value of their shares in the estate of Ehrhardt D. Franz, deceased.
The decree herein determined that the increase of Burroughs stock (as well as certain other property) belonged to the corpus of the residuary estate of Ehrhardt D. Franz, deceased; that the plaintiff had a one-tenth vested right, as remainderman under the will (the complaining defendants having similar rights); that such remaindermen will be entitled to possession thereof upon the death of Mrs. Franz, the life tenant; that the trustees file, within 30 days, a complete statement, under oath, of the property coming to their hands and their administration thereof, and, thereafter, render semiannual statements to the parties here asking relief; that the trustees, within 30 days, give bond for $500,000 for the “joint and several” protection of the parties here asking relief, said bond to be additional to the existing bond for $100,000 and the cost thereof to be paid by or charged to such parties. Jurisdiction was expressly retained to order an accounting and for other necessary orders and decrees. The costs of this proceeding to be paid by the trustees and charged “to the trust estate.”
Issues on Main Appeal.
Appellants argue here five matters. One is a matter of procedure — that this aetion is prematurely brought. Two are urged as a bar to recovery — res adjudieata and estoppel. Two have to do with the merits of the aetion on the main facts — the increase of Burroughs Company stock is income and, therefore, the property of the life tenant and the intent of the testator, Ehrhardt D. Franz.
Premature Aetion.
This contention is that while the life tenant survives, there can be no aetion to adjudicate title of the remaindermen or to protect the remainder estate. The present aetion does not involve nor seek to affect the enjoyment of possession or other rights of the life tenant. Its sole purpose is to protect from spoliation and loss property which is in possession of the life tenant, but alleged to belong to the estate coming to the remainder-men (with absolute right of possession upon death of the life tenant), and, as to which, the life tenant is entitled only to the income therefrom. Therefore, the legal issue is whether a remainderman is entitled to equitable relief to have protected property belonging to him in the rightful possession of the life tenant who is entitled to the income, for life,- therefrom. As a necessary incident to sueh relief (if allowable), the remainder-man must prove that he is such as to the property involved but this is not, a proceeding where the only or main purpose is to have the title of the remainderman adjudicated — it is a bona fide action to protect a remainder estate alleged to exist.
Appellants rely upon several state cases and the following eases in the Supreme Court or in inferior federal courts: Williams v. Hagood, 98 U. S. 72, 25 L. Ed. 51; Marye v. Parsons, 114 U. S. 325, 5 S. Ct. 932, 962, 29 L. Ed. 205; Singer Mfg. Co. v. Wright, 141 U. S. 696, 12 S. Ct. 103, 35 L. Ed. 906; United States v. Evans, 213 U. S. 297, 29 S. Ct. 507, 53 L. Ed. 803; Muskrat v. United States, 219 U. S. 346, 31 S. Ct. 250, 55 L. Ed. 246; Arnold v. Garth (C. C.) 106 F. 13; Pluche v. Jones (C. C. A.) 54 F. 860; Preston v. Smith (C. C.) 26 F. 884. The Williams and Marye Cases involved the validity of state statutes relating to securities issued by the state and in each the court said that no existing or threatening injury was alleged and, therefore, the issue presented was purely abstract and courts would act only- upon legal rights actually in controversy. The Singer and Evans Cases were refused determination because the issues therein were purely moot. The Muskrat Case refused decision because the issue was not a justiciable controversy. The Arnold and Pluche Cases held merely that a statute of limitations did not begin to run against a remainderman until his right to possession accrued. The Preston Case (being, a ruling on demurrer to a bill) held the aetion was “more like an effort to establish a doubtful title than a proceeding to protect from serious wrong a clear or adjudicated title” (page 889), and that “only upon an adjudicated or a clear title will a court of equity issue an injunction to restrain waste” by the life tenant. Thus, it appears that none of the above eases are applicable here nor are any statements in the opinions therein except those above quoted from Judge Brewer in the Preston Case. Those expressions clearly imply that, at least under certain circumstances, sueh right of aetion would exist during^the life estate.
However, the matter is not in doubt. In Cross v. Del Valle, 1 Wall. 5, at page 15,17 L. Ed. 515, the court said:
“A remainderman may have a decree to protect the estate from waste, and have it so secured by the trustee as to protect his estate in expectancy. The court will interfere under all needful circumstances to protect his rights, but sueh eases do not come within the category of mere declaratory decrees as to future rights.”
Undoubtedly, the same rule prevails in the state courts. See 23 E. C. L. 5791, where it is said:
“One who has a vested remainder in land has a right to protect the estate, so that he may receive the same when it ought to come to him by the terms of the limitation, and may maintain a proper action for any injury to the inheritance, committed or threatened, whether by the tenant in possession on by a stranger.”
Also, at page 580, it is said:
“While a court of equity will not maintain a bill merely to declare future rights, it will interfere in all needful cases to protect the rights qf remaindermen.”
Again, at page 581, the right of the remainderman to require security bond and accounting (the relief here sought and accorded by the trial court) is stated as follows:
“Formerly it was the practice to exact from the tenant for life security that the property should be forthcoming on the happening of the contemplated event. This seeurity is still required in exceptional eases. But, before security for the forthcoming of the property at the termination of the life estate will be required, the remainder-man must have reasonable grounds to apprehend the loss or removal of the property, or that his rights are in danger.
“139. Filing of Inventory. Unless the remainderman can show some necessity for exacting security, the only remedy which he now has is to require the tenant to make an inventory which shall show the property which he received, and to which the remainderman will become entitled upon the termination of the particular estate. And, though an inventory has been filed, the tenant, upon a proper showing of real danger, may be called on to account and be required to give bond.
“140. Seizure and Impounding of Property. The property may also be seized and impounded for the protection of the remainderman. Should the tenant attempt to sell, or in any other mode waste or misuse the property, so as to threaten its destruction, the court may impound it, that is, take it into the hands of the court, by its officer,- and give the first taker the profits. The practice is to require, security for the lawful use of the property during the life estate, and if this is not given, then pursue the mode of seizing upon the property.”
Also in 21 C. J. at page 996, § 153, it is said:
“Since a remainderman has only an estate to vest in possession in futuro, he is entitled neither to actual nor to constructive possession of the property until the termination of the particular estate. He may however bring an action in equity during the lifetime of the life tenant to preserve the property, and, without taking actual possession to complete his title, he is entitled to all the remedies which may be necessary to protect and enforce his right at law.”
Again, at page 1013, § 172, it is said:
“Where the property is in the hands of a trustee any breach of trust or improper conduct on the part of the trustee is a ground for equitable relief, and where a trust deed has been set aside under a decree fraudulently obtained, the remainderman may maintain a bill to have the property restored to the original trust. If the trustee is already under a valid and'sufficient bond to protect the remainder interest, the remainderman is not entitled to any other relief; and the remainderman cannot, during the continuance of the" life estate, sue on the trustee’s bond to recover any part of the amount wasted, although he could proceed in equity to compel the trustee to bring the money into court to be invested. The remainderman may maintain a suit for the appointment of a new trustee and for an accounting.”
Also at page 967, § 105, it is said:
“Bight to Equitable Belief in General A remainderman or reversioner unless barred by laches, is entitled to come into equity by a bill quia timet for the protection of his interest when the property in the hands of a life tenant is in danger of loss, deterioration or injury, or when the life tenant is claiming a right to the property adverse to that of the remainderman.”
Also, at page 967, section 106 states that, under certain circumstances, injunction may be employed to protect the remainder estate; page 968, section 107, that accounting may be had; page 968, sections 108 and 109, that sequestration and a receiver are sometimes proper. The above statements in Ruling Case Law and in Corpus Juris are based upon abundant citations from various state courts — to which may be added later citations as follows: Abbott v. Wagner, 108 Neb. 359, 188 N. W. 113, 121; Ivey v. Lewis, 133 Va. 122, 112 S. E. 712, 716; Newport v. Hatton, 195 Cal. 132, 231 P. 987, 994; Commercial Building Co. v. Parslow (Fla.) 112 So. 378, 381; Huey v. Brock, 207 Ala. 175, 92 So. 904, 905; Powe v. Payne, 208 Ala. 527, 94 So. 587; Colburn v. Burlingame, 190 Cal. 697, 214 P. 226, 27 A. L. R. 1374; Hodgman v. Cobb, 202 App. Div. 259, 195 N. Y. S. 428; In re Niles, 122 Misc. Rep. 17, 202 N. Y. S. 475; Thomas’ Adm’r v. Thomas, 220 Ky. 101, 294 S. W. 776. The last four eases deal with protecting bonds.
This record leaves no doubt that these trustees, the life tenant and several of the remaindermen are denying any right or interest of plaintiff to any property in the possession of the trustees and especially to the increases of stock in the Burroughs Company. Also, all of the property is in the form of securities which might be easily disposed of. These securities are eoneededly worth more than $4,000,000, yet the trustees are under a bond of only $100,000. Also, the trustees have always refused to give plaintiff any inventory or accounting and persistently deny his right to'sueh. Also, the trust agreement provides that, on the death of Mrs. Franz (now more than 83 years old), all of the property “shall be held by them for account of the estate of said Sophie Franz, to be administered by the probate court of the city of St. Louis, Missouri, in accordance with the last will and testament of said Sophie Franz, and in accordance with the laws of the State of Missouri in such case made and provided.” If this quoted provision were followed, aU of this property would be subject to various taxes, fees and costs (in course of such administration) which should not attach to any of such property belonging to the remaindermen because such would be deliverable direct to
Question: From which district in the state was this case appealed?
A. Not applicable
B. Eastern
C. Western
D. Central
E. Middle
F. Southern
G. Northern
H. Whole state is one judicial district
I. Not ascertained
Answer:
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songer_district
|
H
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What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable".
PELHAM HALL CO. v. CARNEY, Former Collector of Internal Revenue.
No. 3517.
Circuit Court of Appeals, First Circuit.
May 14, 1940.
Robert H. Davison, of Boston, Mass. (Philip J. Woodward and Haussermann, Davison & Shattuck, all of Boston, Mass., on the brief), for appellant.
James P. Garland, Sp. Asst, to Atty. Gen. (Samuel O. Clark, Jr., Asst. Atty. Gen., Sewall Key and Norman D. Keller, Sp. Assts. to Atty. Gen., and Edmund J. Brandon and C. Keefe Hurley, both of Boston, Mass., on the brief), for appellee.
Before MAGRUDER, and MAHONEY, Circuit Judges, and PETERS, District Judge.
MAGRUDER, Circuit Judge.
Pelham Hall Company, the plaintiff below, appeals from a judgment for the Collector in an action for the recovery of an alleged overpayment of income taxes for the fiscal year ending August 31, 1932. The item in dispute has to do with the base upon which depreciation on a certain building owned by the plaintiff is to be calculated.
The plaintiff was incorporated May 6, 1931, as a means of refinancing the Pelham Hall Building in Brookline, Massachusetts. There were outstanding and in default $1,172,000 of bonds of the predecessor corporation, called Pelham Hall, Inc., which had constructed the building. The bondholders turned in their bonds to the plaintiff, in exchange for stock of the plaintiff at an agreed ratio. At the foreclosure sale the only bid on the building was one of $450,000 made on behalf of the plaintiff. The old bonds were surrendered in payment of the bid price.
In its income tax return for the fiscal year ending August 31, 1931, the plaintiff claimed the cost of the building to it to be $806,000 (which was its assessed value) and used this figure as the basis for calculating a deduction on account of depreciation. The Commissioner disallowed in part the claimed deduction for depreciation, insisting that the base must be reduced to $450,000, the bid price. Thereafter the plaintiff petitioned' the Board of Tax Appeals for a redetermination of the deficiency, advancing in its petition the following proposition: “The price bid at the foreclosure sale of $450,000.00 is not conclusive as to the measure of cost of the property to the petitioner but that what occurred was an exchange of property (bonds of the old corporation) for property (assets of the old corporation) so that the basis for depreciation of the assets so received should be the fair market value of. the assets at the time of their receipt by the petitioner.”
After taking evidence as to the fair .market value of the building when acquired by the plaintiff, the Board affirmed the Commissioner’s determination. Recognizing that the cost of the building to the plaintiff was the value of the bonds given up in exchange for it, and that the bonds were worth the fair market value of the building mortgaged to secure them, the Board concluded that “although the bid itself does not conclusively establish the amount of the price actually paid, the evidence does not establish that the price was in fact more than the bid.” Pelham Hall Co. v. Commissioner, 33 B.T.A. 329, decided October 30, 1935.
In its income tax return for the following fiscal year, ending August 31, 1932, the plaintiff again put down $806,000 as the cost of the building to it, and figured its deduction for depreciation on this basis. Again, the Commissioner reduced the cost basis to $450,000 and determined a deficiency accordingly. On January 20, 1934, the plaintiff paid this deficiency assessment.
A claim for refund was filed with the Commissioner on January 15, 1936, in which the plaintiff stated:
“The principal reason for the additional assessment was the disallowance of depreciation as claimed on the return, the Bureau of Internal Revenue claiming that the basis for depreciation of the building should be the bid-in price at the foreclosure sale.
“The taxpayer contends that such bid-in price did not represent the fair value of the building when acquired and respectfully requests that the value as shown on the return be allowed and refund of the additional assessment be ordered accordingly.”
This refund claim was disallowed by the Commissioner on July 21, 1936, on the strength of the above-cited decision of the Board of Tax Appeals, dealing with the same issue which had arisen in the previous tax year.
On September 8, 1936, the present action was begun. The plaintiff’s declaration set- forth that the deficiency assessment was erroneous, in that the Commissioner should have allowed the plaintiff “to compute its depreciation as 2 percent of $806,000, the true capital base of the building known as Pelham Hall at the time it was acquired by the plaintiff”.
Defendant’s amended answer, which the District Court allowed to be filed on July 13, 1937, consisted of a general denial and an affirmative defense that the decision of the Board of Tax Appeals in Pelham Hall Co. v. Commissioner, 33 B.T.A. 329, previously cited, rendered the issue presented in the plaintiff’s declaration res judicata.
Up to this point, the only dispute had been as to the “cost” of the building to the plaintiff under Section 113(a) of the Revenue Act of 1928.
Then came the decision of the Circuit Court of Appeals for the Sixth Circuit in Commissioner v. Newberry Lumber & Chemical Co., 94 F.2d 447, announced February 11, 1938, where the court held, in a transaction similar to that of the case at bar, that the refinancing operation was a tax-free reorganization and that under Section 114(a) in conjunction with Section 113(a) (7) of the Revenue Act the capital base for the reorganized corporation was the cost of the assets to the old corporation.
Thereafter, on November 29, 1938, the ease came to trial. Taking its cue from the recent decision in the Newberry case, the plaintiff shifted from its ground for recovery set forth in the claim for refund, and sought to establish its right to take over the depreciation base of the predecessor corporation. The defendant adhered to the affirmative defense of res judicata, which the court below held was well taken. Judgment was given for the defendant.
Without examining the res judicata point, we think there is a fatal defect in the plaintiff’s case which we are bound to notice on the present record. The claim for refund filed by the plaintiff will not support a recovery of the alleged overpayment upon the new ground advanced for the first time at the trial in the District Court.
Congress has made the filing of a timely claim for a refund a statutory prerequisite to the recovery back of taxes alleged to have been illegally collected. The claim for refund filed by the plaintiff assumed the applicability of the general rule in Section 113(a) of the Revenue Act making the “cost” of the property to the taxpayer the basis for computing depreciation, and directed the Commissioner’s attention' to an alleged error in this cost figure as allowed by him. No facts were set forth in the claim which would suggest to the Commissioner that another subsection • of the Revenue Act was applicable, that is, the exceptional provision in Section 113(a) (7) which would entitle the taxpayer to take over the cost base of the predecessor corporation. It may be that the facts as to the reorganization appeared in the Commissioner’s files. This is immaterial. Dascomb v. McCuen, 2 Cir., 73 F.2d 417, 418. The Commissioner’s attention was not directed to them as having a bearing on Section 113(a) (7) ; and it does not appear that the Commissioner was ever called upon to consider or ever did consider the reorganization provisions of the Revenue Act in passing on the claim for refund. Naturally enough, he did not, for the claim for refund set forth no facts indicating the cost of the building to the predecessor corporation, as would have been done, had the contention been advanced that Section 113(a) (7) was applicable. The claim for refund provoked quite a different line of investigation, involving a consideration of different questions, both of fact and law. Plainly, the claim for refund was not in compliance with the Commissioner’s regulations, so far as the taxpayer seeks to interpret that claim as embracing the ground for recovery now insisted upon.
The exigencies of the case now put the plaintiff in somewhat of a dilemma. To combat the defense of res judicata it contends narrowly that the issues presently in question were never raised or litigated in the earlier proceedings, that: “The only question presented to the Board was £h,e fair value of the building at the. date of foreclosure. No evidence was ever presented to establish that there had been a tax-free reorganization or to establish the cost of the building to the predecessor company. These questions have never been adjudicated.” But to sustain the adequacy of the claim for refund the plaintiff seeks to give the broadest possible interpretation of the issue there presented. In this connection it says: “The claim of refund clearly states that the plaintiff objects to the partial disallowance by the Commissioner of the plaintiff’s deduction, for depreciation on the Pelham Hall building. This was and continues to be the dispute in regard to the tax in question. The Commissioner has insisted upon allowing depreciation on a base of only a rateable part of $450,-000, while the plaintiff has contended that it is entitled to use a base at least as great as $806,000'. Nothing can be clearer than that the claim of refund places this matter squarely in issue.”
In the absence of a proper amendment or of an operative waiver by the Government,1 the taxpayer in suing for recovery back of taxes paid is confined to the scope of the grounds for refund asserted in the claim filed with .the Commissioner. United States v. Felt & Tarrant Mfg. Co., 283 U.S. 269, 272, 51 S.Ct. 376, 75 L.Ed. 1025; Real Estate-Land Title & Trust Co. v. United. States, 309 U.S. 13, 60 S.Ct. 371, 84 L.Ed. —; Snead v. Elmore, 5 Cir., 59 F.2d 312; Edwards v. Malley, 1 Cir., 109 F.2d 640, 645; Dascomb v. McCuen, 2 Cir., 73 F.2d 417, 418, 419; Taber v. United States, 8 Cir., 59 F.2d 568; H. Lissner Co. v. United States, Ct.Cl., 52 F.2d 1058. Looking at the claim for refund filed in this case we see that the “ground” stated therein is not an unsupported assertion that the deduction for depreciation should have been larger; rather, the “ground” is the specific reason assigned for a revision of this figure, namely, that the fair value of the building, rather than the bid price, should have been taken as the cost to the taxpayer.
It may be doubted whether after the lapse of the two years’ statutory period for filing claims for refund the plaintiff could have amended the specific original claim, based upon an alleged erroneous determination of the cost of the building to the taxpayer, by shifting to the contention that the proper base was not the cost to the taxpayer but the cost to the predecessor corporation.. See United States v. Garbutt Oil Co., 302 U.S. 528, 58 S.Ct. 320, 82 L.Ed. 405; United States v. Andrews, 302 U.S. 517, 58 S.Ct. 315, 82 L.Ed. 398. No decision on this point is called for, however, because the taxpayer made no effort to amend the original claim and indeed in any event could not have made an effective amendment after the original claim had been disallowed by the Commissioner on July 21, 1936. See Edwards v. Malley, 1 Cir., 109 F.2d 640, 645.
It is urged, however, that the. conduct of the defendant at the trial constituted a .waiver of any objection which the Government might have taken to the sufficiency of the claim for refund. Much reliance is placed upon Tucker v. Alexander, 275 U.S. 228, 48 S.Ct. 45, 72 L.Ed. 253. There the Commissioner had disallowed a refund claim based upon two specific grounds and the taxpayer in his suit abandoned the original grounds for refund and advanced a third ground which, by stipulation- of the parties, was the .sole issue litigated and decided. The case rests upon the fact that at the time the stipulation was' given, the taxpayer still could have filed a new claim for refund, the statutory period not yet having run. The Government could have insisted at the trial that the claim for refund was insufficient to support a recovery on the new ground advanced; but not having done so, and having elected to litigate the new claim on its merits, it was obviously inequitable for the Government, after having caused the taxpayer to refrain from starting afresh by the filing of a new claim for refund, to raise this objection at a later stage. That this was a basis of the so-called “waiver” was made clear in the later case of United States v. Garbutt Oil Co., 302 U.S. 528, 533-535, 58 S.Ct. 320, 82 L.Ed. 405, in which the court stated that the Conjmissioner had power, prior to the expiration of the period of limitation for the filing of claims for refund, to waive provisions of the Treasury Regulations as to the form of claims for refund; but held that no conduct by the Commissioner after the period for filing claims for refund had expired could amount 'to an effective waiver. See also Mohawk Mining Co. v. United States, Ct.Cl., 1939, 26 F.Supp. 1017.
In the present case it is doubtful whether there was any conduct by the Góvernment which could be even the starting point of a waiver.' No stipulation was filed as in Tucker v. Alexander, supra. It is true that the insufficiency of the claim for refund was not pleaded as a defense; but this was because the taxpayer’s declaration in the court below was not a departure from the refund claim, and it was not until, the trial that the taxpayer advanced the new ground based upon the alleged tax-free reorganization. All that the defendant did was to adhere to the pleaded defense of res judicata. The ' defendant’s failure at the trial to raise the additional point as to the insufficiency of the claim for refund did not prejudice the plaintiff in view of the fact that the statutory time for the filing of a claim for refund on the new ground advanced had long since elapsed.
So far as the record shows, the plaintiff made no effort in the court below tó prove its case on the ground asserted in the refund claim. Since no other ground was open to the plaintiff, it follows that the defendant was entitled to judgment.
The judgment of the District Court is affirmed.
Revenue Act of 1928, c. 852, 45 Stat. 791:
“Sec. [§] 23. Deductions from Gross Income
“In computing net income there shall he allowed as deductions:
“ * * *
“(k) Depreciation. A reasonable allowance for the exhaustion, wear and tear of property used in the trade or business, including a reasonable allowance for obsolescence.
« * :¡t sjs
“(m) Basis for Depreciation and Depletion. The basis upon which depletion, exhaustion, wear and tear, and obsolescence are to be allowed in respect of any property shall be as provided in section 114 * * *
“Sec. [§] 113. Basis for Determining Gain or Loss
“(a) Property acquired after February £8, 1918. The basis for determining the gain or loss from the sale or other disposition of property acquired after February 28, 1913, shall be the cost of such property; except that—
t( * # *
“(7) Transfers to corporation where control of property remains in same persons. If the property was acquired after December 31, 1917, by a corporation in connection with a reorganization, and immediately after the transfer an interest or control in such property of 80 per centum or more remained in the same persons or any of them, then the basis shall be the same as it would be in the hands of the transferor, increased in the amount of gain or decreased in the amount of loss recognized to the trans-feror upon such transfer under the law applicable to the year in which the transfer was made. This paragraph shall not apply if the property acquired consists of stock or securities in a corporation a party to the reorganization, unless acquired by the issuance of stock or securities of the transferee as the consideration in whole or in part for the transfer; * * *»
“Sec. [§] 114. Basis for Depreciation and Depletion
“(a) Basis for depreciation. The basis upon which exhaustion, wear and tear, and obsolescence are to be allowed in respect of any property shall be the .same as is provided in section 113 for the purpose of determining the gain or loss upon the sale or other disposition of such property.” 26 U.S.C.A.Int.Rev.Acts, pp. 358, 380, 383.
Section 322 of the Revenue Act of 1932, 47 Stat. 169, 242, 26 U.S.C.AJnt. Rev.Acts, p. 571, provides:
“(a) Authorization. Where there has been an overpayment, of any tax imposed by this title, the amount of such overpayment shall be credited against any income, war-profits, or excess-profits tax or installment thereof then due from the taxpayer, and any balance shall be refunded immediately to the taxpayer.
“(b) Limitation on Allowance—
“(1) Period of Limitation. No such credit or refund shall be allowed or made after two years from the time the tax was paid, unless before the expiration of such period a claim therefor is filed by the taxpayer.”
Section 3226 of the Revised Statutes, as amended by Section 1103(a) of the Revenue Act of 1932, 47 Stat. 169, 286, 26 U.S.C.AJnt.Rev.Acts, p. 652, reads:
“No suit or proceeding shall be maintained in any court for the recovery of any internal-revenue tax alleged to have been erroneously or illegally assessed or collected, or of any penalty claimed to have been collected without authority, or of any sum alleged to have been excessive or in any manner wrongfully collected until a claim for refund or credit has been duly filed with the Commissioner of Internal Revenue, according to the provisions of law in that regard, and the regulations of the Secretary of the Treasury established in pursuance thereof; but such suit or proceeding may be maintained, whether or not such tax, penalty, or sum has been paid under protest or duress. * * * ”
Article 1254, Regulations 77 (1932 Act), provides:
“Claims for refund by taxpayers. — ■ Claims by the taxpayer for the refunding of taxes, interest, penalties, and additions to tax erroneously or illegally collected shall be made on Form 843, and should be filed with the collector of internal revenue. A separate claim on such form shall be made for each taxable year or period.
“The claim must set forth in detail and under oath each ground upon which a refund is claimed, and facts sufficient to apprise the Commissioner of the exact basis thereof. No refund or credit will be allowed after the expiration of the statutory period of limitation applicable to the filing of a claim therefor except upon one or more of the grounds set forth in a claim filed prior to the expiration of such period. A claim which does not comply with this paragraph will not be considered for any purpose as a claim for refund.”
See footnote 2, supra.
Question: From which district in the state was this case appealed?
A. Not applicable
B. Eastern
C. Western
D. Central
E. Middle
F. Southern
G. Northern
H. Whole state is one judicial district
I. Not ascertained
Answer:
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songer_casetyp1_2-2
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C
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "civil rights".
BIVINS et al. v. BOARD OF COM’RS OF WABAUNSEE COUNTY, KAN.
No. 804.
Circuit Court of Appeals, Tenth Circuit.
July 24, 1933.
Earl H. Hatcher, of Topeka, Kan. (James E. Smith and Schuyler W. Jackson, both of Topeka, Kan., R. E. Underwood, R. C. Johnson, J. B. Dooley, and E. A. Simpson, all of Amarillo, Tex., and James R. Tolbert, of Hobart, OkL, on the brief), for appellants.
A. E. Carroll, of Alma, Kan. (E. W. Stuewe, of Alma, Kan., on the brief), for appellee.
Before LEWIS and PHILLIPS, Circuit Judges, and POLLOCK, District Judge.
LEWIS, Circuit Judge.
Appellants, residents and citizens of Texas, complain that the District Court dismissed on demurrer their action to recover $3,711.42 paid as taxes assessed and levied on 3,94.1 head of their cattle while being pastured in Wabaunsee county, Kansas, during the spring and summer of 1929. Additional facts pleaded are: About May 1st, 1929, appellants shipped the cattle from Texas to Wabaunsee county. The contract of carriage was from a point in Texas to the cattle market in Missouri with feeding privileges en route in the state of Kansas, the cattle to be reloaded thereafter and carried to destination. They were reloaded in the following September and carried on, but while they were in Kansas they were assessed, and the tax officials would not permit them to be moved until the tax was paid. Appellants paid the tax under duress. They contend that the statute of Kansas, as construed by the supremo court of that state, which purports to authorize the assessment and levy, is void because in conflict with clause 1, § 2, article 4, U. S. Constitution, and with section 1 of the Fourteenth Amendment to said Constitution ; also because the statute violates section 1, article 11 of the Constitution of Kansas, in that it does not provide a uniform and equal rate of assessment and taxation. They set up and relied on these constitutional provisions, national and state, in their complaint.
Paragraph “V” of the complaint alleges:
“That said cattle before being removed from the said state of Texas, on or about the 1st day of May, 1929, were with the other property of the plaintiffs listed for taxation for the year 1929 in said State of Texas and general ad valorem taxes under the laws of the said State of Texas were assessed against said cattle. That all taxes and charges of every kind and character whatsoever, due The State of Texas or any of the municipalities or other local organizations of government under the laws of the State of Texas, were fully paid and discharged by these plaintiffs prior to the entrance of any of said cattle into or through the State of Kansas as herein set forth and their pretended assessment for taxation in Kansas.”
The general statutes of Kansas provide that all property in that state shall be-listed, valued and assessed as .of March 1st each year; but this assessment wab made under a special statute enacted in 1899. There have been some amendments; but its first section (Rev. St. Kan. 1923, 79 — 314) is this:
“When any personal property shall be located in any county in this state after the 1st day of March of any year which shall acquire an actual situs therein before the 1st day of September, such property is taxable therein for that year, and shall be assessed and placed on the tax roll and the tax collected as provided by this act.”
It will be observed said section says that “any personal property” located in any county in the state after the 1st day of March which acquires an actual situs therein before September 1st shali be subject to taxation. The broad language of the section, including all personal property so located, met the objection to a prior statute of the state (Laws Kan. 1881, e. 34, § 1) which provided:
“When any stock shall be driven into any county of this state * * * from beyond the boundaries of this state, for the purpose of grazing therein, at any time prior to the first day of December of any year, such stock shall be liable to be assessed for all taxes leviable in that county for that year, the same as if the owner thereof resided and held said stock in such county on the first day of March of that year.”
The Supreme Court of Kansas in Graham v. Chautauqua County, 31 Kan. 473, 2 P. 549, 551, 552, held that statute to be in conflict with said section 1 of article 11 of the Constitution of Kansas. Judge Brewer, later Associate Justice of the United States Supreme Court, delivered the opinion in that case, and speaking for the court, he summarized the argument in support of objections made to< the statute, to-wit, that all personal property in the state on the first of March is listed for taxation, and that there was no general provision for taxing property brought into the state after the first of March, and the statute was an attempt to tax certain kinds of property when brought into the state for certain purposes, that if this was done the rate of assessment and taxation would not be uniform and equal, and that in order to support the statute all property brought into the state after the first of March must be listed for taxation, that no statute could be sustained which attempted to east'the entire burden of taxation on one class of personal property, and if -this be true with respect to the entire year it should be applied also to a portion of the year. Having so stated the argument, he said:
“We think this argument is sound, and that if in addition to the listing of all property present in the state on the first of March, an attempt is made to list property brought in after the first of March, it must apply to all property so brought in. No distinction can be made as to property after the first of March, any more than it can as to property on that day. * * *
“We conclude, therefore, that the statute, so far as it attempts to provide for the listing of cattle brought into the state after the first of March for the purpose of grazing therein, is a departure from the constitutional rule of uniformity in matters of taxation, and cannot be upheld.”
The second section of said special statute (now section 79 — 315, Rev. St. Kan. 1923) is this:
“Whenever any live stock shall be located in this state for the purpose of grazing, it shall be deemed to have acquired an actual situs therein as contemplated by this act.”
The third section of said special act appears in the Revised Statutes as section 79— 316. It was amended at a special session in 1930 (chapter 14, § 1 [Rev. St. Supp. 1931, 79 — 316]), after this controversy arose. We now quote it, so far as material here, so as to show the section prior to and after the amendment of 1930. The clause in brackets was added by the amendment of 1930, and the clause italicized was omitted in that amendment.
“79 — 316. When any person, association or corporation shall settle or organize in any county in this state, and bring personal property therein after the 1st day of March and prior to the 1st day of September in any year [or when any nonresident owner shall bring property into the state between such dates], it shall be the duty of the assessors to list and return such property for taxation that year, unless the owner thereof shall show to the assessors, under oath, and by producing a copy of the assessment, duly certified to by the proper officers of state or county in whieh said property was assessed, that the same property has been listed for taxation for that year in some other county in this state or in some other state or territory of the United States in which property is required to be listed for taxation on or before March 1 m each yea/r.”
It is thus seen that under said third section prior to the amendment of 1930, the only persons who were relieved from the payment of taxes on personal property brought into the state after March 1st were new settlers ; but the Supreme Court of Kansas in its opinion in Mosby v. Board of Commissioners, 98 Kan. 594, 158 P. 657, 658, delivered on July 8, 1916, held that a resident of Kansas who brought personal property (live stock) into the state after March 1st and prior to September 1st came within the statute and the property so brought in could not be taxed, whereas the property of a nonresident under like conditions -was subject to taxation. Mos-by was a resident of Missouri. In 1913 he purchased 300 steers in Oklahoma and kept them in that state until the following May. About March 1st, 1914, the officers in Oklahoma levied a tax on the steers, and Mosby paid it later in the year. About May 1st, 1914, Mosby moved the cattle to a ranch owned by him in Greenwood County, Kansas, and shortly afterwards the assessors in that county placed the cattle on the tax roll, and levied a tax against them. He did not know his cattle had been so taxed until the following January when a tax warrant was placed in the hands of the sheriff, who was about to sell the cattle for taxes. To avoid this and tinder protest Mosby paid the amount of the taxes, and then sued to recover it. A demurrer to his complaint was overruled by the trial court, and Mosby recovered judgment. Mos-by’s cattle had been taken into Kansas for the purpose of grazing there, and they were assessed and taxed under this special statute. The Supreme Court in reversing the judgment in favor of Mosby said:
“The section [third of the special act] referred to has been interpreted to mean that the property of residents brought into the state after March 1st and before September 1st, which has been taxed elsewhere for that year, is not subject to taxation here, but that the property of nonresidents brought into the state during the period is subject to taxation.”
It therefore held the statute (as thus construed) not to be an unjust discrimination against the nonresident owner, nor did it offend the equal protection limitations of the Federal Constitution. We must accept the statute as it was thus construed by the highest court of the state, but we cannot agree to the conclusion of that court that as thus eonstrued it did not offend the federal guaranties. It is true that the court relied upon two of its prior decisions in which it had held that resident taxpayers, who resided in Kansas prior to March 1st and brought cattle into the state, were not liable to the tax under the special statute on a ground lying outside of the special statute, that is, on the ground that it was shown or inferred that such resident taxpayer had listed for taxation all of his property in Kansas on March 1st, and a part or all of the property so listed and taxed must have been converted into the purchase of the cattle that were brought from outside the state; but that fact, if it be a fact, was none the less a discrimination prohibited by the Federal Constitution as between resident and nonresident. The amendment of said section 3 by the act of 1930 must have been an effort to eliminate that discrimination, and to offset the construction given to said section 3 in the Mosby Case.
In Hull v. Johnston, 64 Kan. 170, 67 P. 548, 549, the court in discussing this special statute said:
“We may also take into consideration the well-known evil which it was designed to cure, and that the lawmakers thereby purposed to provide a method in such cases whereby such property should be taxed. Nonresidents were in the habit of bringing into this state personal property after the 1st of March — the time fixed by the general law as the date- at which to tax — and then before the next March to remove it, and thus wholly escape taxation; this being especially true with reference to live stock brought into the state for grazing purposes.”
But violation of federal guaranties cannot be a legitimate means to cure a claimed evil.
This statute as we now have it after the last amendment, plus the exemption given in the Mosby Case to residents who were such on March 1st, comes dangerously near bringing it under the rule announced by Judge Brewer in the Graham Case.
The guaranties of section 2, article 4, U. S. Constitution and the Fourteenth Amendment thereto and their application are exhaustively considered in Blake v. McClung, 172 U. S. 239, 19 S. Ct. 165, 43 L. Ed. 432. In Power Mfg. Company v. Saunders, 274 U. S. 490, 47 S. Ct. 678, 679, 71 L. Ed. 1165, it is said:
“The clause in the Fourteenth Amendment forbidding a state to deny to any person within its jurisdiction the equal protection of the laws is a pledge of the protection of equal laws.” ■
In Re Jarvis, 66 Kan. 329, 71P. 576, 577, the court had under consideration a statute of the state which made it a misdemeanor for anyone to deal as a peddler without paying for and procuring a license from the county clerk, but exempted from its operation an owner of goods who peddled them in the county in which he was a resident taxpayer or in any county immediately adjoining thereto. The court said:
“The statute therefore attempts to impose a tax upon nonresidents of the state, from which certain residents of the state are exempted by the fact of such residence. This is an obvious discrimination in favor of the resident and against the nonresident, and is repugnant to section 2 of article 4 of the federal constitution, which provides that the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.”
The Supreme Court of Vermont in Sprague v. Fletcher, 69 Vt. 69, 37 A. 239, 37 L. R. A. 840, had under consideration a statute which restricted to residents of the state the right to deduct from personal taxes debts owing by them. A nonresident, who had personal property in the state, was denied the right of deduction, and it was held that the denial was a discrimination against the nonresident forbidden by said section 2 of article 4.
Reversed with directions to vacate the order sustaining the demurrer and dismissing the complaint.
Question: What is the specific issue in the case within the general category of "civil rights"?
A. civil rights claims by prisoners and those accused of crimes
B. voting rights, race discrimination, sex discrimination
C. other civil rights
Answer:
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songer_casetyp1_7-2
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C
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation".
Carl W. WILLS v. Warren H. YOUNG, as Ancillary Administrator C.T.A. of Estate of Charles K. Ives, Deceased, Appellant.
No. 12453.
United States Court of Appeals Third Circuit.
Argued Jan. 29, 1958.
Decided May 12, 1958.
Arthur V. Edulian, New York City, for appellant.
Almeric L. Christian, Christiansted, St. Croix, V. I., for appellee.
Before MARIS, MAGRUDER and STALEY, Circuit Judges.
STALEY, Circuit Judge.
Whether a certain description of real property in a contract of sale is sufficiently adequate for equity to decree specific performance is the principal inquiry presented on this appeal.
On May 25, 1954, Charles K. Ives entered into an agreement with Carl W. Wills whereby Ives agreed to sell to Wills a certain tract of land on the Island of St. Croix, Virgin Islands.
Charles K. Ives died on November 14, 1954, before delivering a deed to Wills in accordance with the agreement. Ives devised his entire estate to his son, Colin C. Ives, to. whom letters testamentary were issued in Connecticut. Warren H. Young was appointed ancillary administrator c.t.a. in the Virgin Islands.
On January 14, 1956, Carl W. Wills, purchaser under the agreement of sale, instituted in the district court a suit for specific performance of that agreement. On May 29, 1957, a judgment was entered decreeing specific performance of the contract. This appeal followed.
The land purchase agreement of May 25, 1954, was drafted and typed by a layman and contained the following description :
“ * * * all that certain piece of land situate in La Grande Princess, particularil designated as follows. Being a part of lot 112 as shown on may dated March 1 3 1947 entitled subdivision map of estates La Grand Princess on the Island, St. Croix. Said par of lot II2A has 100ft. Ocean frontage, Starting at The North East corner of lot II2A then Westerly along Ocean Front for one hundred Ft. the Southerly to the farthest limit of the lot,and further said purchase is to include a portio of lot 46 being that portion lying directly in the rearof the portion of lot II2A which purchaser is buying and is a part of the one and one half acre purchased from Mrs. Samuel.
«***■»* -x-
“The seller herebyreserves to himself and his successors an easment of thirty fett on the lot II2A as a road.”
In an action at law for damages for breach of contract, the contract need not be completely definite for the court to grant the negative relief sought. In an action in equity for specific performance, however, the contract must be more definite for the chancellor to grant the affirmative relief which the plaintiff seeks. In short, equity can enforce a contract only where it is reasonably certain of the subject matter of its enforcement. This general principle applies to the specific enforcement of agreements relating to the purchase of land. As a condition of the enforcement of such an agreement, the land must be described in the agreement with reasonable particularity. See Annotation, 1952, 23 A.L.R.2d 6. This does not mean that a legal description of the type required in conveyancing is necessary. But it does mean that the land must be identified either by the words of description contained in the contract, or by reference to extrinsic material to which the contract itself refers. Title Guaranty & Surety Co. v. Lippincott, 1916, 252 Pa. 112, 97 A. 201, 203. The ever-present problem in cases of this nature is the appropriateness of evidence outside the words of description. Extrinsic evidence is never permitted to supply fatal omissions in the description. It is admissible for the limited purpose of applying the description to the property involved. Suchan v. Swope, 1947, 357 Pa. 16, 53 A.2d 116. This is merely another expression of the equitable maxim that a thing will be considered certain which can be made certain. Many cases have expressed the controlling principles involved here by holding that a description is adequate if it would enable a competent surveyor to find and identify the land with the aid only of the description itself and of proper extrinsic facts referred to in the agreement. See e.g. Bloech v. Hyland Homes Co., 1926, 119 Or. 297, 247 P. 761.
It is obvious that in the light of the law as expressed above the description in this case is far too indefinite to be enforced specifically in equity. We arrive at this conclusion even after making allowances for the fact that the agreement was drawn by a layman. The description contains too many uncertainties to be adequate. There are two lot numbers enumerated in the description, lot 112 and lot 112A. From the context, it would appear that lot 112A was intended, and appellee so argues. There is reference to a map dated March 13, 1947. This map, however, while it depicts a lot designated 112, has none numbered 112A. Appellee contends that where a description includes a lot number but no reference to a map, the force of local law and custom may infer an implied reference to a map. He further argues that it is clear that the reference here was intended to be to the map dated May 31, 1948, and revised February 1, 1954, which depicted a lot numbered 112A, and not the map dated March 13, 1947. The principle urged may very well be correct where there is only a lot number and no map reference in the description. See Springer v. Kleinsorge, 1884, 83 Mo. 152; Annotation, 23 A.L.R.2d at pages 303-104. Here, however, the map of reference is clearly stated as that dated March 13, 1947, and on that map there is no lot designated as 312A. Proof that the agreement was intended to recite reference to the map revised February 1, 1954, is precisely that type of extrinsic proof which is inadmissible. Specifically, the objectionable aspect is that this extrinsic evidence varying the original agreement is attempting to supply the description instead of applying the description as written to the property involved. Proof of this nature is really a form of admission recognizing the decisive defectiveness of the description in the agreement. No competent surveyor could find the land in question from this agreement or from the references made in it.
Further, even if proper reference were made in the agreement to the map revised February 1, 1954, the description begins a delineation of the property by metes and bounds, but it fails to continue the line to the place of beginning. The perimeter of the lot is not closed because only two sides are described: “ * * * Starting at The North East corner of lot II2A then Westerly along Ocean Front for one hundred Ft. the Southerly to the farthest limit of the lot, and further said purchase is to include a portio of lot 46 being that portion lying directly to the rearof the portion of lot II2A which purchaser is buyingand is a part of the one and one half acre purchased from Mrs Samuel.” While the line westerly for one hundred feet along the ocean front from the starting point in the lot’s northeast corner seems clear enough, the line in the southerly direction to the end of lot 112A, without stating the number of feet it extends or the exact direction, imparts uncertainty to the description. Appellee argues that it is a “fair presumption” that the line was intended to be parallel to the eastern line of lot 112A. Equity does not decree specific performance predicated upon fair presumption or good guesses. More reasonable certainty is required. The line extending in a “southerly” direction might meet the southern boundary of the lot at any number of places and materially affect the size of the lot described. As to which one of these places was intended, we can only surmise, and surmise should not move the chancellor to decree specific performance.
There are two final uncertain aspects in the agreement. Lot 46 appears in the map revised February 1, 1954, as being south of lot 112A. How much of this lot the agreement intended to convey was left to a later survey. While references may be made to aid the questioned description, they must be references to maps or charts in existence, and not maps or charts to be drawn later. Agnew v. Southern Avenue Land Co., 1902, 204 Pa. 192, 53 A. 752. The other uncertainty is the location of the 30-foot right of way reserved by the seller of lot 112A. The agreement is silent on this subject, and any answer could come only by way of conjecture.
Since the description in the land purchase agreement was so vague and indefinite as to require the denial of specific performance for that reason alone, other points raised by appellant need not be discussed.
The judgment of the district court will be reversed.
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_respond1_3_2
|
I
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Your task is to determine which category of federal government agencies and activities best describes this litigant.
In Re REQUEST FOR JUDICIAL ASSISTANCE FROM the SEOUL DISTRICT CRIMINAL COURT, SEOUL, KOREA. Young Sool SHIN, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
No. 77-1561.
United States Court of Appeals, Ninth Circuit.
June 13, 1977.
James R. Frolik (argued), Frolik, Filley & Schey, Mark Horlings (argued), San Francisco, Cal., for petitioner-appellant.
James L. Browning, Jr., U. S. Atty., Bruno A. Ristau (argued), Chief Atty. for Foreign Litigation Unit, Civil Division, Dept, of Justice, Washington, D. C., for respondent-appellee.
Before MERRILL and HUFSTEDLER, Circuit Judges, and BONSAL, District Judge.
Hon. Dudley B. Bonsai, U.S. District Judge of the Southern District of New York, sitting by designation.
MERRILL, Circuit Judge:
Young Sool Shin has taken this appeal from an order by the District Court of the Northern District of California commanding the Bank of Tokyo of California (now California First Bank) to produce certain bank records respecting appellant’s account with that bank. The order was issued in response to a request for judicial assistance issued by the Seoul District Criminal Court, Republic of Korea, pursuant to 28 U.S.C. § 1782. The request was transmitted by the Korean Embassy to the Department of State, and by the Department of State to the Department of Justice. It was presented to the court below by the United States Attorney, and the Department of Justice is here representing the Seoul District Criminal Court, and the United States is named herein as appellee.
Section 1782 provides in part:
“(a) The district court of the district in which a person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal. The order may be made pursuant to a letter rogatory issued, or request made, by a foreign or international tribunal * *
The principal question upon the merits of the appeal is whether the request was entitled to be honored by the district court under § 1782.
1. Jurisdiction
The government does not here dispute the appealability of the order granting the request. We feel, however, that we should express our view that it was final and therefore appealable. In In re Letters Rogatory from City of Haugesund, Norway, 497 F.2d 378, 379-81 (9th Cir. 1974), we held that a district court order directing a witness to answer questions in response to a letter rogatory was not a final order because the court had not yet held the witness in contempt. Haugesund, however, is inapplicable because the order there was directed against a party to the suit in Norway for which the letter rogatory was issued. Here, the subpoena is directed against a bank, not the appellant who is the party of interest in the proceeding before the foreign tribunal. The bank is unlikely to suffer a finding of contempt to protect appellant’s rights. Under these circumstances, we conclude that the district court’s order is appealable. In re Letters Rogatory Issued by the Director of Inspection of the Gov’t of India, 385 F.2d 1017, 1018 (2d Cir. 1964).
2. Standing
The government contends that since the order was directed to the Bank of Tokyo and relates to records of that bank which are not the property of appellant, appellant does not have standing to challenge the order. We disagree. While appellant may not have standing to challenge the disclosure of bank records on fourth or fifth amendment grounds, the question is whether judicial assistance should have been granted under the statute. The request warrant states that the records are sought in connection with criminal charges pending against appellant. The party against whom requested bank records are to be used has standing to challenge the validity of the order to the bank to produce the records. In re Letter Rogatory from the Justice Court District of Montreal, Canada, 523 F.2d 562, 563-64 (6th Cir. 1975).
3. Authority of the Seoul Court to Make the Request
A request for judicial assistance respecting appellant’s alleged criminal activity was first transmitted to the Department of State in June, 1976. The request (denominated a warrant) stated that it would expire on December 31, 1976, and explained that under Korean law, upon expiration, a new warrant would have to be issued. The request was duly transmitted to the Department of Justice, presented to the court below by the United States Attorney, and a subpoena duces tecum was issued. Appellant vigorously sought to quash the subpoena and hearings were had before a court commissioner who ultimately ruled in appellant’s favor that the request for assistance should be denied. In January, 1977, the government moved the district court for review of the commissioner’s ruling and appellant opposed the motion, in large part on the ground that the Korean request had expired. In February, a supplemental request for judicial assistance was received from Korea and filed with the district court. It was identical to the earlier request, except for an expiration date of June 30, 1977. Hearing by the district court was had and the district court ordered that the request be honored. It is from that order that this appeal was taken.
In the meantime proceedings against appellant in the Seoul trial court had been concluded, and an appeal had been taken to the Appellate Division of the Seoul District Criminal Court. Appellant’s principal contention on appeal is that the court making the second request, having concluded its trial, was without jurisdiction over the controversy in connection with which the bank records were sought, and thus was without jurisdiction to make the request; that under these circumstances it was error or abuse of discretion to honor the request.
Under the statute the only restrictions explicitly stated are that the request be made by a foreign or international tribunal, and that the testimony or material requested be for use in a proceeding in such a tribunal. This court also has held that the investigation in connection with which the request is made must relate to a judicial or quasi-judicial controversy. In re Letters of Request to Examine Witnesses from the Court of Queen’s Bench for Manitoba, Canada, 488 F.2d 511, 512 (9th Cir. 1973).
There is no question but that such conditions are met here. The question raised by appellant is whether a tribunal that has already entertained trial of the controversy and thus is aware of the issues presented and of what evidence would be relevant to those issues, can, under Korean law, request assistance on behalf of the tribunal where review is now pending. In our judgment our federal courts, in responding to requests, should not feel obliged to involve themselves in technical questions of foreign law relating to subject-matter jurisdiction of foreign or international tribunals, or the admissibility before such tribunals of the testimony or material sought.
This is not to say that jurisdiction of the requesting court is never an appropriate inquiry. If departures from our concepts of fundamental due process and fairness are involved, a different question is presented— one that is not presented here and which we do not reach. A request for judicial assistance is an appeal to the discretion of the district court. In re Letters Rogatory from Tokyo Dist., 539 F.2d 1216, 1219 (9th Cir. 1976). Here it is not disputed that the Korean courts have a legitimate basis for the exercise of judicial authority over appellant and that a controversy is there entertained in which the records would be of use. We find no abuse of discretion in honoring the request under these circumstances.
4. Other Issues
28 U.S.C. § 1782 also provides in part:
“A person may not be compelled to give his testimony or statement or to produce a document or other thing in violation of any legally applicable privilege.”
Appellant contends that under California law a bank’s records, with respect to its customers, are the subject of a quasi-privilege which would serve to make applicable the quoted language.
California law does not extend this far. In Valley Bank of Nevada v. Superior Court of San Joaquin County, 15 Cal.3d 652, 125 Cal.Rptr. 553, 554-555, 542 P.2d 977, 978-79 (1975), the Supreme Court of California held that the California Evidence Code did not provide a common-law privilege with respect to bank customer information; that privileges contained in the code are exclusive and that courts are not free to create new privileges as a matter of judicial policy. The court did, however, recognize that the state’s constitutional right of privacy served to afford limited protection to such records: the bank is to be deemed to have agreed not to divulge such information in absence of a court order. 125 Cal.Rptr. at 555, 542 P.2d at 979. Since production by the bank here would be in response to a court order, the California law of privilege is of no help to appellant.
Appellant contends that assistance in criminal matters involving a foreign country’s currency control laws should, as a matter of policy, be rendered only if there exists a tax treaty between the United States and the requesting country. We reject this contention. It finds no support in the language of the Act or in its legislative history, nor has our attention been drawn to any judicial decision so holding. The fact that the Department of Justice here supports the giving of assistance, with the implicit approval of the Department of State, suggests to us that there is no executive policy supporting appellant’s position.
All other contentions of appellant we find to be without merit.
The order of the district court is affirmed.
. We are given to understand that the appellate division court can, under Korean law, receive new evidence and thus that the records requested are for use in a proceeding still pending in a foreign judicial tribunal.
. Appellant complains that the court below accelerated hearing on the request and refused to give consideration to an affidavit of a former Korean judge as to the state of Korean law, thus making it impossible for appellant effectively to establish lack of jurisdiction. In light of our views already expressed, this action was not prejudicial.
. “Letters Rogatory in aid of criminal proceedings are authorized by 28 U.S.C. § 1782.” In re Letters Rogatory from Tokyo Dist., 539 F.2d 1216, 1219 (9th Cir. 1976).
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Which category of federal government agencies and activities best describes this litigant?
A. cabinet level department
B. courts or legislative
C. agency whose first word is "federal"
D. other agency, beginning with "A" thru "E"
E. other agency, beginning with "F" thru "N"
F. other agency, beginning with "O" thru "R"
G. other agency, beginning with "S" thru "Z"
H. Distric of Columbia
I. other, not listed, not able to classify
Answer:
|
sc_certreason
|
L
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the reason, if any, given by the court for granting the petition for certiorari.
UNITED STATES v. MERCHANT
No. 85-1672.
Argued March 4, 1987
Decided March 24, 1987
Paul J. Larkin, Jr., argued the cause for the United States. With him on the briefs were Solicitor General Fried, Assistant Attorney General Trott, and Deputy Solicitor General Bryson.
Penelope M. Cooper argued the cause for respondent. With her on the brief were Cristina C. Arguedas and Ted W. Cassman
Nancy Gertner and Judith H. Mizner filed a brief for the American Civil Liberties Union et al. as amici curiae urging affirmance.
Per Curiam.
The writ of certiorari is dismissed as improvidently granted.
Question: What reason, if any, does the court give for granting the petition for certiorari?
A. case did not arise on cert or cert not granted
B. federal court conflict
C. federal court conflict and to resolve important or significant question
D. putative conflict
E. conflict between federal court and state court
F. state court conflict
G. federal court confusion or uncertainty
H. state court confusion or uncertainty
I. federal court and state court confusion or uncertainty
J. to resolve important or significant question
K. to resolve question presented
L. no reason given
M. other reason
Answer:
|
songer_applfrom
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court).
RICHARD T. GREEN CO. et al. v. CITY OF CHELSEA.
No. 4055.
Circuit Court of Appeals, First Circuit.
June 1, 1945.
See also 51 F.Supp. 117.
George K. Gardner, of Boston, Mass. (Samuel Hoar and. Goodwin, Procter & Hoar, all of Boston, Mass., of counsel), for appellants.
Joseph Israelite, of Chelsea, Mass. (James F. Sullivan, of Boston, Mass., John F. Donovan, of Chelsea, Mass., and Julius Stevens, of Boston, Mass., of counsel), for appellee.
Samuel S. Dennis, Asst. Corp. Counsel, of Boston, Mass., for City of Boston, amicus curiae.
Before MAHONEY and WOODBURY, Circuit Judges, and FORD, District Judge.
General Laws (Ter.Ed.) c. 59, § 5.
MAHONEY, Circuit Judge.
This case involves conflicting claims to $140,000, part of the compensation deposited in the Registry of the District Court by the United States in connection with the taking of certain parcels of land on the waterfront of Boston Harbor, commonly. known as the Richard T. Green Shipyard, Plant No. 2. Richard T. Green Company, M. Thomas Green, trustee, and the First National Bank of Boston (hereinafter called the “Owners”) have appealed from a decree of the court below awarding the sum in question to the City of Chelsea. The question presented turns on the validity of a lien for taxes for the years 1932 to 1942, inclusive.
For tax assessment purposes it appears that the shipyard has been treated as three separate parcels by the assessors of the city. On Parcel 1, assessed as 93,538 square feet of land, there was a “marine railway,” and in each of the years in question the assessors assessed as real estate all its component parts, including the hoisting machinery to haul the “cradle” up and down, the cradle itself, and the under-structure on which the cradle moved. Parcel 2 was assessed as 51,236 square feet. Up to extreme low-water mark, or the Boschke Line, it contained only 31,000 square feet. Between the extreme low-water mark and the United States Pierhead and Massachusetts Harbor Line of 1890, however, there were an additional 32,100 square feet of flats. Parcel 3 was assessed as 22,650 square feet and actually contained 21,773 square feet.
On September 5, 1934, all three parcels were sold to satisfy unpaid 1932 taxes, and tax deeds to the City of Chelsea were made out and duly recorded. On May 5, 1938, the 1932 taxes were paid in full, and payments were made on the 1933 taxes — in full with respect to Parcels 2 and 3, in part with respect to Parcel 1. These were the only taxes ever paid for the years 1932 to 1942 inclusive.
By a recorded deed dated November 24, 1941, Richard T. Green Company conveyed the shipyard to M. Thomas Green, trustee, for a valuable consideration, and on January 22, 1942, the date of the taking by the United States, the First National Bank of Boston had a mortgage on all three parcels.
The District Court held that the City had acquired a valid tax title in 1934 and that there was a valid lien for all the accumulated taxes and interest. Before this court the owners contend (1) that the City had no tax title nor lien on any of the three parcels to secure taxes assessed after 1932 for the reason that the Tax Collector had failed to certify to the City Treasurer these taxes for addition to the tax title as required by Massachusetts law; (2) with respect to Parcel 1 that the City got no tax title nor any lien because all the assessments thereon included assessments on personal property, that is, the ship cradle, the hoisting machinery, and that part .of the marine railway which extended below the low-water mark; and (3) with respect to Parcel 2 that the City acquired no tax title nor any lien for the reason that all the assessments thereon included assessments on land below low-water mark belonging to the Commonwealth of Massachusetts. We shall dispose of these contentions in the order in which they appear here.
The District Court held that the question of proper certification of subsequent taxes was immaterial to the question whether or not there was a valid lien. It therefore refused to hear any evidence on the question of certification. United States v. Five Acres of Land, D.C., 51 F.Supp. 117. This issue turns on the proper construction of Chapter 60, Section 61 of the Massachusetts General Laws (Ter.Ed) as amended, which the lower court construed as meaning merely that subsequent taxes must be certified in order to make their payment part of the terms of redemption. It was of the opinion that the legislature “did not intend that failure properly to certify subsequent taxes should invalidate the lien for those taxes, but merely that, when taxes were not properly certified, payment of them should not be made a part of the terms of redemption.” We agree.
G.L. (Ter.Ed.) c. 60, § 37, as amended by St.1936, c. 146, provides that a tax lien shall exist from the assessment date and that it shall terminate after a specified period “except as provided in section sixty-one.” § 61 provides that where a town acquires a tax title to real estate the lien for all subsequently assessed taxes “sháll continue.” The latter half of the section provides, “if any of the said subsequent taxes have not been certified * * * then redemption may be made by payment only of the amount of the tax for which the estate was purchased or taken and of such subsequent taxes as shall have been so certified.” The failure to certify affects the requirements of redemption, but it does not vitiate the prior substantive provision that the lien “shall continue.” The Supreme Judicial Court of Massachusetts subscribes to the rule that “where, in a statute, an express limitation or proviso is made with reference to a given subject matter, and, in the same statute, no such limitation or proviso is made applicable to a related subject matter, the absence of the limitation or proviso in the second instance is a strong indication that it is not intended to apply, or, by implication, that it is excluded.” In re Opinion of the Justices, 309 Mass. 571, 605, 34 N.E.2d 527, 547. This interpretation of the statute under consideration comports with the decision in City of Boston v. Barry, 315 Mass. 572, 577, 578, 53 N.E. 2d 686, 688. In that case dealing with the requirement of certification in relation to the terms of redemption, the court said that: “The purpose of requiring certification on or before a particular day is, we think, to fix a time when the responsibility of the collector ends and that of the treasurer begins. With that matter a taxpayer has little or no concern. His interests are sufficiently protected by the provision that on redemption he need not pay subsequent taxes that have never been certified. * * * the statutory requirement is merely a regulation of departmental relations within the municipal government.” And see City of Chelsea v. Richard T. Green Co., Mass., 60 N.E.2d 351, an action in the Land Court by the City as holder of the title to foreclose rights of redemption. The only question there related to the payment of taxes for the years 1933 to 1940 inclusive as one of the terms of redemption. Certification had taken place after the petitions were filed but before they had been heard by the Land Court. Citing Boston v. Barry, supra, the court held that such certification was not too late and that the taxes involved were therefore part of the terms of redemption.
The Owners’ second contention turns on whether the entire marine railway was properly assessed as real estate. As described by the court below:
“The marine railway consists of a foundation, a track structure, a cradle, and hoisting machinery. The foundation upon which the track rests is constructed of wopd and rests on piling which was driven and cut for the required slope. The cradle itself is three hundred and forty feet long, and, including the stone ballast, weighs approximately one thousand tons. It could safely carry 3,600 tons. The hoisting machinery, contained in a building, and consisting of a winch and steam engine, is set on bolts and secured by nuts. The bolts range in length from 5 to 8 feet, and are buried in concrete. The marine railway contains all the essentials of a drydock. It was constructed pursuant to a license dated May 28, 1919, issued by the Division of Waterways of the Department of Public Works of the Commonwealth of Massachusetts, and extends to the Massachusetts Harbor Line, a considerable distance beyond the so-called Boschke Line of 1861, which is the extreme low water mark. The cradle travels up and down the inclined railway. The upper end of the railway is above water, and the lower end is in considerable depth of water, so that when the cradle is all the way down a ship can be floated onto it, and then the cradle can be pulled up the incline, bringing the ship with it. When the cradle is all the way down, it is, in part, outside the Boschke Line. * * * The cradle is not attached to the understructure in any way, but just rests on it. The cradle operates on a series of free rollers on a flat metal track, and the power for pulling it -is a system of four endless chains attached to the cradle and passing over sprockets on a big geared winch and around sheaves. The weight of the foundation and hoisting machinery is approximately 160 to 170 tons. The machinery, consisting of a winch and the steam engine which operates it is set on long bolts imbedded in a heavy concrete foundation inside the boiler house located on high land on the upper end of the marine railway and kept in place by large nuts screwed on to these bolts. The machinery could be removed by unfastening the nuts and lifting the machinery off the concrete foundation. The cradle could be removed from the particular location to another location either by removing its ballast or by the use of lighters to make it float. However, if it were removed to a new location, a new railway and foundation would have to be built in order to accommodate this particular cradle. The cradle was constructed on the premises. The marine railway could not function without the cradle or without the tracks or without the chains and rollers or without the machinery. It requires the unity of the entire structure and all its component parts for operation as a marine railway.”
By Massachusetts law real estate and personal estate are distinct classes of property for the purposes of taxation. G. L. (Ter.Ed.) c. 60, § 37, as amended, makes taxes upon real estate a lien upon the property. There is no statute making taxes on personal property liens thereon, and they cannot be collected by the sale of such property. Hamilton Manufacturing Company v. Lowell, 185 Mass. 114, 69 N.E. 1080; Dunham v. Lowell, 200 Mass. 468, 86 N.E. 951. Real estate includes, “all land * * * and all buildings and other things erected thereon or affixed thereto” “personal estate for the purpose of taxation (includes) * * * Goods, chattels * * * ” ; “the following property and polls shall be exempt from taxation * * * Sixteenth, Property, other than real estate, poles, underground conduits, wires and pipes, and other than machinery * * * ”.
Impressed by the degree of physical attachment and affixation, the weight of the cradle and machinery, the complete interdependence of the cradle, the machinery, the foundation and the track — it was noted that even the cradle was attached by chains* —the district court regarded this aggregation of component parts as an entity and called it real estate. It relied on the fact that the cradle was built on the premises and the fact that—
“If the cradle were moved, a new foundation and track would have to be built to conform with the dimensions of the cradle. If the machinery were moved, it could be used again only in connection with a marine railway. The cradle, the machinery, the foundation and the track being attached to each other * * * and built to operate in conjunction with each other for a single purpose, should be considered an entity.”
The Owners rely on Hall v. Carney, 140 Mass. 131, 3 N.E. 14; Metropolitan Ice Company v. Assessors of Cambridge, 1939 Appellate Tax Board Advance Sheets, 105; and Hamilton Manufacturing Company v. Lowell, supra, and contend that the cradle and machinery cannot be treated as real estate and that the court below erred in applying its entity theory. We do not agree.
Hail v. Carney, supra, involved the validity of an attachment of a railroad car as personal property by the sheriff. The defense was that the car was a fixture. The year of the decision was 1885 and the cars involved were narrow-guage railroad cars which could not be operated on any other track in the vicinity. The court held merely that railroad cars are, for the purposes of attachment, personal property, and that the statutes clearly treat them as such and provide a special mode of attaching them. In Hamilton Manufacturing Company v. Lowell, supra, the question was the proper valuation of property and machinery used for manufacturing. The contention was made there that' land, buildings and machinery used for manufacturing constituted a single unit for taxation. The court observed that land and the buildings on it are ordinarily part of the same real estate which cannot be separated for the purpose of collecting taxes and held that “this principle does not apply to machinery in a mill used, with land and buildings, for manufacturing purposes” in face of the statutory provisions that “machinery” be valued separately and taxed as personal property. [185 Mass. 114, 69 N.E. 1081] That is not the instant case, however. Here we have no mill and no machinery used for manufacturing purposes. We think the trial court properly found that the marine railway was an entity within the coverage of G.L.(Ter.Ed.) c. 59, § 3, providing that real estate includes land and “all buildings * * * erected thereon or affixed thereto,” Franklin v. Metcalfe, 307 Mass. 386, 30 N.E.2d 262; Milligan v. Drury, 130 Mass. 428. The case of Metropolitan Ice Company v. Board of Assessors of City of Lawrence, supra, is not in conflict. That case involved buildings and machinery used in the manufacture of ice, and the question under review was what machinery should be valued as real estate. The manufacturing building contained pumps, compressors and machines set on concrete bases on one side and the balance of the floor was occupied by a large brine tank. Attached to the manufacturing plant is a' storage plant into which ice is conveyed for storage. The board of assessors viewed the property and treated the tracks on which the crane ran, the brine tank and the water cooling structure as real estate. The movable crane itself by which ice was moved, the pumps and the compressors were classified as machinery. As was observed in Hemenway v. Milton, 217 Mass. 230, 233, 104 N.E. 362, 363, L.R.A.1915C, 949: “Tax laws are enacted for practical ends. They must be administered in large part by the plain citizens who are elected assessors * * *. They should be construed and interpreted as far as possible so as to be susceptible of easy comprehension and not likely to become pitfalls for the unwary.”
It is well settled in Massachusetts law that private property in land extends only to the low-water mark. Commonwealth v. Alger, 7 Cush., Mass., 53; Wonson v. Wonson, 14 Allen, Mass., 71. The District Court found that part of the marine railway was extended beyond the low-water mark under a license from the Commonwealth and ruled that such license “did not grant any title to real estate.” It does not follow, however, that this part of the structure could not be assessed to the owners as real estate for purposes of taxation. Flax Pond Water Co. v. Lynn, 147 Mass. 31, 16 N.E. 742, involved a dam built upon land of another, and the court there held that the tax upon the dam was properly assessed to the owner thereof as a tax on real estate. With respect to the defense that the owners never acquired title to any real estate connected with the waters of the pond where the dam was, the court called such facts immaterial to the question of taxation. It noted that it was the policy of the legislature that all valuable property be taxable in some form and held, “Real estate, for the purpose of taxation, includes all lands and all buildings and other things erected on or affixed to the same * * * This language is clearly broad enough to include the dam and sluiceway, which are certainly ‘things erected or affixed to the land’ ”. That is the situation in the instant case. Cf. Boston Manufacturing Co. v. Newton, 22 Pick., Mass., 22.
With respect to Parcel 2, the Owners contend that the lien is invalid because this land at all times material was assessed with land between the low-water mark and the United States Pierhead and Massachusetts Harbor Line of 1890, which belonged to the Commonwealth.
The District Court ruled correctly that the boundary of private ownership of land is normally the low-water mark. Commonwealth v. Alger, supra; Wonson v. Wonson, supra. In 1846, however, the Winnisimmet Company, a predecessor in title to the Owners, was granted authority by the legislature — “for the better accommodation of the public travel * * * to extend their wharves and docks for the reception of ferry boats * * * with the right and privilege of using and occupying the flats within, or adjoining said wharves and structures for the purpose of said ferry * * The Owners contend that this is merely an easement which ceased when the ferry was given up. That does not appear to be applicable Massachusetts law. Bradford v. McQuesten, 182 Mass. 80, 64 N.E. 688, 689, involved a grant by statute made by the Legislature in 1S51 of authority to extend a wharf into the harbor channel as far as the harbor line. The court held that the statute operated as a legislative grant subject to the terms and conditions expressed in it. It noted that: “No particular words are necessary to constitute a legislative grant, and the commonwealth could divest itself of any right or title in or to the -flats * * * as well by an act of the legislature as by a more formal instrument * * *. Hundreds of similar acts had been passed before St. 1869, c. 432, was enacted declaring that any authority thereafter given to build on or enclose ground in tide waters should be construed as a revocable license, and it has been the common understanding, we think, that they operated as grants, and wharves have been built and improvements made on that footing.” And in Treasurer & Receiver General v. Revere Sugar Refinery, 247 Mass. 483, 490, 142 N.E. 909, 910, the court held “where the Commonwealth is the grantor, it can take advantage of a breach of a condition subsequent only by judicial proceedings or by a legislative declaration of forfeiture.” While the grant is to be construed “strongly”.against the grantee “it does not expire of its own limitation.” Cf. Attorney General v. Boston Wharf Co., 12 Gray, Mass., 553, 564. It follows, therefore, that the Owners, as successors in title to the Winnisimmet Company, acquired a fee interest in that area beyond the low-water mark.
For at least ten years prior to the taking of the three parcels in question, the assessors of the City of Chelsea have assessed as real estate the full area in question. It is our opinion that they acted properly in so doing.
The judgment of the District Court is affirmed with costs to the appellee.
G.L. (Ter.Ed.) c. 60, § 61, as amended by St.1936, e. 93.
“Whenever a town shall have purchased or taken real estate for payment of taxes the lien of the town on such real estate for all taxes assessed subsequently to the assessment for payment of which the estate was purchased or taken shall continue, and it shall be unnecessary for the town to take or sell said real estate for nonpayment of said subsequent taxes, costs and interest; and on redemption from such taking or purchase, said subsequent taxes, costs and interest shall be paid to the town, and the payment shall be made a part of the terms of redemption, except that if any of the said subsequent taxes have not been certified by the collector to the treasurer to be added to the tax title account, then redemption may be made by payment only of the amount of the tax for which the estate was purchased or taken and of such subsequent taxes as shall have been so certified, together with costs and interest. The collector shall certify to the treasurer not later than September first of the year following that of their assessment all subsequent taxes which become part of the terms of redemption and the treasurer shall give him a certificate stating that the amount or amounts have been added to the tax title account or accounts and the collector shall be credited as if the tax had been paid in money.
General Laws (Ter.Ed.) e. 59, § 3.
General Laws (Ter.Ed.) c. 59, § 4.
The district court properly excluded the testimony of the Chairman of the Assessors of Quincy on the question whether or not the cradle was real estate and treated it as a question of law.
Counsel for the City of Chelsea cites in its brief at p. 37 the trial court’s Memoranda of Findings of Fact and Rulings (original papers in Social Law Library, Boston, Mass.) in Hamilton Manufacturing Company v. Lowell, supra, wlierein it appears that “the circulating pipes for heating, the sprinkler pipes and the elevators were so affixed to the realty as to be properly included in the valuation of the buildings.”
Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)?
A. Trial (either jury or bench trial)
B. Injunction or denial of injunction or stay of injunction
C. Summary judgment or denial of summary judgment
D. Guilty plea or denial of motion to withdraw plea
E. Dismissal (include dismissal of petition for habeas corpus)
F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict)
G. Appeal of post settlement orders
H. Not a final judgment: interlocutory appeal
I. Not a final judgment: mandamus
J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment
K. Does not fit any of the above categories, but opinion mentions a "trial judge"
L. Not applicable (e.g., decision below was by a federal administrative agency, tax court)
Answer:
|
songer_appel1_3_3
|
J
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "federal government (including DC)", specifically "other agency, beginning with "F" thru "N"". Your task is to determine which specific federal government agency best describes this litigant.
NATIONAL LABOR RELATIONS BOARD v. ACME MATTRESS CO., Inc.
No. 10441.
United States Court of Appeals Seventh Circuit.
Nov. 7, 1951.
George J. Bott, Gen. Counsel, David P. Findling, Associate Gen. Counsel, Dominick L. Manoli, and A. Norman Somers, Asst. Gen. Counsel, Gerald F. Krassa, Washington, D. C., National Labor Relations Board.
Isadore Katz, David Jaffe, New York City, for respondent.
Before KERNER, FINNEGAN and LINDLEY, Circuit Judges.
FINNEGAN, Circuit Judge.
This is a petition by the National Labor Relations Board for the enforcement of an order entered on October 18, 1950, against respondents, Acme Mattress Company, Inc., Textile Workers Union of America, CIO, and Local 169, Textile Workers Union of America, CIO.
It appears that as a consequence of charges filed by one Floyd A. Littleton, the general counsel of the National Labor Relations Board, through the regional director for the ninth region, on June 27, 1949, filed its consolidated complaint against the above-named respondents. Said complaint charged that Acme Mattress Company, Inc., the so-called “Company” respondent, had been and was engaged in unfair labor practices affecting commerce within the meaning of Sec. 8(a) (1) and (3), and Sec. 2(6) and (7) of the Labor Management Relations Act of 1947, 61 Stat. 136, 29 U.S.C.A. §§ 158(a) (1, 3), 152(6, 7), 157; that Textile Workers Union of America, CIO, referred to as respondent “International,” and Local 169 of Textile Workers Union of America, CIO, “Local” respondent had engaged and were engaged in unfair labor practices affecting commerce within the meaning of Sec. 8(b) (1) (A) and (2), and Sec. 2(6) and (7) of said Act, 29 U.S.C.A. §§ 158(b) (1) (A), (2), 152(6), 157.
In reference to the unfair labor practices the complaint charged: (a) that by entering into a bargaining agreement with the said International and Local respondents requiring as a condition of employment membership in Local 169, and by thereafter discharging Littleton for reasons other than his failure to pay required dues and initiation fees uniformly required of members of said Local 169, the respondent company was engaging in unfair labor practices within the meaning of said Sec. 8(a) (1) and (3) of the Act; and (b) that by •entering into the above-mentioned union shop agreement with the Company, and by thereafter causing the Company to discharge Littleton for reasons other than his failure to pay uniformly required dues and initiation fees, the Union respondents, International and Local, engaged in unfair labor practices within the meaning of Sec. •8(b) (1) (A) and (2) of the said Act.
The Union respondents, International and Local filed a joint answer in which they admitted the allegation of the complaint in regard to their status as labor organizations ; admitted that they had entered into a collective bargaining agreement with the Company respondent, requiring membership in Local 169-as a condition of employment, but denying the commission of the unfair labor practices. The Company respondent also answered denying generally each and •every allegation of the complaint.
On April 13, 1950, the trial examiner, to whom the proceedings were referred, issued his intermediate report, finding that the respondents had engaged and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom, and also recommending that said respondents take certain affirmative action declared to be proper to effectuate the policies of the Act. The intermediate report was excepted to by all respondents as well as by the general counsel.
The Board considered the report of the trial examiner, the exceptions thereto, and the briefs and arguments filed in support of such exceptions and generally adopted the findings, conclusions and recommendations of the trial examiner, except in so far as they might be inconsistent with its decision and order.
As'part of the relief awarded Littleton, the Board ordered that: “The respondents, Acme Mattress Company, Inc., Indianapolis, Indiana, its officers, agents, successors, and assigns, and Textile Workers Union of America, CIO, and Local 169, Textile Workers Union of America, CIO, their officers, agents, representatives, successors, and assigns, shall jointly and severally make whole Floyd A. Littleton for any loss of pay he may have suffered because of the discrimination against him, during the period from September 14, 1948, to and including August 9, 1949.”
The decision and order of the Board which the petition herein seeks to have enforced are reported in 91 N.L.R.B. 1010.
In its brief and argument the Board states that during the hearing before the trial examiner, the respondent Company was actively engaged in the business of manufacturing mattresses and sofa beds. After the hearings had been completed, the Company was adjudicated a bankrupt in the United States District Court for the Southern District of Indiana, Indianapolis Division. The Company’s Trustee in Bankruptcy filed exceptions to the report of the trial examiner and participated in the proceedings before the Board. He was informed of his right to partake in these proceedings, but has not chosen to do so. It is said in the argument that he is not now operating the business of the Company. As a result the petition of the National Labor Board for enforcement of its order is opposed in this court only by the respondents representing labor, that is by Textile Workers Union of America, CIO, and the Local Union 169 affiliate Of that organization]
From our consideration of this record, we find, as did the trial examiner and the National Labor Relations Board; that the following facts appear from substantial evidence.
Since 1941, the International and Local Union 169 have entered into a succession of collective bargaining agreements with the respondent, Acme Mattress Company. The last of this series of contracts ran from July 31, 1946 to July 31, 1948. It contained a union shop proviso.
One Ralph Cline negotiated and signed this last agreement as “National representative” of the Textile Workers Union of America, CIO, and terminated it with a 60-day notice in accordance with the provisions of the agreement.
Following the expiration of the July 31, 1948 agreement, negotiations for a new contract were carried on intermittently between the representatives of the Company and the representatives of the International and Local Unions involved. As a result of these negotiations, a new collective bargaining agreement was signed on September 14, 1948.
While such negotiations were pending, on about September 10, 1948, the parties had reached agreement on nearly all terms of the new contract except wage increases. The Company, made no objection to the inclusion of the union shop clause in the projected contract, despite the fact that neither unions had ever been certified by the Board, as a result of a Board conducted election held pursuant to Sec. 9(e) (1) of the Act, in order to determine whether the majority of the employees in an appropriate unit desired to authorize such labor organization to make an agreement with the employer of such employees regarding membership in such organization as a condition of employment in such unit.
On the matter of wage increases, it appears that Ralph Cline reported that the Company had offered only a three cent increase, and for that reason Cline ordered a strike on the succeeding Monday, September 13. The report of Cline was communicated to Floyd Littleton, who was one of the negotiating committee appointed by Local 169. Littleton shortly thereafter met Stanley B. Smith, vice-president and superintendent of the Company, who was conducting negotiations on its behalf, and rebuked him for offering a niggardly three cent increase. He was assured by Smith that the increase offered had been a five cent increase. Lit-tleton communicated this inf ormation to his Union associates and personally expressed dissatisfaction and resentment at the conduct of the representative of the International Union, and with the International itself.
On the morning of September 14, 1948, when the negotiators met, Cline, who acted as spokesman for the Union groups, said to Smith:
“I suppose you notice you are minus old buddy (meaning Littleton). He has been replaced by David Coop and is no longer on the committee and when the negotiations are settled will no longer be an (employee) of the Company.
“Before this contract is signed you wilt have to get rid of Floyd Littleton.”
Smith objected and wished to consult with Littleton, who said he did not want to cause indirectly the prolonging of the strike and proposed that if Smith would permit him to return to work after the contract was signed and the strikers returned, he would himself endeavor to work out a satisfactory solution.
Smith returned to the conference and the contract was signed, Cline executing it as “National Representative” of the International.
One hour thereafter the strike ended and the workers returned. Littleton was discharged. The report of unemployment given by the Company to Littleton for the Indiana Employment Security Division, dated September 15, 1948, states: “Business agent of Textile Workers Union, Local 169, refused to sign labor contract unless company discharged this man.”
The record shows that Littleton’s current membership dues were paid at this time. Nothing further occurred until August 4, 1949, the last day of hearing before the trial examiner; the respondent unions then stated: “for the record — that they have no objection, and will not interpose objection to the employment of Floyd Littleton by the Acme Company, and this offer is made in good faith, and among other reasons, to toll any possible back pay award that may be rendered in this case.”
On behalf of the Union it is urged: That the Board’s findings with respect to liability of the Unions for Littleton’s discharge by Cline’s procurement is wholly without support in the record, and that all other questions in the case are moot.
The Labor Management Relations Act of 1947, states, Sec. 1 (b) of the Act, 29 U.S. C.A. § 141 (b) : “It is the purpose and policy of the Act * * * to prescribe the legitimate rights of both employees and employers in their relations affecting commerce, to provide orderly and peaceful procedures for preventing the interference by either with the legitimate rights of the other, to protect the rights of individual employees in their relation with labor organi-sations * * * to define and proscribe practices on the part of labor and management which affect commerce and are inimical to the general welfare”.
Section 8(b) of the Act contains matter that is entirely new, when contrasted with the contents of the National Labor Relations Act, the so-called “Wagner Act.” It specifies and to some extent defines unfair labor practices by labor organizations in six numbered sections, the fourth of which contains four subsections. It is especially worthy of note that a labor organization is made responsible for the acts of its agents.
As the editor of the annotation in 173 A.L.R. 1401 — “The Taft-Hartley Act and its effect on the Wagner Act:” says on page 1423, “It would seem that the same rules apply here as in the case of an employer. In other words, a union is responsible for what people say and do when it is within the actual or apparent scope of their authority * * *. As stated in the Senate Labor Committee Report: The term ‘agent’ is intended to include all union officials acting in their capacity as union representatives, and is not limited to those officials who have been expressly authorized to commit the act which is alleged to constitute an unfair labor practice.”
The record in the case at bar shows that for a number of years Cline had participated in negotiations with the Company and had executed contracts with it on behalf of the International as its “National Representative.” He had been the only representative of the International to execute such contracts. In 1948, the International authorized him to give notice terminating the existing agreement with the Company and to negotiate the terms of a successor agreement. Although Cline testified that he was not authorized to sign a contract without first obtaining the approval of the International, the latter, under the circumstances disclosed here, held him out as its negotiator. No limitation was communicated to the Company with respect to Cline’s apparent authority to impart to the Company the terms and conditions upon which the International would execute the contract and terminate the strike. In demanding and procuring Littleton’s discharge as the price for signing the September 14, 1948 agreement, and calling off the strike Cline was acting within the scope of that authority. Local 169 had empowered its negotiating committee to set the terms and conditions upon which it would execute a collective bargaining agreement with the Company and terminate the strike, and to negotiate for and execute such an agreement. The negotiating committee in the course of the negotiations permitted Cline to act, at least in part, as its spokesman. At no time during the negotiations did the committee disassociate itself from Cline’s demand that dismissal of Littleton was a prerequisite to the signing of the contract and termination of the strike. Its failure to do so signified only that it was concurring in the demand for Littleton’s dismissal and, together with Cline, was insisting upon Littleton’s discharge as the price for consummating a contract and calling off the strike. Its action in this respect clearly fell within its apparent authority, and Local 169 is therefore answerable for it, regardless of the circumstance that it may not have specifically authorized the committee to exact such a condition for terminating the strike or consummating a contract.
We agree with, the finding of the Board that under the facts and circumstances disclosed by this record, both respondent unions, International and Local, are responsible for the acts which caused Littleton’s discharge.
This court held in Union Starch & Refining Co. v. National Labor Relations Board, 7 Cir., 186 F.2d 1008, that where the Board found that both employer and union were responsible for loss suffered by a discharged employee, the Board properly held the employer and the union jointly and severally liable for back pay under the Act. National Labor Relations Act, Sec. 10(c) as amended by Labor Management Relations Act of 1947, 29 U.S.C.A. § 160(c).
We are not impressed with the contention that enforcement of the Board’s order should be denied at this time because the “Company” has been judicially declared insolvent and is not now actively engaged in business. A proceeding can not be said to be moot when the order or decree sought therein is necessary to carry into effective execution the judgment of an agency awarding compensation for the infringement of a person’s statutory rights. This is a statutory proceeding. The Labor Management Relations Act of 1947, under the terms of which it was instituted, has for its purpose and policy the declaration and protection of the rights of employees and employers in their relations affecting commerce. The Board created to administer the Act has properly directed that the respondent Company and the respondent Unions — International and Local — shall jointly and severally make the aggrieved employee, Littleton, whole for any loss of pay caused him from September 14, 1948, the date of his discharge, to August 9, 1949, a date five days after the union respondents gave notice that they had no objection to the reinstatement of Littleton.
Enforcement is sought in this court so that the order of the Board may be carried into execution. The mere fact that insolvency of the Company may make it impracticable or impossible for that respondent to discharge any part of the obligations imposed upon it, is no reason for delaying the enforcement of the order. It may be safely assumed that the Board will make no attempt to enforce directions with regard to posting notices, offering employment, etc., which existing conditions make it impossible for the Company to perform.
The order of the National Labor Relations Board will be enforced.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "federal government (including DC)", specifically "other agency, beginning with "F" thru "N"". Which specific federal government agency best describes this litigant?
A. Food & Drug Administration
B. General Services Administration
C. Government Accounting Office (GAO)
D. Health Care Financing Administration
E. Immigration & Naturalization Service (includes border patrol)
F. Internal Revenue Service (IRS)
G. Interstate Commerce Commission
H. Merit Systems Protection Board
I. National Credit Union Association
J. National Labor Relations Board
K. Nuclear Regulatory Commission
Answer:
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songer_r_natpr
|
2
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
T. B. HARMS COMPANY, Plaintiff. Appellant, v. Edward ELISCU and Ross Jungnickel, Inc., Defendants-Appellees.
No. 93, Docket 28921.
United States Court of Appeals Second Circuit.
Argued Oct. 21, 1964.
Decided Dec. 23, 1964.
Gustave B. Garfield, New York City, for plaintiff-appellant.
Lewis A. Dreyer, New York City (Norma Hack, New York City, of counsel), for defendant-appellee Ross Jung-nickel, Inc.
David Blasband, New York City (Linden & Deutsch, New York City), for defendant-appellee Edward Eliscu.
Before FRIENDLY, KAUFMAN and ANDERSON, Circuit Judges.
FRIENDLY, Circuit Judge:
A layman would doubtless be surprised to learn that an action wherein the purported sole owner of a copyright alleged that persons claiming partial ownership had recorded their claim in the Copyright Office and had warned his licensees against disregarding their interests was not one “arising under any Act of Congress relating to * * * copyrights” over which 28 U.S.C. § 1338. gives the federal courts exclusive jurisdiction. Yet precedents going back for more than a century teach that lesson and lead us to affirm Judge Weinfeld’s dismissal of the complaint.
The litigation concerns four copyrighted songs; we shall state the nub of the matter as alleged in the complaint without going into details irrelevant to the jurisdictional issue. The music for the songs was composed by Vincent Youmans for use in a motion picture, “Flying Down to Rio/’ pursuant to a contract made in 1933 with RKO Studios, Inc. He agreed to assign to RKO the recordation and certain other rights relating to the picture during the existence of the copyrights and any renewals. RKO was to employ a writer of the lyrics and to procure the publishing rights in these for Youmans, who was “to pay said lyric writer the usual and customary royalties on sheet music and mechanical records.” Subject to this, Youmans could assign the publication and small performing rights to the music and lyrics as he saw fit. In fact RKO employed two lyric writers, Gus Kahn and the defendant Edward Eliscu, who agreed to assign to RKO certain rights described in a contract dated as of May 25, 1933. Max Dreyfus, principal stockholder of the plaintiff Harms, which has succeeded to his rights, acquired Youmans’ reserved rights to the music and was his designee for the assignment with respect to the lyrics. Allegedly — and his denial of this is a prime subject of dispute — Eliscu then entered into an agreement dated June 30, 1933, assigning his rights to the existing and renewal copyrights to Dreyfus in return for certain royalties.
When the copyrights were about to expire, proper renewal applications were made by the children of Youmans, by the widow and children of Kahn, and by Eliscu. The two former groups executed assignments of their rights in the renewal copyrights to Harms. But Eliscu, by an instrument dated February 19, 1962, recorded in the Copyright Office, assigned his rights in the renewal copyrights to defendant Ross Jungnickel, Inc., subject to a judicial determination of his ownership. Thereafter Eliscu’s lawyer advised ASCAP and one Harry Fox — respectively the agents for the small performing rights and the mechanical recording license fees — that Eliscu had become vested with a half interest in the renewal copyrights and that any future payments which failed to reflect his interest would be made at their own risk; at the same time he demanded an accounting from Harms. Finally, Eliscu brought an action in the New York Supreme Court for a declaration that he owned a one-third interest in the renewal copyrights and for an accounting.
Harms then began the instant action in the District Court for the Southern District of New York for equitable and declaratory relief against Eliscu and Jungnickel. Jurisdiction was predicated on 28 U.S.C. § 1338; plaintiff alleged its own New York incorporation and did not allege the citizenship of the defendants, which eoneededly is in New York. Defendants moved to dismiss the com.plaint for failure to state a claim on which relief can be granted and for lack of federal jurisdiction; voluminous affidavits were submitted. The district court dismissed the complaint for want .of federal jurisdiction, 226 F.Supp. 337 <1964).
In line with what apparently were the arguments of the parties, Judge "Weinfeld treated the jurisdictional issue as turning solely on whether the complaint alleged any act or threat of copyright infringement. He was right in concluding it did not. Infringement, as used in copyright law, does not include everything that may impair the value of the copyright; it is doing one or more of those things which § 1 of the Act, 17 U.S.C. § 1, reserves exclusively to the copyright owner. See Nimmer, Copyright §§ 100, 141 (1963). The case did not even raise what has been the problem presented when a defendant licensed to use a copyright or a patent on certain terms is alleged to have forfeited the grant; in such cases federal jurisdiction is held to exist if the plaintiff has directed his pleading against the offending use, referring to the license only by way of anticipatory replication, but not if he has sued to set the license aside, seeking recovery for unauthorized use only incidentally or not at all. See Chief Justice Taft’s review of the cases in Luckett v. Delpark, 270 U.S. 496, 46 S.Ct. 397, 70 L.Ed. 703 (1926) ; and Hart & Wechsler, The Federal Courts and the Federal System, 754-58 (1953). Here neither Eliscu nor Jungnickel had used or threatened to use the copyrighted material; their various acts, as the district judge noted, sought to establish their ownership of the copyrights by judicial and administrative action, including notice to the parties concerned.
However, the jurisdictional statute does not speak in terms of infringement, and the undoubted truth that a claim for infringement “arises under” the Copyright Act does not establish that nothing else can. Simply as a matter of language, the statutory phrasing would not compel the conclusion that an action to determine who owns a copyright does not arise under the Copyright Act, which creates the federal copyright with an implied right to license and an explicit right to assign. But the gloss afforded by history and good sense leads to that conclusion as to the complaint in this case.
Although Chief Justice Marshall, construing the “arising under” language in the context of Article III of the Constitution, indicated in Osborn v. Bank of the United States, 9 Wheat. 738, 22 U.S. 738, 822-827, 6 L.Ed. 204 (1824), that the grant extended to every case in which federal law furnished a necessary ingredient of the claim even though this was antecedent and uncontested, the Supreme Court has long given a narrower meaning to the “arising under” language in statutes defining the jurisdiction of the lower federal courts, Romero v. International Terminal Operating Co., 358 U.S. 354, 379 n. 51, 79 S.Ct. 468, 3 L.Ed. 2d 368 (1959); Mishkin, The Federal “Question” in the District Courts, 53 Colum.L.Rev. 157, 160-63 (1953). If the ingredient theory of Article III had been carried over to the general grant of federal question jurisdiction now contained in 28 U.S.C. § 1331vthere would have been no basis — to take a well-known example — why federal courts should not have jurisdiction as to all disputes over the many western land titles originating in a federal patent, even though the controverted questions normally are of fact or of local land law. Quite sensibly, such extensive jurisdiction has been denied. Shoshone Mining Co. v. Rutter, 177 U.S. 505, 20 S.Ct. 726, 44 L.Ed. 864 (1900).
The cases dealing with statutory jurisdiction over patents and copyrights have taken the same conservative line. The problem apparently first reached the Supreme Court in Wilson v. Sanford, 10 How. 99, 51 U.S. 99, 13 L.Ed. 344 (1850), under the Act of July 4, 1836, § 17, 5 Stat. 17, which allowed appeal to the Court, irrespective of the amount, in actions “arising under” the patent laws. The suit aimed to prevent use of a patented invention by a licensee who allegedly had failed to comply with the terms of the license and thus had forfeited its rights. Chief Justice Taney, dismissing the appeal, held the statute inapplicable to a dispute as to license or contract rights which “depended altogether upon the rules and principles of equity, and in no degree whatever upon any act of Congress concerning patent rights.” The same principle was applied, and sometimes stated less cautiously, in decisions construing later legislation granting the federal courts exclusive jurisdiction of all suits “arising under” the patent or copyright laws of the United States.' Act of July 8, 1870, §§ 55, 106, 16 Stat. 206, 215; Rev.Stat. §§ 629 Ninth and 711 Fifth (1875); Judicial Code of 1911, §§ 24 Seventh, 256 Fifth, 36 Stat. 1092, 1161. To take one of many examples, the Court said in New Marshall Engine Co. v. Marshall Engine Co., 223 U.S. 473, 478, 32 S.Ct. 238, 239, 56 L.Ed. 513 (1912):
“The Federal courts have exclusive jurisdiction of all cases arising under the patent laws, but not of all questions in which a patent may be the subject-matter of the controversy. For courts of a state may try questions of title, and may construe and enforce contracts relating to patents. Wade v. Lawder, 165 U.S. 624, 627, 41 L.Ed. 852, 17 Sup.Ct.Rep. 425.”
Just as with western land titles, the federal grant of a patent or copyright has not been thought to infuse with any national interest a dispute as to ownership or contractual enforcement turning on the facts or on ordinary principles of contract law. Indeed, the case for an unexpansive reading of the provision conferring exclusive jurisdiction with respect to patents and copyrights has. been especially strong since expansion would entail depriving the state courts of any jurisdiction over matters having SO' little federal significance.
In an endeavor to explain precisely what suits arose under the patent and copyright laws, Mr. Justice Holmes stated that “[a] suit arises under the law that creates the cause of action”; in the case sub judice, injury to a business involving slander of a patent, he said, “whether it is a wrong or not depends upon the law of the State where the act is done” so that the suit did not arise under the patent laws. American Well Works Co. v. Layne & Bowler Co., 241 U.S. 257, 260, 36 S.Ct. 585, 586, 60 L.Ed. 987 (1916). The Holmes “creation” test explains the taking of federal jurisdiction in a great many cases, notably copyright and patent infringement actions, both clearly authorized by the respective federal acts, 17 U.S.C. § 101; 35 U.S.C. § 281, and thus unquestionably within the scope of 28 U.S.C. § 1338; indeed, in the many infringement suits that depend only on some point of fact and require no construction of federal law, no other explanation may exist.
Harms’ claim is not within Holmes’ definition. The relevant statutes create no explicit right of action to enforce or rescind assignments of copyrights, nor does any copyright statute specify a cause of action to fix the locus of ownership. To be sure, not every federal cause of action springs from an express mandate of Congress; federal civil claims have been “inferred” from federal statutes making behavior criminal or otherwise regulating it. See, e. g., Tunstall v. Brotherhood of Locomotive Firemen, 323 U.S. 210, 65 S.Ct. 235, 89 L.Ed. 187 (1944); Reitmeister v. Reitmeister, 162 F.2d 691 (2 Cir. 1947); Note, Implying Civil Remedies From Federal Regulatory Statutes, 77 Harv.L.Rev. 285 (1963). Such statutes invariably impose a federal duty and usually create some express remedy as well, while the relevant copyright provision merely authorizes an assignment by written instrument, 17 U.S.C. § 28. It is true that although this difference carries the present case outside the classic doctrine of implied remedies, see Restatement, Torts § 286 (1934), expansion may not be foreclosed where appropriate, cf. Wheeldin v. Wheeler, 373 U.S. 647, 661-663, 83 S.Ct. 1441, 10 L.Ed.2d 605 (1963) (Brennan, J., dissenting); we would not be understood, for example, as necessarily agreeing with the implication of Republic Pictures Corp. v. Security-First National Bank, 197 F.2d 767, 770 (9 Cir. 1952), that federal jurisdiction would not exist if a complaint alleged that a state declined to enforce assignments of copyright valid under federal law. But no such case is here presented.
It has come to be realized that Mr. Justice Holmes’ formula is more useful for inclusion than for the exclusion for which it was intended. Even though the claim is created by state law, a case may “arise under” a law of the United States if the complaint discloses a need for determining the meaning or application of such a law. The path-breaking opinion to this effect was Smith v. Kansas City Title & Trust Co., 255 U.S. 180, 41 S.Ct. 243, 65 L.Ed. 577 (1921), pointedly rendered over a dissent by Mr. Justice Holmes, 255 U.S. at 213-215, 41 S.Ct. 243. A recent application of this principle to 28 U.S.C. § 1338 is De Sylva v. Ballentine, 351 U.S. 570, 76 S.Ct. 974, 100 L.Ed. 1415 (1956), where the Supreme Court decided on the merits a claim to partial ownership of copyright renewal terms. Since there was no diversity of citizenship and no infringement, the only, and a sufficient, explanation for the taking of jurisdiction was the existence of two major questions of construction of the Copyright Act. But Harms likewise does not meet this test. The crucial issue is whether or not Eliscu executed the assignment to Dreyfus; possibly the interpretation of the initial May, 1933, contract is also relevant, but if any aspect of the suit requires an interpretation of the Copyright Act, the complaint does not reveal it.
Having thus found that appropriate pleading of a pivotal question of federal law may suffice to give federal jurisdiction even for a “state-created” claim, we cannot halt at questions hinging only on the language of the Copyright Act. For a new and dynamic doctrine, taking its name from Clearfield Trust Co. v. United States, 318 U.S. 363, 63 S.Ct. 573, 87 L.Ed. 838 (1943), instructs us that even in the absence of express statute, federal law may govern what might seem an issue of local law because the federal interest is dominant. Sola Elec. Co. v. Jefferson Elec. Co., 317 U.S. 173, 175-176, 63 S.Ct. 172, 87 L.Ed. 165 (1942), is relevant here, not only for its holding that the radiations of the antitrust laws governed an estoppel question in a patent license case but also for the Court’s unwillingness to say whether the estoppel rule would have been “local” or “federal” even if the antitrust laws had not been invoked — a question which Scott Paper Co. v. Marcalus Mfg. Co., 326 U.S. 249, 255, 66 S.Ct. 101, 90 L.Ed. 47 (1945), apparently settled in favor of federal principles. If this “federal common law” governed some disputed aspect of a claim to ownership of a copyright or for the enforcement of a license, federal jurisdiction might follow — though one would wish to consider whether this might be founded on 28 U.S.C. § 1331 rather than on § 1338 and thus be concurrent and require a jurisdictional amount. But there is not the slightest reason to think that any legal question presented by Harms’ complaint falls in the shadow of a federal interest suggested by the Copyright Act or any other source.
Mindful of the hazards of formulation in this treacherous area, we think that an action “arises under” the Copyright Act if and only if the complaint is for a remedy expressly granted by the Act, e. g., a suit for infringement or for the statutory royalties for record reproduction, 17 U.S.C. § 101, cf. Joy Music, Inc. v. Seeco Records, Inc., 166 F.Supp. 549 (S.D.N.Y.1958), or asserts a claim requiring construction of the Act, as in De Sylva, or, at the very least and perhaps more doubtfully, presents a case where a distinctive policy of the Act requires that federal principles control the disposition of the claim. The general interest that copyrights, like all other forms of property, should be enjoyed by their true owner is not enough to meet this last test.
Something should be said as to cases in this circuit deciding on the merits copyright claims apparently not involving infringement. There has been discussion whether the assumption of jurisdiction in Rossiter v. Vogel, 134 F.2d 908 (2 Cir. 1943), was properly rested on a basis similar to that suggested in this opinion with respect to De Sylva, see Cresci v. Music Publishers Holding Corp., 210 F. Supp. 253, 258-259 (S.D.N.Y.1962);; Nimmer, Copyright § 131.12, at 570-571 (1963). But a glance at the complaint in that case, which relied on diverse citizenship as well as on what is now 28 U.S.C. § 1338, shows that the problem of federal jurisdiction was hardly troublesome and indicates why it went unmentioned. The equally undiscussed assumption of jurisdiction in Venus Music Corp. v. Mills; Music, Inc., 261 F.2d 577 (2 Cir. 1958),, cannot be thus explained, since there was; no diversity, see 156 F.Supp. 753 (S.D. N.Y.1957). But the jurisdictional problem was doubtless obscured by the insistence of both parties that this action was. for copyright infringement, see 156 F.. Supp. at 753, and by the sui-face similarity with Rossiter v. Vogel, supra, as-that case stands in the reports. Whether or not the complaint in Venus presented questions of copyright law sufficient to meet the criteria we have outlined — an issue on which we express no opinion— the complaint here does not.
One more question remains. Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946), is often taken as indicating that if a complaint comes close enough to presenting a federal claim that the court has trouble in deciding that it doesn’t, dismissal of that claim should be for “failure to state a claim upon which relief can be granted” rather than for lack of jurisdiction. Even if we were to-assume that the district judge should have adopted the former ground in dismissing the claims allegedly created by federal law, his disposition ought nevertheless be affirmed. Montana-Dakota Util. Co. v. Northwestern Pub. Serv. Co., 341 U.S. 246, 249-250, 71 S.Ct. 692, 95 L.Ed. 912 (1951). The only apparent consequence of Bell v. Hood as applied to this case is that if the complaint is close enough to the line to give “jurisdiction,” the court may have power to adjudicate a “pendent” or “ancillary” state claim. See 327 U.S. at 686, 71 S.Ct. at 778 (dissenting opinion of Chief Justice Stone). But a federal court need not try such a state claim when the non-existence of the federal claim has been determined on motion prior to trial on the merits, see Hart & Wechsler, supra, at 808 and decisions there cited — and the case against its doing so is particularly strong when, as here, a prior suit for the same relief is pending in a state court.
Affirmed.
. Although the parties did not question federal jurisdiction and the Court did not mention it, the issue had been sharply raised by a dissent in the Court of Appeals, see 226 F.2d 623, 634 (9 Cir. 1955), and can hardly have passed unnoticed.
. Harms likewise does not bring itself within the test by reliance on the provision of § 24 of the Copyright Act that in the case of any work copyrighted “by an employer for whom such work is made for hire the proprietor of the copyright shall be entitled” to the renewal rights. The allocation of rights under the May, 1933, contract is governed by the contract itself, and the complaint suggests no manner in which the construction of § 24 of the Copyright Act might be relevant.
. There would seem to be no difference from the standpoint of res judicata. On either method of disposition the court would not have decided whether Eliscu had signed the alleged assignment or how Ms contract with R.KO should be construed, but would have decided the insufficiency of the complaint to permit an inferior federal court to grant relief.
Question: What is the total number of respondents in the case that fall into the category "natural persons"? Answer with a number.
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.
UNITED BROTHERHOOD OF CARPENTERS & JOINERS OF AMERICA, Carpenters District Council of Denver and Vicinity, and United Brotherhood of Carpenters & Joiners of America, AFL-CIO, Colorado State Council of Carpenters its Affiliated District Councils and Affiliated Local Unions, and Leslie Prickett, Adolph Lavalle and James McFarland, Appellants, v. HENSEL PHELPS CONSTRUCTION COMPANY, a Colorado corporation, Appellee.
No. 8634.
United States Court of Appeals Tenth Circuit.
Feb. 6, 1967.
Rehearing Denied June 7, 1967.
Wayne D. Williams, Denver, Colo. (Howard E. Erickson, Denver, Colo., on the brief), for appellants.
Bennett S. Aisenberg, Denver, Colo. (Charles E. Grover, Denver, Colo., on the brief), for appellee.
Before BREITENSTEIN and SETH, Circuit Judges, and KERR, District Judge.
SETH, Circuit Judge.
The appellee, Hensel Phelps Construction Company, brought this action under § 301 of the Labor Management Relations Act of 1947, 29 U.S.C.A. § 185, for damages for breach of collective bargaining agreements. The defendant-appellants are labor organizations and individuals representing a single union which was a party to the agreements. The action was tried to the court, and judgment was rendered against the appellant-union in the amount of $8,000.00. The union took this appeal.
The disagreement arose between the parties over the question whether certain work done by appellee’s carpenter employees on an elevated ramp for automobiles to reach the entrance to the Denver airport was to be paid at the rate for building work or highway work. The issue raised the question as to which of two collective bargaining agreements would be applicable to this type of work, both agreements being between the same parties. The amount of the judgment appealed from represents the difference between the two wage scales.
The trial court concluded that the union had breached its highway collective bargaining agreement with appellee Phelps by causing a work stoppage without first complying with the disputes procedure of such agreement.
The facts, about which there is no dispute, may be summarized as follows:
Appellee Phelps had been awarded a contract by the City and County of Denver, Colorado, to construct an air terminal building and an elevated drive at Stapleton Airfield in Denver. Phelps was a member of the Associated Building Contractors of Colorado, Inc., hereinafter “ABC.” ABC, representing its members, had negotiated a master collective bargaining contract with the appellant union, which contract is captioned “Building Construction Agreement Carpenters,” and to which we will refer as the “building contract.” Article I, section 4, of the building contract describes in detail the carpenter work within the coverage of the contract. However, Article I, section 2(d), of the building contract states that work covered by the “Housing Agreement and The Heavy and Highway Agreement” shall not be considered similar to work within the coverage of the building contract for purposes of automatically granting a lower wage scale to any employer under the building contract when another employer has secured a lower wage scale than that provided by the contract.
Section 2(d) of the building contract further states that a Heavy and Highway Agreement “shall be available to any member of the Employer [any member of ABC], who desires to engage in such work, for signature with the Union.”
The Heavy and Highway Agreement, which we will refer to as the “highway contract,” is the second of two collective bargaining contracts involved in this appeal. The building contract describes work within its jurisdiction in terms of the particular job the employee might perform, e. g., “making and setting of concrete forms,” “fitting and hanging of all doors,” “making and installing of all acoustic properties.” The highway contract describes work within its jurisdiction by the nature of the construction project, e. g., “all work performed in the construction of streets and highways, airports, utilities, levee work,” etc. The important fact giving rise to the dispute and leading to this appeal is that the wage scale for carpenters provided in the highway contract is less than the wage scale provided in the building contract.
Although there is no dispute that a substantial part of the entire construction project was within the jurisdiction of the building contract (the terminal buildings), classification of the elevated drive leading to the building entrance as highway work or building work immediately became a source of disagreement between the parties. There is conflicting evidence relating to the understanding of the parties as work commenced; however, for the first four or five weekly pay periods Phelps paid employees working on the elevated drive the lower wage scale provided in the highway contract. After a number of informal discussions, the dispute between Phelps and the union representatives concerning the classification of the elevated drive and applicable wage scales reached a critical point in the week of July 24, 1964.
On July 23 Phelps mailed to the union a Heavy and Highway Agreement for union signature, as provided in section 2(d) of the building contract. The union received the agreement on July 24, but did not sign it. On July 24 a formal meeting was convened between the union representatives and representatives of ABC, the contractors’ association, pursuant to Article VIII, section 1, of the building contract, which provides: “The said committees are charged with the responsibility of reaching a settlement by mediation, conciliation or arbitration as the circumstances require; the decision so reached shall be put in writing and shall be binding on all parties to the controversy.” The foregoing excerpt is the extent of the procedure for resolving disputes under the building contract. A vote taken at the meeting resulted in a deadlock. The union considered the building wage scale applicable to the elevated drive, and the contractors considered the highway wage scale applicable.
After the meeting was adjourned on July 24, the union advised Phelps that unless Phelps agreed to pay building wages on the elevated drive, the union would inform its members that they were receiving substandard wages. It was understood that such advice would result in a v/alkout or work stoppage. Phelps would not agree to pay building wages, but did offer to place the amount represented by the difference between highway and building wages in escrow pending a final determination of the issue. The union declined this offer, and advised its members that Phelps was paying substandard wages, and the carpenters walked out. Work was resumed in two days, after Phelps agreed to pay building wages, but reserved all rights under the building contract pending a final determination of the issue.
Phelps thereafter brought this suit against the union for breach of contract, seeking recovery of the difference between highway and building wages paid, and other damages.
The trial court found that the building contract meeting of July 24, which resulted in a deadlock, had exhausted the dispute procedure set forth in such contract. The trial court found that the ramp construction was highway work, and that the highway contract was operative. It also found that the dispute procedure set forth in the highway contract was different from that established in the building contract, and that the union had not complied with its contract dispute procedure before causing a work stoppage.
From the foregoing findings, the trial court concluded that the parties were bound by the provisions of both the building and highway contracts, and that the dispute concerned the application of the highway contract to the elevated drive. Thus the union was required to comply with the dispute procedure of both the highway contract and the building contract. The court concluded that the union had failed to comply with the dispute procedure of the highway contract; that the highway contract was breached by the work stoppage, and Phelps was entitled to recover damages in the amount of the building wage scale paid for highway work.
This appeal is under the provisions of § 301 of the Labor Management Relations Act, 29 U.S.C.A. § 185, and federal substantive law applies. Republic Steel Corp. v. Maddox, 379 U.S. 650, 85 S.Ct. 614, 13 L.Ed.2d 580; John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 84 S.Ct. 909, 11 L.Ed.2d 898. Although we have been referred to no case concerned with issues quite like those presented in the case at bar, the Supreme Court has established a broad policy for judicial interpretation of collective bargaining contracts. The Court has stated: “[W]e think special heed should be given to the context in which collective bargaining agreements are negotiated and the purpose which they are intended to serve.” United Steelworkers of America v. American Manufacturing Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed. 2d 1403. “The collective agreement covers the whole employment relationship. It calls into being a new common law * * United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409. The Court has also held that in the context of collective bargaining contracts, preoccupation with the doctrines of ordinary contract law may thwart realization of congressional policy. Cf. United Steelworkers of America v. American Manufacturing Co., supra.
These policies are of course difficult to apply to a particular factual'situation such as we have before us. We can examine however the purpose for which the agreements were intended to serve, the fact that they are intended to cover as great a portion of the parties’ relationships as possible, and that all the doctrines of contract law may not be applicable.
This dispute originated during the course of work under a particular agreement, the building contract, and all negotiations and procedures were initially taken pursuant to it. The employees’ pay was initially made at a different scale, but with no indication that a different agreement would be invoked in its entirety. The dispute was treated by the parties as one over an applicable pay scale under a single contract, and the court should treat it in the same way. There was no disagreement as to the hourly rate if the nature of the work was decided. Thus again it was treated by all concerned as a dispute over which of two wage scales should apply.
We hold that the judgment of the trial court must be affirmed, but we cannot agree with the trial court’s conclusion of law that the parties were bound to comply with the dispute procedures of both the building contract and the highway contract.
As indicated above, the disagreement between the parties centered about one issue. Was the elevated drive building work, or was it highway work ? The contents of the contracts in question cannot be considered separately from the unusual nature of the dispute in the case at bar. Unlike the facts of most cases to which we have been referred, the dispute here is fundamental, for it questions which of two contracts should apply to the elevated drive. Until the underlying question of fact was determined, that is, classification of the elevated drive as building or highway work, the parties could not know which wage scale to use. Although the trial court concluded that the dispute concerned application of the highway contract to the elevated drive, the dispute was concerned equally with application of the building contract to the elevated drive.
Review of the record satisfies us that the parties regarded the dispute as one arising under the building contract. It appears that work on the airport project was commenced under the building contract, though the parties never agreed on the classification of the elevated drive. A substantial part of the airport project was within the jurisdiction of the building contract, and the building contract, in Article I, section 2(d), provides that a highway contract, for signature with the union, shall be available to any contractor desiring to engage in highway work. The meeting of July 24 was convened pursuant to the dispute procedure established in the building contract, and Phelps sought to invoke the highway contract in the manner provided in the building contract.
When Phelps sought to put into effect the highway contract under section 2(d) of the building contract, the dispute had long before focused on the classification of the elevated drive. It could not invoke the highway contract for building work, and thus the “jurisdictional” question still remained as before. Phelps’ action in executing the highway contract was no more than a further assertion of its position in the dispute. Neither “party” to the highway contract could be the sole judge of whether the project was within the jurisdiction of the highway contract. Such an interpretation would be inconsistent with the efforts of the union and the contractors to establish comprehensive definitions of building work and highway work in the contracts.
In the case at bar, the union did not agree that the elevated drive was highway work. The basic issue was unchanged by the action of Phelps. The dispute was thus in fact still proceeding under the building contract. The union could not under such circumstances breach the highway contract by causing a work stoppage. The highway contract thus never came into existence, and the union cannot be required to exhaust its dispute procedure. Cf. United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347; United Mine Workers of America, Dist. 22 v. Roncco, 314 F.2d 186 (10th Cir.).
The dispute procedure established in the building contract is rudimentary. Beyond the requirement of a meeting between the parties, the dispute provisions in the building contract provide for no further procedure for a binding resolution of the dispute, short of a strike, a lockout, or a law suit. While the dispute procedure does charge the parties to reach a settlement by “mediation, conciliation or arbitration as the circumstances require,” no machinery is provided by which any of the foregoing alternatives might be implemented to achieve the “binding decision” envisioned by the dispute procedure. The parties do not assert that any procedure, beyond the meeting, was required by the language of the contract, and it appears that the language of the contract is inadequate to compel the parties to resort to additional extrajudicial procedures. Cf. United Steelworkers of America (AFL-CIO), etc. v. New Park Mining Co., 273 F.2d 352 (10th Cir.).
A failure to agree that disputes shall be resolved by binding arbitration permits the parties to resort to other remedies such as work stoppages, lockouts, or the courts. Compliance with the dispute procedure of the building contract was effected by the meeting of July 24, which resulted in a deadlock. The contract does not contain a “no strike” clause, and, as we have seen, it does not provide for binding and compulsory arbitration. Thus after the contractual dispute procedure proved ineffective to resolve the dispute, the parties were free to pursue their other remedies. The device selected by the union was a work stoppage. Phelps later has sought its remedy in the United States District Court. With different facts the forums selected could be reversed, Phelps imposing a lockout and the union bringing suit.
The union argues that the merits of the dispute concerning classification of the elevated drive were “matters which the parties left to mutual confidence and to their joint committees to work out, if possible, when problems should arise”; and therefore, the trial court erred by finding that the elevated drive was “highway construction within the meaning and intent” of the highway contract. We cannot accept this analysis of the trial court’s limited role in adjudicating disputes arising under a collective bargaining contract. Federal policy, as revealed by § 301 of the Labor Management Relations Act, undoubtedly favors arbitration as the method for resolving disputes arising under collective bargaining contracts. United Steelworkers of America v. Warrior & Gulf Navigation Co., supra; Local 174 Teamsters, Chauffeurs, etc. v. Lucas Flour Co., 369 U.S. 95, 82 S.Ct. 571, 7 L.Ed.2d 593. In the case at bar however the contract does not provide for binding arbitration, and resort to the court was proper.
The contracts in question reveal a joint effort of the union and the contractors to define and classify construction projects as building or highway work for purposes of determining the appropriate wage scale. Classification of a particular construction project is not beyond the scope of the contracts in question, nor is such classification beyond the contractual intent of the parties. The dispute here concerned interpretation and construction of the contracts, and the trial court properly adjudicated the dispute on its merits. When the dispute is one arising within the provisions of the contract, it is the function of the courts, under § 301, to adjudicate the dispute, absent provisions in the contract for binding arbitration. See Line Drivers Local No. 961, etc. v. W. J. Digby, Inc., 341 F.2d 1016 (10th Cir.); United Steelworkers of America (AFL-CIO), etc. v. New Park Mining Co., 273 F.2d 352 (10th Cir.); cf. Atkinson v. Sinclair Refining Co., 370 U.S. 238, 82 S.Ct. 1318, 8 L.Ed.2d 462; Smith v. Evening News Ass’n, 371 U.S. 195, 83 S.Ct. 267, 9 L.Ed.2d 246; Brown v. Sterling Aluminum Products Corp., 365 F.2d 651 (8th Cir.). See also Textile Workers Union of America v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972.
Although the record reveals conflicting evidence relating to classification of the elevated drive, we are satisfied that there was substantial evidence to support the trial court’s finding that the elevated drive was highway construction. Rule 52, Fed.R.Civ.Proc.; J. A. Tobin Construction Co. v. United States, 343 F.2d 422 (10th Cir.); State Farm Mutual Automobile Ins. Co. v. Lehman, 334 F.2d 437 (10th Cir.). The union caused Phelps to pay building wages for highway construction which was a breach of the building contract, and the union is liable to Phelps for damages.
The record discloses that Phelps claimed $9,327.00 in actual damages. The trial court awarded judgment for $8,000.00, finding that Phelps had paid to carpenters working on the elevated drive “not less than $8,000.00 in excess of that which the plaintiff [Phelps] would have been obligated to pay” if the highway contract had been applicable. We are satisfied that there was substantial evidence upon which the trial court could find that a sum not less than $8,-000.00 would compensate Phelps for excessive wages paid, and we cannot say that such finding is clearly erroneous.
The judgment is affirmed.
. The letter awarding the contract to Phelps and the plans and specifications of the project refer to “Schedule Two Elevated Drive” and “Schedule Three Terminal Building.”
. The hiyhioay contract defines building construction as “building structures, including modifications thereto or additions or repairs thereto, intended for use as shelter, protection, comfort or convenience * * * No structures such as * * * bridges * * *, forming a part of a highway, which are required under the provisions of a highway construction contract, shall be regarded as constituting building work.”
. It also appears that Phelps made retroactive payments for the first four or five weekly pay periods for which the highway scale had been paid.
. The highway contract sets forth its dispute procedure in some detail, but representatives for the union and the contractors, for purposes of a meeting to resolve a dispute, are different than those designated by the building contract. Article VII of the highway contract provides:
“If the Joint Committee is unable or unwilling to render a decision because of deadlock vote or otherwise, thereafter the Employer and the Union shall be free to pursue whatever other legal rights and remedies they may have.” The highway contract expressly prohibits work stoppage by either side until the joint committee has, or has not, reached a decision, but neither party is bound to abide the decision of the joint committee.
Question: What is the nature of the first listed respondent?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
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songer_appel1_3_2
|
I
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "federal government (including DC)". Your task is to determine which category of federal government agencies and activities best describes this litigant.
EWING v. BLACK.
No. 10723.
United States Court of Appeals Sixth Circuit.
Feb. 2, 1949.
Melvin Blumenthal, of Baltimore, Md. (H. G. Morison, of Washington D. C., Ward Hudgins and S. E. Wasson, both of Nashville, Tenn., on the brief; Edward H. Hickey, Vincent P. Russo, Leonard B. Zeisler and Robert Hannings, all of Washington, D. C., of counsel), for appellant.
Judson Harwood, of Nashville, Tenn. (Judson Harwood and Cecil Sims, both of Nashville, Tenn., on the brief), for appellee.
' Before'HICKS, Chief Judge, and MARTIN and McALLISTER, Circuit Judges.
MARTIN, Circuit Judge.
The appellee, Robert W. Black, of Nashville, Tennessee, was employed from January 1, 1937, to February, 1943, by Gladstone Brothers of New York, manufacturers of clothing for men and boys. He was a commission salesman assigned to a definite territory.
In 1937, Black complied with the request of his employers that he procure a social security number, so that they might report the amount of commissions paid him and make payment of social security taxes due thereon to the Bureau of Internal Revenue. The employers made regular deductions at the lawful percentage rate from his wage commissions, but at no time reported officially any wages paid him or any amounts deducted from his wages for social security taxes, and made no remittances on his account to the Bureau of Internal Revenue, as required by law.
Appellee had no knowledge that the commissions paid him by Gladstone Brothers had not been reported to the social security administration until, upon attaining age 65, he filed an application for benefits under the Social Security Act, 42 U.S.C.A. § 301 et seq. When informed by the Nashville field office manager of the Social Security Board, in April 1946, that the records of the board showed no postings whatever of any wages to his credit, Black wrote Gladstone Brothers, disclosing to them the information which he had received. The employers replied that they had always considered him an independent contractor on whom no taxes need be withheld; and that their purpose in making social security deductions on the wages paid him was that it would not then be necessary for them to malee deductions at one time for all amounts due him, should it be decided that he was an employee. He was, of course, surprised, inasmuch as he had assumed that because regular deductions had been made from his wages for social security purposes his employers had made the required reports and paid the proper taxes on his behalf.
About two and a half months later, Gladstone Brothers mailed Black a check for $85.26, stating that this represented the monies which had been withheld for social security purposes; and that they had understood him to be classified as an independent agent “not subject to social security.” The appellee had been paid commission wages of $50 or more in each of 25 calendar quarters to the total amount of $8,626.93, thus qualifying him for primary insurance benefits under section 202(a) of the Social Security Act, as a fully insured individual who has attained age 65 and has filed application for primary insurance benefits.
The application of appellee for these benefits was made on June 7, 1946, and was denied three and a half months later by the Bureau of Old-Age and Survivors Insurance of the Social Security Administration, Federal Security Agency. The determination by the bureau that the claimant was not a “fully insured individual” at the time of his application was based on the assertion that the amounts earned by him prior to January 1, 1942, could not be included in his wage record, in consequence of the provisions of section 205(c) (2) of the Social Security Act, which provides: “After the expiration of the fourth calendar year following any year in which wages were paid or are alleged to have been paid an individual, the records of the Board as to the wages of such individual for such year and the periods of payment shall be conclusive * * Section 405(c) (2), Title 42 U.S.C.A.
Appellee requested and obtained a hearing before a. Referee of the Appeals Council of the Social Security Administration. H^ was the only witness who testified at that hearing, but documentary evidence was received. The finding was made by the Referee that an employer-employee relationship between Gladstone Brothers and Black had existed continuously from January 1, 1937, to the termination of his services in 1943, inasmuch as the proof showed conclusively that his employers not only had the right to control his services, but had exercised such control as a matter of fact.
The Referee sustained the ruling of the Bureau that the remuneration received by appellee from his employers constitutes wages; and found that the employers had made regular deductions from his commissions for social security purposes, but had at no time reported the amounts paid him, nor had they remitted any taxes affecting him to the Bureau of Internal Revenue. The official further found no evidence in the record which would indicate that the Social Security Administration had notice of Black’s employment, or that he was being paid wages, “until just before April 1946.” The Referee stated that, this being true, section 205(c) (2) of the Social Security Act, as amended, is applicable, with the resultant that the Social Security Administration has no lawful authority to credit the claimant with wages paid him by Gladstone Brothers prior to January 1, 1942, unless that firm, “in accordance with the provisions of section 205(c) (4), should report such wages and remit the taxes thereon to the Collector of Internal Revenue.”
It was asserted by the Referee that in case such report and remittance were made, the Social Security Administration could revise its wage records to conform to the tax returns made to the Bureau of Internal Revenue, thereupon crediting claimant’s wage account with the total wages paid him, and could also credit him with 25 quarters of coverage. Gladstone Brothers failed to take any such action in behalf of Black.
Conceding that Black “a man of intelligence and absolutely sincere in his intentions,” had been misled by his employers to the deprival of his benefit status through no fault of his- own, “as he had every reason to believe that his employers were making timely reports,” the Referee, nevertheless, held that, though regrettable, Black has no remedy. The concluding paragraph of the .Referee’s decision states that the claimant can be credited only with wages paid subsequent to 1941 in the amount of $2,864.51, covering only six quarters; and .that, inasmuch as the claimant is required to have had 15 quarters of coverage, Black was not a fully insured individual when he filed his application and, accordingly, is not entitled to the primary insurance benefits for which he applied.
The request of appellee to the Appeals Council of the Social Security Administration to review the Referee’s decision was denied; and, in conformity with the practice of the Federal Security Administrator, the decision of the Appeals Council became his final decision. In due time and in compliance with the right granted him in section 205(g) of the Social Security Act, as amended, section 405(g), Title 42 U.S.C.A., appellee instituted this action in the United States District Court for the Middle District of Tennessee to review and reverse the administrative decision. He prayed that the Federal Security Administrator and the Commissioner for Social Security be required to cause payments, based on his. earnings including the wages paid him by Gladstone Brothers, to be made him according to the provisions of the Social Security Act. Other and further relief as may be just and equitable was also prayed. Appellee filed a motion for summary judgment on the pleadings, on the admitted facts therein contained. The district court granted his motion.
The final judgment entered remanded the cause to the Federal Security Administrator with directions to him “to credit the plaintiff on his wage records ■ with the amount, of wages paid to him by Gladstone, Brothers Company during the years 1937, 1938 and 1939 and to compute the amount of benefits to which he is entitled, upon the basis of such wage record and for further proceedings in conformity with section 205 (i) and the other applicable provisions of Title II of the Social Security Act, as amended.”
The district court’s decision was grounded upon the opinion, expressed orally, that the four-year period provided for in section 205(c) (2) of the Act is not retroactive and was intended to start with the year 1940; and that it could not be considered to be a four-year statute of limitations for any period of time prior to 1940.
Many finely drawn challenges to the correctness of the district court’s decision have been .presented by the government in its brief, as well as in its oral argument. In our analysis of the case, we find it unnecessary to pass upon all the propositions argued.
Whether or not the provisions of section 205(c) (2) of the Social Security Act, if applied generally, are constitutionally infirm need not be decided here. Moreover, we deem it unimportant here whether the pertinent section is, in general, a qualification of a right newly created by the Act of which the section is a part. Therefore, we have considered but will not discuss cases cited by the government to the point. The Harrisburg, 119 U.S. 199, 7 S.Ct. 140, 30 L.Ed. 358; Pennsylvania Company for Insurances, etc. v. Deckert, 3 Cir., 123 F.2d 979, 985; Matheny v. Porter, 10 Cir., 158 F.2d 478; Damiano v. Pennsylvania R. Co., 3 Cir., 161 F.2d 534; Madden v. Lancaster County, 8 Cir., 65 F. 188. Not long ago, this court manifested its accord with the principle of these authorities in two opinions upon the subject matter, neither of which is cited by the government although certiorari was denied in both cases: Maki v. George R. Cooke Co., 124 F.2d 663, 146 A.L.R. 1352, with annotation, certiorari denied 316 U.S. 686, 62 S.Ct. 1274, 86 L.Ed. 1758; Wilson v. Massengill, 124 F.2d 666, certiorari denied, 316 U.S. 686, 62 S.Ct. 1274, 86 L.Ed. 1758.
Nor. are w.e concerned with whether the section is reasonable, or unreasonable, as to the time limit within which the admin-
istrator’s wage records for the period from 1937 through 1939 may be revised. We deem it unnecessary to discuss the argument of the government that “if section 205(c) (2) cannot be construed retroactively it forbids revision of the administrator’s wage records for the years 1937-1939, inclusive, after February 29, 1944.” We have not neglected, however, to read and consider the authorities cited: Sohn v. Waterson, 17 Wall. 596, 21 L.Ed. 737; Carscadden v. Territory of Alaska, 9 Cir., 105 F.2d 377, 379; Philadelphia Nat. Bank v. Raff, 6 Cir., 76 F.2d 843, certiorari denied 296 U.S. 601, 56 S.Ct. 118, 80 L.Ed. 426; The Fred Smartley, Jr., 4 Cir., 108 F.2d 603; American Mut. Liability Ins. Co., of Boston v. Lowe, 3 Cir., 85 F.2d 625.
Our concern is with the exact issue which we must decide. That issue does not involve a revision of the records of the Board. This is not a case of challenging the conclusiveness of records. There are no records to challenge. The Board has none at all pertaining to Black. The employer wrongfully failed to furnish them; but records affecting Black can now easily, accurately and completely be made by the Board from the exhibits introduced in evidence in this case. Section 205(c) (2) of the Act, reasonably construed, constitutes no bar to the Board’s receiving these records and making them official, so that the employee may obtain his just benefits under the Social Security Act.
It will be observed that the provision of section 205(c) (1), section 405(c) (1), Title 42, U.S.G.A.j that the absence of an entry as to an individual’s wages in the Board’s records for any period shall be evidence that no wages were paid such individual in such period does not carry with it the conclusive^ ness of such records. The section merely says that the absence of entries shall be “evidence” that no wages were paid. It does not say that such absence shall be conclusive evidence. To the contrary, in section 205(c) (2), the records of the Board [which we think means records made, not omitted, by the Board], are expressly made “conclusive.”
Appellant contends that, even though Black did not know that the administrator’s wage records for the three years prior to 1940 failed to show that wages had been paid him by Gladstone Brothers, and notwithstanding the fact that he was led by his employers’ actions to believe that the wages paid him had been reported to the Commissioner of Internal Revenue, he had the right, under section 205(c) (3), to request an opportunity to prove that the wages had been paid him during the crucial years and failed to exercise that right, bringing upon himse.lf, thereby, the bar of section 205(c) (2). We cannot accede to* this reasoning. There was no suspicious circumstance to put him upon notice that his employers had been derelict in performing their lawful duty in obedience to the Social Security Act. Why should he make inquiry when he was justified in feeling secure?
The beneficent purpose of Congress in the enactment of the Social Security Act must not be ignored. After painstaking investigation and elaborate research through experts, Congress reached the conclusion, upon which it acted, that the award of old-age benefits is conducive to the general welfare. See opinion of Mr. Justice Cardozo in Helvering v. Davis, 301 U.S. 619, 641-645, 57 S.Ct. 904, 909, 81 L.Ed. 1307, 109 A.L.R. 1319, where the legislative history of the Social Security Act is reviewed. In his logical reasoning, the eminent jurist did not strain eloquence when he said: “The hope behind this statute is to save men and women from the rigors of the poor house as well as from the haunting fear that such a lot awaits them when journey’s end is near.”
In Social Security Board v. Nierotko, 327 U.S. 358, 364, 66 S.Ct. 637, 640, 9C L.Ed. 718, 162 A.L.R. 1445, affirming our decision in 149 F.2d 273, the Supreme Court, asserting that the “purpose of the Federal Old Age Benefits of the Social Security Act is to provide funds through contributions by employer and employee for the decent support of elderly workmen who have ceased to labor”, gave a liberal interpretation to the Act; and held that “back pay” awarded under the National Labor Relations Act, 29 U.S.C.A. § 151 et seq., to an employee is to be treated under the Social Security Act as wages for which the employee is entitled to credit on his Old Age and. Survivors Insurance Account. This holding was made despite a contrary administrative determination by the Social Security Board.
Again, in United States v. Silk, 331 U.S. 704, 712, 67 S.Ct. 1463, 1467, 91 L.Ed. 1757, the Supreme Court made it clear that the Social Security Act must be liberally construed: “As the federal social security legislation is an attack On recognized evils in our national economy, a constricted interpretation of the phrasing by the courts would not comport with its purpose. Such an interpretation would only make for a continuance, to a considerable degree, of the difficulties for which the remedy was devised and would invite adroit schemes by some employers and employees to avoid the immediate burdens at the expense of the benefits sought by the legislation. These considerations have heretofore guided our construction of the Act.”
Attorneys for Black insist, and the district court ■ agreed, that Congress did not intend that the limitation contained in section 205(c) (2) should apply to.wage records for the years 1937-1939, inclusive. Hassett v. Welch, 303 U.S. 303, 314, 58 S.Ct. 559, 82 L.Ed. 858, is cited to the proposition that a law is presumed, in the absence of clear expression to the contrary; to operate prospectively. Sections 204(a) and 204(b) of the Act, sections 404(a) and (b), Title 42, U.S.C.A. relating to correction of errors with respect to payments to an individual are pointed to as indicative that Congress did not, intend that section 205(c) (2) should apply to wage records prior to the 1939 amendment.'
We cannot accept such interpretation as sound. We think it apparent that the purpose of Congress was to give conclusiveness to the records for the years 1937 to 1939, inclusive, after the period of time and upon the conditions prescribed in the statute; but, where no records at all have been kept for those years relating to a particular employee, who had conformed to all lawful requirements which would .qualify him to enjoy the benefits of the Social Security Act and with reason rested secure in the belief that his employers had likewise complied, the case is different. As we have attempted to show, it would defeat the obvious purposes of the Social Security Act and give judicial sanction to gross injustice to hold that, in the detailed circumstances of this case, the employee must be deprived of his social security old-age benefits.
Accordingly, we affirm the judgment; but we have attempted to make clear that we are not in accord with the reasoning upon which the district court based its decision.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "federal government (including DC)". Which category of federal government agencies and activities best describes this litigant?
A. cabinet level department
B. courts or legislative
C. agency whose first word is "federal"
D. other agency, beginning with "A" thru "E"
E. other agency, beginning with "F" thru "N"
F. other agency, beginning with "O" thru "R"
G. other agency, beginning with "S" thru "Z"
H. Distric of Columbia
I. other, not listed, not able to classify
Answer:
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songer_dissent
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1
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What follows is an opinion from a United States Court of Appeals.
Your task is to determine the number of judges who dissented from the majority (either with or without opinion). Judges who dissented in part and concurred in part are counted as dissenting.
UNITED STATES of America, Plaintiff-Appellant, v. Jorge ZAPATA, Defendant-Appellee.
No. 92-2183.
United States Court of Appeals, Tenth Circuit.
June 23, 1993.
Sidney M. Glazer, Atty., U.S. Dept, of Justice, Washington, DC (Don J. Svet, U.S. Atty., and Tara Neda, Asst. U.S. Atty., D. of N.M., Albuquerque, NM, with him on the brief), for plaintiff-appellant.
Joseph W. Gandert, Asst. Federal Public Defender, Albuquerque, NM, for defendant-appellee.
Before ANDERSON, HOLLOWAY, and TACHA, Circuit Judges.
STEPHEN E. ANDERSON, Circuit Judge.
The government appeals from an order of the district court suppressing evidence — cocaine — seized pursuant to a search of defendant Jorge Zapata’s luggage on a train in Albuquerque, New Mexico, as well as statements made following his arrest. Because we hold that the encounter between the officers and Mr. Zapata was consensual, and did not constitute a seizure in violation of the Fourth Amendment, and because we hold that Mr. Zapata voluntarily consented to the search of his luggage, we reverse the district court’s grant of the motion to suppress.
BACKGROUND
Certain basic facts are undisputed. Drug Enforcement Administration Special Agent Kevin Small, dressed in civilian clothes, boarded an Amtrak train on May 27, 1992, while the train was stopped briefly in Albuquerque, en route from Los Angeles to Chicago. Accompanied by Abuquerque Police •Department Detective Sam Candelaria, who was under assignment to the Drug Enforcement Administration Task Force, Agent Small walked through the coach section of the train where Mr. Zapata was sitting with his common-law wife, Brenda Contreras, and their young son. Agent Small testified at the suppression hearing that there were approximately 45 to 55 people in the coach car at the time. The agent further testified that he decided to question Mr. Zapata because he observed two new duffle bags in the rack above Mr. Zapata’s seat and “of all the drug cases we’ve done on board the train ... about 75 percent of them have used new luggage.” R.Vol. II at 11.
While Detective Candelaria “stood back against one of the windows watching the platform area,” Agent Small turned on a tape recorder in a small fanny pack he wore around his waist and approached Mr. Zapata from behind. Id. Agent Small showed Mr. Zapata his DEA badge, and proceeded to ask him a series of questions. The agent stated that he knelt down in the aisle next to Mr. Zapata’s seat while he questioned him, and that his gun remained inside his fanny pack and was not visible. Mr. Zapata testified that Agent Small “was standing in front of me” throughout the entire questioning. R.Vol. II at 41. When the agent asked Mr. Zapata if he could search his bags, Mr. Zapata stood up, got the bags down and opened them for Agent Small. Inside the bags Agent Small found several kilograms of cocaine.
The district court found that Agent Small “block[ed] [Mr. Zapata’s] egress from the seat” while he asked him questions which “were rapid-fire, direct, accusatory and potentially incriminating.” Order at 1-2, R.Vol. I tab 16. The district court also found, and no one disputes this finding, that Mr. Zapata was never told that he could refuse to answer Agent Small’s questions or that he could otherwise refuse to comply with the agent’s requests. The district court further found that Mr, Zapata was “born and raised in Mexico, and is a Mexican citizen. He had about 11 years of education in Mexico. He has resided in the United States for 3 to 4 years, and is able to communicate in English to a certain degree. However, he speaks with a heavy accent, and his understanding and command of the English language are somewhat deficient.” Id. at 2-3.
Mr. Zapata testified at the suppression hearing that he got “scared” and “very nervous” when Agent Small identified himself as a police officer. R.Vol. II at 40. He testified that he was scared and nervous because he “knew what was in the bags.” Id. When asked why he agreed to talk to the agent, Mr. Zapata testified, “I didn’t know that I didn’t have to talk to him and I thought I had to do it.” Id. , When asked if he felt “that [he] could just leave” while Agent Small was, questioning him, Mr. Zapata testified that he did not “[b]ecause I didn’t want to leave my family there and I saw the two individuals there, one in front and one in the back.” Id. at 41.
Mr. Zapata was indicted for possession with intent to distribute more than 500 grams of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B). He filed a motion to suppress all evidence seized pursuant to the search of his bags as well as all statements made following his arrest, on the grounds that “[t]he initial encounter between Jorge Zapata and Agent Small was an involuntary and nonconsensual seizure” in violation of the Fourth Amendment. Motion to Suppress at 4, R.Vol. I tab 6.
The district court held an evidentiary hearing at which Agent Small and Mr. Zapata testified, and the court listened to the tape recording of the encounter between the two. It granted Mr. Zapata’s motion to suppress, finding as follows:
10.Because of his upbringing in Mexico, Defendant believed that he must acquiesce to all police requests because failure to do so could result in dire consequences, including physical harm.
11. A reasonable person in these circumstances with Defendant’s background would not have felt free to ignore Agent Small’s presence, to decline Agent Small’s requests, or to otherwise terminate the encounter and go about his business. When Agent Small began to question Defendant, the Defendant reasonably believed that he was not free to leave or to refuse to answer questions. Defendant reasonably believed he was required to produce his ticket and identification and to allow the agent to search his luggage.
12. Under the circumstances of this case, Defendant reasonably felt intimidated by the presence of the officers, and reasonably interpreted Agent Small’s “requests” as commands or demands.
13. The government has not proven that Defendant’s consent to the police questioning and search was given freely and voluntarily. The questioning of Defendant was not a voluntary, consensual encounter.
14. Defendant was seized for purposes of the Fourth Amendment when Agent Small began asking Defendant questions. Agent Small lacked reasonable articulable suspicion that Defendant had been, was, or was about to be engaged in criminal activity to justify this seizure. The subsequent search and statements made by Defendant were fruits of the initial illegal detention.
Order at 3-4, R.Vol. I tab 16. The government appeals that order, arguing that the district court erred in concluding that Mr. Zapata was seized in violation of the Fourth Amendment and that the subsequent search and statements must be suppressed.
DISCUSSION
When we review an order granting a motion to suppress, “we accept the trial court’s factual findings unless clearly erroneous, and we view the evidence in the light most favorable to the district court’s finding.” United States v. Swepston, 987 F.2d 1510, 1513 (10th Cir.1993) (citing United States v. Waupekenay, 973 F.2d 1533, 1535 (10th Cir.1992) and United States v. Preciado, 966 F.2d 596, 597 (10th Cir.1992)). “[T]he ultimate determination of Fourth Amendment reasonableness is a conclusion of law which we review de novo.” United States v. Allen, 986 F.2d 1354, 1356 (10th Cir.1993); United States v. Laboy, 979 F.2d 795, 798 (10th Cir.1992) (“the ultimate determination of the reasonableness of any search or seizure is a question of law reviewed de novo by this court”); United States v. Bloom, 975 F.2d 1447, 1450 (10th Cir.1992) (“ ‘the ultimate issue of whether a seizure occurred is a question of law.’ ”) (quoting United States v. Ward, 961 F.2d 1526, 1534 (10th Cir.1992)). “If the district court’s factual findings are based on an erroneous interpretation of law, a remand is appropriate unless the record is such that only one resolution of the factual issue is possible.” United States v. Nicholson, 983 F.2d 983, 987 (10th Cir.1993).
We turn first to the question of whether the encounter on the Amtrak train between Agent Small and Mr. Zapata was a purely consensual encounter or an investigative detention implicating the Fourth Amendment.
I. Seizure or Consensual Encounter
“[A] seizure does not occur simply because a police officer approaches an individual and asks a few questions.” Florida v. Bostick, — U.S. -, -, 111 S.Ct. 2382, 2386, 115 L.Ed.2d 389 (1991). “ ‘[O]nly when the officer, by means of physical force or show of authority, ... in some way restraints] the liberty of a citizen may we conclude that a “seizure” has occurred.’ ” Id. (quoting Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 1879 n. 16, 20 L.Ed.2d 889 (1968)); see also Laboy, 979 F.2d at 798. Thus, police may freely ask questions of any individual they choose, including requesting to see identification and requesting consent to search the individual’s luggage, “so long as the officers do not convey a message that compliance with their requests is required.” Bostick, — U.S. at -, 111 S.Ct. at 2388; see also Bloom, 975 F.2d at 1451-52.
The Supreme Court in Bostick articulated the test to be applied to any police encounter, whether occurring on “trains, planes, [or] city streets”:
[I]n order to determine whether a particular encounter constitutes a seizure, a court must consider all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers’ requests or otherwise terminate the encounter.
Bostick, — U.S. at - - -, 111 S.Ct. at 2388-89. Applying that “free to decline officers’ requests or otherwise terminate the encounter” test to the facts of this case, we hold that no seizure occurred when Agent Small questioned Mr. Zapata.
We consider a number of factors in determining whether a police-citizen encounter becomes a seizure: the location of the encounter, particularly whether the defendant is “in an open public place where he [is] within the view of persons other than law enforcement officers,” Ward, 961 F.2d at 1531; whether the officers “touch or physically restrain” the defendant, id. at 1533; whether the officers are uniformed or in plain clothes; whether their weapons are displayed; the number, demeanor and tone of voice of the officers; whether and for how long the officers retain the defendant’s personal effects such as tickets or identification; and whether or not they have specifically “advised defendant at any time that he had the right to terminate the encounter or refuse consent.” Id. See also Bloom, 975 F.2d at 1453-54; Laboy, 979 F.2d at 799.
Virtually all those factors indicate a consensual encounter between Agent Small and Mr. Zapata. First, the encounter occurred in a public setting, in a coach ear of the train, in view of dozens of other travel-lers. When confronted by authorities in such a public place, a reasonable person is less likely to feel that he is unable to decline the agent’s request or otherwise terminate the encounter. See Ward, 961 F.2d at 1532 (“in a public setting ... the reasonable innocent person is less likely to feel singled out as the officers’ specific target—and less likely to feel unable to decline the officers’ requests and terminate the encounter.”); see also United States v. Ray, 973 F.2d 840, 842-43 (10th Cir.1992) (“A decisive factor in Ward was the defendant was not in a public place or in view of persons other than law enforcement personnel.”).
Furthermore, neither Agent Small nor Detective Candelaria touched or physically restrained Mr. Zapata in any way; the agents were in plain clothes and did not brandish or display their weapons; and the officers used a regular tone of voice in asking a series of essentially routine questions. See Ward, 961 F.2d at 1533. Similarly, Mr. Zapata’s ticket and identification were retained only briefly by Agent Small and promptly returned to Mr. Zapata after they had been examined. Cf. United States v. Soto, 988 F.2d 1548, 1557 (10th Cir.1993) (encounter not consensual “[u]nless the officer has returned the driver’s documentation.”).
While Mr. Zapata was never in-' formed by Agent Small that he need not answer the agent’s questions or refuse consent to search his luggage, although he was asked if he would “voluntarily” consent to the search, “this one factor by itself does not determine whether a seizure has occurred.” Ward, 961 F.2d at 1533. Similarly, the fact that there were two agents involved, which may, in some circumstances, “increase[ ] the coerciveness of an encounter,” Ward, 961 F.2d at 1533, does not outweigh the multiple other factors indicating a purely consensual encounter.
We also specifically hold that the district court erred in considering Mr. Zapata’s “background” and “upbringing” in determining whether a seizure occurred. As this court made clear in Bloom, and reiterated in Laboy, the particular personal traits or subjective state of mind of the defendant may be relevant to some degree to the issue of the voluntariness of that person’s consent, but they are irrelevant to the legal question of whether a seizure has occurred by virtue of the police conduct involved. That inquiry is governed by Bostick's “reasonable person” test, which is clearly an objective test: under the totality of the circumstances, would “the police conduct ... have communicated to a reasonable person that the person was not free to decline the officers’ requests or otherwise terminate the encounter.” Bostick, — U.S. at -, 111 S.Ct. at 2389. Thus, Mr. Zapata’s own subjective attitudes toward the police encounter, or any other of his particular personal attributes, are irrelevant, “other than to the extent that they may have been known to the officer and influenced his conduct.” Bloom, 975 F.2d at 1455 n. 9. There was no evidence presented that Agent Small was aware of Mr. Zapata’s attitude toward police officers or was aware of any details concerning Mr. Zapata’s upbringing and background. Nor was there evidence that Mr. Zapata’s limited fluency in English influenced Agent Small.
We conclude that, based on the totality of the circumstances, the encounter between Mr. Zapata and Agent Small remained consensual, and did not amount to a seizure in violation of the Fourth Amendment. The encounter occurred in a public setting, in view of dozens of other people, the officers’ conduct and demeanor was essentially non-eoercive and non-threatening, and Mr. Zapata’s ticket and identification were only briefly retained and were promptly returned. A reasonable person in Mr. Zapata’s position would have felt free to decline to answer the agent’s questions or otherwise terminate the encounter.
II. Voluntariness of Consent
The district court also found, and Mr. Zapata argues on appeal, that Mr. Zapata’s consent to the search of his luggage was not freely and voluntarily given. We turn now to that issue.
We determine the voluntariness of Mr. Zapata’s consent to the search of his luggage under the totality of the circumstances, with the government bearing the burden of proof. Soto, 988 F.2d at 1555; United States v. Nicholson, 983 F.2d 983, 988 (10th Cir.1993); United States v. Price, 925 F.2d 1268, 1271 (10th Cir.1991). “[T]he government must show that there was no duress or coercion, express or implied, that the consent was unequivocal and specific, and that it was freely and intelligently given.” Nicholson, 983 F.2d at 988.
The district court found that the government had failed to prove that Mr. Zapata’s consent was freely and voluntarily given. We “must accept that finding unless it is clearly erroneous.” Id. We hold that it is clearly erroneous.
Our recent decision in Soto is instructive. In finding that the consent given in that case was voluntary, we stated as follows:
[Tjhere is no evidence that any overt coercion was employed. It appears [the officer] did not unholster his weapon, did not use an insisting tone or manner, did not physically harass defendant, and no other officers were present. Further, the incident occurred on the shoulder of an interstate highway, in public view. [The officer] sought permission specifically to look in .the trunk, and the defendant got out of the ear and opened the trunk himself. Defendant makes no contention that he misunderstood [the officer’s] request; any such claim is precluded by defendant’s act of opening the trunk. Thus, defendant’s consent was unequivocal and specific.
988 F.2d at 1558.
Similarly, Agent Small in this case used no overt coercion or display of weapons. While the district court found that the agent’s questions were “rapid-fire, direct, accusatory and potentially incriminating,” the transcript of the interchange between Agent Small and Mr. Zapata suggests fairly routine questioning. And while virtually any question could conceivably be “potentially incriminating,” the only directly “potentially incriminating” question Agent Small asked Mr. Zapata (whether Mr. Zapata had any drugs in his luggage) occurred more than half way through the interchange. Moreover, as in Soto, the interchange and the giving of the consent occurred in public view in the coach section of the train in the presence of 45 to 55 other people. . Additionally, as in Soto, Agent Small specifically sought permission to search Mr. Zapata’s luggage, and Mr. Zapata makes no argument that, nor is there evidence that, he did not understand the agent’s request, which the agent made twice, to search the luggage. “[A]ny such claim is precluded by [Mr. Zapata’s] act of opening the [bag].” Id. And the transcript reveals that Mr. Zapata said, “Sure” and, “Yeah,” when asked whether he would consent to the search. See United States v. Werking, 915 F.2d 1404, 1410 (10th Cir.1990) (consent “unequivocal, specific, and freely and intelligently given” when defendant “answered ‘no’ when asked whether he minded if [the officer] looked in the trunk and later shook his head ‘no’ when asked whether he minded if [the officer] looked in the duffel bags.”). All of those circumstances would compel the conclusion that Mr. Zapata’s consent, like the defendant’s in Soto, was unequivocal, specific, and freely and intelligently given.
The primary factor upon which the district court relied to conclude that Mr. Zapata’s consent was not voluntary, and a principal factor Mr. Zapata asserts on appeal, is his background and attitude toward police, derived from his experiences in his native Mexico. As we noted in Bloom, while “[a] person’s subjective characteristics may be relevant to the voluntariness of the person’s consent ... recent Supreme Court decisions cast doubt on this issue.” Bloom, 975 F.2d at 1455 n. 9.
But even assuming some subjective characteristics are relevant to the validity of Mr. Zapata’s consent, we reject the notion that his attitude toward police, from whatever source, can constitute such a relevant subjec-five characteristic. While such attributes as the age, gender, education, and intelligence of the accused have been recognized as relevant, see United States v. Mendenhall, 446 U.S. 544, 558, 100 S.Ct. 1870, 1879, 64 L.Ed.2d 497 (1980); Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S.Ct. 2041, 2047, 36 L.Ed.2d 854 (1973); United States v. Chalan, 812 F.2d 1302, 1307 (10th Cir.1987), an intangible characteristic such as attitude toward authority is inherently unverifiable and unquantifiable. Generalities about attitudes are even more vaporous. The district court’s finding that Mr. Zapata’s consent was not freely and voluntarily given is clearly erroneous.
For the foregoing reasons, the decision of the district court granting Mr. Zapata’s motion to suppress evidence is REVERSED and the case is REMANDED for further proceedings.
. The transcript of the recorded conversation between Agent Small and Mr. Zapata reveals the following interchange:
S/A Small: How you doing today? I'm with the police department, can I talk to you for a second?
ZAPATA: Sure.
S/A Small: Where are you headed today?
ZAPATA: Chicago.
S/A Small: And where did you get on the train at?
ZAPATA: Los Angeles.
S/A Small: Los Angeles?
ZAPATA: Uh-huh.
S/A Small: Do you have your ticket with you?
S/A Small: ZAPATA?
ZAPATA: (Cough) Yeah.
S/A Small: Do you have anything with a picture I.D. on it at all Mr. Zapata?
S/A Small: Do you live in Illinois or live in Los Angeles?
ZAPATA: Illinois.
S/A Small: Illinois? How long have you lived there?
ZAPATA: (Cough) For about two (2) years. Longer than that.
S/A Small: Two (2) years?
S/A Small: How long were you out in Los Angeles?
ZAPATA: Uh, three (3) weeks.
S/A Small: Three (3) weeks?
ZAPATA: Yeah.
S/A Small: Do you have any luggage with you today?
ZAPATA: Yes, I do.
S/A Small: Where is it? Do you know?
ZAPATA: Downstairs.
S/A Small: Downstairs? Do you have any other luggage with you?
ZAPATA: Yeah, up there.
S/A Small: I work for the Drug Enforcement Administration, okay. We have a problem on-board the train with people traveling out of Los Angeles, back to Illinois carrying drugs. You don’t have any drugs in your luggage do you?
ZAPATA: No, I don't.
S/A Small: Would you voluntarily consent for me to search?
ZAPATA: Sure.
S/A Small: Would that be all right?
ZAPATA: Yeah.
S/A Small: Ma’am, do you speak English? Brenda CONTRERAS: Yes.
S/A Small: Are one of these your bags? Brenda CONTRERAS: No.
S/A Small: Would you voluntarily consent for me to search this bag?
S/A Small: Hi there. How old is he?
ZAPATA: Oh, a year and a half.
S/A Small: Year and a half, that's about what mine is.
S/A Small: Sam.
S/A Small: Why don't you put your hands behind your back, all right?
S/A Small: Ma’am are you a citizen of the United States?
CONTRERAS: Yes.
S/A Small: Do you have your immigration papers with you? Uh huh. She's going with us anyway, Sam. She doesn't have her immigration papers?
S/A Small: About three (3) more in here.
S/A Small: Sir, do you have your immigration papers?
Addendum for the United States.
. Mr. Zapata also testified as follows:
Q Why did you allow Mr. Small to search your luggage?
A Because I saw that he was a police officer.
Q And of what significance was the fact he was a police officer?
A I didn’t know because I thought that when a policeman asks you something one has to answer.
Q Did you think that when he was asking you, that he was really telling you what to do?
A Yes, sir.
Q Did you believe that you had any choice in not doing what he said?
A At the moment I thought that if I didn’t do it he would get angry or he would do something else.
R.Vol. II at 42. When questioned by the court, Mr. Zapata indicated that he had heard that Mexican police "strike you, they hit you” when a citizen encounters a policeman. Id. at 47-48.
. Of course, the nature of the police-citizen encounter can change — what may begin as a consensual encounter may change to an investigative detention if the police conduct changes and vice versa. See Bloom, 975 F.2d at 1455-56 (consensual encounter became investigative detention when police questioning changed); United States v. Werking, 915 F.2d 1404, 1409-10 (10th Cir.1990) (investigative detention ended and encounter became consensual when police returned defendant’s license and papers).
. In this connection, Agent Small’s request that Mr. Zapata “voluntarily consent" to a search of his luggage would not necessarily constitute the specific statement that Mr. Zapata need not answer the agent's questions or permit a search of his luggage. In Bloom, Agent Small also asked for the defendant’s "voluntary” consent, yet we specifically noted that an important factor in our conclusion that a seizure had occurred was the lack of an explicit advisement that the defendant need not answer questions or permit a search of his belongings. See also Bostick, — U.S. at -, 111 S.Ct. at 2385; United States v. Mendenhall, 446 U.S. 544, 558, 100 S.Ct. 1870, 1879, 64 L.Ed.2d 497 (1980) (express statement to defendant that she could decline consent was "especially significant”). Of course, such an explicit advisement is not a requirement; it is merely a factor to be considered in the totality of the circumstances. See INS v. Delgado, 466 U.S. 210, 216, 104 S.Ct. 1758, 1762, 80 L.Ed.2d 247 (1984); Schneckcloth v. Bustamonte, 412 U.S. 218, 231, 93 S.Ct. 2041, 2049, 36 L.Ed.2d 854 (1973); Laboy, 979 F.2d at 799; Bloom, 975 F.2d at 1454-55; Ward, 961 F.2d at 1533.
. Agent Small testified that he did not immediately notice Mr. Zapata's accent because "[h]e didn't say a whole lot of words for me to pick up an accent. It wasn't until I think he said a couple sentences, you know, a couple words back to back that, I think he said 'up there' or something about the luggage that I picked up an accent.” R.Vol. II at 26-27. The agent also testified that he “believed [Mr. Zapata] was from the United States.” Id. at 27.
. In finding in Ward that subjective characteristics are relevant to the issue of coercion, we cited United States v. Recalde, 761 F.2d 1448, 1454 (10th Cir.1985), in which we stated that the defendant's "undisputed testimony that his upbringing and experiences in Argentina had instilled in him an acquiescence to police authority" was relevant to the issue of coercion. In so stating, Recalde cited Schneckloth, 412 U.S. at 226, 93 S.Ct. at 2047 and Mendenhall, 446 U.S. at 558, 100 S.Ct. at 1879, both of which addressed the type of characteristics of the accused which are relevant to the validity of a consent. Neither case includes within its consideration of relevant characteristics the kind of subjective attitude toward authority or cultural heritage held to be relevant in Recalde. Cf. United States v. Chalan, 812 F.2d 1302, 1307-08 (10th Cir.1987) (in evaluating whether statement by Cochiti Indian was voluntary, court considered whether he was specifically told he need not answer questions, length of interview, environment in which interview took place, defendant's experience with law enforcement, and defendant's susceptibility to coercion "because of his age or lack of education or intelligence.”), cert. denied, 488 U.S. 983, 109 S.Ct. 534, 102 L.Ed.2d 565 (1988); United States v. Joe, 770 F.Supp. 607, 611 (D.N.M.1991) (discussing Recalde and the later decision in Chalan and observing that "[t]he Tenth Circuit has implicitly rejected modification [of reasonable person test] based on cultural heritage.").
Moreover, even in Ward, the "personal traits” held to be relevant were the defendant's "slight physique and health problems"—characteristics more akin to the characteristics considered in Schneckloth and Mendenhall than the attitude toward authority mentioned in Recalde.
In any event, Recalde itself gives no indication of the weight to be given the factor of the defendant’s attitude toward authority, and the case itself demonstrates that it was only one of many factors leading to the conclusion that the consent was involuntary. See Joe, 770 F.Supp. at 611 n. 2. While we would accord that factor no weight, one panel of this court cannot overrule another panel. See United States v. Spedalieri, 910 F.2d 707, 710 n. 3 (10th Cir.1990). We are quite confident, however, that Recalde does not require that the factor be given controlling or even significant weight, as it was in this case by the district court. Cf. United States v. Gutierrez-Mederos, 965 F.2d 800, 803 (9th Cir.1992) (rejecting argument that defendant's "background and limited ability to speak English prevented him from voluntarily consenting to the search.”), cert. denied, — U.S. -, 113 S.Ct. 1315, 122 L.Ed.2d 702 (1993); see also United States v. Analla, 975 F.2d 119, 124 (4th Cir.1992) (rejecting argument that a seizure occurred because of defendant's attitude toward police "based on his experience with Moroccan police.”), cert. denied, — U.S. -, 113 S.Ct. 1853, 123 L.Ed.2d 476 (1993).
. The majority opinion relies heavily on our decision in Soto, listing a number of factors present there as indicating voluntariness of consent. See supra p. 758. Those factors do lend support to a finding of voluntariness of consent. But we must keep in mind the fact that in Soto, we were reviewing a trial court's finding of voluntariness and were noting record evidence supporting the finding. Here we should similarly be giving consideration to the evidence and factors cited by the trial judge supporting his finding of a lack of voluntary consent, as we make our review of the whole record. In my judgment, the evidence and factors cited by the trial judge amply support his finding that the “government has not proven that defendant’s consent to the police questioning and search was given freely and voluntarily.” Order at 3.
Question: What is the number of judges who dissented from the majority?
Answer:
|
songer_origin
|
F
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of court which made the original decision. Code cases removed from a state court as originating in federal district court. For "State court", include habeas corpus petitions after conviction in state court and petitions from courts of territories other than the U.S. District Courts. For "Special DC court", include courts other than the US District Court for DC. For "Other", include courts such as the Tax Court and a court martial.
DOREY ELECTRIC COMPANY, Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION, Respondent.
No. 74-2181.
United States Court of Appeals, Fourth Circuit.
Argued May 7, 1975.
Decided April 14, 1977.
E. Kenneth Day, Norfolk, Va., Ira J. Smotherman, Jr., Atlanta, Ga. (Carole T. Frantz, Day & Summs, Norfolk, Va., on brief), for petitioner.
Michael H. Stein, Atty., U. S. Dept, of Justice, Washington, D. C., (Irving Jaffe, Acting Asst. Atty. Gen., New York City, Stephen F. Eilperin, Atty., U. S. Dept, of Justice, William J. Kilberg, Sol. of Labor, Benjamin W. Mintz, Associate Sol. for Occupational Safety and Health, Michael H. Levin, Counsel for Appellate Litigation, and Judith A. Burghardt, Washington, D. C., on brief), for respondent.
Before WINTER, BUTZNER and WIDENER, Circuit Judges.
PER CURIAM:
We deferred ruling on this petition for review until the Supreme Court decided whether an employer, who is charged with a violation of the Occupational Safety and Health Act that may subject him to civil penalties, is constitutionally entitled to a jury trial. In Atlas Roofing Co., Inc. v. Occupational Safety & Health Review Commission, - U.S. -, 97 S.Ct. 1261, 51 L.Ed.2d 464 (1977), the Court held that the Seventh Amendment posed no bar to the disposition of such charges and the imposition of civil penalties by an administrative tribunal. This decision controls the principal issue presented by the petitioner. We turn, therefore, to other issues it raised.
The citations against the petitioner, Dorey Electric Company, arose as a result of a routine inspection by an OSHA compliance officer who noted that employees of Dorey were working near open, unguarded edges of the fourth floor of an uncompleted apartment building. In addition, he found the worksite perimeter cluttered with piles of foam and scrap lumber which exposed Dorey’s employees to possible injury. The evidence presented at the administrative hearing was based primarily on the compliance officer’s inspection and a stipulation that the edges of the floors in question were unguarded.
Dorey contends that the inspection of the worksite was without permission, violating its Fourth Amendment right against unreasonable searches. Therefore, according to Dorey, the testimony of the compliance officer must be excluded, and the complaint dismissed for lack of evidence.
The record discloses, however, that, at a worksite conference, Dorey gave permission for the inspection through its foreman. We conclude, therefore, that the testimony of the compliance officer was properly admitted.
Dorey also contends that the Commission failed to show that the absence of guardrails constitutes a “serious offense” under 29 U.S.C. § 666(j). That section provides:
[A] serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition, which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment unless the employer did not, or could not with the exercise of reasonable diligence, know of the presence of the violation.
Dorey claims that the probability of falling, being statistically available, must be shown before the violation may be deemed “serious.” This contention was expressly rejected in National Realty & Construction Co., Inc. v. Occupational Safety & Health Review Commission, 160 U.S.App.D.C. 133, 489 F.2d 1257, 1265 n. 33 (1973), in which the court stated that no such mathematical test need be conducted. “If evidence is presented that a practice could eventuate in serious physical harm upon other than a freakish or utterly implausible concurrence of circumstances, the Commission’s expert determination of likelihood should [control].” Here, we think it reasonable for the Commission to conclude that the absence of guardrails could result in serious injury; thus, the violation is of a serious nature under 29 U.S.C. § 666(j).
Dorey next argues that, even if this court were to accept the Commission’s findings that it violated the safety standards, enforcement should be denied because standard guardrails would have rendered performance of the work “difficult if not impossible.” In addition, Dorey asserts that the guardrails, when removed, would have damaged the completed work. The petitioner points out that the Commission itself has held that noncompliance with a safety standard is justified when necessary to perform required work. Secretary v. Dic-Underhill, 7 OSAHRC Rep. 134 (1974); Secretary v. Masonry, Inc., 5 OSAHRC Rep. 524 (1973); Secretary v. La Salla Contracting Co., Inc., 2 OSAHRC Rep. 976 (1973).
Despite these claims by Dorey that it was impossible for it to comply with the guardrail standard, the administrative law judge concluded that “[o]ther guards equivalent to standard railing such as pipe and wire rope could have been used to guard the edge of the opensided fourth floor which would not have obstructed, damaged, or otherwise prevented installation of said electrical switches and/or conduits by Dorey’s employees.” This finding is supported by the testimony at the hearing, and we conclude that, because Dorey failed to establish the impossibility of compliance, the penalties should be enforced.
Affirmed.
The Commission’s decision is reported as Secretary v. Dorey Electric Co., 11 OSAHRC Rep. 227 (1974).
Question: What type of court made the original decision?
A. Federal district court (single judge)
B. 3 judge district court
C. State court
D. Bankruptcy court, referee in bankruptcy, special master
E. Federal magistrate
F. Federal administrative agency
G. Special DC court
H. Other
I. Not ascertained
Answer:
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songer_origin
|
H
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of court which made the original decision. Code cases removed from a state court as originating in federal district court. For "State court", include habeas corpus petitions after conviction in state court and petitions from courts of territories other than the U.S. District Courts. For "Special DC court", include courts other than the US District Court for DC. For "Other", include courts such as the Tax Court and a court martial.
ESTATE of Mary Redding SHEDD, First National Bank of Arizona, Trustee, Petitioner, v. COMMISSIONER OF INTERNAL REVENUE, Respondent.
No. 18001.
United States Court of Appeals Ninth. Circuit.
July 15, 1963.
Louis McCIennen, Phoenix, Ariz. (Fen-nemore, Craig, Allen & McCIennen, Phoenix, Ariz., of counsel), for petitioner.
Louis F. Oberdorfer, Asst. Atty. Gen., Lee A. Jackson, I. Henry Kutz, Carolyn R. Just, Art Strout, Attys., Dept, of Justice, Washington, D. C., for respondent.
Before MERRILL and BROWNING, Circuit Judges, and TAYLOR, District Judge.
BROWNING, Circuit Judge.
Harrison Shedd died on November 1, 1949. His estate filed a federal estate tax return claiming a marital deduction under the provisions of Section 812(e) (1) (F) of the Internal Revenue Code of 1939 with respect to property left by Harrison to his wife, Mary. The Commissioner disallowed the deduction and assessed a deficiency. This determination was sustained by the Tax Court (Estate of Shedd v. Commissioner, 23 T.C. 41 (1954)) and, ultimately, by this Court. Estate of Shedd v. Commissioner, 237 F.2d 345 (1956).
Meanwhile, on January 7, 1955, Mary died. Her estate filed a return in which a credit was taken for the estate tax paid by Harrison’s Estate as “Federal estate tax paid with respect to the transfer of property * * * to the decedent by or from a person * * * who died within 10 years before * * * the decedent’s death.” Int.Rev.Code of 1954, § 2013.
On September 2, 1958, Congress amended Section 812(e) (1) (F) of the Internal Revenue Code of 1939 to permit a marital deduction in the circumstances present in Harrison’s Estate. The amendment was expressly made applicable “to estates of decedents dying after April 1, 1948, and before August 17, 1954,” and allowed estates otherwise barred by limitations a period of one year from September 2, 1958, to apply for a refund. Section 93(b), Act of September 2, 1958, 72 Stat. 1668.
On March 31, 1959, the Commissioner issued a deficiency notice against Mary’s Estate disallowing the credit previously taken for the tax paid by Harrison’s Estate. Mary’s Estate filed the present proceeding in the Tax Court challenging the Commissioner’s action. The Tax Court sustained the Commissioner’s determination [Estate of Shedd v. Commissioner, 37 T.C. 394 (1961)], and Mary’s Estate took this appeal. While this proceeding was pending before the Tax Court, the estate tax attributable to the property made eligible for the marital deduction by the Act of September 2, 1958, was refunded to Harrison’s Estate.
The only question raised by Mary’s Estate on this appeal is whether the tax initially paid by Harrison’s Estate on the property subject to the marital deduction, though refunded, may still serve as the basis for a credit under Section 2013 against the estate tax liability of Mary’s Estate.
Mary’s Estate argues that “[t]he estate so far as may be is settled as of the date of the testator’s death” [Ithaca Trust Co. v. United States, 279 U.S. 151, 155, 49 S.Ct. 291, 73 L.Ed. 647 (1929)] ; that “[d]eath freezes the estate’s tax obligation into immutability” [Estate of Shedd v. Commissioner, 237 F.2d 345, 352 (9th Cir. 1956)]; and, therefore, that the Section 2013 credit to which Mary’s Estate was entitled as of the date of her death should be allowed without regard to subsequent events.
The judicial expressions upon which Mary’s Estate relies are not formulations of immutable principle, but simply statements of the understanding of the courts that the general intention of Congress is that the federal estate tax shall be computed on the basis of the estate’s value at the moment the taxable event (the transfer at death) occurs. But Congress did not intend to make events at the date of death invariably determinative in computing the federal estate tax obligation. See, e. g., Internal Revenue Code of 1954, §§ 2032, 2053(a) (1) & (2), and 2054. And when it appears that the intent of Congress will be served by considering events subsequent to death for this purpose the courts have not hesitated to do so. See, e. g., Helver-ing v. Safe Deposit & Trust Co., 316 U.S. 56, 65, 62 S.Ct. 925, 86 L.Ed. 1266 (1942); Commissioner of Internal Revenue v. Estate of Shively, 276 F.2d 372 (2d Cir. 1960); Commissioner of Internal Revenue v. State Street Trust Co., 128 F.2d 618, 142 A.L.R. 943 (1st Cir. 1942); Buck v. Helvering, 73 F.2d 760 (9th Cir. 1934); Jacobs v. Commissioner, 34 F.2d 233 (8th Cir. 1929); 1961 Duke L.J. 474, 476-77; 15 Sw.L.J. 628, 632 (1961).
It seems reasonably clear that Congress intended to fix the tax credit available under Section 2013(a) of the Internal Revenue Code of 1954 in accordance with the facts as to prior taxation of the transferred property, even though ♦those facts occurred after the transferee’s death (subject, of course, to the usual statute of limitations on assessment or refund. Int.Rev.Code of 1954, §§ 6501, 6511).
Section 2013(b) provides that the credit shall be computed in part on the basis of the tax paid by the estate of the trans-feror. Until the tax due from the trans-feror estate is determined, the credit due the transferee estate cannot be computed. Thus the statute necessarily contemplates the consideration of events subsequent to the death of the transferee at least in every instance in which that event precedes the final determination of the tax due from the transferor estate — a not infrequent occurrence.
Moreover, the credit under Section 2013(a) is extended not only where the transferor predeceases the transferee, but also where the transferor dies within two years after the death of the transferee. See 99 Trusts & Estates 416, 490 (1960). In such cases, again, an event occurring after the death of the transferee is an essential prerequisite to the availability of the credit.
Congress intended to impose a tax “on the transfer of the taxable estate * * of every decedent” (Int.Rev.Code of 1954, § 2001), but at the same time, by the provisions of Section 2013, sought to avoid “subjecting the same property to tax twice within a relatively short period of time.” H.R.Rep. No. 1337, 83d Cong., 2d Sess. 1954, 1954 U.S.Cong. & Admin.News at p. 4452. See 99 Trusts & Estates 416 (1960); 4 Mertens, Federal Gift & Estate Taxation § 31.13 (1959).
If Section 2013 were construed to require computation of the credit due the transferee estate as of the time of the transferee’s death, the transferee estate might secure a credit although no prior tax was ultimately paid, as in the present case, thus defeating Congress’s purpose to collect a tax upon the taxable estate of every decedent except where the result would be double taxation in a relatively short period. On the other hand, if the transferor estate paid the ta& initially only after the transferee’s death, the transferee would be denied a credit although a prior tax had in fact been paid, thus defeating Congress’s purpose to avoid double taxation. We are not persuaded that the language of Section 2013, or the pertinent decisions, require us to read Section 2013 in a way which would so clearly frustrate its intended purpose.
Nor are we convinced by the arguments which Mary’s Estate bases upon the language and asserted purposes of the Act of September 2, 1958. Mary’s Estate argues that the 1958 Act cannot affect it (1) because the 1958 Act applies only “to decedents dying before August 17, 1954” and Mary died in 1955; (2) because the tax liability of Mary’s Estate is determined by the Internal Revenue Code of 1954, and the 1958 Act by its terms is an amendment of the Internal Revenue Code of 1939; and (3) because retroactive measures, particularly those increasing taxes, are to be strictly construed, and although Congress clearly intended to give relief to estates in the position of Harrison’s Estate, it did not indicate that it intended to burden estates in the position of Mary’s Estate.
The answers seem clear. (1) The date referred to in the 1958 Act is the date of the death of the decedent claiming the marital deduction; in this case, Harrison, who died in 1949. (2) The tax liability of Harrison’s Estate was determined by the Internal Revenue Code of 1939, and the Act of 1958 clearly applied to that Code and altered Harrison’s Estate’s liability. The increased liability of Mary’s Estate was only consequential, and was based entirely upon the unamended provisions of the Internal Revenue Code of 1954. (3) There is no question here as to the reach of the 1958 Act; Section 812(e) (1) (F) of the Internal Revenue Code of 1939, as amended by the 1958 Act, clearly applied to Harrison’s Estate and decreased that estate’s liability. The only question is the proper interpretation of Section 2013 of the Internal Revenue Code of 1954; we have stated our reasons for concluding that this statute should not be interpreted as fixing the available credit irrevocably as of the date of the transferee’s death.
Finally, Mary’s Estate points to the fact that the refund to Harrison’s Estate under the 1958 Act was made after the date of the notice of deficiency to Mary’s Estate, and suggests that the notice of deficiency was therefore invalid and did not toll the running of the period of limitations under Section 6503 (a) of the Internal Revenue Code of 1954. The issue was not properly before the Tax Court under its rules because not raised by the pleadings, and the Tax Court did not consider it. In these circumstances, neither do we. Rice v. Commissioner, 295 F.2d 239 (5th Cir. 1961); Given v. Commissioner, 238 F.2d 579, 583 (8th Cir. 1956); Helvering v. Tetzlaff, 141 F.2d 8, 11 (8th Cir. 1944); Second Carey Trust v. Helvering, 75 U.S.App.D.C. 263, 126 F.2d 526, 529 (1942); Commissioner of Internal Revenue v. Sussman, 102 F.2d 919, 922 (2d Cir. 1939). See also May Broadcasting Co. v. Commissioner, 299 F.2d 84, 86 (8th Cir. 1962).
Affirmed.
Question: What type of court made the original decision?
A. Federal district court (single judge)
B. 3 judge district court
C. State court
D. Bankruptcy court, referee in bankruptcy, special master
E. Federal magistrate
F. Federal administrative agency
G. Special DC court
H. Other
I. Not ascertained
Answer:
|
songer_appel1_1_2
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to classify the scope of this business into one of the following categories: "local" (individual or family owned business, scope limited to single community; generally proprietors, who are not incorporated); "neither local nor national" (e.g., an electrical power company whose operations cover one-third of the state); "national or multi-national" (assume that insurance companies and railroads are national in scope); and "not ascertained".
REO MOTOR CAR CO. v. AUTOMOTIVE DAILY NEWS PUBLISHING CO.
No. 5702.
Circuit Court of Appeals, Sixth Circuit.
March 5, 1931.
Poster & Cameron, of Lansing, Mich., for appellant.
Lucking, Hanlon, Van Auken & Sprague, of Detroit, Mich., and Jos. Schultz, of New York City, for appellee.
PER CURIAM.
Dismissed by court order pursuant to stipulation of counsel.
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_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.
Luciano CEDILLO, Appellant, v. Dr. George J. BETO, Director, Texas Department of Corrections, Appellee.
No. 25002.
United States Court of Appeals Fifth Circuit.
Aug. 12, 1968.
Luciano Cedillo, Huntsville, Tex., pro se.
Robert E. Owen, Asst. Atty. Gen., Austin, Tex., for appellee.
Before JOHN R. BROWN, Chief Judge, WISDOM, Circuit Judge and BREWSTER, District Judge.
PER CURIAM:
This is an appeal from the denial of habeas corpus relief, after a plenary hearing in the District Court.
The appellant is confined by authority of a conviction of robbery by assault with two prior felony convictions proved for enhancement of sentence. He received the mandatory sentence of life imprisonment as a third felonious offender on June 20, 1961. Upon direct appeal, which he prosecuted pro se, the judgment was affirmed. Cedillo v. State, 1962, 171 Tex.Cr.R. 532, 352 S.W.2d 736, cert. denied, 370 U.S. 958, 82 S.Ct. 1611, 8 L.Ed.2d 824.
The appellant has contended that he, an indigent person, was denied representation of counsel in his direct appeal from the judgment of conviction. Since we hold that this point is well taken, we find it unnecessary to discuss here the appellant’s other contentions.-
In his pro se brief upon direct appeal to the Texas Court of Criminal Appeals, the appellant stated that because he was dissatisfied with their conduct of his trial, he dismissed the two attorneys who had defended him by court appointment. These attorneys have filed an affidavit in which they state that they defended the appellant to the best of their ability, but were not requested by him, nor instructed by the trial court, to represent him on appeal.
The appellant further stated in his brief in the Court of Criminal Appeals that he “was denied several times the right to have an appointed counsel” to represent him on appeal. This makes it unnecessary for us to resolve any questions about what the state trial judge might have done with respect to requests (or absence of them) for counsel on appeal.
In no more direct way could petitioner have made a request for appellate counsel. The Court of Criminal Appeals did not even refer to it. He was entitled to such counsel and that Court, if not the State Trial Court, had to furnish it to him. Swenson v. Bosler, 386 U.S. 258, 87 S.Ct. 996, 18 L.Ed.2d 33 (1967); Anders v. State of California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); Pate v. Holman, 5 Cir., 1965, 341 F.2d 764.
The judgment is reversed and the cause is remanded for the District Court to enter an appropriate order providing the appellant with “a review of his conviction with the aid of counsel on direct appeal as adequate as if counsel had pursued the appeal and rendered the services of an advocate in the first instance.” Merkel v. Beto, 5 Cir., 1968, 387 F.2d 854; Wainwright v. Simpson, 5 Cir., 1966, 360 F.2d 307. This review may take the form of either a regular or extraordinary proceeding but it must be the equivalent of a direct appeal to the Texas Court of Criminal Appeals in which the Appellant is represented by counsel. Otherwise the District Court will be obliged to issue the writ.
Reversed and remanded.
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_dueproc
|
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 the requirements of due process 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".
LAMANTIA v. UNITED STATES et al.
(Circuit Court of Appeals, Fifth Circuit.
April 4, 1925.)
No. 4497.
Appearance ©=>24(5) — Defendant, who excepted to libel for failure to state cause of action, waived defect in service of process.
Defendant, who appeared in case and excepted, to the libel on ground that it failed to state cause of action, waived any defect in service of process on him by appearing and invoking the court’s decision as to the merits of the claim asserted in the libel.
Appeal from the District Court of the United States for the Eastern District of Louisiana; Rufus E. Poster, Judge.
Action by the United States against Anthony Lamantia and others. Judgment for the United States, and defendant Lamantia appeals.
Affirmed.
John E. Jackson and Stanford E. Owen, both of New Orleans, La., for appellant.
Louis H. Burns, U. S. Atty., and Edwin H. Qrace, Asst. U. S. Atty., both of New Orleans, La., for appellees.
Before WALKER and BRYAN, Circuit Judges, and BARRETT, District Judge.
PER CURIAM.
This is an appeal from a judgment against the principal and sureties ón a bond given to procure the release of a motorboat which was seized, and against which forfeiture proceedings were instituted. The appeal was taken by one of the sureties, who complains of the judgment on the sole ground that there was no valid service of the citation to him in the proceeding. The appellant, without raising any question as to the service of process upon him, appeared in the cause and excepted to the libel therein on the ground that it sets forth no cause of action. By appearing and invoking the court’s decision as to the merits of the claim asserted in the libel, the appellant waived any defect in the service of process upon him. St. Louis & San Francisco Railway Co. v. McBride, 141 U. S. 127, 11 S. Ct. 982, 35 L. Ed. 659; Pease v. Rathbun-Jones Engineering Co., 228 F. 273, 142 C. C. A. 565.
The judgment is affirmed.
Question: Did the interpretation of the requirements of due process by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_circuit
|
B
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case.
UNITED STATES ex rel. CONSIGLIO v. DAY, Commissioner of Immigration.
No. 80.
Circuit Court of Appeals, Second Circuit.
Jan. 4, 1932.
George Z. Medalie, U. S. Atty., of New York City (Frank Chambers, Asst. U. S. Atty., of New York City, of counsel), for appellant.
Gaspare M. Cusumano, of New York City, - for appellee.
Before MANTON, AUGUSTUS N. HAND, and CHASE, Circuit Judges.
PER CURIAM.
The relator came to this country when 10 years of age, and has resided here for 27 years. In 1913, he pleaded guilty to the crime of manslaughter in the common pleas court of Cuyahoga county, Ohio, and was sentenced to imprisonment. After release, and on July 4, 1920, he went with his family, for the day, to see Niagara Falls. There is some question whether or not he was in Canada on this visit. The Board found that he was, and that his return on the same day was a re-entry into the United States. The question presented is whether the provisions of sections 136 and 155 of the U. S. Code Anno, title 8, which requires deportation of aliens who have been convicted of or admit a crime involving moral turpitude prior to entry, includes a crime committed within the United States and applies to an alien who leaves the United States and later returns. The question is also presented whether there is any evidence upon which to base the finding that he was on the Canadian side on the occasion referred to and re-entered the United States.
It becomes unnecessary for us to examine the evidence and say whether or not on July 4,1920, the alien was in Canada. We are of the opinion that he may not be deported under sections 136,155, U. S. Code Anno, title 8, as “any alien who was convicted, or who admits the commission, prior to entry, of a felony or other crime or misdemeanor involving moral turpitude,” for the reason that the crime was committed in the United States. United States ex rel. Squillari v. Day, 35 F.(2d) 284 (C. C. A. 3); Ex parte Keizo Shibata, 35 F.(2d) 636 (C. C. A. 9); Wilson v. Carr, 41 F.(2d) 704 (C. C. A. 9); Browne v. Zurbrick, 45 F.(2d) 931 (C. C. A. 6). It thus appears that the Third, Sixth, and Ninth circuits have construed section 19 of the act (8 USCA § 155) as referring to a crime committed prior to entry, and must he one committed outside this country and not within the penal jurisdiction of the federal or state authorities, to warrant deportation. We are in accord with these views.
Order affirmed.
Question: What is the circuit of the court that decided the case?
A. First Circuit
B. Second Circuit
C. Third Circuit
D. Fourth Circuit
E. Fifth Circuit
F. Sixth Circuit
G. Seventh Circuit
H. Eighth Circuit
I. Ninth Circuit
J. Tenth Circuit
K. Eleventh Circuit
L. District of Columbia Circuit
Answer:
|
sc_issue_1
|
40
|
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.
SEALFON v. UNITED STATES.
No. 174.
Argued December 11, 1947.
Decided January 5, 1948.
John J. Wilson argued the cause for petitioner. With him on the brief was Roger Robb.
W. Marvin Smith argued the cause for the United States. With him on the brief were Solicitor General Perlman, Assistant Attorney General Quinn, Robert S. Erdahl and Beatrice Rosenberg.
Mr. Justice Douglas
delivered the opinion of the Court.
This case presents the question whether an acquittal of conspiracy to defraud the United States precludes a subsequent prosecution for commission of the substantive offense, on the particular facts here involved.
Two indictments were returned against petitioner and others. One charged a conspiracy to defraud the United States of its governmental function of conserving and rationing sugar by presenting false invoices and making false representations to a ration board to the effect that certain sales of sugar products were made to exempt agencies. The other indictment charged petitioner and Greenberg with the commission of the substantive offense, viz., uttering and publishing as true the false invoices. The conspiracy indictment was tried first and the following facts were shown:
Defendant Greenberg manufactured syrup and approached Sanford Doctors, a salesman for a brokerage concern, to sell vanilla syrup. Doctors negotiated some sales to petitioner who did a wholesale business under the name of Sero Syrup Co. Thereafter Greenberg asked Doctors to get a list from petitioner showing the places where petitioner made sales and told him that if any sales were made to exempt agencies, Greenberg could sell to petitioner in larger quantities. Doctors so informed petitioner and some time thereafter petitioner wrote to Green-berg saying, “at the present time some of our syrups are being sold at the Brooklyn Navy Yard” and various defense plants. Petitioner did sell some of his syrup to a vending company which had machines at the Navy Yard but it was not vanilla syrup and no sales were made to the Navy Yard as such. Greenberg thereafter presented a series of false invoices to the ration board purporting to show sales to petitioner for delivery to the Navy Yard. Petitioner’s letter was never shown to the board. On the basis of these invoices Greenberg received replacement certificates for 21 million pounds of sugar, 10 million of which he sold to petitioner in the form of vanilla syrup, and which was by petitioner sold to non-exempt consumers, mostly the National Biscuit Company. Petitioner at first made payments to Greenberg by check but thereafter gave checks to his trucker which the latter cashed, deducted his trucking fee, and paid Greenberg.
The jury returned a verdict of not guilty as to petitioner. Thereafter a trial was had on the other indictment which charged petitioner and Greenberg with uttering and publishing as true the false invoices introduced in the conspiracy trial. Greenberg pleaded guilty and the trial proceeded against petitioner on the theory that he aided and abetted Greenberg in the commission of the substantive offense. The false invoices, the letter from petitioner to Greenberg, and essentially the same testimony were again introduced against petitioner. In addition, it was brought out on cross-examination that petitioner had unsuccessfully sought replacement certificates from his ration board for sugar contained in syrups sold at the Navy Yard and defense plants. Greenberg gave testimony from which the jury could conclude that petitioner was a moving factor in the scheme to defraud which was constructed around petitioner’s letter and that he was familiar with Greenberg’s intention to submit false invoices. Greenberg further testified that petitioner received $500,000 in cash under the agreement as a rebate of two cents a pound on all replacement sugar which Greenberg received on Navy Yard invoices whether or not it was used in syrup sold to petitioner. This time the jury returned a verdict of guilty and petitioner was sentenced to five years’ imprisonment and fined $12,000.
Petitioner moved to quash the second indictment on grounds of double jeopardy (abandoned in this Court) and res judicata, and also objected to the introduction of the evidence adduced at the first trial. The district judge ruled against petitioner, and the court below affirmed. 161 F. 2d 481. We granted the petition for a writ of certiorari because of the importance of the question to the administration of the criminal law.
It has long been recognized that the commission of the substantive offense and a conspiracy to commit it are separate and distinct offenses. Pinkerton v. United States, 328 U. S. 640, 643. Thus, with some exceptions, one may be prosecuted for both crimes. Ibid. But res judicata may be a defense in a second prosecution. That doctrine applies to criminal as well as civil proceedings (United States v. Oppenheimer, 242 U. S. 85, 87; United States v. De Angelo, 138 F. 2d 466, 468: 147 A. L. R. 991; see Frank v. Mangum, 237 U. S. 309, 334) and operates to conclude those matters in issue which the verdict determined though the offenses be different. See United States v. Adams, 281 U. S. 202, 205.
Thus the only question in this case is whether the jury’s verdict in the conspiracy trial was a determination favorable to petitioner of the facts essential to conviction of the substantive offense. This depends upon the facts adduced at each trial and the instructions under which the jury arrived at its verdict at the first trial.
Respondent argues that the basis of the jury’s verdict cannot be known with certainty, that the conspiracy trial was predicated on the theory that petitioner was a party to an over-all conspiracy ultimately involving petitioner, Greenberg, and the Baron Corporation. Thus it is said that the verdict established with certainty only that petitioner was not a member of such conspiracy, and that therefore the prosecution was not foreclosed from showing in the second trial that petitioner wrote the letter pursuant to an agreement with Greenberg to defraud the United States. The theory is that under the instructions given the jury might have found that petitioner conspired with Greenberg and yet refused to infer that he was a party to the over-all conspiracy.
The instructions under which the verdict was rendered, however, must be set in a practical frame and viewed with an eye to all the circumstances of the proceedings. We look to them only for such light as they shed on the issues determined by the verdict. Cf. De Bollar v. Hanscome, 158 U. S. 216, 222. Petitioner was the only one on trial under the conspiracy indictment. There was no evidence to connect him directly with anyone other than Greenberg. Only if an agreement with at least Green-berg was inferred by the jury could petitioner be convicted. And in the only instruction keyed to the particular facts of the case the jury was told that petitioner must be acquitted if there was reasonable doubt that he conspired with Greenberg. Nowhere was the jury told that to return a verdict of guilty it must be found that petitioner was a party to a conspiracy involving not only Greenberg but the Baron Corporation as well. Viewed in this setting, the verdict is a determination that petitioner, who concededly wrote and sent the letter, did not do so pursuant to an agreement with Greenberg to defraud.
So interpreted, the earlier verdict precludes a later conviction of the substantive offense. The basic facts in each trial were identical. As we read the records of the two trials, petitioner could be convicted of either offense only on proof that he wrote the letter pursuant to an agreement with Greenberg. Under the evidence introduced, petitioner could have aided and abetted Green-berg in no other way. Indeed, respondent does not urge that he could. Thus the core of the prosecutor’s case was in each case the same: the letter, and the circumstances surrounding it and to be inferred from it, and the false invoices. There was, of course, additional evidence on the second trial adding detail to the circumstances leading up to the alleged agreement, petitioner’s participation therein, and what he may have got out of it. But at most this evidence only made it more likely that petitioner had entered into the corrupt agreement. It was a second attempt to prove the agreement which at each trial was crucial to the prosecution’s case and which was necessarily adjudicated in the former trial to be non-existent. That the prosecution may not do.
Reversed.
See § 28 Criminal Code, 18 U. S. C. § 72.
See § 332 Criminal Code, 18 U. S. C. § 550.
The conspiracy indictment also named Leo and Murray Green-berg, Fresh Grown Preserves Corporation in which the Greenbergs were officers (all of whom we refer to simply as Greenberg), the S. J. Baron Corporation, the Royal Crown Bottling Co. of Baltimore, Inc., Royal Crown Bottling Co. of Washington, Inc., and William C. Franklin, president of the Royal Crown companies. Greenberg pleaded guilty, Baron Corporation pleaded nolo contendere, and verdicts were directed for Royal Crown and Franklin. It was charged that the Baron Corporation participated in the conspiracy by writing a letter similar to that written by petitioner, discussed hereafter.
See note 3, supra.
That was the view of the judge who tried both cases. At the second trial he characterized as follows the charge and the verdict at the first: “. . . what was tried on the 11th of December was a charge of conspiracy and what the jury by its verdict determined was that Sealfon had not entered into common agreement with the Green-bergs and the Fresh Grown Company to violate the law.”
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_search
|
E
|
What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court below improperly rule for the prosecution on an issue related to an alleged illegal search and seizure?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless". If a civil suit brought by a prisoner or a criminal defendant in another action that alleges a tort based on an illegal search and seizure, also consider the issue to be present in the case.
COMPOSITE TECHNOLOGY, INC. and E. Keith Harvey, Appellees, v. UNDERWRITERS AT LLOYD’S, LONDON, Guardian Royal Exchange Assurance, LTD., La Concorde Compagnie D’Assurances S.A. (No. 1 account), La Concorde Compagnie D’Assurances S.A. (No. 2 account), Norwich “Trust” Account, Minster Insurance Company, LTD., Sphere Insurance Company, LTD. (No. 2 account), Drake Insurance Company, LTD. (No. 2 account), Compagnie D’Assurances, Maritimes, Aeriennes and Terestres, S.A., Assurances Generales De France, Gan Incendie Accidents Compagnie Francaise D’Assurances et de Reassurances, Scottish Land Insurance LTD., Andrew Weir Insurance Company, LTD., British Reserve Insurance Company, LTD., British Law Insurance Company, LTD. (No. 2 account), Lombard Insurance Company (U.K.) LTD. (No. 2 account) Road Transport and General Insurance Company, LTD. (“G” account), Appellants.
No. 84-1589.
United States Court of Appeals, Eighth Circuit.
Submitted Jan. 18, 1985.
Decided May 21, 1985.
Thomas C. Walsh, St. Louis, Mo., for appellants.
Larry O’Neal, Kansas City, Mo., for appellees.
Before ARNOLD, Circuit Judge, HENLEY, Senior Circuit Judge, and BOWMAN, Circuit Judge.
BOWMAN, Circuit Judge.
The issue in this case is whether the word “sales” in the liability insurance policy here involved is sufficiently precise and unambiguous to allow for summary judgment based strictly on the language of the policy, without consideration of any extrinsic evidence. The District Court ruled that it was, and granted summary judgment in favor of the insured. We reverse and remand.
I.
A military helicopter crashed near Passaic, Missouri on June 11, 1982. Six members of the United States Air Force were killed. The accident involved a helicopter rotor blade that allegedly had been repaired by Composite Technology, Inc. (CTI). Following the crash, several lawsuits were filed naming CTI, among others, as a defendant and claiming that CTI had negligently performed repairs to the rotor blade of the doomed helicopter.
CTI gave its liability insurance carriers (the Underwriters) timely notice of the crash, and requested that they assume CTI’s defense of the lawsuits arising therefrom and that they provide coverage for any damages awarded. Relying on an exclusion in the policy for “sales to military organizations,” the Underwriters denied any obligation to defend or to provide coverage.
CTI and its president and principal stockholder E. Keith Harvey then filed the present action against the Underwriters to obtain a declaratory judgment of coverage and duty to defend. The Underwriters subsequently agreed to assume the defense of the underlying lawsuits subject to a reservation of rights.
Less than a month after the Underwriters filed their answer to the complaint, CTI moved for summary judgment, arguing that the insurance policy issued to it by the Underwriters unambiguously provides for coverage of any improper repairs by CTI to military helicopters. At the time CTI filed its motion, there had been no discovery.
Denying that the policy affords coverage for liability arising out of repairs performed by CTI for the military, the Underwriters sought to engage in discovery for the purpose of gathering evidence that would shed light upon the language of the policy. They also submitted the insurance application and several affidavits for the same purpose. The District Court, however, concluded that the issues raised by the motion for summary judgment could be resolved within the four corners of the policy. Having thus foreclosed consideration of any extrinsic evidence, the District Court took into account only the language of the policy, and found that “[a] reasonable reading of the pertinent portions of the policy leads to the conclusion that coverage is afforded for liabilities arising out of repairs performed by CTI for military organizations.” Composite Technology, Inc. v. Underwriters at Lloyd’s, London, No. 83-0671, mem. op. at 4 (W.D.Mo. April 2, 1984). Noting that the lawsuits against CTI arising out of the crash of the Air Force helicopter are based on the theory that CTI negligently performed repairs, the District Court granted CTI’s motion for summary judgment. This appeal has followed.
II.
The Underwriters contend that the District Court erred in granting summary judgment in favor of CTI on the basis of the policy language alone, without consideration of the evidence proffered by the Underwriters to show the scope of the policy’s coverage. Where a written contract is ambiguous, resort to parol evidence — evidence extrinsic to the four corners of the instrument — is proper to resolve the ambiguity. See J.E. Hathman, Inc. v. Sigma Alpha Epsilon Club, 491 S.W.2d 261, 264 (Mo.1973). “The meaning of an ambiguous contract is determined in light of the extrinsic circumstances.” Penney v. White, 594 S.W.2d 632, 638 (Mo.App.1980). The question, then, is whether the policy is free from ambiguity. We believe it is not.
The key provision here at issue is paragraph 3 of the schedule attached to the policy:
THE NATURE OF THE ASSURED’S BUSINESS OR OPERATION IN RESPECT OF WHICH THE POLICY IS EFFECTED IS:—
Rotor Blade Repairers operating at Stockton, California and Dallas, Texas in respect of Civil Operations only excluding any liabilities in respect of sales to military organisations, if any[.]
Appendix at 406. This language, hand-tailored for the CTI policy and typewritten on what appears to be a pre-printed form, immediately tells us that the policy covers CTI’s business as “Rotor Blade Repairers,” and that coverage is afforded “in respect of Civil Operations only.” The latter phrase would appear to rule out any coverage whatsoever for military operations, as distinguished from repair services rendered in the civilian sector. Doubt creeps in, however, because of the phrase “excluding any liabilities in respect of sales to military organisations, if any[.]” What is meant by the word “sales”? Was it intended simply to confirm, somewhat redundantly, the apparent total exclusion with respect to military operations, or was it intended to narrow the scope of that exclusion? CTI argues, and the District Court agreed, that “sales” as here used should be read narrowly as meaning only “sales of goods,” resulting in the conclusion that the policy excludes from coverage only sales of goods by CTI to military organizations. The Underwriters argue that “sales” was intended to encompass all transactions with the military, i.e., sales of repair services as well as sales of goods. The word “sales” is quite capable of bearing either meaning and the question is which of the ascribed meanings is in accord with the intention of the parties as of the time they entered the contract. The ambiguity is facially apparent, and is not cured by resort to other provisions of the policy, which provisions, unlike the clause under discussion, consist mostly of boilerplate language. We therefore hold that the District Court erred in determining that the word “sales” was free from ambiguity and therefore also erred in limiting its inquiry to the four corners of the contract. It follows that the order of the District Court granting summary judgment in favor of CTI must be vacated.
Having examined the insurance policy with some care, we wish to emphasize our belief that the boilerplate or standard provisions of the policy are of little help in determining the meaning that should be given to the exclusionary language in issue. The clause in question is a negotiated term. It is the only provision that deals directly with the all-important question of to what extent the policy excludes CTI’s military operations from coverage. Further, this clause gives the appearance of having been written in some haste and without a great deal of care — in striking contrast to the standard provisions of the policy, which obviously are the product of skilled and careful draftsmanship. Thus, we are of the view that the District Court’s reliance on a distinction made in the standard provisions between “sales” and “repairs” is misplaced, and that resort to extrinsic evidence is required to determine whether any such distinction is to be read into the non-standard language in question. For similar reasons, we are not convinced that this is an appropriate case for applying the rule that ambiguous policy language is to be construed against the insurer. In any event, that rule would seem to be singularly inappropriate in this case if on remand the District Court finds, as asserted by the Underwriters, that the exclusionary clause was drafted by CTI’s agent.
Our conclusion that the policy is facially ambiguous with respect to the scope of coverage is dispositive of the arguments of both CTI and the Underwriters for entitlement to summary judgment based on the policy language alone. Because the policy is ambiguous, the intention of the parties can best be determined with the aid of evidence from outside the policy.
The Underwriters invite us to consider the policy, CTI’s insurance application, and the affidavits that were submitted to the District Court and, based thereon, to enter summary judgment in their favor. We decline this invitation. Although the Underwriters’ evidence and arguments in support of their version of the scope of the coverage provided by the policy are not without persuasive force, we believe that the effect of the policy language, the insurance application, and the other evidence should be determined in the first instance by the District Court. Additionally, we note that CTI based its motion for summary judgment on the theory that the policy is free from ambiguity. Consequently, CTI thus far has relied exclusively on the language of the policy, and has not presented affidavits or other extrinsic evidence concerning the scope-of-coverage issue. Moreover, the Underwriters did not request the District Court to enter summary judgment in their favor. In these circumstances, it would be manifestly unfair not to give CTI an opportunity to develop and present extrinsic evidence in support of its position on the coverage issue.
III.
For the reasons set forth above, we reverse the District Court’s order granting summary judgment in favor of CTI, and remand this case for further proceedings consistent with this opinion.
So ordered.
. The two plaintiffs are referred to collectively throughout this opinion as CTI.
. CTI’s claims against the Underwriters for attorneys’ fees and for damages for breach of the duty of good faith and fair dealing have been dismissed with prejudice. CTI’s claim that any punitive damages that may be assessed against it in the underlying lawsuits are within the coverage provided by the Underwriters has been dismissed, without prejudice, as premature.
. The jurisdiction of this Court was invoked in the present appeal under 28 U.S.C. § 1291, which provides that the "courts of appeals ... shall have jurisdiction of appeals from all final decisions of the district courts of the United States.”
Fed.R.Civ.P. 58 provides in part as follows:
Every judgment shall be set forth on a separate document. A judgment is effective only when so set forth and when entered as provided in Rule 79(a).
In this case the District Court failed to set forth the judgment on a separate document as required by Rule 58. During the oral argument of this appeal, we raised with counsel the question of whether the decision of the District Court was "final" for the purposes of § 1291, since the judgment was not set forth on a separate document as required by Rule 58. Counsel for both sides indicated their desire to waive the separate-judgment requirement of Rule 58. It further is apparent from the record that the District Court intended the opinion and order from which the appeal was taken to be its final decision in the case. Accordingly, we find that there has been a waiver of the separate-judgment requirement in this appeal and that we properly can assume appellate jurisdiction under 28 U.S.C. § 1291. See Bankers Trust Co. v. Mallis, 435 U.S. 381, 98 S.Ct. 1117, 55 L.Ed.2d 357 (1978). District judges are reminded, however, that the separate-judgment rule is mandatory, and that it plays' an important role in making a judgment "final" and in determining when the time for filing a notice of appeal starts to run.
. We note that in today's service-oriented economy it is commonplace to speak of sales of services as well as of sales of goods. A standard dictionary defines the word “sales" as meaning "operations and activities involved in promoting and selling goods or services," and, alternatively, as "gross receipts." Webster's Third New International Dictionary, p. 2003 (defining the plural of the noun “sale") (1981).
. The Underwriters contend that the District Court erred in failing to consider CTI’s application for insurance (which specifically advised the Underwriters: "military coverage not needed”) as part of the policy. We need not decide whether that contention is correct, for even if we assume it is, we believe our proper course is to remand the case. On remand the District Court should consider the policy language in light of the application, the affidavits already submitted by the Underwriters, and any other relevant evidence the parties may submit.
. Patent ambiguity here being the predicate for the consideration of extrinsic evidence, we need not pursue the interesting question of whether, under Missouri law, extrinsic evidence may be considered to shed light on the meaning of a contractual term that is not facially ambiguous. We do note, however, that Cure v. City of Jefferson, 380 S.W.2d 305 (Mo.1964), and Spychalski v. MFA Life Ins. Co., 620 S.W.2d 388 (Mo.App.1981), support the view that “a court — quite apart from ambiguity or nonambiguity — is entitled to look at more than only the words of undertaking.” Id. at 394.
Question: Did the court below improperly rule for the prosecution on an issue related to an alleged illegal search and seizure?
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
Answer:
|
songer_typeiss
|
C
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups.
NEWCOMB et al. v. YORK ICE MACHINERY CORPORATION.
No. 6994.
Circuit Court of Appeals, Fifth Circuit.
Jan. 4, 1934.
Rehearing Denied Jan. 25, 1934.
Leonard Brown and M. A. Childers, both of San Antonio, Tex., for appellants.
Leo Brewer, of San Antonio, Tex., and R. Wayne Lawler, of Houston, Tex., for ap-pellee.
Before BRYAN, FOSTER, and WALKER, Circuit Judges.
WALKER, Circuit Judge.
When this case was here on a former appeal, this court held that the trial court had erred in striking appellants’ answer to' the bill, which put in issue allegations of the bill and set up matters of set-off and counterclaim, and the case was remanded for further proceedings. Newcomb v. York Ice Machinery Corporation (C. C. A.) 56 F.(2d) 576. For a statement of the issues raised by the bill and the answer thereto reference is made to the opinion rendered when the case was here on the first appeal. Upon a consideration of the evidence adduced in the trial after the re-mandment of the cause the court found in favor of the appellee on the issues raised, and decreed accordingly. An examination of the evidence has led us to the conclusion that it duly supported the court’s findings of fact, and that none of those findings is properly subject to be set aside by this court. We think no useful purpose would be served by a recital or discussion of that evidence.
Error was assigned on the action of the court in holding that the burden was on the appellants, defendants below, to prove allegations of the answer to the bill by way of counterclaim as to the breach of the warranty, contained in the contract sued on for the sale by the appellee to the appellant Newcomb of an ice-making machine, of the ice-maldng capacity of that machine. The allegations referred to were of a matter of affirmative defense, the burden of proving which was on the appellants. Buckstaff v. Russell, 151 U. S. 626, 14 S. Ct. 448, 38 L. Ed. 292; O. C. Barber Mining & Fertilizing Co. v. Brown Hoisting Mach. Co. (C. C. A.) 258 F. 1; 24 R. C. L. 162.
The record shows no reversible error. The decree is
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:
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songer_usc1
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28
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if no U.S. Code titles are cited. If one or more provisions are cited, code the number of the most frequently cited title.
GROUP HEALTH INCORPORATED, Plaintiff-Appellee, v. BLUE CROSS ASSOCIATION and Blue Shield of Greater New York, Defendants-Appellants, United States Department of Health and Human Services, Intervenor-Defendant-Appellant.
Nos. 703, 704, Dockets 85-6314, 85-6324.
United States Court of Appeals, Second Circuit.
Argued Feb. 3, 1986.
Decided June 20, 1986.
Susan E. Harkins, Asst. U.S. Atty., for S.D.N.Y., New York City (Rudolph W. Giuliani, U.S. Atty., Jane E. Booth, Asst. U.S. Atty., New York City, of counsel), for in-tervenor-defendant-appellant.
Robert A. Bicks, New York City (Alan C. Drewsen, David H. Kagan, Breed, Abbott & Morgan, New York City, of counsel), for defendants-appellants.
John M. O’Connor, New York City (Mark Weldon, DeForest & Duer, New York City, of counsel), for plaintiff-appellee.
Before FEINBERG, Chief Judge, and VanGRAAFEILAND and CARDAMONE, Circuit Judges.
CARDAMONE, Circuit Judge:
This appeal concerns the relationship between a provider of insurance for medical and health services under Medicare and the fiscal intermediaries through which this provider elected to receive reimbursement from the federal government. One issue is whether or not the fiscal intermediaries were government agents acting within the scope of their authority. The government urges us to find that these intermediaries acted as government agents and are therefore entitled to absolute official immunity. Lurking in the background of this appeal are collateral questions regarding the viability of a Federal Torts Claims Act (FTCA) action begun by the provider in which it seeks to hold the government liable for the actions of the fiscal intermediaries, as government agents. Yet, in the FTCA suit, the government claims, interestingly enough, that the intermediaries are not its agents. Burrowing to the root of this tangle, it becomes clear that these contradictory claims are interrelated. Moreover, in their present posture the cases are too inchoate and tentative for us to undertake appellate jurisdiction.
Blue Cross Association (Association), Blue Cross/Blue Shield of Greater New York (Blue Cross), and the United States Department of Health and Human Services (HHS) appeal from an August 12, 1985 decision and order of the United States District Court for the Southern District of New York (Leisure, J.) denying their motion for summary judgment, 69 F.Supp. 625. The Association, Blue Cross and HHS (collectively, the defendants) argue that they are entitled to an immediate appeal from the denial of their claim of absolute immunity pursuant to the collateral order doctrine, Cohen v. Beneficial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), and that this Court has pendent appellate jurisdiction to review the other arguments advanced on appeal. For reasons to be discussed shortly, we do not believe the decision appealed from falls within that small class of cases encompassed by the collateral order doctrine and therefore dismiss this appeal.
I. FACTUAL BACKGROUND
A. Proceedings
Group Health Incorporated (GHI) seeks damages from the Association and Blue Cross on causes of action sounding in negligence, misrepresentation and breach of the warranty of authority. GHI alleges it suffered a monetary loss as a result of Blue Cross’ disallowance of Medicare reimbursement for interest incurred by Hillcrest General Hospital (Hillcrest), a private hospital which GHI owned from 1974-1980.
GHI commenced the instant action in New York State Supreme Court, New York County. After the Association and Blue Cross removed the action to the Southern District pursuant to 28 U.S.C. § 1442(a)(1) (1982), GHI moved to remand the case to state court. HHS then filed a motion to intervene as a defendant in the action. On June 13, 1984 the district court (Sweet, J.) denied GHI’s motion to remand finding that Blue Cross’ actions in denying the reimbursement for interest were taken under color of governmental authority. Group Health Inc. v. Blue Cross Ass’n, 587 F.Supp. 887, 889-91 (S.D.N.Y.1984). Since Blue Cross acted as a fiscal intermediary on HHS’ behalf, GHI’s claim could be removed to federal court. It also granted HHS’ motion for permissive intervention under Fed.R.Civ.P. 24(b)(2) and consolidated plaintiff GHI’s separate proceeding against the United States. Id. at 891-93. In that action GHI alleges that the United States is liable under the FTCA for the negligent and wrongful acts of Blue Cross, the Association and HHS.
Following limited discovery, defendants moved on November 5, 1984 for summary judgment. Judge Leisure denied the motion and defendants appealed. GHI has moved to dismiss this appeal for lack of appellate jurisdiction.
B. The Parties
GHI is a not-for-profit health service corporation organized and operating pursuant to Article 43 of the New York Insurance Law, N.Y.Ins.L. §§ 4301 et seq. (McKinney 1985). Blue Cross also is a not-for-profit corporation organized under the New York Insurance Law providing health insurance coverage to subscribers in the greater New York area. The Association is incorporated under the Illinois General Not-For-Profit Corporation Act and has a membership that includes Blue Cross as well as 67 other Blue Cross Plans operating throughout the country.
The Medicare program is a federally funded health insurance program for the aged and the disabled. 42 U.S.C. §§ 1395 et seq. (1982). It consists of two parts — A and B. Part A provides insurance coverage for hospital, related post-hospital, home health and hospice care. 42 U.S.C. § 1395c. The cost of providing Part A services is principally assumed by the Federal Hospital Insurance Trust Fund, which is funded by Social Security taxes. 42 U.S.C. § 1395i. Part A benefits may only be paid to providers of Medicare services. 42 U.S.C. § 1395f(a). Providers participating in Part A are prohibited from charging eligible patients for services covered by Medicare. 42 U.S.C. § 1395cc(a)(l)(A). Part B is an optional supplementary insurance program that covers payment of medical and health services not covered under Part A, for example, physicians’ services. It is financed by payments from enrollees as well as funds provided by the federal government. 42 U.S.C. § 1395j.
GHI functioned as a carrier under Part B of the Medicare program and Hillcrest was a provider of Medicare services. Under 42 U.S.C. § 1395h(a) providers of inpatient services must choose to be reimbursed either by HHS or by a fiscal intermediary, a private organization under contract with HHS to serve as a conduit for reimbursement. The fiscal intermediary determines the amount of reimbursement due the provider and makes the reimbursement. It also resolves disputes concerning reimbursement decisions, 42 C.F.R. §§ 421.-100(e) & (f) (1985), and “serve[s] as a center for, and communicate[s] to providers, any information or instructions furnished to it by the Secretary, and serve[s] as a channel of communication from providers to the Secretary....” 42 U.S.C. § 1395h(a). HHS may review the fiscal intermediaries’ initial reimbursement determinations. See 42 C.F.R. § 405.1885(b) (1985).
In this case the Association and Blue Cross served as fiscal intermediaries under Part A. With HHS’ approval, the Association entered into a subcontract with Blue Cross, under the terms of which the Association delegated some of its assignments to Blue Cross. Pursuant to this subcontract and to Hillcrest’s election, Blue Cross acted as Hillcrest’s fiscal intermediary. The subject matter of this appeal involves reimbursement of Hillcrest under Part A during the six years it was owned by GHI.
C. The Events
In January 1973 GHI began exploring the possibility of acquiring a private hospital. GHI proposed to use its subscriber funds to acquire Hillcrest, and to accomplish this it was necessary to obtain the New York State Insurance Department’s (Insurance Department) approval. In a letter dated June 22, 1973 GHI formally requested approval of the Insurance Department. On September 5, 1973 representatives of GHI and Blue Cross met to discuss the plans then underway to purchase Hill-crest. The following January GHI submitted to the Insurance Department an amended application to purchase Hillcrest which was approved on February 15, 1974.
Before GHI purchased Hillcrest, it requested Blue Cross’ advice as to whether an interest return on the mortgage funds used to make the purchase would be included in the calculation of Hillcrest’s Medicare and Blue Cross reimbursement rates. In a telephone conference on February 4, 1974, Mr. Ingram of Blue Cross informed Dr. Yaegar of GHI that “the Blue Cross Board of Directors did approve the interest return on investment.” Blue Cross did not consult the Secretary or the Association at any time prior to ruling that this interest would be reimbursable for Medicaid purposes. On February 28, 1974 GHI purchased Hill-crest.
In a letter dated March 26, 1974 from William F. McMann, Assistant Commissioner of the New York State Health Department, the Department rejected the proposed change in Blue Cross reimbursement because under Health Department Regulations, only proprietary organizations, and not Article 43 not-for-profit corporations, were entitled to a return on equity. The Department did conclude that, were GHI to make a loan from restricted funds to Hill-crest, interest paid on such loans would be a reimbursable cost. GHI informed Blue Cross by letter dated May 21, 1974 that it would give a $6 million mortgage to Hill-crest payable over 30 years at a nine percent rate to be repaid through constant monthly payments, with a standard annual repayment of $579,600. Blue Cross confirmed in a letter dated June 11, 1974, that these terms were acceptable for Medicare and Blue Cross reimbursement and that the interest on the loan, if paid according to schedule, would be included in calculating Blue Cross and Medicare reimbursement.
Hillcrest included the interest expense— representing a 9 percent return on the funds used to purchase the hospital — in its annual Medicare cost reports for fiscal years 1974 through 1980. In 1977 during its audit of Hillcrest’s 1975 costs report, Blue Cross learned that Hillcrest had not paid any interest to GHI in 1974 or 1975. Blue Cross referred the matter to HHS which, through its Regional Medicare Director, notified Blue Cross on September 29, 1978 that the interest was not reimbursable under Medicare. HHS ruled that GHI’s purchase of Hillcrest was an investment — not a loan. Even were the transaction to be construed as a loan, HHS stated that the interest was not reimbursable because GHI and Hillcrest were related entities. Further, Hillcrest’s failure to pay interest was additional evidence that GHI and Hillcrest were not dealing at arm’s length. HHS concluded that it was “unable to understand how Blue Cross could have ruled that the ‘loan’ transaction [was] a reimbursable cost____ [Authoritative Medicare decisions can only come from written policy established by the Medicare Bureau or from consultation with this office.” Blue Cross subsequently disallowed reimbursement for the interest payments.
Hillcrest requested a hearing before the Provider Reimbursement Review Board (PRRB) to appeal the interest disallowance for the 1974 through 1976 fiscal years. On September 19, 1980 the PRRB upheld the disallowance because GHI’s purchase of Hillcrest did not constitute a loan from donor restricted funds, and the transaction between GHI and Hillcrest was not at arm’s length. This decision became final on November 18, 1980 when the Secretary declined to affirm, reverse or modify. GHI brought an action against the Secretary in the Southern District of New York (Carter, J.), and that court granted the Secretary’s motion for summary judgment. The court found the administrative decision supported by substantial evidence and held that the Secretary was not estopped from reversing Blue Cross’ initial determination. We affirmed the district court’s judgment in an unpublished order and the Supreme Court denied GHI’s petition for certiorari.
II. PROCEEDINGS
A. The Complaint
GHI asserts eight causes of action against Blue Cross and the Association; the first five pertain to reimbursement under the Medicare program and the last three to reimbursement under the Blue Cross reimbursement system. GHI alleges that Blue Cross was negligent and grossly negligent in (1) failing to consult the Secretary before representing that the interest was reimbursable; (2) falsely representing that Medicare would reimburse the interest; and (3) misrepresenting that it was authorized to act as the Secretary’s agent in determining whether the interest was reimbursable under Medicare. Against the Association, GHI alleges that (4) it is responsible for Blue Cross’ wrongs; and (5) it was negligent and grossly negligent in failing properly to supervise Blue Cross. The sixth through eighth claims allege that Blue Cross breached its agreement with GHI by refusing to include the rate of return in the reimbursement calculation and that Blue Cross is estopped from changing its position in that regard.
B. District Court Decision
Following limited discovery, Blue Cross and the Association moved for summary judgment on the first five claims arguing that GHI could not have relied on Blue Cross’ decision that the interest was reimbursable because GHI purchased Hillcrest before Blue Cross made such a written representation, and even if GHI did rely on Blue Cross’ representation, such reliance did not, as a matter of law, give rise to a claim for relief under Heckler v. Community Health Services, 467 U.S. 51,104 S.Ct. 2218, 81 L.Ed.2d 42 (1984). Finally, the Association and Blue Cross argued that these claims were barred by sovereign immunity. HHS joined in defendants’ motion for summary judgment and raised the additional defense of official immunity.
The district court denied all aspects of defendants’ motion for summary judgment on claims one through five. With respect to the sovereign immunity defense, it held that GHI’s action was not against the United States and that a material question of fact existed as to whether Blue Cross’ actions in interpreting the Medicare regulations were outside the scope of its authority. It applied a balancing test when it ruled that the Association and Blue Cross were not federal officials for immunity purposes, weighing the injustice caused by denying an injured plaintiff its remedy against the pressures placed upon an individual serving as a federal official, were that individual to be held liable for actions authorized by the government. Having concluded that these parties could not be “deemed” federal officials, the district court found it unnecessary to decide whether Blue Cross was acting within the scope of its authority. It further stated that even if the Association and Blue Cross could be considered federal officials, the existence of a question of fact concerning the scope of Blue Cross’ authority precluded summary judgment. Finally, it rejected defendants' claim that, as a matter of law, GHI could not rely on its fiscal intermediary’s misrepresentation. GHI’s complaint was distinguished from Heckler, on the following grounds: (1) Heckler addressed the question of whether the government could be estopped from recovering funds expended by a health care provider in reliance on an incorrect interpretation of the Medicare regulations by a fiscal intermediary rather than the question of whether a health care provider could hold its fiscal intermediary liable for the intermediary’s own negligence; (2) Unlike the provider in Heckler, GHI received a written statement from Blue Cross that the return would constitute a reimbursable cost; (3) A material issue of fact existed as to whether it was reasonable for GHI to believe that Blue Cross had referred the matter to HHS.
III. JURISDICTION
Ordinarily under 28 U.S.C. § 1291 (1982) denial of a motion for summary judgment is an unappealable order. See Pacific Union Conf. of Seventh-Day Adventists v. Marshall, 434 U.S. 1305,1306, 98 S.Ct. 2, 3, 54 L.Ed.2d 17 (1977); New York v. Nuclear Regulatory Comm’n, 550 F.2d 745, 759 (2d Cir.1977). In Cohen v. Beneficial Loan Corp., 337 U.S. at 546, 69 S.Ct. at 1225, the Supreme Court recognized that “[t]he effect of the statute is to disallow appeal from any decision which is tentative, informal or incomplete.” Thus, we must first address the threshold question of whether there is jurisdiction to review the district court’s order denying summary judgment based on some exception to § 1291 that permits an appeal from an interlocutory order.
In Cohen, the Supreme Court construed § 1291 as disallowing appeals from district court decisions that were nonfinal. Id. Even fully consummated decisions are not appealable when there are intermediate steps along the way to final judgment in which they will merge. For “[t]he purpose is to combine in one review all stages of the proceeding that effectively may be reviewed and corrected if and when final judgment results.” Id. For an interlocutory order, such as the one before us, to be appealable it “must [(1)] conclusively determine the disputed question, [(2)] resolve an important issue completely separate from the merits of the action, and [ (3) ] be effectively unreviewable on appeal from a final judgment.” Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 2457, 57 L.Ed.2d 351 (1978); Abney v. United States, 431 U.S. 651, 658-59, 97 S.Ct. 2034, 2039-40, 52 L.Ed.2d 651 (1977); In re Agent Orange Product Liability Litigation, 745 F.2d 161, 163 (2d Cir.1984).
In Coopers & Lybrand the Supreme Court elaborated on the two distinct purposes served by the finality requirement of § 1291 and the statute’s relationship to nonfinal orders that are appealable. First, § 1291 reflects a legislative decision that limiting appellate review to final orders “prevents the debilitating effect on judicial administration caused by piecemeal appeal disposition of what is, in practical consequence, but a single controversy.” 437 U.S. at 471, 98 S.Ct. at 2459 quoting Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 170, 94 S.Ct. 2140, 2149, 40 L.Ed.2d 732 (1974). Second, the Court emphasized that the final judgment rule preserves the proper balance between appellate and trial courts when disputed factual questions are involved. The Court reasoned:
[Allowing appeals of right from nonfinal orders that turn on the facts of a particular case thrusts appellate courts indiscriminately into the trial process and thus defeats one vital purpose of the final-judgment rule — ‘that of maintaining the appropriate relationship between the respective courts____ This goal, in the absence of most compelling reasons to the contrary, is very much worth preserving.’
Id. at 476, 98 S.Ct. at 2462.
Defendants argue that we have jurisdiction to review the district court’s decision denying their motion for summary judgment on the absolute immunity defense. The Supreme Court, they point out, has held on several occasions that orders denying summary judgment on claims of absolute or qualified immunity are immediately appealable as collateral final orders. See, e.g., Mitchell v. Forsyth, — U.S.-, 105 S.Ct. 2806, 2815-17, 86 L.Ed.2d 411 (1985) (Attorney General qualified immunity); Nixon v. Fitzgerald, 457 U.S. 731, 741-43, 102 S.Ct. 2690, 2696-97, 73 L.Ed.2d 349 (1982) (Presidential immunity); Helstoski v. Meanor, 442 U.S. 500, 505-08, 99 S.Ct. 2445, 2447-48, 61 L.Ed.2d 30 (1979) (Speech or Debate Clause); Abney v. United States, 431 U.S. at 659-62, 97 S.Ct. at 2040-41 (Double Jeopardy Clause).
Further, defendants contend that on appeal from a collateral final order, an appellate court has discretion to review other related nonappealable issues in the case “where ‘[t]here is sufficient overlap’ ” as defined by the doctrine of pendent appellate jurisdiction. San Filippo v. U.S. Trust Co. of New York, Inc., 737 F.2d 246, 255 (2d Cir.1984), cert. denied, — U.S. -, 105 S.Ct. 1408, 84 L.Ed.2d 797 (1985) quoting Sanders v. Levy, 558 F.2d 636, 643 (2d Cir.1976), aff'd en banc, 558 F.2d 646 (2d Cir.1977), rev’d on other grounds sub nom. Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 98 S.Ct. 2380, 57 L.Ed.2d 253 (1978). Therefore, according to defendants, we are not only vested with jurisdiction to review the denial of their claim of absolute immunity from suit, but also the related issue of whether GHI’s misrepresentation claims are barred as a matter of law. We cannot agree.
Although defendants have alleged a nonfrivolous claim that fiscal intermediaries in the Medicare program are entitled to official immunity, see San Filippo v. U.S. Trust Co. of New York, Inc., 737 F.2d at 254-55, this appeal must be dismissed. Defendants’ claim of absolute immunity is not within “that small class which finally determine claims of right separable from, and collateral to, rights asserted in the ac-tion____” Cohen, 337 U.S. at 546, 69 S.Ct. at 1225. We reach this conclusion for two reasons. First, the immunity question cannot be decided without addressing GHI’s underlying claims on the merits, including such essential and disputed questions of fact as, for example, whether Blue Cross acted within the scope of its authority. At this stage in the litigation the immunity issues presented are not solely questions of law. See Coopers & Lybrand, 437 U.S. at 476, 98 S.Ct. at 2462 (disputed factual questions preclude appeal of nonfinal order); Evans v. Dillahunty, 711 F.2d 828, 830 (8th Cir.1983) (motions for summary judgment based upon absolute or qualified immunity are appealable only if the underlying facts are undisputed and the immunity question is solely a question of law).
Second, to force GHI to litigate its claims against Blue Cross and the government separately when the claims and factual issues are “but a single controversy” results in an inefficient use of judicial resources. Coopers & Lybrand v. Livesay, 437 U.S. at 471, 98 S.Ct. at 2459 quoting Eisen, 417 U.S. at 170, 94 S.Ct. at 2149. Were we to find that Blue Cross and the Association were not immune, we might be simultaneously disposing of GHI’s FTCA claims against the government, since the two defendants would not have been acting as government agents. Given that “the purpose [of § 1291] is to combine in one review all stages of the proceeding that effectively may be reviewed”, Cohen, 337 U.S. at 546, 69 S.Ct. at 1225, judicial economy suggests that all of the closely intertwined immunity issues — including those raised but not now before us under the FTCA — proceed together in the district court before the same judge. Assuming a trial, the jury and non-jury actions doubtless can be tried in one consolidated action with joint discovery and appropriate allocation of decision-making authority so as to result in one final judgment that will be effectively reviewable.
IV. CONCLUSION
For the foregoing reasons, this appeal from a nonfinal interlocutory order denying summary judgment is dismissed for lack of appellate jurisdiction.
Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number.
Answer:
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songer_appel2_1_3
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G
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to determine what category of business best describes the area of activity of this litigant which is involved in this case.
BROOKS TOWERS CORPORATION et al., Plaintiffs-Appellants and Cross-Appellees, v. The HUNKIN-CONKEY CONSTRUCTION COMPANY and Federal Insurance Company, Defendants-Appellees and Cross-Appellants.
Nos. 71-1094, 71-1095.
United States Court of Appeals, Tenth Circuit.
Feb. 1, 1972.
Geoffrey M. Kalmus, New York City (Nickerson, Kramer, Lowenstein, Nessen & Kamin, New York City; Gorsuch, Kir-gis, Campbell, Walker & Grover, Denver, Colo., on the brief), for plaintiffs-appellants and cross-appellees.
Warren O. Martin, Denver, Colo. (Berge, Martin & Clark, Denver, Colo., on the brief), for defendants-appellees and cross-appellants.
Before PICKETT, HILL and BARRETT, Circuit Judges.
BARRETT, Circuit Judge.
This appeal is taken by Brooks Towers Corporation, hereinafter called the Owner, and its co-plaintiffs, Central Bank and Trust Company and the First National Bank of Denver, lending institutions, from the $786,386.24 judgment awarded the Hunkin-Conkey Construction Company and Federal Insurance Company, hereinafter called the Contractor, upon its counterclaim for damages representing the balance due under a contract for the construction of Brooks Towers, a 42-story commercial and apartment building in Denver. The Contractor has filed a cross-appeal.
This diversity suit involved a two-week trial to the Court without jury.
The Contract — Contentions—Court Findings
The original construction contract price was $7,600,000.00. Pertinent provisions, for purposes of this opinion, became operative on June 8, 1966, when work commenced. They are:
“Within fifteen months after acceptance (June 8, 1966) of said notice to proceed
“(a) commercial and office space is to be substantially completed as a shell area and be ready for customization by others in accordance with plans and specifications,
“(b) garage floor areas shall be substantially completed with 20% of said garage area being reserved for Contractor storage and usage,
“(c) approximately 175 apartment suites on a contiguous block of lower floors shall be substantially completed and ready for final decoration by others,
“Substantial completion of the entire Work shall be accomplished in eighteen (18) months after acceptance of said notice to proceed.”
Substantial completion was defined as meaning “when the Work is ready for occupancy for its intended purposes, except for customization for tenants and ‘punch list’ items to be completed by Contractor.” By its terms, unless relieved by excusable delays, substantial completion should have been accomplished by December 8, 1967. The Contract provided further that:
“If the Contractor is delayed at any time in the progress of the Work by any act or neglect of the Owner, the Architect, or any employee, agent or contractor of either, or by deletions, alterations, or additions ordered in the Work, or by labor disputes, fire, accidents, severe weather conditions, unusual delay in transportation or any other causes beyond the Contractor’s control, then the times herein fixed for the completion of the Work shall be extended for a period equivalent to the time lost by reason of any one of the causes aforesaid. The Contractor shall promptly notify the Owner in writing of the facts relating to any of the above described causes of delay and Contractor’s estimate of the revised dates of completion of the Work.” (Emphasis ours.)
The Owner contends that it is entitled to damages by reason of failure of the Contractor to meet either the partial completion or substantial completion dates in the contract schedule. It contends that the building was not completed until November of 1968. The Owner seeks damages for lost rentals, additional interest payments charged, defective work, temporary housing of tenants and other losses.
The Contractor counterclaimed, alleging that by reason of excusable delays the building was substantially completed on June 1, 1968. The Contractor sought a total judgment of $1,029,947.93.
The trial court found that: (1) the Owner, at pretrial, asserted that the Contractor was required to complete the building in December, 1967, and that it was not completed until November, 1968; (2) the parties agreed upon a procedure with respect to changes in the work (deletions, alterations, or additions) which involved, in each instance, a “Quotation” from the Contractor setting forth the number of additional calendar days to be extended beyond the original Contract period for completion of the work, directed to the Owner’s Architect, who approved extensions of time total-ling 185 calendar days; (3) in addition to the extensions of time approved by the Owner’s Architect, the Contractor was entitled to 30 calendar days by reason of labor disputes and severe weather conditions; and (4) that substantial completion of the work occurred on June 8, 1968, except for noncustomized apartment units on floors 40 and 41 which were not completed until October 11, 1968, but that the Owner did not 'offer evidence of any loss of rental damage thereby. The Court had previously ruled that the Owner was entitled to a set-off of $28,170.00 representing the measure of damages for failure of the Contractor to comply with Bulletin 15 relating to work to be performed on concrete balconies.
Partial and Substantial Completion
The Owner complains that the trial court erred in failing to make any findings relating to “partial completion”, i. e., the occupancy aimed for within the 15 month period. The parties understood that both the “partial” and “substantial” completion schedules were extremely tight and that the construction schedule required clockwork precision in order to accomplish these objectives. These schedules were strictly tied to the original plans and specifications.
Max Ratner, the Owner’s Architect, acknowledged that major changes were made from the original plans and specifications, with particular reference to the third floor and the upper floors. These changes affected both structural and mechanical engineering changes. Ratner acknowledged that many of the changes affected the sequence of the work, thus creating delays. The Contractor had undertaken a “critical path scheduling” study before submitting its bid on this project. This involves breaking a construction job down into its smallest working components and scheduling the work in proper sequences. The importance of meeting a “critical path schedule” is evident. Chat Paterson, Vice-President of the Owner, testified that the Owner, too, relied upon its own critical path schedule.
There is substantial evidence in this voluminous record that: (a) “partial completion” was accomplished through the 20th floor by December 11, 1967, some three months behind the contract schedule; (b) the major change relating to the third floor had occurred during this time; and (c) the Contractor had requested some 78 days extension of time, relating entirely to changes in the scope of the work which, together with delays during the first 15 months resulting from strikes and weather conditions, are justified in this record.
The trial court properly treated and considered damages only in relation to the “substantial completion” covenants of the Contract. The Court found that substantial completion was not required of the Contractor until July 1, 1968. We hold that this finding is supported by substantial evidence.
Extensions of Time
The overriding dispute in this case involves the extensions of time which the Contractor was entitled to. The trial court found that the Owner’s Architect, Ratner, had approved extensions of 185 days, exclusive of 30 days delay resulting from labor disputes and severe weather conditions — or a total of some 215 days extension.
The Owner contends that the Contractor was not entitled to any extensions of time beyond some 30 days resulting from labor disputes and severe weather conditions. In justification, the Owner argues that: (a) the extensions requested were for customization work, the accomplishment of which was not germane to substantial completion; (b) this customization work, for the most part, was not performed until after the date on which the Court found that substantial completion had occurred; and (c) the extensions of time were understood by the parties to be concurrent and not tacked onto one another.
We first observe that all references in the Contract referred to as “customization” work were those in the original plans and specifications, not customization work resulting from changes effected after the Contract was executed.
There is a most damaging vacuum in this record reflecting upon the Owner. The Owner contends that its Architect, Max Ratner, had no authority to grant extensions of time. Pointing to the Contract language designating the Architect as the Owner’s agent to “review and act” in an advisory capacity for the Owner relating to construction changes, the Owner disavows the Architect’s authority to grant extensions of time. Thus, the Owner argues that the Contractor did not notify the Owner of claims for additional time except for some 30 days delay resulting from strikes and severe weather conditions.
Extension of Time Procedure
The parties effected a specific procedure for Change Orders from the original plans and specifications. The Owner’s Architect issued a “Bulletin” detailing a change directed to the Contractor requesting a “Quotation” from the Contractor. This was, in legal effect, a call for a bid. The Contractor would then issue a “Quotation” setting forth a change in Contract price, if any, together with a specific request for additional days to complete the Contract as a result of the changes. The record reflects that the Contractor requested extensions of some 300 days involving about 80 formal “Quotations” and some 30 Field Order Changes. The “Quotations” were, in legal effect, offers on the part of the Contractor to undertake the requested changes, subject to specific price changes, if any, and additional days to complete the work. These “Quotations” were submitted direcly to Ratner, the Architect, and reviewed by Chat Paterson, Vice-President of the Owner, and one Kromer, an on-the-job architect employed by Ratner. Kromer testified that he and Ratner jointly agreed on each Quotation. He and Ratner both testified that they were in a position only to recommend extensions to the Owner, but that the ultimate determination was between the Owner and the Contractor. But Ratner also said that the decisions on the Quotations would be made by the Owner and “ratified” by him. Herbert Wasserman, an officer of the Owner, testified that he was in “constant” contact with Ratner and Paterson concerning contract price changes and that he did review some Quotations. The Quotation forms were prepared by the Contractor. Each contained a portion for approval or disapproval for execution by the Owner, as follows:
APPROVAL
The undersigned hereby approves the above proposal for Item(s)_ above for a total net increase/decrease/no change in the contract price of - Dollars ($--). Item(s) (of calendar days) above are not approved. You are requested to prepare an amendment of the Agreement dated May 5, 1966 in accordance with the foregoing.
MAX RATNER, ARCHITECT
By -
Dated _
In every instance Ratner completed that portion of the Approval dealing with the change in contract price. In a few instances Ratner expressly allowed or disallowed extensions of time. In the great majority of the Quotations Ratner did not make any entries relating to extensions. He testified that by not acting, he indicated his disapproval, or, perhaps more accurately, that the extensions were matters to be determined by the Owner and the Contractor. The Contractor relied upon the lack of express disapproval as a grant of the requests for extensions. After Ratner returned the “Quotation” forms to the Contractor, an amendment or “Change Order” reflecting .the deletions, alterations or additions was prepared by the Contractor and thereafter executed by the Contractor. Paterson then executed on behalf of the Owner. The two interim Denver lending banks also executed them. The “Change Orders” did not refer to extensions of time.
The trial court found that Ratner was authorized by the Owner to act as its architect and agent in supervising the work, in issuing the Bulletins for changes, and in approving or disapproving the Quotations including the extensions of time. The trial court found that the extensions of time approved by Ratner totalled 185 calendar days. We agree.
Lacking express disapproval as contemplated on the face of the form, the Contractor relied upon Ratner’s inaction as approval. Here the silence can be attributed to both Ratner and Paterson, the Owner’s representatives on the job. When the relations between the parties justify the offeror’s expectation of a reply or where a duty exists to communicate either an acceptance or rejection, silence will be regarded as an acceptance. Laredo Nat. Bank v. Gordon, 61 F.2d 906 (5th Cir. 1932); Suitter v. Thompson, 225 Or. 614, 358 P.2d 267 (1960); Tanenbaum Textile Co. v. Schlanger, 287 N.Y. 400, 40 N.E.2d 225 (1942); and Lechler v. Montana Life Ins. Co. of Helena, Mont., 48 N.D. 644, 186 N.W. 271 (1921).
We do not find any inconsistency on the part of the Contractor in directing requests for extensions of time resulting from labor disputes and severe weather conditions to the Owner’s Denver office rather than to the Architect. These requests did not relate to deletions, alterations or additions in the building plans and specifications.
The procedure established by the parties constituted confirmation by the Owner of the authority exercised by Ratner and Paterson. Rogers v. Beiderwell, 175 Kan. 223, 262 P.2d 814 (1953); Davis v. Bush & Lane Piano Co., 124 Or. 585, 265 P. 417 (1928); Sando v. Kalberg, 138 Wash. 247, 244 P. 576 (1926); Blackwell v. Kercheval, 27 Idaho 537, 149 P. 1060 (1915).
Customization
The Owner insists that of the 185 days of extensions allowed by the Court based upon Change Orders, all but 43 days dealt with “customization” work only. Applying Article 2 of the Contract, the Owner thus argues that substantial completion of the work should have been accomplished on or about February 24, 1968.
It is true that a great deal of the work changes related to “customization”. It is also true that many of the Change Orders bore dates as late as June of 1968. There is substantial evidence, however, that most of the work reflected by these Change Orders had been completed pri- or to date of their execution. Kromer, who was employed by Ratner, issued Construction Progress Estimates. He testified that the building was 97.3 percent completed on May 31, 1968, and 98.3 percent completed on June 30, 1968. There is a great deal of evidence of delay in execution of the Change Orders by the Owner and the interim lending institutions.
The Owner’s argument that the Contractor was not entitled to extensions of time resulting from “customization” Change Orders is without merit. The contract reference to “customization” related only to that type of work reflected in the original plans and specifications. The parties were aware that changes could affect the program work schedule.
The testimony of Richard N. Green, a Construction Consultant, is corroborative of Ratner’s grant of some 185 days extensions and significant in relation to the “clockwork” scheduling of work components required to accomplish the original contract completion schedules. Green’s study took into consideration the plans and specifications, the computerized Critical Path Scheduling program, all Bulletins, formal Change Orders, Field Change Orders, related correspondence, Daily Progress Reports and Monthly Pay Requests. He computed some 394 days involving requests for extensions. He eliminated those of an “overlapping” nature and those which were not critical. He did not consider delays resulting from labor disputes or severe weather conditions. He arrived at a total of 180 days extension of time to which the Contractor was entitled.
There were unexplained delays on the part of the Owner relating to approval of Change Orders, selections of customization items such as ceramic tile, fixtures and accessories, color selections, etc. These delays did in fact change the scope of the work. Indecision on the part of the Owner with respect to tenant paint color selections was such, as early as July or August of 1967, that painters were moving from one floor to another in the building, completely out of program sequence. Some important work had to be re-done because the original plans and specifications did not comply with city codes.
The Cross Appeal
The Contractor appeals from the trial court’s allowance of a $28,170.00 set-off against the Contractor for non-compliance with the standard required under Bulletin #15 relating to balcony finishes on apartments above the 17th floor. There is substantial evidence to support the Court’s finding in this regard. The Contractor contends that there was no admissible evidence of damages.
At the time of trial the defects in the concrete finish had not been rectified. The Owner sought bids covering the claimed defects, a schedule of which was submitted to the Contractor. The record reflects that the lowest bid received was predicated upon an inspection and submittal by a Mr. R. W. Graves, who was not available to testify at trial. However, a Mr. McHenry of the same firm did testify. He updated the Graves bid by 7%. He testified at some length concerning the bids. The Contractor did not offer any evidence regarding the costs of repairs. We hold that although the bids admitted in evidence were hearsay, they were admissible under the Business Records Act, 28 U.S.C. § 1732(a). Hearsay may have affected the weight of these documents, but not their admissibility. The Court’s set-off was predicated upon the lowest bid.
We affirm the trial court’s judgment against the Owner. We deny the Contractor’s cross-appeal from the trial coui't’s allowance of a set-off of $28,170.-00 to the Owner representing repairs to the concrete balconies.
Each party shall bear its own costs in this appeal.
Question: This question concerns the second listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case?
A. agriculture
B. mining
C. construction
D. manufacturing
E. transportation
F. trade
G. financial institution
H. utilities
I. other
J. unclear
Answer:
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sc_lcdispositiondirection
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B
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What follows is an opinion from the Supreme Court of the United States. Your task is to determine 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
MADSEN et al. v. WOMEN’S HEALTH CENTER, INC., et al.
No. 93-880.
Argued April 28, 1994
Decided June 30, 1994
Rehnquist, C. J., delivered the opinion of the Court, in which Black-Mun, O’Connor, Souter, and Ginsburg, JJ., joined, and in which Stevens, J., joined as to Parts I, II, III-E, and IV. Souter, J., filed a concurring opinion, post, p. 776. Stevens, J., filed an opinion concurring in part and dissenting in part, post, p. 777. Scalia, J., filed an opinion concurring in the judgment in part and dissenting in part, in which Kennedy and Thomas, JJ., joined, post, p. 784.
Mathew D. Staver argued the cause for petitioners. With him on the briefs were Jeffery T Kipi and Christopher J. Weiss.
Talbot D’Alemberte argued the cause for respondents. With him on the brief was Susan England.
Solicitor General Days argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Assistant Attorney General Hunger, Deputy Solicitor General Bender, Beth S. Brinkmann, Anthony J. Steinmeyer, and Jonathan R. Siegel.
Briefs of amici curiae urging reversal were filed for the American Family Association by Scott L. Thomas; for the Christian Legal Society et al. by Edward McGlynn Gaffney, Jr., Steven T. McFarland, and Victor G. Rosenblum; for Defendants Operation Rescue et al. by Jay Alan Sekulow, Walter M. Weber, Mark N. Troobnick, James M. Henderson, Sr., Thomas Patrick Monaghan, Keith A. Fournier, and John Stepanovich; for the National Right to Life Committee, Inc., by James Bopp, Jr., and Richard E. Coleson; and for the Rutherford Institute by John W. Whitehead and Alexis I. Crow.
Briefs of amici curiae urging affirmance were filed for the State of Florida et al. by Robert A. Butterworth, Attorney General of Florida, Ger- aid, B. Curington and Gypsy Bailey, Assistant Attorneys General, Eleni M. Constantine, and Richard Cordray, and by the Attorneys General for their respective States as follows: Grant Woods of Arizona, Gale A Norton of Colorado, Richard Blumenthal of Connecticut, Robert A Marks of Hawaii, Roland W. Burris of Illinois, Pamela Carter of Indiana, Michael E. Carpenter of Maine, J Joseph Curran, Jr., of Maryland, Scott Harshbarger of Massachusetts, Hubert H. Humphrey III of Minnesota, Joseph P. Mazurek of Montana, Deborah T. Poritz of New Jersey, Frankie Sue Del Papa of Nevada, Tom Udall of New Mexico, G. Oliver Koppell of New York, Michael F. Easley of North Carolina, Lee Fisher of Ohio, Theodore E. Kulongoski of Oregon, Jeffrey B. Pine of Rhode Island, Charles W. Burson of Tennessee, Dan Morales of Texas, Jeffrey L. Amestoy of Vermont, Darrell V. McGraw, Jr., of West Virginia, and James E. Doyle of Wisconsin; for the American College of Obstetricians and Gynecologists et al. by Carter G. Phillips, Joseph R. Guerra, Ann E. Allen, and Paul M. Smith; for the Center for Reproductive Law & Policy et al. by Lenora M. Lapidus; for the National Abortion Federation et al. by Elaine Metlin, Lynn I. Miller, Roger K. Evans, and Eve W. Paul; for the NOW Legal Defense and Education Fund et al. by Martha F. Davis, Deborah A Ellis, Sally F. Goldfarb, and Burt Neuborne; and for People for the American Way et al. by Joseph N. Onek, Richard McMillan, Jr., Elliot M. Mincberg, Lawrence S. Ottinger, Steven M. Freeman, Marc D. Stern, Lois C. Wald-man, Richard F. Wolfson, Ronald Lindsay, Elaine R. Jones, Theodore M. Shaw, and Charles Stephen Ralston.
Laurence Gold and Walter Kamiat filed a brief for the American Federation of Labor and Congress of Industrial Organizations as amicus curiae.
Chief Justice Rehnquist
delivered the opinion of the Court.
Petitioners challenge the constitutionality of an injunction entered by a Florida state court which prohibits antiabortion protesters from demonstrating in certain places and in various ways outside of a health clinic that performs abortions. We hold that the establishment of a 36-foot buffer zone on a public street from which demonstrators are excluded passes muster under the First Amendment, but that several other provisions of the injunction do not.
I
Respondents operate abortion clinics throughout central Florida. Petitioners and other groups and individuals are engaged in activities near the site of one such clinic in Melbourne, Florida. They picketed and demonstrated where the public street gives access to the clinic. In September 1992, a Florida state court permanently enjoined petitioners from blocking or interfering with public access to the clinic, and from physically abusing persons entering or leaving the clinic. Six months later, respondents sought to broaden the injunction, complaining that access to the clinic was still impeded by petitioners’ activities and that such activities had also discouraged some potential patients from entering the clinic, and had deleterious physical effects on others. The trial court thereupon issued a broader injunction, which is challenged here.
The court found that, despite the initial injunction, protesters continued to impede access to the clinic by congregating on the paved portion of the street — Dixie Way — leading up to the clinic, and by marching in front of the clinic’s driveways. It found that as vehicles heading toward the clinic slowed to allow the protesters to move out of the way, “sidewalk counselors” would approach and attempt to give the vehicle’s occupants antiabortion literature. The number of people congregating varied from a handful to 400, and the noise varied from singing and chanting to the use of loudspeakers and bullhorns.
The protests, the court found, took their toll on the clinic’s patients. A clinic doctor testified that, as a result of having to run such a gauntlet to enter the clinic, the patients “manifested a higher level of anxiety and hypertension causing those patients to need a higher level of sedation to undergo the surgical procedures, thereby increasing the risk associated with such procedures.” App. 54. The noise produced by the protesters could be heard within the clinic, causing stress in the patients both during surgical procedures and while recuperating in the recovery rooms. And those patients who turned away because of the crowd to return at a later date, the doctor testified, increased their health risks by reason of the delay.
Doctors and clinic workers, in turn, were not immune even in their homes. Petitioners picketed in front of clinic employees’ residences; shouted at passersby; rang the doorbells of neighbors and provided literature identifying the particular clinic employee as a “baby killer.” Occasionally, the protesters would confront minor children of clinic employees who were home alone.
This and similar testimony led the state court to conclude that its original injunction had proved insufficient “to protect the health, safety and rights of women in Brevard and Seminole County, Florida and surrounding counties seeking access to [medical and counseling] services.” Id., at 5. The state court therefore amended its prior order, enjoining a broader array of activities. The amended injunction prohibits petitioners from engaging in the following acts:
“(1) At all times on all days, from entering the premises and property of the Aware Woman Center for Choice [the Melbourne clinic]....
“(2) At all times on all days, from blocking, impeding, inhibiting, or in any other manner obstructing or interfering with access to, ingress into and egress from any building or parking lot of the Clinic.
“(3) At all times on all days, from congregating, picketing, patrolling, demonstrating or entering that portion of public right-of-way or private property within [36] feet of the property line of the Clinic____ An exception to the 36 foot buffer zone is the area immediately adjacent to the Clinic on the east.... The [petitioners]... must remain at least [5] feet from the Clinic’s east line. Another exception to the 36 foot buffer zone relates to the record title owners of the property to the north and west of the Clinic. The prohibition against entry into the 36 foot buffer zones does not apply to such persons and their invitees. The other prohibitions contained herein do apply, if such owners and their invitees are acting in concert with the [petitioners]....
“(4) During the hours of 7:30 a.m. through noon, on Mondays through Saturdays, during surgical procedures and recovery periods, from singing, chanting, whistling, shouting, yelling, use of bullhorns, auto horns, sound amplification equipment or other sounds or images observable to or within earshot of the patients inside the Clinic.
“(5) At all times on all days, in an area within [300] feet of the Clinic, from physically approaching any person seeking the services of the Clinic unless such person indicates a desire to communicate by approaching or by inquiring of the [petitioners]. ...
“(6) At all times on all days, from approaching, congregating, picketing, patrolling, demonstrating or using bullhorns or other sound amplification equipment within [300] feet of the residence of any of the [respondents’] employees, staff, owners or agents, or blocking or attempting to block, barricade, or in any other manner, temporarily or otherwise, obstruct the entrances, exits or driveways of the residences of any of the [respondents’] employees, staff, owners or agents. The [petitioners] and those acting in concert with them are prohibited from inhibiting or impeding or attempting to impede, temporarily or otherwise, the free ingress or egress of persons to any street that provides the sole access to the street on which those residences are located.
“(7) At all times on all days, from physically abusing, grabbing, intimidating, harassing, touching, pushing, shoving, crowding or assaulting persons entering or leaving, working at or using services at the [respondents’] Clinic or trying to gain access to, or leave, any of the homes of owners, staff or patients of the Clinic ....
“(8) At all times on all days, from harassing, intimidating or physically abusing, assaulting or threatening any present or former doctor, health care professional, or other staff member, employee or volunteer who assists in providing services at the [respondents’] Clinic.
“(9) At all times on all days, from encouraging, inciting, or securing other persons to commit any of the prohibited acts listed herein.” Operation Rescue v. Women’s Health Center, Inc., 626 So. 2d 664, 679-680 (Fla. 1993).
The Florida Supreme Court upheld the constitutionality of the trial court’s amended injunction. 626 So. 2d 664. That court recognized that the forum at issue, which consists of public streets, sidewalks, and rights-of-way, is a traditional public forum. Id., at 671, citing Frisby v. Schultz, 487 U. S. 474, 480 (1988). It then determined that the restrictions are content neutral, and it accordingly refused to apply the heightened scrutiny dictated by Perry Ed. Assn. v. Perry Local Educators’ Assn., 460 U. S. 37, 45 (1983) (To enforce a content-based exclusion the State must show that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end). Instead, the court analyzed the injunction to determine whether the restrictions are “narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication.” Ibid. It concluded that they were.
Shortly before the Florida Supreme Court’s opinion was announced, the United States Court of Appeals for the Eleventh Circuit heard a separate challenge to the same injunction. The Court of Appeals struck down the injunction, characterizing the dispute as a clash “between an actual prohibition of speech and a potential hinderance to the free exercise of abortion rights.” Cheffer v. McGregor, 6 F. 3d 705, 711 (1993). It stated that the asserted interests in public safety and order were already protected by other applicable laws and that these interests could be protected adequately without infringing upon the First Amendment rights of others. Ibid. The Court of Appeals found the injunction to be content based and neither necessary to serve a compelling state interest nor narrowly drawn to achieve that end. Ibid., citing Carey v. Brown, 447 U. S. 455, 461-462 (1980). We granted certiorari, 510 U. S. 1084 (1994), to resolve the conflict between the Florida Supreme Court and the Court of Appeals over the constitutionality of the state court’s injunction.
II
We begin by addressing petitioners’ contention that the state court’s order, because it is an injunction that restricts only the speech of antiabortion protesters, is necessarily content or viewpoint based. Accordingly, they argue, we should examine the entire injunction under the strictest standard of scrutiny. See Perry Ed. Assn., supra, at 45. We disagree. To accept petitioners’ claim would be to classify virtually every injunction as content or viewpoint based. An injunction, by its very nature, applies only to a particular group (or individuals) and regulates the activities, and perhaps the speech, of that group. It does so, however, because of the group’s past actions in the context of a specific dispute between real parties. The parties seeking the injunction assert a violation of their rights; the court hearing the action is charged with fashioning a remedy for a specific deprivation, not with the drafting of a statute addressed to the general public.
The fact that the injunction in the present case did not prohibit activities of those demonstrating in favor of abortion is justly attributable to the lack of any similar demonstrations by those in favor of abortion, and of any consequent request that their demonstrations be regulated by injunction. There is no suggestion in this record that Florida law would not equally restrain similar conduct directed at a target having nothing to do with abortion; none of the restrictions imposed by the court were directed at the contents of petitioner’s message.
Our principal inquiry in determining content neutrality is whether the government has adopted a regulation of speech “without reference to the content of the regulated speech.” Ward v. Rock Against Racism, 491 U. S. 781, 791 (1989) (internal quotation marks omitted) (upholding noise regulations); R. A. V. v. St. Paul, 505 U. S. 377, 386 (1992) (“The government may not regulate [speech] based on hostility— or favoritism — towards the underlying message expressed”); see also Arkansas Writers’ Project, Inc. v. Ragland, 481 U. S. 221, 230 (1987); Regan v. Time, Inc., 468 U. S. 641, 648-649 (1984); Metromedia, Inc. v. San Diego, 453 U. S. 490, 514-515 (1981) (plurality opinion); Carey v. Brown, supra, at 466-468. We thus look to the government’s purpose as the threshold consideration. Here, the state court imposed restrictions on petitioners incidental to their antiabortion message because they repeatedly violated the court’s original order. That petitioners all share the same viewpoint regarding abortion does not in itself demonstrate that some invidious content- or viewpoint-based purpose motivated the issuance of the order. It suggests only that those in the group whose conduct violated the court’s order happen to share the same opinion regarding abortions being performed at the clinic. In short, the fact that the injunction covered people with a particular viewpoint does not itself render the injunction content or viewpoint based. See Boos v. Barry, 485 U. S. 312 (1988). Accordingly, the injunction issued in this case does not demand the level of heightened scrutiny set forth in Perry Ed. Assn., 460 U. S., at 45. And we proceed to discuss the standard which does govern.
Ill
If this were a content-neutral, generally applicable statute, instead of an injunctive order, its constitutionality would be assessed under the standard set forth in Ward v. Rock Against Racism, supra, at 791, and similar cases. Given that the forum around the clinic is a traditional public forum, see Frisby v. Schultz, 487 U. S., at 480, we would determine whether the time, place, and manner regulations were “narrowly tailored to serve a significant governmental interest.” Ward, supra, at 791. See also Perry Ed. Assn., supra, at 45.
There are obvious differences, however, between an injunction and a generally applicable ordinance. Ordinances represent a legislative choice regarding the promotion of particular societal interests. Injunctions, by contrast, are remedies imposed for violations (or threatened violations) of a legislative or judicial decree. See United States v. W. T. Grant Co., 345 U. S. 629, 632-633 (1953). Injunctions also carry greater risks of censorship and discriminatory application than do general ordinances. “[TJhere is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority must be imposed generally.” Railway Express Agency, Inc. v. New York, 336 U. S. 106, 112-113 (1949). Injunctions, of course, have some advantages over generally applicable statutes in that they can be tailored by a trial judge to afford more precise relief than a statute where a violation of the law has already occurred. United States v. Paradise, 480 U. S. 149 (1987).
We believe that these differences require a somewhat more stringent application of general First Amendment principles in this context. In past cases evaluating injunctions restricting speech, see, e.g., NAACP v. Claiborne Hardware Co., 458 U. S. 886 (1982), Milk Wagon Drivers v. Meadowmoor Dairies, Inc., 312 U. S. 287 (1941), we have relied upon such general principles while also seeking to ensure that the injunction was no broader than necessary to achieve its desired goals. See Carroll v. President and Comm’rs of Princess Anne, 393 U. S. 175 (1968); Claiborne Hardware, supra, at 912, n. 47. Our close attention to the fit between the objectives of an injunction and the restrictions it imposes on speech is consistent with the general rule, quite apart from First Amendment considerations, “that injunctive relief should be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs.” Califano v. Yamasaki, 442 U. S. 682, 702 (1979). See also Dayton Bd. of Ed. v. Brinkman, 433 U. S. 406, 418-420 (1977). Accordingly, when evaluating a content-neutral injunction, we think that our standard time, place, and manner analysis is not sufficiently rigorous. We must ask instead whether the challenged provisions of the injunction burden no more speech than necessary to serve a significant government interest. See, e. g., Claiborne Hardware, supra, at 916 (when sanctionable “conduct occurs in the context of constitutionally protected activity . . . ‘precision of regulation’ is demanded”) (quoting NAACP v. Button, 371 U. S. 415, 438 (1963)); 458 U. S., at 916, n. 52 (citing Carroll, supra, and Keyishian v. Board of Regents of Univ. of State of N. Y., 385 U. S. 589, 604 (1967)); Carroll, supra, at 183-184.
Both Justice Stevens and Justice Scalia disagree with the standard we announce, for policy reasons. See post, at 778 (Stevens, J.); post, at 792-794 (Scalia, J.). Justice Stevens believes that “injunctive relief should be judged by a more lenient standard than legislation,” because injunctions are imposed on individuals or groups who have engaged in illegal activity. Post, at 778. Justice Scalia, by contrast, believes that content-neutral injunctions are “at least as deserving of strict scrutiny as a statutory, content-based restriction.” Post, at 792. Justice Scalia bases his belief on the danger that injunctions, even though they might not “attack content as content,” may be used to suppress particular ideas; that individual judges should not be trusted to impose injunctions in this context; and that an injunction is procedurally more difficult to challenge than a statute. Post, at 793-794. We believe that consideration of all of the differences and similarities between statutes and injunctions supports, as a matter of policy, the standard we apply here.
Justice Scalia further contends that precedent compels the application of strict scrutiny in this case. Under that standard, we ask whether a restriction is “‘necessary to serve a compelling state interest and [is] narrowly drawn to achieve that end.’ ” Post, at 790 (quoting Perry Ed. Assn., supra, at 45). Justice Scalia fails to cite a single case, and we are aware of none, in which we have applied this standard to a content-neutral injunction. He cites a number of cases in which we have struck down, with little or no elaboration, prior restraints on free expression. See post, at 798 (citing cases). As we have explained, however, we do not believe that this injunction constitutes a prior restraint, and we therefore believe that the “heavy presumption” against its constitutionality does not obtain here. See n. 2, supra.
Justice Scalia also relies on Claiborne Hardware and Carroll for support of his contention that our precedent requires the application of strict scrutiny in this context. In Claiborne Hardware, we stated simply that “precision of regulation” is demanded. 458 U. S., at 916 (internal quotation marks omitted). Justice Scalia reads this case to require “surgical precision” of regulation, post, at 798, but that was not the adjective chosen by the author of the Court’s opinion, Justice Stevens. We think a standard requiring that an injunction “burden no more speech than necessary” exemplifies “precision of regulation.”
As for Carroll, Justice Scalia believes that the “standard” adopted in that case “is strict scrutiny,” which “does not remotely resemble the Court’s new proposal.” Post, at 799. Comparison of the language used in Carroll and the wording of the standard we adopt, however, belies Justice Scalia’s exaggerated contention. Carroll, for example, requires that an injunction be “couched in the narrowest terms that will accomplish the pin-pointed objective” of the injunction. 393 TJ. S., at 183. We require that the injunction “burden no more speech than necessary” to accomplish its objective. We fail to see a difference between the two standards.
The Florida Supreme Court concluded that numerous significant government interests are protected by the injunction. It noted that the State has a strong interest in protecting a woman’s freedom to seek lawful medical or counseling services in connection with her pregnancy. See Roe v. Wade, 410 U. S. 113 (1973); In re T. W, 551 So. 2d 1186, 1193 (Fla. 1989). The State also has a strong interest in ensuring the public safety and order, in promoting the free flow of traffic on public streets and sidewalks, and in protecting the property rights of all its citizens. 626 So. 2d, at 672. In addition, the court believed that the State’s strong interest in residential privacy, acknowledged in Frisby v. Schultz, 487 U. S. 474 (1988), applied by analogy to medical privacy. 626 So. 2d, at 672. The court observed that while targeted picketing of the home threatens the psychological well-being of the “captive” resident, targeted picketing of a hospital or clinic threatens not only the psychological, but also the physical, well-being of the patient held “captive” by medical circumstance. Id., at 673. We agree with the Supreme Court of Florida that the combination of these governmental interests is quite sufficient to justify an appropriately tailored injunction to protect them. We now examine each contested provision of the injunction to see if it burdens more speech than necessary to accomplish its goal.
A
1
We begin with the 36-foot buffer zone. The state court prohibited petitioners from “congregating, picketing, patrolling, demonstrating or entering” any portion of the public right-of-way or private property within 36 feet of the property line of the clinic as a way of ensuring access to the clinic. This speech-free buffer zone requires that petitioners move to the other side of Dixie Way and away from the driveway of the clinic, where the state court found that they repeatedly had interfered with the free access of patients and staff. App. to Pet. for Cert. B-2, B-3. See Cameron v. Johnson, 390 U. S. 611 (1968) (upholding statute that prohibited picketing that obstructed or unreasonably interfered with ingress or egress to or from public buildings, including courthouses, and with traffic on the adjacent street sidewalks). The buffer zone also applies to private property to the north and west of the clinic property. We examine each portion of the buffer zone separately.
We have noted a distinction between the type of focused picketing banned from the buffer zone and the type of generally disseminated communication that cannot be completely banned in public places, such as handbilling and solicitation. See Frisby, supra, at 486 (“The type of focused picketing prohibited by [the state court injunction] is fundamentally different from more generally directed means of communication that may not be completely banned in [public places]”). Here the picketing is directed primarily at patients and staff of the clinic.
The 36-foot buffer zone protecting the entrances to the clinic and the parking lot is a means of protecting unfettered ingress to and egress from the clinic, and ensuring that petitioners do not block traffic on Dixie Way. The state court seems to have had few other options to protect access given the narrow confines around the clinic. As the Florida Supreme Court noted, Dixie Way is only 21 feet wide in the area of the clinic. App. 260, 305. The state court was convinced that allowing petitioners to remain on the clinic’s sidewalk and driveway was not a viable option in view of the failure of the first injunction to protect access. And allowing the petitioners to stand in the middle of Dixie Way would obviously block vehicular traffic.
The need for a complete buffer zone near the clinic entrances and driveway may be debatable, but some deference must be given to the state court’s familiarity with the facts and the background of the dispute between the parties even under our heightened review. Milk Wagon Drivers, 312 U. S., at 294. Moreover, one of petitioners’ witnesses during the evidentiary hearing before the state court conceded that the buffer zone was narrow enough to place petitioners at a distance of no greater than 10 to 12 feet from cars approaching and leaving the clinic. App. 486. Protesters standing across the narrow street from the clinic can still be seen and heard from the clinic parking lots. Id., at 260,305. We also bear in mind the fact that the state court originally issued a much narrower injunction, providing no buffer zone, and that this order did not succeed in protecting access to the clinic. The failure of the first order to accomplish its purpose may be taken into consideration in evaluating the constitutionality of the broader order. National Soc. of Professional Engineers v. United States, 435 U. S. 679, 697-698 (1978). On balance, we hold that the 36-foot buffer zone around the clinic entrances and driveway burdens no more speech than necessary to accomplish the governmental interest at stake.
Justice Scalia’s dissent argues that a videotape made of demonstrations at the clinic represents “what one must presume to be the worst of the activity justifying the injunction.” Post, at 785-786. This seems to us a gratuitous assumption. The videotape was indeed introduced by respondents, presumably because they thought it supported their request for the second injunction. But witnesses also testified as to relevant facts in a 3-day evidentiary hearing, and the state court was therefore not limited to Justice Scalia’s rendition of what he saw on the videotape to make its findings in support of the second injunction. Indeed, petitioners themselves studiously refrained from challenging the factual basis for the injunction both in the state courts and here. Before the Florida Supreme Court, petitioners stated that “the Amended Permanent Injunction contains fundamental error on its face. The sole question presented by this appeal is a question of law, and for purposes of this appeal [petitioners] are assuming, arguendo, that a factual basis exists to grant injunctive relief.” Appellants’ Motion in Response to Appellees’ Motion to Require Full Transcript and Record of Proceedings in No. 93-00969 (Dist. Ct. App. Fla.), p. 2. Petitioners argued against including the factual record as an appendix in the Florida Supreme Court, and never certified a full record. We must therefore judge this case on the assumption that the evidence and testimony presented to the state court supported its findings that the presence of protesters standing, marching, and demonstrating near the clinic’s entrance interfered with ingress to and egress from the clinic despite the issuance of the earlier injunction.
2
The inclusion of private property on the back and side of the clinic in the 36-foot buffer zone raises different concerns. The accepted purpose of the buffer zone is to protect access to the clinic and to facilitate the orderly flow of traffic on Dixie Way. Patients and staff wishing to reach the clinic do not have to cross the private property abutting the clinic property on the north and west, and nothing in the record indicates that petitioners’ activities on the private property have obstructed access to the clinic. Nor was evidence presented that protestors located on the private property blocked vehicular traffic on Dixie Way. Absent evidence that petitioners standing on the private property have obstructed access to the clinic, blocked vehicular traffic, or otherwise unlawfully interfered with the clinic’s operation, this portion of the buffer zone fails to serve the significant government interests relied on by the Florida Supreme Court. We hold that on the record before us the 36-foot buffer zone as applied to the private property to the north and west of the clinic burdens more speech than necessary to protect access to the clinic.
B
In response to high noise levels outside the clinic, the state court restrained the petitioners from “singing, chanting, whistling, shouting, yelling, use of bullhorns, auto horns, sound amplification equipment or other sounds or images observable to or within earshot of the patients inside the [ejlinic” during the hours of 7:30 a.m. through noon on Mondays through Saturdays. We must, of course, take account of the place to which the regulations apply in determining whether these restrictions burden more speech than necessary. We have upheld similar noise restrictions in the past, and as we noted in upholding a local noise ordinance around public schools, “the nature of a place, ‘the pattern of its normal activities, dictate the kinds of regulations . . . that are reasonable.’” Grayned v. City of Rockford, 408 U. S. 104, 116 (1972). Noise control is particularly important around hospitals and medical facilities during surgery and recovery periods, and in evaluating another injunction involving a medical facility, we stated:
“‘Hospitals, after all, are not factories or mines or assembly plants. They are hospitals, where human ailments are treated, where patients and relatives alike often are under emotional strain and worry, where pleasing and comforting patients are principal facets of the day’s activity, and where the patient and his family .. . need a restful, uncluttered, relaxing, and helpful atmosphere.’ ” NLRB v. Baptist Hospital, Inc., 442 U. S. 773, 783-784, n. 12 (1979), quoting Beth Israel Hospital v. NLRB, 437 U. S. 483, 509 (1978) (Blackmun, J., concurring in judgment).
We hold that the limited noise restrictions imposed by the state court order burden no more speech than necessary to ensure the health and well-being of the patients at the clinic. The First Amendment does not demand that patients at a medical facility undertake Herculean efforts to escape the cacophony of political protests. “If overamplified loudspeakers assault the citizenry, government may turn them down.” Grayned, supra, at 116. That is what the state court did here, and we hold that its action was proper.
C
The same, however, cannot be said for the “images observable” provision of the state court’s order. Clearly, threats to patients or their families, however communicated, are proscribable under the First Amendment. But rather than prohibiting the display of signs that could be interpreted as threats or veiled threats, the state court issued a blanket ban on all “images observable.” This broad prohibition on all “images observable” burdens more speech than necessary to achieve the purpose of limiting threats to clinic patients or their families. Similarly, if the blanket ban on “images observable” was intended to reduce the level of anxiety and hypertension suffered by the patients inside the clinic, it would still fail. The only plausible reason a patient would be bothered by “images observable” inside the clinic would be if the patient found the expression contained in such images disagreeable. But it is much easier for the clinic to pull its curtains than for a patient to stop up her ears, and no more is required to avoid seeing placards through the windows of the clinic. This provision of the injunction violates the First Amendment.
D
Question: What is the ideological direction of the decision reviewed by the Supreme Court?
A. Conservative
B. Liberal
C. Unspecifiable
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.
Samuel YANOW and Reshela Yanow, Petitioners, v. COMMISSIONER OF INTERNAL REVENUE.
Nos. 15658, 15659.
United States Court of Appeals Third Circuit.
Argued March 21, 1966.
Decided April 15, 1966.
Herbert L. Zuckerman, Newark, N. J., for petitioners.
Jeanine Jacobs, Tax Division, Dept of Justice, Washington, D. C. (Richard M. Roberts, Acting Asst. Atty. Gen., Lee A. Jackson, David 0. Walter, Attys., Dept, of Justice, Washington, D. C., on the brief), for respondent.
Before KALODNER, Chief Judge, and MCLAUGHLIN and HASTIE, Circuit Judges.
PER CURIAM:
On this petition for review the taxpayers contend that the Tax Court erred when it held they were not entitled to take, under Section 167(a) of the Internal Revenue Code of 1954, allowances for depreciation of three properties which they owned and rented to their controlled corporations, where the rentals charged to the corporations were admittedly nominal when compared to the fair rental values of the leased properties.
The taxpayers urge that the properties were held “for the production of income” and allowances for depreciation should be permitted for that reason.
On review of the record we are of the opinion that the Tax Court correctly found that the properties were not held for the production of income or used in the trade or business of the taxpayer.
The petition for review will be denied. The decision of the Tax Court will be affirmed for the reasons so well stated by Judge Train in his opinion reported at 44T.C. 444 (1965).
Question: What is the general category of issues discussed in the opinion of the court?
A. criminal and prisoner petitions
B. civil - government
C. diversity of citizenship
D. civil - private
E. other, not applicable
F. not ascertained
Answer:
|
songer_typeiss
|
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.
WESTINGHOUSE CREDIT CORPORATION, Appellee, v. STATE FURNITURE COMPANY OF WINSTON-SALEM, Inc., State Furniture Company of Mount Airy, Inc., State Furniture Company of Statesville, Inc., State Furniture Company of Reidsville, Inc., and State Furniture Company of North Wilkesboro, Inc., Appellants.
No. 13004.
United States Court of Appeals Fourth Circuit.
Argued April 10,1969.
Decided April 17, 1969.
Eugene H. Phillips, Winston-Salem, N. C., for appellants.
Walter Rand, III, Greensboro, N. C., (Herbert S. Falk, Jr., and Falk, Carruthers & Roth, Greensboro, N. C., on brief), for appellee.
Before SOBELOFF, BOREMAN and BRYAN, Circuit Judges.
PER CURIAM:
This is an action upon a contract dated May 24, 1962, as amended September 5, 1963, under which Westinghouse Credit Corporation purchased certain sales accounts receivable of the State Furniture Company corporations. The purchase was subject to provisions for recourse against State in the event an account debtor defaulted in his payments. It was to enforce these provisions that Westinghouse brought this suit against State. Final judgment was entered for the plaintiff by the District Court after a jury-waived trial.
On review we see no error in the fact findings of the Court or in its interpretation of the contract. They are clearly set out in the two opinions of the District Judge, and upon them we affirm the orders on review. See Westinghouse Credit Corporation v. State Furniture Company et al., 298 F.Supp. 567, 570 (1968).
Affirmed.
Question: What is the 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_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.
McNARY LUMBER CO., Limited, v. UNITED STATES.
(Circuit Court of Appeals, Fifth Circuit.
June 22, 1925.)
No. 4439.
1. Public lands <©=80 — Purchaser must ascertain boundaries of settler’s claim.
Under Act Feb. 8, 1887, confirming railroad land grant, and excepting land occupied by actual settlers, as homestead claim was not limited to quarter section on which improvements were made, it was incumbent on those who purchased land to ascertain boundaries of settler’s claim.
2. Public lands <©=35(l) — Settler may embrace in claim land in contiguous quarter sections.
Settler of land, having improved southeast quarter of northwest quarter, could embrace in his claim northwest quarter of northwest quarter, since it was in same quarter section.
3. Public lands <®=80 — Evidence held to sustain homestead entry.
Evidence held, insufficient to impeach action of Land Department in sustaining homestead entry as against railroad land grant, under Act Feb. 8, 1887.
Appeal from the District Court of the United States for the Western District of Louisiana; Rufus E. Foster, Judge.
Suit by the United States against,the Me-Nary Lumber Company, Limited. . Decree for the United States, and defendant appeals.
Affirmed.
John H. Overton, of Alexandria, La. (Blackman & Overton, of Alexandria, La., on the brief), for appellant.
Philip H. Mecom, U. S. Atty., of Shreveport, La., and Robert A. Hunter, Sp. Asst. Atty. Gen., for the United States.
Before WALKER and BRYAN, Circuit Judges, and HUTCHESON, District Judge.
BRYAN, Circuit Judge.
This is an appeal from a decree declaring that appellant held- the legal title to 80 acres of land in trust for the heirs of a homestead claimant, and requiring appellant to convey such title to them, and to pay to the United States, appellee, for their benefit $3,000, the .agreed value of the timber which it had cut and removed from the land. The land involved | is the northeast quarter of the northwest quarter and the northwest quarter of the northeast quarter of section 29, township 1 north, of range 2 west, Louisiana meridian. On December 28, 1892, it was patented to the New Orleans Pacific Railway Company, under the Act of February 8, 1887 (24 Stat. 391), and on March 18, 1894, was conveyed by the railway company to James D. Lacey, and passed by mesne conveyances to appellant on January 2, 1913.
On January 26, 1900, ■ John W. Pitman made application to enter under the homestead law the 80 acres above described, and also an additional 80 acres contained in the southeast quarter of the northwest quarter and the southwest quarter of the northwest quarter of the same section. That application was opposed by the railway company, but it does not appear that the -then holder of the title under the patent had notice or made any contest. At the hearing which ensued before the -local land office, the testimony of Pitman and two settlers, who lived in the neighborhood where the land is situated, was to the effect that Mrs. Mary Ashmore settled upon the southeast quarter of the northwest quarter of the section in 1880, built a dwelling upon it, and had at least 10 acres in cultivation and under fence, and that she or her assigns lived there continuously until 1889, at which time Pitman acquired the claim; that Pitman continued to live upon this 40-aere tract, and was living there at the time of his application; and that the homestead claim of .Mrs. Ashmore and assigns included, not only the 40 acres upon which the improvements had been placed, but also the land involved in this suit and the southwest quarter of the northeast quarter. It was further shown that each of the persons who from time to time lived upon the land was qualified to make a homestead entry. Upon this evidence, the register and receiver of the local land office decided in favor of Pitman, the homestead claimant, and their decision was approved in 1901 by the Commissioner of the General Land Office.
At the hearing before the master in the present suit, John T. Ashmore, son of the original settler, was permitted to testify, over appellee’s objection, that his mother did not claim the 80 acres in dispute, but instead claimed the west half of the southeast quarter of the section. In this connection he testified as indicated below, the questions being propounded by the master:
“Q. What makes you so clear that it was three 40’s east and west and one 40 north, outside of that plat, that was intended to be homesteaded by your mother? Why are you so positive that it was your mother’s intention to homestead three 40’s east and west and this one 40 north? A. Well, that is the way; it was laid out that way. I got Mr. Nash, taken him over there; he owned land there. I got him to come over there, and he had an idea, I don’t know if he ever had it surveyed, he had an idea his line was here, and I am sure this was the land.
“Q. You don’t know if anybody claimed this land up here? A. No, sir.
“Q. Mr. Nash made a survey of the east half of the southwest quarter? A. Yes, sir.
“Q. And you wanted the two 40’s next to the house? A. East of his.
“Q. And that would be the west half of the southeast? A. Yes, sir.
“Q. And those you and your mother claimed? A. Yes, sir. '
“Q. And the next two 40’s were transferred to the Pitmans? A. Yes, sir.
“Q. Who is Mr. Nash? Is he living? A. No, sir. He lived across the creek from me at that time.”
That witness further testified that he did not think Mr. Nash’s house was on the same section as his mother’s, and said: “It was over there somewhere, on the west side of Spring creek, and this is on the east side.”
The rights of settlers under the land grant to the New Orleans Pacific Railway Company are fully set forth in United States v. New Orleans Pac. R. Co., 248 U. S. 507, 39 S. Ct. 175, 63 L. Ed. 388. In that case it was held that persons qualified and claiming under the homestead law, who settled on portions of sections within the grant before the definite location of the railroad, and who thereafter maintained their claims by residence, occupation, and cultivation, were excepted from the grant to the railway company, and were entitled to make entry under the public land laws; that November 17, 1882, was the date of the definite location of the railroad; that the provisions of sections 2 and 6 became applicable to all lands which the railway company had not sold prior to the passage of the act and acceptance of its terms, and that intending purchasers were bound to take notice of the occupancy of settlers; and that those who hold title under patents to the railway company are not to be considered as bona fide purchasers. The railway company accepted the provisions of the land grant act in April, 1887, long before it sold the land in dispute.
We are of opinion that the decision of the Supreme Court in the ease cited answers every objection urged by appellant to the decree in this case. In that case, as in this, the claimant was not in actual possession of the entire tract, but had only improved and cultivated a few acres. In view of the fact that a homestead claimant is not limited to the quarter section on which improvements are made, it is incumbent upon those who purchase lands to ascertain the boundaries of the settler’s claim.
In this ease the improvements were on the southeast quarter of the northwest quarter, and were sufficient in and of themselves to entitle the settler to claim the northeast quarter of the northwest quarter, because it was in the same quarter section. St. Paul, etc., Ry. Co. v. Donohue, 210 U. S. 21, 32, 28 S. Ct. 600, 52 L. Ed. 941. If there had been no testimony as to the extent of the claim of the original settler and her assigns, the utmost that appellant would be entitled to contend for would be the 40 acres described as the northwest quarter of the northeast quarter.
Assuming that the testimony of John T. Ashmore, to the effect that his mother claimed other land situated in the southeast quarter of the section, was admissible, manifestly it was not clear, definite, and consistent as to what land was embraced in the homestead claim of the original settler. The record is consistent with the conclusion that that testimony was so lacking in probative value as to justify the court’s refusal to make or sustain a finding based on it. The fact that Pitman included the land in dispute in his homestead claim and swore that Mary Ashmore, the original settler, sold to Pitman’s predecessor in possession and claim her claim and possessory rights to the tract which included the land in dispute, is some evidence that the claim of the original settler included that land, and this evidence was strengthened by testimony of witnesses who lived in the neighborhood from the date of the original settlement until the homestead application was made.
The record does not require the conclusion that the testimony relied on in behalf of appellant was enough to impeach the action of the Land Department in sustaining Pitman’s claim. The first question asked Ashmore by the master assumed that three of the 40-acre tracts extended east and west, which is erroneous under any view; but Ashmore accepted it as including a correct description of the land claimed by his mother. He first stated that he did not know whether the land claimed by Nash ever had been surveyed, but testified almost immediately afterwards, in answer to a leading question, that Nash made a survey of the east half of the southeast quarter. There was evidence enough, if believed by the officers of the Land Department, to sustain the homestead entry.
The decree of the District Court -is affirmed.
Question: Did the interpretation of federal rule of procedures, judicial doctrine, or case law by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_r_bus
|
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 "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.
COMET MECHANICAL CONTRACTORS, INC., an Oklahoma Corporation, Plaintiff-Appellant, v. E. A. COWEN CONSTRUCTION, INC., et al., Defendants-Appellees.
No. 78-1131.
United States Court of Appeals, Tenth Circuit.
Argued July 18, 1979.
Decided Jan. 7, 1980.
Robert W. Pittman, Oklahoma City, Okl., for plaintiff-appellant.
John J. Griffin, Jr. of Crowe, Dunlevy, Thweatt, Swinford, Johnson & Burdick, Oklahoma City, Okl. (with William G. Paul of Crowe, Dunlevy, Thweatt, Swinford, Johnson & Burdick, Oklahoma City, Okl., and Richard N. Steed of Steed & Bushong, Shawnee, Okl., on the brief), for defendant-appellee E. A. Cowen Construction, Inc.
James W. Bill Berry, Oklahoma City, Okl., for defendant-appellee Wattie Wolfe Co.
Before McWILLIAMS, DOYLE and McKAY, Circuit Judges.
McKAY, Circuit Judge.
Comet Mechanical Contractors, Inc. (Comet), a mechanical subcontractor, brought this suit for treble damages under federal antitrust laws, 15 U.S.C. §§ 1 et seq., against several construction contractors and the then Governor of Oklahoma. The suit charges the defendants with conspiring to rig bids for the construction of two public buildings. Comet claims that bid prices were fixed high enough to allow the defendants to force suppliers and subcontractors, such as Comet, to provide a “kickback” for the use of the Governor. Despite an oral promise, E. A. Cowen Construction, Inc. (Cowen), the successful bidder, refused to award the subcontract for mechanical work to Comet, allegedly because Comet failed to respond to a $100,000 request for the use of the Governor. The court below granted the defendant’s motion for summary judgment on the ground that Comet does not satisfy the standing requirements of the antitrust laws. We affirm.
Clearly, as Comet states, summary judgment should be invoked cautiously, Gragg v. Travelers Insurance Co., 459 F.2d 418, 421 (10th Cir. 1972), particularly when antitrust issues are involved. Hospital Building Co. v. Trustees of Rex Hospital, 425 U.S. 738, 746, 96 S.Ct. 1848, 48 L.Ed.2d 338 (1976). Summary judgment is available in antitrust cases only when the facts are developed and the legal issues are clearly presented. See Nationwide Auto Appraiser Service, Inc. v. Association of Casualty & Surety Cos., 382 F.2d 925, 929 (10th Cir. 1967). Nonetheless, the Rules of Civil Procedure apply in antitrust cases and summary judgment is available to avoid needless trials, which may entail a heavy burden of expense and effort for both the litigants and the judicial system. Farnell v. Albuquerque Publishing Co., 589 F.2d 497, 502 (10th Cir. 1978).
Assuming all the facts to be as alleged, we find that, although Comet may have a cause of action for breach of contract, it cannot obtain “the windfall of treble damages.” Conference of Studio Unions v. Loew’s Inc., 193 F.2d 51, 55 (9th Cir. 1951), cert. denied, 342 U.S. 919, 72 S.Ct. 367, 96 L.Ed. 687 (1952). This court laid out the test for standing under the antitrust laws in Farnell v. Albuquerque Publishing Co., 589 F.2d 497 (10th Cir. 1978):
To establish standing to maintain a private antitrust action in this Circuit, a plaintiff must meet a two-pronged test. First, he must allege injury to his “business or property” within the meaning of the Act and, second, he must show proximate causation — that the injury directly resulted from a violation of the antitrust laws.
Id. at 500. The second prong of the Farnell test, the one which Comet fails to satisfy, is expanded in Reibert v. Atlantic Richfield Co., 471 F.2d 727 (10th Cir.), cert. denied, 411 U.S. 938, 93 S.Ct. 1900, 36 L.Ed.2d 399 (1973).
Antitrust violations admittedly create foreseeable ripples of injury to individual stockholders, consumers and employees, but the law has not allowed all of these standing to sue for treble damages. The aggrieved party must satisfy the “by reason of” and/or “by” requirements found in [the antitrust statutes]. This prerequisite boils down to complainant proving that the antitrust violations are the proximate cause of his injury. Two elements are necessary to demonstrate proximate cause: (1) there is a causal connection between an antitrust violation and an injury sufficient to establish the violation as a substantial factor in the occurrence of damage; and (2) that the illegal act is linked to a plaintiff engaged in activities intended to be protected by the antitrust laws.
Id. at 731 (citations omitted).
While Comet’s allegations fall short of establishing both elements of the proximate cause test stated in Reibert, we need only discuss the second — whether the plaintiff’s activities are within the intended protection of the antitrust laws. See Harman v. Valley National Bank, 339 F.2d 564, 567 (9th Cir. 1964); Productive Inventions, Inc. v. Trico Products Corp., 224 F.2d 678, 679 (2d Cir. 1955), cert. denied, 350 U.S. 936, 76 S.Ct. 301, 100 L.Ed. 818 (1956). In Reibert, we concluded that only buyers and sellers in the defendants’ market are within the target of the antitrust laws. Consequently, an employee whose job was eliminated as a result of an allegedly illegal merger could not recover treble damages because the antitrust violation was directed toward his employer’s competitors and not toward employees. 471 F.2d at 731. “[T]he rule is that one who is only incidentally injured by a violation of the antitrust laws, — the bystander who was hit but not aimed at,— cannot recover against the violator.” Karseal Corp. v. Richfield Oil Corp., 221 F.2d 358, 363 (9th Cir. 1955).
This rule’s application to the present case is well illustrated by Conference of Studio Unions v. Loew’s Inc., 193 F.2d 51 (9th Cir. 1951), cert. denied, 342 U.S. 919, 72 S.Ct. 367, 96 L.Ed. 687 (1952). There the plaintiffs attempted to link a conspiracy among motion picture producers with the loss of employment opportunities to other unions of film laborers. The unconvinced court emphasized:
[A] plaintiff must show more than that one purpose of the conspiracy was a restraint of trade and that an act has been committed which harms him. He must show that he is within that area of the economy which is endangered by a breakdown of competitive conditions in a particular industry.
193 F.2d at 54-55.
Comet’s claims closely resemble those in Reibert and Studio Unions. Comet’s business is injured by its inability to obtain the subcontract on the building and its position relative to its competition has therefore been threatened. This is not enough. Comet has not shown itself to be a buyer or a seller in the affected market. In the market for general construction contracts, the state is the buyer and will bear the burden of any fixed price.
At the subcontract level, Comet is indeed a seller. However, the agreement between the successful mechanical subcontractor and Cowen in this single transaction, even if it involved artificially manipulating the price to include an amount for a bribe, is not an antitrust violation against Comet. A buyer and a seller can agree in any particular case to any price they wish. Comet’s failure to secure this particular subcontract tells us nothing about its ability to secure subcontracts generally. Absent a claim that mechanical subcontractors in competition with Comet conspired to injure Comet’s competitive position, we are unwilling to find standing. Comet’s injury is purely an incidental result of anticompetitive activity in another segment of the economy, and
[t]he lower courts have been virtually unanimous in concluding that Congress did not intend the antitrust laws to provide a remedy in damages for all injuries that might conceivably be traced to an antitrust violation.
Hawaii v. Standard Oil Co., 405 U.S. 251, 263 n.14, 92 S.Ct. 885, 891-892, 31 L.Ed.2d 184 (1972).
AFFIRMED.
. The reluctance to grant summary judgment in antitrust cases stems from the fact that “the proof is largely in the hands of the alleged conspirators,” Poller v. Columbia Broadcasting Sys., Inc., 368 U.S. 464, 473, 82 S.Ct. 486, 491, 7 L.Ed.2d 458 (1962), and the plaintiff should be given ample opportunity for discovery before dismissal. Here, however, the dispute does not turn on the type of evidence likely to become available through discovery. The only fact that is important for standing purposes is the relationship of the parties in the competitive market, and that fact is undisputed.
. The Conference of Studio Unions alleged that the conspiring producers were forcing independent producers to hire members of competing unions at higher prices in an effort to make it unprofitable for independents to stay in business.
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_fedlaw
|
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 statute, and if so, whether the resolution of the issue by the court favored the appellant.
Flossie Marie MASSEY, et al., Plaintiffs-Appellees, v. UNITED STATES of America, Defendant-Appellant.
No. 83-8505.
United States Court of Appeals, Eleventh Circuit.
May 15, 1984.
Edmund A. Booth, Jr., Asst. U.S. Atty., Augusta, Ga., G.R. Smith, Asst. U.S. Atty., Savannah, Ga., for defendant-appellant.
Joseph Jones, Jr., Atlanta, Ga., for Massey, et al.
John S. Kalil, C. Wayne Alford, Jacksonville, Fla., for Roberson, et al.
Jim Ammerman, Marshall, Tex., for plaintiffs-appellees.
Before GODBOLD, Chief Judge, RONEY, Circuit Judge, and TUTTLE, Senior Circuit Judge.
TUTTLE, Senior Circuit Judge:
This is an appeal from the denial by the trial court of the motion of the United States for summary judgment in a case which had been pending in that court or on appeal since 1971. We affirm that judgment.
Because the trial court’s well-reasoned opinion is not published and because the Georgia law has changed once again since it was entered we refrain from affirming the judgment on the basis of that opinion, a disposition we sometimes make when we have for consideration an opinion as carefully and correctly crafted as the one before us. Nevertheless, we do quote extensively from Judge Edenfield’s opinion:
“Eleven years and ten months after the incident giving rise to the above-styled actions, five and one-half years after the entry of judgment of liability against the government in the consolidated eases, two years after the former fifth circuit’s remand to this Court for further proceedings pursuant to the appellate court’s affirmance of the district court in accordance with the Georgia Supreme Court’s ruling on questions certified to it, forty-six days after the appointment of a Special Master to try the damages claims of the plaintiffs and after nine months of additional discovery and preparation for trial or settlement of the damages claims, the government has presented the Court with a motion to dismiss for failure to state a claim or for lack of jurisdiction, or in the alternative, for summary judgment on the issue of liability.
“The government submits that because of a change in controlling law, there is a bar to liability and recovery. Specifically, the government cites recent developments in Georgia workers’ compensation law conferring tort immunity upon statutory employers and asserts that the United States is entitled to raise the statutory employer defense at this point in the litigation. The plaintiffs challenge the government’s assertion of this shield from liability on both substantive and procedural grounds. The parties’ positions will be explored after a description of the history of this case.
“It is not uncommon for the law to change, nor are protracted court proceedings a rarity. In this case, the two have coalesced to form a result disillusioning to laymen and lawyers alike. Enormous resources have been expended; the record is vast; the case, under the style of Aretz v. United States, has been reported at various stages no less than eight times since 1973. The plaintiffs decry the unfairness of permitting the government to shield itself from liability years after the determination of liability. No less forcefully the government argues that recovery in these cases would work an injustice. Neither of these contentions adds anything to the ultimate issue facing the Court: a question of law and fact to be decided under legal principles. The Court would be remiss, however, if it did not acknowledge the irony of the situation, i.e., that by mere fortuitousness, two plaintiffs have recovered damages, awards which were upheld on appeal and have now been satisfied, and that after long years, the end of this litigation for a few months in view, has disappeared with the filing of this motion, leaving the litigants and the Court once again at the threshold.
“History of the Thiokol Cases
“The facts, as briefly described by Judge Lawrence in the introduction to his opinion containing findings of fact and conclusions of law on the issue of liability, are as follows:
“These Federal Tort Claim actions have resulted from the fire and explosion which occurred at the Woodbine, Georgia plant of Thiokol Chemical Corporation on February 3, 1971.
“Thiokol was engaged in the manufacture, under contract with the Army, of trip flares which were used by the military during the war in Viet Nam as an aid to troops subjected to attack at night. The flares are ignited by pulling the trip or cutting of the trip wire. A bright flame is emitted which lights up a considerable area.
“On February 3, 1971, around 60 employees of Thiokol were working in or near Building M-132 in which the flares were produced. At 10:53 A.M. a fire broke out at the ‘first fire’ addition station in the facility. The loose illuminant material (magnesium and sodium nitrate) burns at a speed measured in milliseconds and reaches very high temperatures. The fire ran down the ignition pellet assembly line and eventually got into the cure room where 8,000 pounds of loose illuminants were being cured in trays. Also in the curing room were 56,322 candles containing approximately 0.3 pounds of illuminant each; 18,472 ignition pellets, and 100 pounds of first fire and intermediate mix.
“An enormous pressure built up as the result of the deflagration of the illuminants. The fire culminated in an explosion in the cure room that destroyed the building. Twenty-nine employees lost their lives. More than fifty other employees were injured. The amounts sought by the plaintiffs aggregate $717,-526,391.
“Aretz et al. v. United States, 503 F.Supp. 260, 264-65 (S.D.Ga.1977).
“Twenty-five separate suits were brought against the United States by injured employees and representatives of deceased employees under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b) and 2671 et seq. Thiokol, which was a named defendant in many of the cases was dismissed after raising the exclusive remedy bar of workers’ compensation, Ga.Code Ann. §§ 114-103 [O.C.G.A. § 34-9-11]. Massey v. Thiokol Chemical Corp., 368 F.Supp. 668 (S.D.Ga.1973). The government and the plaintiffs filed a joint motion to consolidate the case for the purpose of discovery and of determination as to liability. The Court granted the motion, ruling that “said eases be consolidated for trial for the purpose of determining the issue of liability” in accordance with Rule 42(a) of the Federal Rules of Civil Procedure. (Order of May 13, 1974). According to Neil R. Peterson, lead trial counsel for the government, the intent was to preserve specific affirmative defenses such as comparative negligence, applicable in various actions for trial of the damages aspect. Apparently, this was the case, since the government raised and the Court addressed specific defenses in the Aretz cases when they went to trial on the damages claim. Aretz v. United States, 456 F.Supp. 397, 411 (S.D.Ga.1978).
“The consolidated cases went to trial on the liability issue in the summer of 1974. In Aretz et al. v. United States, 503 F.Supp. 260 (S.D.Ga.1977), the Court found negligence on the part of the United States in wrongly classifying the illuminant used in the manufacture of the flares and in failing to communicate to Thiokol an upgrading in classification of the material. This negligence, Judge Lawrence held, was the proximate cause, along with the negligence of the joint tort-feasor Thiokol, of the explosion. Judgment was entered in favor of all the plaintiffs and against the United States on the question of liability on June 28, 1977. The government sought certification for interlocutory appeal under 28 U.S.C. § 1292(b). By Order of February 14, 1978, Judge Lawrence declined to certify the judgment for appeal and decided instead to proceed to trial on the damages aspect in the cases of Mr. and Mrs. Thomas F. Aretz, the first cases filed. Thereafter, the government would be able to take a direct appeal. The Court awarded damages to the Aretzes in the amount of $594,-272.50. Aretz v. United States, 456 F.Supp. 397 (S.D.Ga.1978). Aretz was affirmed, 604 F.2d 417 (5th Cir.1979), then vacated on rehearing en banc, 616 F.2d 254 (5th Cir.1980). The questions of the government’s duty of care to the Thiokol employees and of proximate causation were certified by the fifth circuit to the Supreme Court of Georgia which found a duty to properly classify the illuminant and to communicate the proper classification to Thiokol and declined to disturb the district court’s holding that the breach of this duty was a proximate cause of the explosion. United States v. Aretz, 248 Ga. 19, 280 S.E.2d 345 (1981). The fifth circuit adopted the Georgia court’s conclusions, reinstated the panel decision, affirmed the district court and remanded to the district court for further proceedings. 660 F.2d 531 (5th Cir. 1981).
“Shortly after remand, the Court was notified that the Solicitor General had decided not to file a petition for writ of certiorari in the Aretz cases. The United States Attorney expressed his intention to proceed with discovery and settlement negotiations ‘as expeditiously as circumstances will permit in order to seek a final resolution of these damage claims.’ (Letter to Court dated February 2, 1982). In October, 1982, the government reported that discovery had been undertaken but not completed and informed the Court that the Department of Justice was considering whether to file a motion raising the defense of statutory employer-tort immunity. As late as October 8, the government continued to assure the Court that it would complete all discovery and participate in settlement discussions.
“Thereafter, the Court issued an order appointing Michael J. Gannam as Special Master to take and hear evidence on all issues presented in the damage claims. The first meeting of the parties or their attorneys with the Special Master was scheduled on December 6, 1982. At that meeting, a preliminary trial schedule was set and arrangements were made to hold the trials. On December 27, 1982, an order establishing procedure was entered. That same day, the United States filed the motion for summary judgment currently before the Court.
“The Parties’ Contentions
“Under the Federal Tort Claims Act, the United States is liable to suit only in the same manner and to the same extent as a private individual in like circumstances under the law of the place where the act or the omission occurred. 28 U.S.C. § 1346(b); United States v. Orleans, 425 U.S. 807, 813, 96 S.Ct. 1971, 1975, 48 L.Ed.2d 390 (1976). The government is likewise entitled to raise all defenses available to a private defendant under state law. The government contends that though the plaintiffs had a state-created right of action at the incipience of this litigation, a change in Georgia law has abrogated the cause of action against the government which now claims the status of “statutory employer” as that term has evolved in Georgia workers’ compensation law.
“The portions of the workers’ compensation act, O.C.G.A. §§ 34-9-8; 34-9-11; Ga. Code Ann. §§ 114-203; 114-112, on which the government relies are as follows:
Ҥ 34-9-8:
“(a) A principal, intermediate, or subcontractor shall be liable for compensation to any employee injured while in the employ of any of his subcontractors engaged upon the subject matter of the contract to the same extent as the immediate employer.
“(b) Any principal, intermediate, or subcontractor who shall pay compensation under subsection (a) of this Code section may recover the amount paid from any person who, independently of this Code section, would have been liable to pay compensation to the injured employee or from any intermediate contractor.
“(c) Every claim for compensation under this Code section shall be in the first instance presented to and instituted against the immediate employer, but such proceedings shall not constitute a waiver of the employee’s right to recover compensation under this chapter from the principal or intermediate contractor. If such immediate employer is not subject to this chapter by reason of having less than the required number of employees as prescribed in subsection (a) of Code Section 3409-2 and Code Section 34-9-124 does not apply, then such claim may be directly presented to and instituted against the intermediate or principal contractor. However, the collection of full compensation from one employer shall bar recovery by the employee against any others, and the employee shall not collect a total compensation in excess of the amount for which any of the contractors is liable.
“(d) This Code Section shall apply only in cases where the injury occurred on, in, or about the premises on which the principal contractor has undertaken to execute work or which are otherwise under his control or management.
Ҥ 34-9-11:
“The rights and the remedies granted to an employee by this chapter shall exclude all other rights and remedies of such employee, his personal representative, parents, dependents, or next of kin, at common law or otherwise, on account of such injury, loss of service, or death; provided, however, that no employee shall be deprived of any right to bring an action against any third-party tort-feasor, other than an employee of the same employer or any person who, pursuant to a contract or agreement with an employer, provides workers’ compensation benefits to an injured employee, notwithstanding the fact that no common-law master-servant relationship or contract of employment exists between the injured employee and the person providing the benefits.
“Before 1981, a principal contractor in Georgia could be liable for workers’ compensation benefits to injured employees of independent contractors, American Mutual Liability Ins. Co. v. Fuller, 123 Ga.App. 585, 181 S.E. 876 (1971), but was not afforded immunity from suit in tort under Ga.Code Ann. § 114-103, O.C.G.A. § 34-9-11. Bli Construction Co. v. Knowles, 123 Ga.App. 588, 181 S.E.2d 879 (1971); Blair v. Smith, 201 Ga. 747, 41 S.E.2d 133 (1947). That the predicament of the general contractor who hired independent contractors defied the logic of the theory underlying workers’ compensation law, i.e., that tort immunity is conferred in exchange for liability for workers’ compensation benefits, did not escape the notice of the Georgia courts. See Bli Construction, 123 Ga.App. at 589, 181 S.E.2d 879. The anomaly did not exist, however, where the statutory employer actually paid the benefits before being sued by the employee on a common law negligence action. See Haygood v. Home Transportation Co., Inc., 244 Ga. 165, 259 S.E.2d 429 (1979) (Jordan, J., concurring specially, arguing that majority had overruled Blair v. Smith sub silentio); Jackson v. J.B. Rush Construction Co., 134 Ga.App. 445, 214 S.E.2d 710 (1975) (no distinction made between independent contractors and non-independent subcontractors). In this regard, it is noteworthy that in both Bli Construction and American Mutual, the statutory employer was directly responsible for workers’ compensation benefits because the subcontractors did not have sufficient employees to come within the provisions of the workers’ compensation act, but had not yet paid any benefits. Thus, the distinctions were whether the subcontractors were independent contractors or not and whether the statutory employer had actually paid the benefits before suit was brought or was merely potentially liable because the immediate employer had paid the benefits.
“The Georgia Supreme Court brought symmetry to this area of the law in Wright Associates, Inc. v. Rieder, 247 Ga. 496, 277 S.E.2d 41 (1981). The court there held:
“In the case before us, we have the same facts as in Haygood, supra, that here the employee recovered workers’ compensation benefits not from the statutory employer, Wright Associates, but from his immediate employer, Eastern Steel Erectors. Wright Associates argues that as a statutory employer liable to pay workers’ compensation benefits under Code Ann. § 114-112, it should receive the correlative benefit of tort immunity under Code Ann. §§ 114-103, 114-112. We agree and so hold. As one commentator has pointed out in his discussion of statutory employers, “Since the general contractor is thereby, in effect, made the employer for the purpose of the compensation statute, it is obvious that he should enjoy the regular immunity of an employer from third-party suit when the facts are such that he could be made liable for compensation; and the great majority of cases have so held,” 2A Larson’s, Workmen’s Compensation Law, § 72.32 at p. 14-47.
“Id. at 499, 277 S.E.2d 41 (footnotes omitted).
“Potential as well as actual liability for workers’ compensation benefits to injured employees of independent subcontractors now insulates the statutory employer from tort recoveries. See generally Potter, Workers’ Compensation, 34 Mer.L.Rev. 335-38 (1982).”
“The government in the Thiokol cases likewise argues that Wright Associates is factually indistinguishable and that the benefits of the holding in Wright Associates should extend retroactively to it. The contract to manufacture flares for the Army between the government and Thiokol, an independent contractor, see 503 F.Supp. at 285, was procured through the Department of the Army. The government contends that it is a ‘principal contractor’ and that the injury occurred on premises under the control or management of the government. Therefore, the argument goes, the government would have been liable to provide compensation benefits to the injured employees and representatives of the deceased employees had not Thiokol paid them and this being the case, it is entitled to immunity from suit in tort under O.C.G.A. § 34-9-11.”
The trial court thereafter concluded that it would not attempt to analyze further or decide other complex issues, but that it would base a judgment for the plaintiffs on the single ground: “The government waived its statutory employer defense by failing to timely bring it before the court. It cannot now avail itself of the defense of coverage by the Workers’ Compensation Act.”
We agree with this conclusion. It would be intolerable for us to hold that after the government and all the parties entered into a solemn agreement to be bound by the holding on liability in the Aretz case, the government could unilaterally ignore the stipulation and raise a defense to liability as to the remaining parties.
We would be remiss, however, in our obligation to the parties, if we failed to note a further change in the Georgia law since the trial court’s judgment. The vagaries of the Georgia Workers’ Compensation “statutory employment” law have now hopefully been stopped. What the trial judge here thought might, if not waived, give the United States immunity has again been considered by the Georgia Supreme Court in Manning v. Georgia Power Co., 252 Ga. 404, 314 S.E.2d 432 (Ga.S.Ct., 1984). There the Georgia court construed the language “a principal, intermediate, or subcontractor shall be liable for compensation to any employee injured while in the employ of any of the subcontractors engaged upon the subject matter of the contract to the same extent as the immediate employer ...” The court said:
In Evans v. Hawkins, 114 Ga.App. 120 (150 SE 2d 324) (1966), it was established that “principal” in paragraph (a) meant “principal contractor,” just as in paragraph (d), and not a principal party to whom an obligation to perform work is owed. Thus a property owner, although he may be a “principal, ” is not a principal contractor within the meaning of this section and is not a statutory employer who is liable for workers’ compensation benefits or immune to tort liability by reason of the exclusive remedy provision of the Act, OCGA § 34-9-11. The Court of Appeals apparently lost track of Evans however, in deciding Godbee v. Western Electric Co., 161 Ga.App. 731 (288 SE 2d 881) (1982). Godbee ignored Evans and announced the rule that OCGA § 34-9-6(a) pertains to any employer who hires another to perform work, regardless of whether he is an owner rather than a contractor. Nevertheless, the error in Godbee, and the failure to account for Evans, was remedied in Modlin v. Black & Decker, Court of Appeals case no. 67781 (decided March 5, 1984), wherein Godbee was expressly overruled and the reasoning of Evans revived. “Owners or entities merely in possession or control of the premises would not be subject to workers’ compensation liability as statutory employees, except in the isolated situation where the party also serves as a contractor for yet another entity and hires another contractor to perform the work on the premises.” Id. at 6. We agree with and adopt this analysis of the intent and meaning of OCGA § 34-9-8(a) as to the statutory employer doctrine.
Applying the precepts of Modlin to the present case it is clear that we must reverse. Georgia Power is an owner (and is not acting as a contractor), on whose property Manning was injured. The Act does not make Georgia Power liable for workers’ compensation benefits in such circumstances, nor does it immunize Georgia Power from potential liability in tort. Therefore it was error for the Court of Appeals to hold that Georgia Power Company was a statutory employer of Manning and immune to tort liability.
Manning v. Georgia Power Co., et al., 252 Ga. 404, 314 S.E.2d 432 (Ga.S.Ct., 1984) (emphasis added.)
We do not attempt to decide what might be the proper application of Manning to this case. Since we approve the judgment of the trial court on the basis of the government’s having waived the defense of immunity under O.C.G.A. § 34-9-8, we do not reach this issue.
The judgment is AFFIRMED.
Because of the inordinate delay in this case, it is ORDERED that this judgment be issued in manuscript form.
Question: Did the interpretation of federal statute by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
sc_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.
YARBOROUGH, WARDEN, et al. v. GENTRY
No. 02-1597.
Decided October 20, 2003
Per Curiam.
I
Respondent Lionel Gentry was convicted in California state court of assault with a deadly weapon for stabbing his girlfriend, Tanaysha Handy. Gentry claimed he stabbed her accidentally during a dispute with a drug dealer.
Handy testified for the prosecution. She stated that she recalled being stabbed but could not remember the details of the incident. The prosecution then confronted Handy with her testimony from a preliminary hearing that Gentry had placed his hand around her throat before stabbing her twice.
Albert Williams, a security guard in a neighboring building, testified that he saw Gentry, Handy, and another man from his third-floor window. According to Williams, Gentry swung his hand into Handy’s left side with some object, causing her to lean forward and scream. Williams was inconsistent about the quality of light at the time, stating variously that it was “pretty dark” or “getting dark,” that “it wasn’t that dark,” and that the area of the stabbing was “lighted up.” See Gentry v. Roe, 320 F. 3d 891, 896-897 (CA9 2003).
Gentry testified in his own defense that he had stabbed Handy accidentally while pushing her out of the way. When asked about prior convictions, he falsely stated that he had been convicted only once; evidence showed he had been separately convicted of burglary, grand theft, battery on a peace officer, and being a felon in possession of a firearm. He attributed his error to confusion about whether a plea bargain counted as a conviction.
In her closing argument, the prosecutor expressed sympathy for Handy’s plight as a pregnant, drug-addicted mother of three and highlighted her damaging preliminary hearing testimony. She accused Gentry of telling the jury a “pack of lies.” See id., at 897-898. Defense counsel responded with the following closing argument:
“ ‘I don’t have a lot. to say today. Just once I’d like to find a prosecutor that doesn’t know exactly what happened. Just once I’d like to find a D. A. that wasn’t there and that can tell and they can stand up here and be honest and say I don’t know who is lying and who is not ’cause she wasn’t there, ladies and gentlemen. [I] wasn’t there. None of the 12 of you were there. None of the other people in this courtroom were there except those two people and that one guy who saw parts of it, or saw it all. Pretty dark. Dark. It was light. Those are the three versions of his testimony with regard to what he saw and what he saw. I don’t know what happened. I can’t tell you. And if I sit here and try to tell you what happened, I’m lying to you. I don’t know. I wasn’t there. I don’t have to judge. I don’t have to decide. You heard the testimony come from the truth chair. You heard people testify. You heard good things that made you feel good. You heard bad things that made you feel bad.
“ T don’t care that Tanaysha is pregnant. I don’t care that shé has three children. I don’t know why that had to be brought out in closing. What does that have to do with this case? She was stabbed.
“ ‘The question is, did he intend to stab her? He said he did it by accident. If he’s lying and you think he’s lying then you have to convict him. If you don’t think he’s lying, bad person, lousy drug addict, stinking thief, jail bird, all that to the contrary, he’s not guilty. It’s as simple as that. I don’t care if he’s been in prison. And for the sake of this thing you ought not care because that doesn’t have anything to do with what happened on April 30th, 1994.
Didn’t understand the term conviction. That is not inconsistent with this whole thing of being spoken and doing all this other crime stuff as opposed to going to school. I don’t know. I can’t judge the man. The reason that they bring 12 jurors from all different walks of life, let them sit here and listen to people testify, and the reason that the court will give you instructions with regard to not having your life experience, leaving it at the door, is because you can’t just assume that because a guy has done a bunch of bad things that he’s now done this thing.
“ T don’t know if thievery your are all in the same pot. I don’t know if just because of the fact that you stole some things in the past that means you must have stabbed your girlfriend. That sounds like a jump to me, but that’s just [me], I’m not one of the 12 over there.
“‘All I ask you to do is to look at the evidence and listen to everything you’ve heard and then make a decision. Good decision or bad decision, it’s still a decision. I would like all 12 of you to agree; but if you don’t, I can’t do anything about that either.
“ ‘You heard everything just like all of us have heard it. I don’t know who’s lying. I don't know if anybody is lying. And for someone to stand here and tell you that they think someone is lying and that they know that lying goes on, ladies and gentlemen, if that person was on the witness stand I’d be objecting that they don’t have foundation because they weren’t there. And that’s true. The defense attorney and the prosecutor, no different than 12 of you.
“ ‘So I’d ask you to listen to what you’ve heard when you go back, ask you to take some time to think about it, and be sure that’s what you want to do, then come out and do it.
“‘Thank you.’” Id., at 898-899 (one paragraph break omitted).
After deliberating for about six hours, the jury convicted.
On direct appeal, Gentry argued that his trial counsel’s closing argument deprived him of his right to effective assistance of counsel. The California Court of Appeal rejected that contention, and the California Supreme Court denied review. Gentry’s petition for federal habeas relief was denied by the District Court, but the Court of Appeals for the Ninth Circuit reversed. We grant the State’s petition for a writ of certiorari and the motion for leave to proceed informa pauperis and reverse.
II
The Sixth Amendment guarantees criminal defendants the effective assistance of counsel. That right is denied when a defense attorney’s performance falls below an objective standard of reasonableness and thereby prejudices the defense. Wiggins v. Smith, 539 U. S. 510, 521 (2003); Strickland v. Washington, 466 U. S. 668, 687 (1984). If a state court has already rejected an ineffective-assistance claim, a federal court may grant habeas relief if the decision was “contrary to, or involved an unreasonable application of, clearly established Federal-law, as determined by the Supreme Court of the United States.” 28 U. S. C. § 2254(d)(1). Where, as here, the state court’s application of governing federal law is challenged, it must be shown to be not only erroneous, but objectively unreasonable. Wiggins, supra, at 520-521; Woodford v. Visciotti, 537 U. S. 19, 24-25 (2002) (per curiam); Williams v. Taylor, 529 U. S. 362, 409 (2000).
The right to effective assistance extends to closing arguments. See Bell v. Cone, 535 U. S. 685, 701-702 (2002); Herring v. New York, 422 U. S. 853, 865 (1975). Nonetheless, counsel has wide latitude in deciding how best to represent a client, and deference to counsel’s tactical decisions in his closing presentation is particularly important because of the broad range of legitimate defense strategy at that stage. Closing arguments should “sharpen and clarify the issues for resolution by the trier of fact,” id., at 862, but which issues to sharpen and how best to clarify them are questions with many reasonable answers. Indeed, it might sometimes make sense to forgo closing argument altogether. See Bell, supra, at 701-702. Judicial review of a defense attorney’s summation is therefore highly deferential — and doubly deferential when it is conducted through the lens of federal habeas.
In light of these principles, the Ninth Circuit erred in finding the California Court of Appeal’s decision objectively unreasonable. The California court’s opinion cited state case law setting forth the correct federal standard for evaluating ineffective-assistance claims and concluded that counsel’s performance was not ineffective. That conclusion was supported by the record. The summation for the defense made several key points: that Williams’s testimony about the quality of light was inconsistent; that Handy’s personal circumstances were irrelevant to Gentry’s guilt; that the case turned on whether the stabbing was accidental, and the jury had to acquit if it believed Gentry’s version of events; that Gentry’s criminal history was irrelevant to his guilt, particularly given the seriousness of the charge compared to his prior theft offenses; and that Gentry’s misstatement of the number of times he had been convicted could be explained by his lack of education. Woven through these issues was a unifying theme — that the jury, like the prosecutor and defense counsel himself, were not at the scene of the crime and so could only speculate about what had happened and who was lying.
The Ninth Circuit rejected the state court’s conclusion in large part because counsel did not highlight various other potentially exculpatory pieces of evidence: that Handy had used drugs on the day of the stabbing and during the early morning hours of the day of her preliminary hearing; that Williams’s inability to see the stabbing clearly was relevant to the issue of intent; that Gentry’s testimony was consistent with Williams’s in some respects; that the government did not call as a witness Williams’s co-worker, who also saw the stabbing; that the stab wound was only one inch deep, suggesting it may have been accidental; that Handy testified she had been stabbed twice, but only had one wound; and that Gentry, after being confronted by Williams, did not try to retrieve his weapon but instead moved toward Handy while repeating, “she’s my girlfriend.” See 320 F. 3d, at 900-901.
These other potential arguments do not establish that the state court’s decision was unreasonable. Some of the omitted items, such as Gentry’s reaction to Williams, are thoroughly ambiguous. Some of the others might well have backfired. For example, although Handy claimed at trial she had used drugs before the preliminary hearing, she testified at the hearing that she was not under the influence and could remember exactly what had happened the day of the stabbing. And, although Handy’s wound was only one inch deep, it still lacerated her stomach and diaphragm, spilling the stomach’s contents into her chest cavity and requiring almost two hours of surgery. These are facts that the prosecutor could have exploited to great advantage in her rebuttal.
Even if some of the arguments would unquestionably have supported the defense, it does not follow that counsel was incompetent for failing to include them. Focusing on a small number of key points may be more persuasive than a shotgun approach. As one expert advises: “The number of issues introduced should definitely be restricted. Research suggests that there is an upper limit to the number of issues or arguments an attorney can present and still have persuasive effect.” R. Matlon, Opening Statements/Closing Arguments 60 (1993) (citing Calder, Insko, & Yandell, The Relation of Cognitive and Memorial Process to Persuasion in a Simulated Jury Trial, 4 J. Applied Social Psychology 62 (1974)). Another authority says: “The advocate is not required to summarize or comment upon all the facts, opinions, inferences, and law involved in a case. A decision not to address an issue, an opponent’s theory, or a particular fact should be based on an analysis of the importance of that subject and the ability of the advocate and the opponent to explain persuasively the position to the fact finder.” R. Haydock & J. Sonsteng, Advocacy: Opening and Closing §3.10, p. 70 (1994). In short, judicious selection of arguments for summation is a core exercise of defense counsel’s discretion.
When counsel focuses on some issues to the exclusion of others, there is a strong presumption that he did so for tactical reasons rather than through sheer neglect. See Strickland, 466 U. S., at 690 (counsel is “strongly presumed” to make decisions in the exercise of professional judgment). That presumption has particular force where a petitioner bases his ineffective-assistance claim solely on the trial record, creating a situation in which a court “may have no way of knowing whether a seemingly unusual or misguided action by counsel had a sound strategic motive.” Massaro v. United States, 538 U. S. 500, 505 (2003). Moreover, even if an omission is inadvertent, relief is not automatic. The Sixth Amendment guarantees reasonable competence, not perfect advocacy judged with the benefit of hindsight. See Bell, 535 U. S., at 702; Kimmelman v. Morrison, 477 U. S. 365, 382 (1986); Strickland, supra, at 689; United States v. Cronic, 466 U. S. 648, 656 (1984). To recall the words of Justice (and former Solicitor General) Jackson: “I made three arguments of every case. First came the one that I planned — as I thought, logical, coherent, complete. Second was the one actually presented — interrupted, incoherent, disjointed, disappointing. The third was the utterly devastating argument that I thought of after going to bed that night.” Advocacy Before the Supreme Court, 37 A. B. A. J. 801, 803 (1951). Based on the record in this case, a state court could reasonably conclude that Gentry had failed to rebut the presumption of adequate assistance. Counsel plainly put to the jury the centerpiece of his case: that the only testimony regarding what had happened that the jury heard “come from the truth chair” was conflicting; that none of his client’s testimony was demonstrably a lie; and that the testimony contradicting his client came in “three versions.” See 320 F. 3d, at 898. The issues counsel omitted were not so clearly more persuasive than those he discussed that their omission can only be attributed to a professional error of constitutional magnitude.
The Ninth Circuit found other flaws in counsel’s presentation. It criticized him for mentioning “a host of details that hurt his client’s position, none of which mattered as a matter of law.” Id., at 900. Of course the reason counsel mentioned those details was precisely to remind the jury that they were legally irrelevant. That was not an unreasonable tactic. See F. Bailey & H. Rothblatt, Successful Techniques for Criminal Trials § 19:23, p. 461 (2d ed. 1985) (“Face up to [the defendant’s] defects ... [and] call upon the jury to disregard everything not connected to the crime with which he is charged”). The Ninth Circuit singled out for censure counsel’s argument that the jury must acquit if Gentry was telling the truth, even though he was a “bad person, lousy drug addict, stinking thief, jail bird.” See 320 F. 3d, at 900. It apparently viewed the remark as a gratuitous swipe at Gentry’s character. While confessing a client’s shortcomings might remind the jury of facts they otherwise would have forgotten, it might also convince them to put aside facts they would have remembered in any event. This is precisely the sort of calculated risk that lies at the heart of an advocate’s discretion. By candidly acknowledging his client’s shortcomings, counsel might have built credibility with the jury and persuaded it to focus on the relevant issues in the case. See J. Stein, Closing Argument §204, p. 10 (1992-1996) (“[I]f you make certain concessions showing that you are earnestly in search of the truth, then your comments on matters that are in dispute will be received without the usual apprehension surrounding the remarks of an advocate”). As Judge Kleinfeld pointed out in dissenting from denial of rehearing en banc, the court’s criticism applies just as well to Clarence Darrow’s closing argument in the Leopold and Loeb case: “ ‘I do not know how much salvage there is in these two boys.... [Y]our Honor would be merciful if you tied a rope around their necks and let them die; merciful to them, but not merciful to civilization, and not merciful to those who would be left behind.’ ” 320 F. 3d, at 895 (quoting Famous American Jury Speeches 1086 (F. Hicks ed. 1925) (reprint 1990)).
The Ninth Circuit rebuked counsel for making only a passive request that the jury reach some verdict, rather than an express demand for acquittal. But given a patronizing and overconfident summation by a prosecutor, a low-key strategy that stresses the jury’s autonomy is not unreasonable. One treatise recommends just such a technique: “Avoid challenging the jury to find for your client, or phrasing your argument in terms suggesting what their finding must be. . . . [Scientific research indicates that jurors will react against a lawyer who they think is blatantly trying to limit their freedom of thought.” Stein, supra, §206, at 15.
The Ninth Circuit faulted counsel for not arguing explicitly that the government had failed to prove guilt beyond a reasonable doubt. Counsel’s entire presentation, however, made just that point. He repeatedly stressed that no one— not the prosecutor, the jury, nor even himself — could be sure who was telling the truth. This is the very essence of a reasonable-doubt argument. To be sure, he did not insist that the existence of a reasonable doubt would require the jury to acquit — but he could count on the judge’s charge to remind them of that requirement, and by doing so he would preserve his strategy of appearing as the friend of jury autonomy.
Finally, the Ninth Circuit criticized counsel’s approach on the ground that, by confessing that he too could not be sure of the truth, counsel “implied that even he did not believe Gentry’s testimony.” 320 F. 3d, at 900. But there is nothing wrong with a rhetorical device that personalizes the doubts anyone but an eyewitness must necessarily have. Winning over an audience by empathy is a technique that dates back to Aristotle. See P. Lagarias, Effective Closing Argument §§2.05-2.06, pp. 99-101 (1989) (citing Aristotle’s Rhetoric for the point that “[a] speech should indicate to the audience that the speaker shares the attitudes of the listener, so that, in turn, the listener will respond positively to the views of the speaker”); id., §3.03, at 112 (deriving from this principle the advice that “counsel may couch his arguments in terms of ‘we,’ rather than ‘you, the jury’ ”).
To be sure, Gentry’s lawyer was no Aristotle or even Clarence Darrow. But the Ninth Circuit’s conclusion — not only that his performance was deficient, but that any disagreement with that conclusion would be objectively unreasonable — gives too little deference
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_district
|
G
|
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".
Juan E. MULLER, Domingo Occhiuto, and Ingeniero Enrique Pagliettini, d/b/a Bigua, S.R.L., Plaintiffs-Appellants, v. Raymond S. GROBAN, Dora Groban, and Sidney J. Groban, d/b/a Groban Supply Co., Defendants-Appellants.
No. 14780.
United States Court of Appeals Seventh Circuit.
April 8, 1965.
Thomas W. Bloss, George W. Rauch, Charles A. Kelly, Chicago, Ill. (Hubachek, Kelly, Miller & Rauch, Chicago, Ill., of counsel), for plaintiffs-appellants.
Irwin I. Zatz, Howard Arvey, Edwin A. Walden, Chicago, Ill. (Arvey, Hodes & Mantynband, Chicago, Ill., of counsel), for defendants-appellees.
Before DUFFY, CASTLE, and SWYGERT, Circuit Judges.
SWYGERT, Circuit Judge.
Plaintiffs Juan E. Muller, Domingo Oechiuto, and Ingeniero Enrique Pagliettini, d/b/a Biguá, S.R.L., an Argentine company, brought this diversity action against defendants Raymond S. Groban, Dora Groban, and Sidney J. Groban, d/b/a Groban Supply Co. of Chicago. The action was for breach of a contract in which the Groban company agreed to sell Biguá two unused marine engine assemblies. The complaint alleged that Groban shipped plaintiff used, partially reconditioned engine assemblies and that plaintiff’s customers refused to accept them. Damages in the amount of $57,-970, together with interest, was demanded. The complaint listed the separate items of damages. These included $3,590 as the difference between the purchase price of the assemblies and their actual value, $6,000 as the cost of replacement goods “for fulfillment of Plaintiffs’ customer’s contract,” and $1,000 for shipping expenses of replaced items.
On its own motion the district court issued a rule to show cause why the complaint should not be dismissed for failure to allege in good faith the requisite jurisdictional amount. After once continuing the hearing on the rule to show cause, the court entered an order which recited that “as a matter of law and upon the face of the complaint, the consequential damages alleged therein are not a proper measure of damages.” The complaint was dismissed for the reason that the amount in controversy, exclusive of interest and costs, did not exceed the sum of $10,000 as required by section 1332 of the Judicial Code, 28 U.S.C. § 1332.
The contract was attached as an exhibit to the complaint and indicates that the engine assemblies were being shipped to plaintiff’s customer, Ramser-Brouch Marítima Y Pesquera, S.R.L., Buenos Aires. Plaintiff states that if permitted to prove its case, the bills of lading and invoices will show that the engines were shipped “e and f” to Buenos Aires from the United States Naval Surplus Stores in Norfolk, Virginia. On this basis plaintiff claims that the contract was performed in Virginia. Defendant, on the other hand, says that performance occurred in Chicago, Illinois, from where the c and f documents of sale were forwarded to plaintiff.
Both parties recognize that in diversity cases, the federal courts apply the substantive law of the forum state, Erie R. R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), including the conflicts of law rules of that state, Klaxon Co. v. Stentor Elec. Mfg. Co., Inc., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). They also agree that under Illinois law the measure of damages for breach of contract is controlled by the law of the state where the contract is to be performed if the law of that state is different from the law of the state where the contract was executed. Benedict v. Dakin, 243 Ill. 384, 90 N.E. 712 (1909); Wm. J. Lemp Brewing Co. v. Ems Brewing Co., 164 F.2d 290 (7th Cir. 1947). The contestants part company, however, in asserting the place of performance of the contract in question — plaintiff contending that performance took place in Virginia and defendant contending that the contract was performed in Illinois. Plaintiff maintains that under the law of Virginia consequential damages such as plaintiff seeks are recoverable and that therefore more than $10,000 is in controversy. Defendant argues that under the law of Illinois, in the absence of special circumstances, only direct damages are recoverable for the breach of a sales contract, and that this precludes plaintiff from seeking damages in excess of $10,000 since the direct damages are admitted not to equal that sum.
It is not necessary to determine the correctness of the parties’ respective assertions concerning the law of Illinois and the law of Virginia with regard to damages for the breach of an executory sales contract. The very dispute between the parties over the place of the contract’s performance is sufficient to show that this case presented a factual issue that can be resolved only by a trial. The case should not have been dismissed by the district judge sua sponte on the basis that the complaint showed as a matter of law that the requisite jurisdictional amount was lacking.
Defendants contend that the district court gave plaintiff ample opportunity to offer evidence in support of jurisdiction, but that plaintiff offered no evidence and elected to stand upon its complaint. Plaintiff was not required to sustain its claim twice, once preliminarily to show jurisdiction and again at trial. Of course, sham pleadings are not to be allowed to sustain a claim of jurisdiction when a party has alleged excessive damages in bad faith. Nevertheless, as this court observed in Columbia Pictures Corp. et al. v. Grengs et al., 257 F.2d 45, 47 (7th Cir. 1958), “[T]he plaintiff need not twice establish his proof of value— once before trial on the merits and later on the merits when issues are joined under complaint and answer.”
To dismiss a claim because of bad faith in alleging the jurisdictional amount, it must be certain that the valid portion of the claim is for less than the requisite amount. This was made clear in Saint Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 58 S.Ct. 586, 82 L.Ed. 845 (1938), where the Court said: “It must appear to a legal certainty that the claim is really for less than the jurisdictional amount to justify dismissal. The inability of plaintiff to recover an amount adequate to give the court jurisdiction does not show his bad faith or oust the jurisdiction.” Accord, Horton v. Liberty Mut. Ins. Co., 367 U.S. 348, 81 S.Ct. 1570, 6 L.Ed.2d 890 (1961).
As we have noted, there is a genuine dispute about the facts which the parties contend the evidence will establish and as to the applicable law in determining the damages to be allowed. For that reason it cannot be said with “legal certainty” that plaintiff has in bad faith alleged damages which do not meet the jurisdictional standard. The dispute can be resolved only upon trial and not by a mere reading of the complaint.
The order of dismissal is reversed and the cause remanded for further proceedings.
. C and f means that the price quoted to the purchaser includes the cost of the goods and freight charges to place of destination. Under this type of contract delivery to the carrier is delivery to the buyer, passing title and x-isk to the buyer.
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_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".
GRAYBURG OIL CO. v. BLYTH WITTER & CO.
Circuit Court of Appeals, Fifth Circuit.
March 9, 1928.
No. 5146.
Estoppel <§=>92(2) — Corporation, having contracted for services of engineer t.o make report on oil lands, held estopped to deny liability, where report was unfavorable.
Defendant corporation, owner of oil lands, which contracted with complainant to float for it an issue of bonds, if the report of an engineer was favorable, and also agreed to pay the agreed charge of a particular engineer to be employed by complainant, and accepted his services as rendered without objection, helé estopped to deny liability therefor where the report proved unfavorable and the bond issue was abandoned.
Appeal from the District Court of the United States for the Western District of Texas; Duval West, Judge. '
Suit in equity by Blyth Witter & Co. against the Grayburg Oil Company. Decree for complainant, and defendant appeals.
Affirmed.
Victor Keller, of San Antonio, Tex., for appellant.
Dick O. Terrell and Robt. J. McMillan, both of San Antonio, Tex. (Terrell, Davis, Huff & McMillan, of San Antonio, Tex., on the brief), for appellee.
Before WALKER, BRYAN, and FOSTER, Circuit Judges.
FOSTER, Circuit Judge.
In this case the petition substantially alleges:
That appellee had contracted with appellant to float a bond issue of $2,000,000 on appellant’s property, contingent on a favorable report of a competent oil engineer to be employed by it, and for whose services appellant was to pay; that E. De Golyer, an' oil engineer of national reputation, was employed pursuant to the exchange of the following telegrams:
“De Golyer estimates that report consume five to six days. Would be Worth five thousand to seventy-five hundred. He probably available first next week. At first glance this may appear high but considering De Golyeris international reputation, and further considering that this two million dollar deal I am not inclined to consider excessive. Further believe that De Golyer report on property may be of much future value to Grayburg Company. If this meets with your and Col. Diehl’s approval, please advise me by wire.”
“De Golyer terms acceptable. Haskin and Sells can start working end of this week and complete audit in two or three weeks.”
That De Golyer completed his report, for which appellee paid him $7,037.44; that it proved unfavorable, and appellee declined to float the bond issue for $2,000,000, but offered to do so for a lesser amount, which appellant in turn refused.
Appellant admitted the exchange of telegrams and its agreement to pay for an engineer’s services, but set up that De Golyer did not visit the property in person, did not correctly value some of it, and omitted some from his estimates of value.
Appellee filed a plea of estoppel to the defenses sought to- be interposed, and moved for the transfer of the cause to the equity side of the court. Without objection from appellant, the case was transferred, and proceeded in equity, with the result that the plea of estoppel was maintained, and judgment awarded appellee.
While the method of trial may have been somewhat irregular, it is evident that appellant consented to it until after judgment. It is not shown that there was any agreement or necessity that De Golyer should visit the property in order to make his report. He sent an assistant, who is not shown to have been incompetent, and there would seem to be no good reason why he could not base his conclusions on data compiled by his assistant. Furthermore, it must be remembered the agreement was to employ this particular engineer, and his compensation was fixed in advance. Appellant was aware of how he was going about his work, and made no timely objection. Bad faith on the part of either appellee or De Golyer is not shown, and it is clear that the only objection appellant has to paying the bill arises out of the unfavorable character of the report.
We find no reversible error in the record.
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_r_bus
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
ANDERSON et al. v. W. L. OAKES MFG. CO.
No. 4435.
United States Court of Appeals Tenth Circuit.
June 23, 1952.
D. C. Johnston, Oklahoma City, Okl. (W. A. Daugherty, Tulsa, Okl., and D. I. Johnston, Oklahoma City, Okl., on the brief), for appellants.
Paul L. Washington, Oklahoma City, Okl., for appellee.
Before PHILLIPS, Chief Judge, and BRATTON and HUXMAN, Circuit Judges.
HUXMAN, Circuit Judge.
While other parties were involved in this action in the trial court, the controversy presented by this appeal is between G. Fred Anderson, Harry M. House, and Patterson Steel Company, a corporation, doing business together as Industrial Construction Company, herein referred to as Industrial, and W. L. Oakes Manufacturing Company, herein referred to as Oakes. So far as material to the issues, the facts may be briefly summarized as follows: Industrial obtained a contract for the construction of a housing project in Norman, Oklahoma, consisting of 244 identical apartment units. Under contract with Industrial, Oakes agreed to furnish listed items consisting of fabricated closets, shelving, door jambs, and buffets for installation in each of the units for a consideration of $39,535.52. Oakes furnished all the material called for by the contract and was paid $34,315.50 on the contract price. Oakes claims that in addition to the material called for in the contract it furnished extra material of a value of $7,-590.96. It also paid sales taxes in the sum of $839.99, which admittedly were Industrial’s obligations. Industrial acknowledged liability for the balance due under the contract and also for the sales taxes, so the only item in dispute is the one for these extras. The questions are whether these items were furnished and, if so, whether Oakes may have the benefit of the Oklahoma Material-man’s Lien Law. 42 O.S.A. § 141 and 42 O.S.A. § 143.
Industrial contends that there is a complete failure of testimony to support the trial court’s finding that the extra material was in fact furnished. With this we cannot agree. The testimony on behalf of Industrial on the one hand and on behalf of Oakes on the other is in irreconcilable conflict. No useful purpose would be served by-detailing all the evidence which leads us to conclude that the trial court’s finding in this respect finds support in the record. Admittedly a great deal of extras or material, in addition to that called for in the contract, were furnished as shown by invoices in the record. Industrial contends that some of the material furnished by Oakes was defective and was returned for reprocessing and that this accounts for the additional invoices. Oakes concedes that some material was returned for reprocessing but testified that no such material was included in the extra invoices. If Oakes’ testimony is to be accepted as it was by the trial court, the reprocessed material does not account for the material represented by these additional invoices. The trial court’s finding with respect to this fact issue finds support in the record and will, therefore, not be disturbed on appeal.
The further contention is made that under the Oklahoma Lien Law it is necessary not only to show that the material was furnished but also that it actually was used in the building upon which the lien is asserted, and that Oakes failed to show that the material in question went into the building. De Bolt v. Farmers’ Exchange Bank, 51 Okl. 12, 151 P. 686, is cited to sustain this contention, but an examination of that case does not support this broad statement. There the uncontradicted evidence showed that the material furnished for the purpose of constructing a second story of a bank building, to be used as a lodge room, was diverted in large part by the contractor and was used elsewhere; that there was no evidence to show that any substantial part of the material was in fact used for the construction of the second story. Under these facts the court held that the lien claimant had failed to show that the material was used on the job. The court did recognize •the general principle that the furnishing of the material upon the premises and the construction of the improvement prima facie established that the material was used. The opinion of the court also makes it clear that it is not required that one claiming a lien maintain a checker on the premises to see that every piece of material furnished for the job actually goes into the improvement. Thus the court said: “In order for the plaintiff to foreclose a materialman’s lien, it is incumbent upon him to show that the material furnished went into the building. Rockel on Mechanics’ Liens, § 22. Yet, when it is shown that the material was sold to be used in the building, that it was delivered to the builder upon the premises where the building is to be erected, and that the building was actually erected, and where there is some testimony showing that some of the material was used in the building, then a prima facie case is made out.” Such is the case before us. This material was specifically prefabricated and designed for use in these apartments alone. It was delivered on the job and there is ample evidence that it was used in the building. There is no showing that any of it was delivered to other jobs. In these respects the case differs from De Bolt, supra, upon which appellant relies.
Affirmed.
. 42 O.S.A. § 141. “Any person who shall, under oral or written contract with the owner of any tract or piece of land, perform labor, or furnish material for the erection, alteration or repair of any building, improvement or structure thereon * * * shall have a lien upon the whole of said tract or piece of land, the buildings and appurtenances.”
42 O.S.A. § 143. “Any person who shall furnish any süch material or perform such labor as a sub-contractor, or as an artisan or day-laborer in the employ of the contractor, may obtain a lien upon such land, or improvements, or both, from the same time, in the same manner, and to the same extent as the original contractor, for the amount due him for such material and labor; * *
. The De Bolt case was followed by the Supreme Court of Oklahoma in Guest v. Shamburger, 120 Okl. 164, 251 P. 97; Rich v. State, Okl.Cr., 284 P. 903; and Goff v. Long-Bell Lumber Co., 142 Okl. 194, 286 P. 1.
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_genapel1
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed appellant.
NORTHROP CORPORATION v. McDONNELL DOUGLAS CORPORATION, Appellant.
No. 84-5215.
United States Court of Appeals, District of Columbia Circuit.
Argued Oct. 29, 1984.
Decided Dec. 28, 1984.
Robert M. Lucy, St. Louis, Mo., with whom Daniel C. Schwartz and Penny Q. Seaman, Washington, D.C., were on the brief, for appellant.
Freddi Lipstein, Atty., Dept, of Justice, Washington, D.C., with whom Richard K. Willard, Asst. Atty. Gen., Dept, of Justice, Joseph E. diGenova, U.S. Atty., and Barbara L. Herwig, Atty., Dept, of Justice, Washington, D.C., were on the brief, for appellee.
Before WILKEY , WALD, and SCA-LIA, Circuit Judges.
Opinion for the Court filed by Circuit Judge WALD.
Circuit Judge Wilkey considered this case prior to his taking Senior status.
WALD, Circuit Judge:
McDonnell Douglas Corporation (“MDC”) appeals from an order of the United States District Court for the District of Columbia denying MDC’s motion to compel discovery and quashing subpoenas du-ces tecum directed to the United States Departments of Defense (“DOD”) and State (“State”). We affirm the district court’s order as it applies to the subpoena directed to DOD, but vacate and remand the order as it applies to the subpoena directed to State.
I. Background
MDC’s pursuit of discovery against DOD and State stems from its ongoing litigation with Northrop Corporation (“Northrop”) regarding the development and sale of variations of the YF-17 military aircraft, Northrop Corp. v. McDonnell Douglas Corp., CA No. 79-04145R (C.D.Cal. filed Oct. 26, 1979). The United States is not a party to this litigation. The facts of the underlying action, which is being heard by the United States District Court for the Central District of California, are set out in Northrop Corp. v. McDonnell Douglas Corp., 498 F.Supp. 1112 (C.D.Cal.1980), rev’d in part and remanded, 705 F.2d 1030 (9th Cir.), cert. denied, — U.S.-, 104 S.Ct. 156, 78 L.Ed.2d 144 (1983); we present here only a brief summary of the facts relevant to this appeal.
Northrop and MDC, two major defense contractors, entered into a “teaming agreement” to develop two variations of the YF-17, one to be land-based and the other for use on aircraft carriers (the latter was purchased by the U.S. Navy and designated the F-18). According to the terms of the agreement, MDC was to be the prime contractor for the domestic and foreign sales of the aircraft carrier variation, with Northrop acting as a substantial subcontractor, and Northrop was to be the prime contractor for the land-based variation of the YF-17. While MDC has sold its F-18s to the U.S. Navy and at least three foreign governments, Northrop has not been able to sell any of its variations of the aircraft. Brief for Appellant at 5-6. Northrop sued MDC claiming, inter alia, that MDC violated the terms of the teaming agreement, interfered with Northrop’s efforts to sell its version of the YF-17, and violated the antitrust laws. MDC has asserted as part of its defense that Northrop’s inability to sell any of the land-based YF-17s is the result of actions by the United States government, not MDC. In furtherance of that defense, on December 21, 1983, MDC subpoenaed DOD, State, and the Departments of the Air Force and the Navy for documents relating to sale of various military equipment to Iran, Canada, Australia, Spain, Turkey, Sweden, Israel and the Federal Republic of Germany, generally covering the period from January, 1977, to the present.
The Departments of the Air Force and the Navy complied with the subpoenas to MDC’s satisfaction. DOD produced 3000 pages of documents to MDC and, on March 26, 1984, claimed that 1200 more pages of responsive documents were privileged as state or military secrets. Brief for Appellant at 14. Initially, State also produced some documents, but then on January 31, 1984, filed an objection to the subpoena on the grounds of burdensomeness. State ultimately claimed that 967 cubic feet of documents would have to be searched to comply with the subpoena, and that such a search would involve hundreds of worker hours. Further, State claimed that many of the responsive documents would be classified and subject to the state secrets or deliberative process privileges, and that a declassification review would involve yet additional hundreds of worker hours. Appendix to Brief for Appellant (“Appendix”) at 272, 277.
In response to DOD’s claim of privilege and State’s claim of oppressiveness, MDC moved to compel production of the documents from both parties. The district court held a one-day hearing on the motion. In a one-page order the court denied MDC’s motion to compel and quashed the subpoenas. This appeal followed.
II. Analysis
MDC claims that the district court erred in quashing the subpoenas directed to DOD and State. As to DOD, MDC contends that the district court, given MDC’s representations of the importance of the documents to MDC’s defense, should have conducted an in camera review of the documents to determine whether the state secrets privilege was properly invoked. MDC further asserts that the district court should not have permitted DOD’s assertion of the state secrets privilege because it did not establish the requisite likelihood that harm would result in the event of disclosure. As to State, MDC appeals the court’s order quashing the subpoena on grounds of burdensomeness. According to MDC, State did not adequately demonstrate the oppressiveness required to quash the subpoena, particularly in light of MDC’s asserted need for the documents, the unavailability from other sources of the information contained in those documents, and the complexity of the underlying Northrop litigation.
In evaluating a trial court’s exercise of discretion in discovery matters, we have observed that
[a] district court has broad discretion in its resolution of discovery problems that arise in cases pending before it____ [T]he scope of appellate review is equally narrow when the discovery pertains to litigation pending elsewhere.
In Re Multi-Piece Rim Products Liability Litigation, 653 F.2d 671, 679 (D.C.Cir. 1981). We may reverse the trial court only if it has abused its discretion; that is, if its actions were clearly unreasonable, arbitrary or fanciful. Id. Giving the district court due deference, we find it properly exercised its discretion in accepting DOD’s claim of privilege, but that its action in quashing the State subpoena in its entirety, without adequate consideration of whether it might be modified so as to diminish the burden, was unreasonable and an abuse of discretion.
A. DOD’s Claim of Privilege
The “state secrets” privilege asserted by DOD is a privilege developed in common law protecting information vital to the nation’s security or diplomatic relations. See Advisory Comm. Note to Proposed Fed.R.Evid. 509, reprinted in 56 F.R.D. 194, 252 (1972); E. Cleary, McCormick on Evidence § 107 (3d ed. 1984). It is an absolute privilege which, when properly asserted, cannot be compromised by any showing of need on the part of the party seeking the information. The seminal judicial statement on the privilege appears in United States v. Reynolds, 345 U.S. 1, 73 5. Ct. 528, 97 L.Ed. 727 (1953). Reynolds establishes the procedure which must be followed for the privilege to be properly invoked: “[1] There must be a formal claim of privilege, [2] lodged by the head of the department which has control over the matter, [3] after actual personal consideration by that officer.” Id. at 7-8, 73 S.Ct. at 531-532 (footnotes omitted). The inherent dilemma presented by the privilege, as recognized by the Reynolds Court, is that a court must “determine whether the circumstances are appropriate for the claim of privilege, and yet do so without forcing a disclosure of the very thing the privilege is designed to protect.” Id. at 8, 73 S.Ct. at 532 (footnotes omitted).
We reiterate at the outset that a party’s need for the information is not a factor in considering whether the privilege will apply. As we have stated,
courts in evaluating claims for the privilege may take cognizance of the need for the information demonstrated by the party seeking disclosure, [but] such need is a factor only in determining the extent of the court’s inquiry into the appropriateness of the claim. Once the court is satisfied that the information poses a reasonable danger to secrets of state, “even the most compelling necessity cannot overcome the claim of privilege.”
Halkin v. Helms, 690 F.2d 977, 990 (D.C. Cir.1982) (footnote omitted) (“Halkin II”) (quoting Reynolds, 345 U.S. at 11, 73 S.Ct. at 533). Therefore, MDC’s representations of the importance of the government documents to its defense in the Northrop litigation are relevant only to the question of whether the district court adequately assessed DOD’s assertion of the privilege. Reviewing the documents submitted to the court in support of DOD’s claim, we find that the district court did not abuse its discretion in holding that the privilege was adequately asserted.
According to the procedure established by Reynolds, DOD properly made its claim to the state secrets privilege. In an affidavit, the head of the department, Secretary of Defense Weinberger, stated that he had reviewed a representative sample of the documents as well as affidavits of staff members who had received all of the documents, and based on this knowledge he “assert[ed] a formal claim of privilege in order to protect certain military and state secrets relating to the national defense and the national security of the United States Affidavit and Claim of Privilege of the Secretary of Defense (“Weinberger Affidavit”) ¶ 2, Appendix at 282-83. The affidavit states that “[t]he Department of Defense has in its possession seven linear inches of classified documents responsive to the subpoena.” Weinberger Affidavit ¶ 5, Appendix at 284. The documents, “all of which have been classified pursuant to appropriate executive orders and DOD regulations,” fall into the general categories of: Communications with foreign government officials (letters and memoranda of conversations); letters between DOD and the Secretary of State or the White House; studies of force structures of foreign countries; DOD briefing books and papers for meetings with foreign government officials; internal papers and recommendations relating to military aircraft sales to foreign countries, sales terms, coproduction arrangements, and related matters; Defense Intelligence Agency reports; and correspondence with Members of Congress regarding the sale of military aircraft. Weinberger Affidavit ¶6, Appendix at 285. Secretary Weinberger asserts that “disclosure of this material to McDonnell Douglas and Northrop would have specific adverse and irreparable effects upon the national security and international relations of the United States.” Weinberger Affidavit ¶ 7, Appendix at 286. The harms alleged in the affidavit that could result from disclosure are: The impairment of diplomatic relations if the confidence of communications with foreign governments is breached; adverse effects on our relations with Iran; adverse effects on relations with countries getting less favorable treatment on sales terms for military equipment; revelation of military secrets and defenses of foreign countries which in turn threatens the security of the United States; and exposure of sources of intelligence information. Each of the alleged harms is correlated to the document over which the privilege is claimed. Weinberger Affidavit ¶¶ 7-10, Appendix at 286-89.
Relying on Reynolds, MDC contends that the district court did not examine the privilege claim carefully enough, given the importance of the documents to MDC’s defense. See Reynolds, 345 U.S. at 11, 73 S.Ct. at 533 (“In each case, the showing of necessity which is made will determine how far the court should probe in satisfying itself that the occasion for invoking the claim is appropriate.”). The apparent basis for MDC’s contention is that the district court denied the motion to compel on the day immediately following its one-day hearing. Certainly MDC’s claimed need for the documents is substantial; asserting a defense of government action will be more difficult without the government’s own records of that action. But even if the lack of these documents made MDC’s case impossible, MDC would still not be entitled to overcome a valid assertion of the state secrets privilege. See Halkin II, 690 F.2d at 997-98, 999-1000. And while the order came swiftly, that in itself is no cause for presuming it was not ,the product of a considered judgment.
MDC suggests that before ruling on the motion to compel, the district court should have conducted an in camera review of the documents over which privilege was claimed. While we have recognized the value of such examinations in the context of privilege claims, see, e.g., Halkin v. Helms, 598 F.2d 1, 5 (D.C.Cir.1978) ("Halkin I"), the procedure is not required as a matter of course in a claim of the state secrets privilege. Reynolds explicitly addressed this issue.
It may be possible to satisfy the court, from all the circumstances of the case, that there is a reasonable danger that compulsion of the evidence will expose military matters which, in the interest of national security, should not be divulged. When this is the case, the occasion for the privilege is appropriate, and the court should not jeopardize the security which the privilege is meant to protect by insisting upon an examination of the evidence, even by the judge alone, in chambers.
345 U.S. at 10, 73 S.Ct. at 533.
Our opinion in Ellsberg v. Mitchell, 709 F.2d 51 (D.C.Cir.1983), cert. denied, - U.S. , 104 S.Ct. 1316, 79 L.Ed.2d 712 (1984), established a sliding scale to determine when a court may, or should, make an in camera examination of material over which a claim of the state secrets privilege is made:
When a litigant must lose if the claim [of privilege] is upheld and the government's assertions are dubious in view of the nature of the information requested and the circumstances surrounding the case, careful in camera examination of the material is not only appropriate but obligatory.
When the litigant requesting the information has made only a trivial showing of need for it and the circumstances of the case point to a significant risk of serious harm if the inforthation is disclosed, the trial judge should evaluate (and uphold) the privilege claim solely on the basis of the government's public representations, without an iiz camera examination of the documents.
Id. at 59 nfl. 37-38 (citations omitted).
MDC's claim falls somewhere in between the two extremes. The government's assertions are more than dubious, and MDC's need for the information is more than trivial, though not absolute. Although an in camera inspection might have been appropriate, we cannot say that the trial court erred when it decided the balance tipped in favor of the government, and quashed the subpoena without conducting an in camera review of the documents.
The Secretary's affidavit alone, MDC contends, does not adequately demonstrate that the national security or international relations will be harmed by the disclosure of the information MDC seeks. MDC suggests that even though the information involved is sensitive, there is no threat that its production in this litigation will do harm because the disclosure will be limited to participants with adequate security clearances. The trustworthiness of the litigants, however, is not always dispositive in cases such as this.
There is no single rule which will determine when disclosure will present a harm to national interests. The grounds for finding such harm will vary from case to case, depending upon the nature of the information at issue, to whom it will be disclosed, and the means available to limit its dissemination. The latter two circumstances are not decisive in the present case. The trial court in the underlying action has issued a protective order establishing procedures for handling information related to the case which may not be publicly disclosed. Northrop and MDC have subscribed to the terms of that order. See Appendix at 203-08. To the extent that sensitive information can be protected in litigation, then, we can assume it would be protected here. The party seeking the information, MDC, and its adversary, Northrop, have in the past been entrusted by the government with classified information necessary to their performances of government contracts. Whether this past practice means they should also be entrusted with classified policy information related to their dispute is a matter of contention between MDC and the government which we do not find it necessary to resolve, because we believe that the nature of the information at issue here justified the district court’s decision to accept DOD’s claim of privilege.
The documents MDC seeks concern foreign governments’ plans and policies for their national defense systems, and our government’s involvement in those areas. DOD credibly asserts that such inter-government communications about defense systems are made with every expectation of confidentiality on both sides. Equally credibly, DOD asserts that our government’s ability to conduct relations with these countries in the future would be harmed by the disclosure, however protected, of the most confidential information a country can possess: the details of its national security system. Regardless of the availability of protective orders or “need-to-know” mechanisms, we believe that the district court acted within reason when it decided that this disclosure would present a danger of harm to foreign relations and national security. Without setting forth any absolute rule that communications with or about foreign governments are always immune, we accept as a reasonable justification of the district court’s action that in this instance disclosure, regardless of the attendant safeguards, in itself might harm U.S. foreign relations and national security.
According to the standards established by Reynolds and this court’s interpretation of Reynolds, all DOD must show is a reasonable danger that harm will result from disclosure. See Ellsberg, 709 F.2d at 58; Halkin II, 690 F.2d at 990; Halkin I, 598 F.2d at 9. It is not necessary for the government to show that harm will inevitably result from disclosure, nor, as MDC argues, is it an essential element that the disclosure be public. “The crucial aspect of [the various] formulation[s] of the test [determining whether the requisite degree of certainty that harm is threatened] is the [court’s] willingness to credit relatively speculative projections of adverse consequences.” Ellsberg, 709 F.2d at 58 n. 35. And in evaluating these “speculative projections,” “[c]ourts should accord the ‘utmost deference’ to executive assertions of privilege upon grounds of military or diplomatic secrets.” Halkin I, 598 F.2d at 9 (quoting United States v. Nixon, 418 U.S. 683, 710, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974)).
Deference to the executive’s allegations of harm does not mean unquestioning acceptance of every claim of privilege. See Reynolds, 345 U.S. at 9-10, 73 S.Ct. at 532-533 (“Judicial control over the evidence in a case cannot be abdicated to the caprice of executive officers.”) We have recognized that drawing the line between an adequate description of the privileged material and divulging the secrets themselves is not a simple task. In Halkin I, we said that simply identifying certain individuals as having been subject to government communications monitoring presented “a reasonable danger that state secrets would be revealed.” Halkin I, 598 F.2d at 9. In the present case, identifying documents as being withheld because Country X will discover that it received less favorable terms than Country Y on an arms sale agreement obviously does as much damage as revealing the documents themselves. In sum, DOD has adequately asserted the state secrets privilege, and the district court did not act unreasonably in accepting DOD’s claim.
B. State’s Claim of Burdensomeness
The district court’s order also denied MDC’s motion to compel discovery and quashed the subpoena directed against State. We hold that the district court abused its discretion in issuing that order.
A trial court may, on a motion by the party seeking relief, quash or modify a subpoena for the production of evidence, on the ground that the request is unreasonable or oppressive. See Fed.R. Civ.P. 45(b)(1). “What constitutes unreasonableness or oppression is, of course, a matter to be decided in the light of all the circumstances of the case ____” 5A Moore’s Federal Practice ¶ 40.05[2] n. 44. A trial court has broad, but not unlimited, discretion in evaluating the circumstances of a case when considering quashing a subpoena on grounds of oppressiveness. It must carefully examine the circumstances presented to it and, when appropriate, consider the possibility of modifying the subpoena rather than quashing. The burden of proving that a subpoena is oppressive is on the party moving to quash. Westinghouse Electric Corp. v. City of Burlington, Vt., 351 F.2d 762 (D.C.Cir.1965). This is a heavy burden, and one which State has not met in the present case. Because State’s claim of oppressiveness is in large part based on its assertion that many of the documents sought by the subpoena will be privileged, and therefore not subject to compelled production, it must adequately demonstrate that applicable privileges would in fact protect these documents. In addition, the district court must give appropriate consideration to the possibility of modifying the subpoena, to accommodate the interests of both MDC and the government.
We stressed the importance of the modification alternative in our decision in Westinghouse. Westinghouse, a defendant in a treble damages antitrust action, served a subpoena duces tecum on a representative of the U.S. Attorney General, seeking records of complaints from utility owners about antitrust violations by electrical equipment manufacturers. Westinghouse sought this information to dispute plaintiffs’ claim that the statute of limitations should be tolled because Westinghouse had fraudulently concealed the alleged violations. The United States was not itself a party to the treble damages action. The government moved to quash the subpoena on the grounds that it was oppressive and that in any case the documents sought were protected by the informer’s privilege. The trial court granted the motion to quash, but this court reversed, finding that the record did not support the government’s claim of oppressiveness. See id. at 767.
We held in Westinghouse that the government, as the party seeking to quash, had not met its burden of establishing that the subpoena was unreasonably oppressive. The district court had erred because
[t]he two affidavits submitted by [the government] are not sufficient to bear this burden. Appellants [Westinghouse] have expressed their willingness to accept some reasonable effort by the Government, that would be less than a page-by-page search. The lower court, in these circumstances, should have sought some way to accommodate the interests of the defendants herein with the practical problems of searching the Government’s voluminous files. Nothing in the record suggests that the possibility of making a less than complete search was explored.
Id. at 766 (footnotes omitted). The Westinghouse court went on to suggest that, as an aid to the trial court in evaluating the oppressiveness of the subpoena, the government could conduct a partial search of its files “to determine how productive and how onerous a search of the complete file would be.” Id. at 767.
Westinghouse is relevant to the present case in several ways. First, MDC has, as did appellants in Westinghouse, expressed its willingness to modify the subpoena. See Appendix at 128, 130. The district court was also informed that the California court hearing the underlying action had established an accelerated discovery schedule and was not disposed to grant any further postponements. See Transcript at 7; see also Appendix at 95. This additional factor presented an even stronger case for modification than the circumstances of Westinghouse. To facilitate the progress of the underlying litigation, the district court should have at least explored the possibility of modifying the subpoena in a manner which would meet both MDC’s and State’s immediate needs.
Second, Westinghouse made clear that “[t]he burden of proving that a subpoena duces tecum is oppressive is on the party moving for relief on this ground____ The burden is particularly heavy to support a ‘motion to quash as contrasted to some more limited protection.’ ” Westinghouse, 351 F.2d at 766 (quoting Horizons Titanium Corp. v. Norton Co., 290 F.2d 421, 425 (1st Cir.1961)). State has not adequately carried that burden here. Certainly the volume of documents it claims it must search is extraordinary, but volume alone is not determinative. See Democratic Nat’l Comm. v. McCord, 356 F.Supp. 1394, 1396 (D.D.C.1973); 5A Moore’s Federal Practice ¶ 45.05[2] n. 44. State concedes that its files are organized topically and geographically, see Appendix at 263, so there apparently exists some systematic way of conducting the search. According to State, though, the compelling reason for finding the subpoena oppressive is that “it would be necessary to claim privilege over a high proportion of the documents” once retrieved. Brief for Appellees at 43. To support this reasoning, State must demonstrate, with more certainty than it has here, that privileges would in fact be claimed over a substantial percentage of the documents.
The privileges which State claims will protect many of the documents produced, the state secrets and deliberative process privileges, are narrowly drawn privileges which must be asserted according to clearly defined procedures. See supra p. 400. The procedure for claiming the state secrets privilege includes a statement by the head of the department responsible for the documents that they have been examined and that disclosure would be against the public interest. See Reynolds, 345 U.S. at 7-8, 73 S.Ct. at 531-532; Ellsberg, 709 F.2d at 56-57. Clearly, documents which have not yet been retrieved have not yet been examined or considered by the head of the department. It is premature for State to assert or even insinuate a claim of the state secrets privilege over these documents.
It is equally untenable to claim the deliberative process privilege over the documents. That privilege, unlike the absolute state secrets privilege, is relative to the need demonstrated for the information. See Carl Zeiss Stiftung v. V.E.B. Carl Zeiss, Jena, 40 F.R.D. 318, 327 (D.D.C. 1966), aff'd, 384 F.2d 979 (D.C.Cir.), cert. denied, 389 U.S. 952, 88 S.Ct. 334, 19 L.Ed.2d 361 (1967). The litigant’s need for the information cannot be balanced against its sensitive and critical role in the government’s decisionmaking process without any indication of what that information is. Any claim that the documents would be protected by this privilege is purely speculative.
Third, in Westinghouse and Freeman v. Seligson, 405 F.2d 1326 (D.C.Cir.1968), we suggested the possibility that conducting partial searches, or samplings, of voluminous files containing potentially privileged information would be an appropriate aid to evaluating oppressiveness claims. This proposal is particularly well-suited to the difficult problem posed by this case: How can a court evaluate the oppressiveness of a subpoena when the requesting party has demonstrated the relevance of the documents and a need for them, and the objecting party asserts that production of the document will be burdensome and not fruitful for the requesting party because privilege will make many nondiscoverable? To force State to conduct a complete search and then raise a formal claim of privilege would, in this instance, defeat the purpose of allowing oppressiveness as a defense to subpoenas issued under Fed.R.Civ.P. 45. A sampling procedure appears to us to be a sound alternative to the illogical alternative of requiring State to conduct a full search of its files. Although State presented the district court with the results of a sample search of its files, see Brief for Appellees at 42, Appendix at 271, we find that this sample fails in at least four ways.
First, State has not indicated how the files examined are representative of the files identified in the subpoena. The subpoena requests documents from four offices at State; yet the declaration of the person reviewing the sample for classification purposes does not indicate which office(s) the sample was drawn from, only that it consisted of “several hundred readily available responsive documents.” Declaration of Thomas W. Ainsworth, Appendix at 276. The sample may in fact represent a cross-section of all the named offices, or it may represent only one. To adequately evaluate the sample, a court must know that it is representative of all the sources named in the subpoena. Second, no precise indication is made of what percentage of the documents in the sample are likely to be privileged. The declaration offered by State only tells us that “the sample contains a high proportion of currently classified national security information____” Appendix at 276. To be of any value to a court assessing a sampling, such a statement would have to indicate what percentage of the documents would be subject to the privilege, recognizing that not all classified information will necessarily be withheld from production.
Third, State does not indicate why the sample can be expected to contain a typical proportion of documents likely to be privileged. It seems entirely plausible that some files will consist almost exclusively of documents containing state or military secrets, while other files will be almost entirely devoid of such materials. Selecting either type of file as the exclusive basis for a sample would distort the picture of the overall fruitfulness of a search. Because this variable can exist within a single office as well as in the department as a whole, State must indicate that the sample it offers contains a typical proportion of potentially privileged documents based on the universe it represents.
In the circumstances of the present case, a valid sample on which a trial court could make an adequate assessment of the burden of full compliance with a subpoena would have to include at least the following information. First, it must adequately describe and demonstrate how the sample is representative of all the sources identified in the subpoena. If a variety of sources are named, as in MDC’s subpoena to State, this may require independent samplings for each source to properly represent the underlying universe of documents. Second, the sample must state what percentage of documents are likely to be privileged. The court reviewing the sample can then determine if that proportion is “high” enough to support a claim of burden. Third, the sample must demonstrate that the percentage of potentially privileged documents in the sample can be expected to represent the percentage in the underlying universe. Again, this may mean that a single sample will not adequately represent the composition of all the files subpoenaed. If one source has a particularly high (or low) concentration of potentially privileged documents, it might need to be considered separately from any “overall” claims. Additionally, a valid sample should include estimates of the time and labor involved in complying with the subpoena and the basis of these estimates. In the sample offered to the district court, State did estimate the amount of labor that retrieval and review of the documents requested by MDC would take. See Appendix at 272-73, 277.
Establishing the representativeness of the sample does not end State’s burden. State’s present projection of the state secrets privilege is made by individuals not qualified to formally assert the state secrets privilege. Their speculation that the Secretary would assert a claim of privilege if presented with the documents is not acceptable; this fourth defect alone defeats any validity an otherwise proper sample might have.
The direct involvement of the head of the department is essential to a valid sample. In this instance the Secretary would have to review the possibly privileged documents in the sample and formally assert that he would make a claim of privilege over them if they were to be produced. As with an actual assertion of privilege, the Secretary’s statement would have to include a description of the documents he has considered and the potential threat posed by the disclosure of the information. Additionally, there should be a statement by an appropriate official describing the basis for believing that similarly privileged documents exist in the files not searched.
Clearly, this sampling procedure does not replace the requirements established in Reynolds for a formal claim of the state secrets privilege. To make a proper claim of the military or state secrets privilege, State would have to make a complete examination of its files, and present the court with a formal claim by the Secretary that after considering the documents he has determined that the privilege should be invoked. A proper claim of privilege, if accepted by the court, would absolutely protect the documents from discovery, regardless of the degree of MDC’s need for them. See Reynolds, 345 U.S. at 11, 73 S.Ct. at 531. The sampling procedure we set forth is a mechanism by which a court can evaluate a claim of oppressiveness based on both the large number of files to be searched and the likelihood that such a search will not be productive because so many of the materials sought will be privileged. Unlike the state secrets privilege, a claim of oppressiveness is not an absolute protection against discovery. The need of the party seeking the documents is a relevant factor in considering a claim of oppressiveness, see, e.g., Multi-Piece Liaability Litigation, 653 F.2d at 679-80, and a case may arise where the need is great enough to overcome a claim such as State’s here. In that instance it would be necessary for the executive department involved, to protect any state or military secrets contained in its files, to follow the Reynolds procedure and make a formal claim of privilege. We do not at this point express any opinion on whether MDC has established such a need.
As in Westinghouse, “[w]e do not now hold that the broad subpoena sought by the defendants should be enforced; but we instruct the trial judge to reconsider ... the possibility of reaching an accommodation between [the parties in the discovery action].” Westinghouse, 351 F.2d at 765. At least two options are available to the district court in its reconsideration of State’s claim of oppressiveness. First, it may order a modification of the subpoena, based on the facts and claims the court has already heard. There seem to be ample grounds for immediately effecting some form of modification. See supra p. 404 & n. 10. Second, the district court may allow State to clarify the basis of its existing sample and submit a statement by the Secretary affirming his intent to assert privilege as described earlier, or give State leave to conduct a new sampling according to the guidelines set out in this opinion. On the basis of either action by State, the district court may decide to modify or quash the subpoena, or compel its enforcement.
As the Northrop-MDC action illustrates, discovery has become a major battleground in litigation. Massive discovery requests are unfortunately now part of the standard tactical maneuvering of parties immersed in the adversarial process. While we fully recognize the burden of imposing on a non-party the effort and expense of discovery, particularly when the expense will be borne by the taxpayers, we also recognize that “the paramount interest of the Government in having justice done between
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:
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songer_respond2_7_2
|
D
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second listed respondent. The nature of this litigant falls into the category "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").
Irmtrud and Eric MILLER v. APARTMENTS AND HOMES OF NEW JERSEY, INC.; Peter Ronay; CIB International, Inc.; Anthony Lacetola and James Nuckel, CIB International, Inc., Anthony Lacetola and James Nuckel, Appellants.
No. 80-2260.
United States Court of Appeals, Third Circuit.
Argued Feb. 12, 1981.
Decided April 22, 1981.
Jane W. Vanneman (argued), National Committee Against Discrimination in Housing, Washington, D. C., James Sacher, Middlesex County Legal Services Corp., New Brunswick, N. J., Andre Shramenko, Hackensack, N. J., for appellees.
Richard E. Snyder (argued), John D. Horan, Goodman, Stoldt & Horan, Hackensack, N. J., for appellants CIB International Inc., Anthony Lacetola and James Nuckel.
Before ALDISERT and HIGGINBOTHAM, Circuit Judges, and TEITELBAUM, District Judge .
Honorable Hubert I. Teitelbaum, United States District Judge for the Western District of Pennsylvania, sitting by designation.
OPINION OF THE COURT
TEITELBAUM, District Judge.
The matter sub judiee is an appeal from the decision of the District Court of New Jersey finding illegal racial discrimination in housing and awarding relief. The trial court, in the non-jury proceeding below, determined that the plaintiffs-appellees had impermissibly been denied the enjoyment of certain rental housing because of their race and awarded compensatory and punitive damages as well as attorney’s fees. The defendants-appellants do not challenge the finding of liability, but rather have urged that the award was too high a price to pay for discriminating. A careful review of appellants’ claims convinces us that the trial court committed no error. We affirm the judgment for the reasons set forth below.
I.
In August of 1973, Irmtrud Miller, a white woman, visited the offices of Apartment and Homes of New Jersey, Inc. (hereinafter Apartments and Homes), the rental agent for apartments owned by James Nuckel and/or CIB International, Inc., (hereinafter CIB) a corporation owned by Mr. Nuckel. There Mrs. Miller met Peter Ronay, a broker employed by Apartments and Homes. They went to the Florence Apartments in Little Ferry, New Jersey. The resident superintendent gave Mr. Ronay a key for a vacant apartment, apartment sixty-seven. Mr. Ronay told Mrs. Miller the apartment was available. Mrs. Miller agreed to rent the apartment for herself and her husband, left a deposit for the apartment, and completed an application to rent the premises. She was advised that pending the results of a credit check, she could occupy the premises beginning on September 10, 1973.
On September 5, 1973, the Millers met Mr. Ronay to sign the lease. When Mr. Ronay saw that Mr. Miller was black, “there was a perceptible change in [his] attitude,” according to the findings of the district court. The court did not specify what change occurred. In any event, Mr. Ronay and the Millers executed a formal lease for apartment sixty-seven. Mr. Ronay told the Millers that the key would be available at the office of the resident superintendent on September 7,1973. Mr. Miller went to the resident superintendent’s office on the evening of September 7 and asked for the key to his apartment. He did not state which apartment he had rented, and the superintendent did not ask. Instead, the superintendent stated that he had no knowledge of Mr. Miller’s rental of any apartment and asked him to wait outside while he checked further. After waiting about fifteen minutes Mr. Miller again knocked at the door and was told to wait. After another half hour, the superintendent advised Mr. Miller that he had no knowledge of the rental. Mr. Miller asked if he could look at the apartment, but again he did not specify the apartment number. The superintendent reiterated that he had no knowledge of Mr. Miller’s lease, but he took Mr. Miller directly to apartment sixty-seven without ever asking Mr. Miller which apartment he had rented. Mr. Miller specifically requested the keys to apartment sixty-seven and was refused. Mr. Miller described the superintendent’s attitude throughout the encounter as “cold” and testified that the superintendent looked “through” him and not at him. He testified also that he felt humiliated and downgraded, like a “village idiot,” by being made to wait outside the superintendent’s office for approximately forty-five minutes. The next .day the Millers went to the rental offices of CIB. Mr. Lacetola, in charge of the CIB office falsely told the Millers that the apartment had been previously rented. He suggested that they see Mr. Ronay about another apartment.
The Millers returned to Apartments and Homes to find alternative accommodations. Mr. Ronay was sympathetic to their plight, and made some modest, but unsuccessful effort to find another apartment for them. Upon reflection the Millers decided they were entitled to apartment sixty-seven and telephoned Mr. Lacetola to inform him of their position. He agreed that they were entitled to the apartment and indicated that he would have the key on September 10, 1973. On that day, having arranged to vacate their prior residence, the Millers, with all their possessions in a moving van, arrived at the CIB rental office to obtain the key as prearranged. Mrs. Miller’s request for the key was refused, again ostensibly because the apartment had been previously rented. Mr. Lacetola, although he had access to an extensive list of vacant apartments owned by Mr. Nuckel and/or CIB, remained indifferent to the Miller’s plight. After a brief stay with relatives, the Millers by their own efforts were fortunate enough to lease a different apartment. By coincidence it was owned and operated by the appellants, Nuckel and CIB, but the Millers did not deal with Mr. Ronay or the CIB rental office in learning of it. Unfortunately this substitute apartment was at a higher rental, and required the Millers to expend greater sums than they would have paid in apartment sixty-seven for equivalent necessary utility services.
On October 30, 1973, the Millers instituted this action against Apartments and Homes, Mr. Ronay, CIB, Mr. Lacetola and Mr. Nuckel. Near the end of 1975, the plaintiffs agreed to settle their claim against Apartments and Homes and Mr. Ronay for $1,821.00. The action against the remaining defendants proceeded to trial before the court, sitting without a jury. In addition to determining the aforementioned facts, the district court also noted that Mr. Nuckel and CIB had been the subjects of remedial court orders to cease discrimination. Despite those orders, statements made by Mr. Nuckel at his deposition (introduced into evidence at trial) showed his utter disregard for his obligations to promulgate and implement a policy of nondiscrimination. The court found Mr. Nuckel was interested only in building and money, and not in people; people who contributed to Mr. Nuckel’s and/or CIB’s monthly gross rental income of $400,000.00. The court also found that Mr. Nuckel and CIB disobeyed the prior remedial order by failing to instruct employees not to discriminate on the basis of race, and by falsifying required records showing the number of minority tenants.
In addition to these findings, the district court was also obliged to determine the appropriate amount of damages. The damages disputed in this appeal represent a portion of the compensatory damages, specifically, the sum awarded as the difference in rent and utility payments between what the Millers were required to pay and the amount that would have been required for apartment sixty-seven, an amount of $4,451.00; and the award of punitive damages of $25,000 assessed against Mr. Nuckel and CIB. Additionally, the court below held that the defendants were entitled to only a pro tanto reduction for the amounts previously paid by Mr. Ronay and Apartments and Homes in the settlement. Finally, an award of $21,845.00 was made for attorneys’ fees.
II.
As we previously noted, this is not an appeal alleging an error in the finding of liability, but rather a plea that the size of the total award was too great. While the trial court committed no error, several interesting issues have been raised which demand this Court’s attention. We turn now to those issues.
A.
The appellants claim that the district court erred on its ruling on the effect of a settlement upon the liability of the remaining defendants. The district court held that the award of compensatory damages against the appellants should be reduced by $1,821.00, the amount of appellees’ settlement with defendants Mr. Ronay and Apartments and Homes. The appellants argue that instead of this pro tanto reduction for the settlement, the court should have granted them a pro rata reduction of liability. They maintain that since there were essentially two groups of defendants in the case — Apartments and Homes and its employees, and Mr. Nuckel, his employees and subordinates — that the settlement with one group extinguished half of the Millers’ claim.
This the Millers deny. They insist that federal common law should govern with respect to the effect of settlements upon the liability of joint violators of federal civil rights statutes. They further insist that the federal rule relating to settlements should be the rule of pro tanto rather than pro rata reduction.
This case therefore appears to require the Court to decide whether state or federal law applies to such questions under the civil rights statutes, and what the pertinent rule should be. The general problem of whether state law or federal common law should apply to various subordinate issues relating to federal statutory rights is a familiar one. It derives from what Professor Hart called the “interstitial character” of federal law. The general problem extends to questions such as statutes of limitation and tolling rules, mental capacity, right to jury trial of designated issues, defenses in commercial paper law, and implied rights of action under federal statutes as well as to contribution rules. Professor Wright has said:
Whether state law or federal law controls on matters not covered by the Constitution or an Act of Congress is a very complicated question which yields to no simple answer in terms of the parties to the suit, the basis of jurisdiction, or the source of the right which is to be enforced.
C. Wright, Handbook of the Law of Federal Courts 247 (2d ed. 1970). The question is examined in all its complexity by Professor Wright, id. at 247-53, and by Professor Wechsler and his colleagues in Hart and Wechsler’s The Federal Courts and the Federal System at 756-832 (2d ed. 1973) (Bator, Mishkin, Shapiro and Wechsler, eds.).
Happily, the present case may be decided without a comprehensive reevaluation of the entire thicket. Congress provided the courts some modest guidance for resolving the choice of law question in civil rights cases in 42 U.S.C. § 1988. That section provides, in pertinent part:
§ 1988. Proceedings in vindication of civil rights.
The jurisdiction in civil .. . matters conferred on the district courts by the provisions of this chapter ... for the protection of all persons in the United States in their civil rights, and for their vindication, shall be exercised and enforced in conformity with the laws of the United States, so far as such laws are suitable to carry the same into effect; but in all cases where they are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies ... the common law, as modified and changed by the constitution and statutes of the State wherein the court having jurisdiction of such civil or criminal cause is held, so far as the same is not inconsistent with the Constitution and laws of the United States, shall be extended to and govern the said courts in the trial and disposition of the cause....
This section invites federal courts to adopt state rules to further, but not to frustrate, the purposes of the civil rights acts. Its general language invites courts to use their judgment in resolving problems. The cases are not in perfect harmony. This neither troubles nor surprises us. There is, however, a fair uniformity in favor of allowing contribution among the few courts which have considered the general question of contribution under the civil rights acts. See Glus v. G. C. Murphy Co., 629 F.2d 248 (3rd Cir. 1980), petition for cert. filed sub nom. Retail, Wholesale and Department Store Union v. G. C. Murphy Co.,-U.S.-, 101 S.Ct. 351, 66 L.Ed.2d 212 (1980) (contribution allowed where payment by one defendant to the plaintiff settled entire claim); Denicola v. G. C. Murphy Co., 562 F.2d 889 (3rd Cir. 1977); Johnson v. Rogers, 621 F.2d 300 (8th Cir. 1980) (applying state law under section 1988); cf. Grogg v. General Motors Corp., 72 F.R.D. 523 (S.D.N.Y. 1976); I. U. of E. Radio and Machine Workers v. Westinghouse Electric Corp., 73 F.R.D. 57 (W.D.N.Y.1976); Blanton v. Southern Bell Tel. & Tel. Co., 49 F.R.D. 162 (N.D.Ga.1970).
When narrower questions are asked, the decisions tend to disagree. In Johnson v. Rogers, supra, a former deputy sheriff sued the sheriff and the county under 42 U.S.C. § 1983. The plaintiff settled her claim against the county for $7500.00. By the settlement agreement, she agreed “to credit and satisfy only ‘that portion of the total amount of her damages ... which may hereafter be allocated ... in the trial or otherwise to causal [sic] acts or admissions [sic] on the part of the Defendant County of Meeker.’ ” At the trial no damages were assessed against or allocated to the county. The trial court rendered a judgment against the sheriff for $7500.00. The sheriff sought complete exoneration, arguing that the plaintiff’s proved damages had been fully satisfied by the settlement. The Court of Appeals for the Eighth Circuit rejected that claim. It held, initially, that the effect of the settlement was governed by Minnesota law under section 1988.
Since this is a civil rights action brought under 42 U.S.C. § 1983, § 1988 determines choice of law. As construed by the Supreme Court in Robertson v. Wegmann, 436 U.S. 584, 588-90, 98 S.Ct. 1991, 56 L.Ed.2d 554 (1978), § 1988 instructs that if federal law does not cover an issue, then state law should provide the rule of decision unless “inconsistent with the Constitution and laws of the United States.” In the instant case, as federal law does not answer the question of the effect of a plaintiff’s settlement with one defendant on an award of damages against a non-settling defendant, state law should serve as the federal rule of decision unless inconsistent with the policies underlying a § 1983 cause of action. Among the principal objectives of § 1983 are “compensation of persons injured by deprivation of federal rights and prevention of abuses of power by those acting under color of state law.” Robertson v. Wegmann, supra, 436 U.S. at 590-91, 98 S.Ct. at 1995. Neither of these concerns would seem to be hindered by adoption of the Minnesota Court’s approach.
Id. at 304. This led the court to examine the Minnesota law. The court concluded that a non-settling defendant is entitled to have the amount of a settlement credited against the plaintiff’s damages only if it appears at trial that the settling defendant would have been liable to the plaintiff. Since that fact was not proved at trial, the sheriff was denied any benefit based on the settlement.
A month after the decision of Johnson v. Rogers, supra, this Court decided Glus v. G. C. Murphy Co., supra. In Glus, female employees of the G. C. Murphy Co. brought a class action under Title VII of the Civil Rights Act of 1964. They sought damages for employment discrimination on the basis of sex. Murphy filed cross-claims against certain unions seeking contribution. Prior to trial, Murphy and the plaintiff class settled the class action. Litigation continued on the cross-claims. The district court held that both Murphy and the unions had violated Title VII, and that Murphy was entitled to contribution with respect to the Title VII settlement.
This Court affirmed that decision, and held that Murphy was entitled to contribution as a matter of federal common law. We noted that Title VII does not specifically deal with the problem of contribution. The problem is interstitial. Whether this particular interstice was to be filled with federal common law or with state law depended upon an extensive analysis of Congressional purpose; of the underlying goals of a statute; of the extent to which the application of federal law would further those goals or the application of state laws would impede them; and of the traditional allocation of functions between state and federal law. Applying that analysis, we found no specific Congressional intent as to contribution; that Congress did intend to make unions liable for discrimination under Title VII; that a rule of contribution would further the purpose of Title VII by inducing employers and unions to be vigilant in observing Title VII requirements and in encouraging conciliation which Title VII favors.
Nothing in this case suggests that a different analysis or a different result should follow in civil rights cases. Neither does Johnson v. Rogers, supra, which was not considered in Glus, convince us that state law, rather than federal law, should apply. Johnson’s discussion of the choice of law problem relied on the text of section 1988 and on the Supreme Court’s decision in Robertson v. Wegmann, supra. We disagree with the Eighth Circuit’s reading of those authorities. Section 1988 declares that the civil rights acts shall be “enforced in conformity with the laws of the United States, so far as such laws are suitable to carry the same into effect; but in all cases where they are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies ... the common law, as modified and changed by the Constitution and statutes of the State ... shall be extended to and govern ... the trial and disposition of the cause.... ” The Eighth Circuit in Johnson held that federal law does not prescribe a rule of contribution in civil rights cases, so state law must apply.
Robertson v. Wegmann, supra, does not require this analysis of the problem. In Robertson, the Supreme Court decided that state law governs some issues of survival of section 1983 causes of action. The decision that federal law is “deficient” with respect to survival was brief and conclusory. In essence the Supreme Court reasoned that the federal law “does not cover every issue that may arise in the context of a federal civil rights action ...” id. 436 U.S. at 588, 98 S.Ct. at 1994. The Court then declared that “one specific area not covered by federal law is that relating to ‘the survival of civil rights actions under § 1983 upon the death of either the plaintiff or defendant. .. . ’ State statutes governing the survival of state actions do exist, however .... [They provide] the principal reference point in determining survival of civil rights actions....” id. at 589-90, 98 S.Ct. at 1994-1995.
We do not understand that decision to abandon the historic method of analysis of problems of claimed federal common law rights. One traditional ground for refusing to declare federal common law to fill particular interstices of statutory law is this: that the question to be answered is one particularly suited to statutory rather than to judicial solution. Thus federal courts habitually apply state statutes of limitations to federal causes of action where Congress has not adopted an applicable limitation. Another traditional ground for refusing to declare federal common law is that the question to be answered lies in an area which is traditionally of state rather than federal concern. Matters of domestic relations including domestic property allocations such as the division of property upon divorce, and rules of descent, distribution and wills clearly are within this area of traditional state concern. We understand the decision in Robertson to rest on both of these grounds. The Court specifically referred to the existence and diversity of state survival statutes and to the fact that the states generally used statutes (rather than judicial declaration) to abrogate the ancient common law rule against the survival of actions, id. at 589, 98 S.Ct. at 1994. The Court also noted the diversity of state statutes with respect to the kinds of claims which survive and with respect to the identity of the successors, id. at 591. Finally, the Court noted the absence of general federal provisions concerning survival of actions, id. at 589, 98 S.Ct. at 1994.
The present problem is unlike the problem in Robertson in three important ways. First, the rule of contribution is intimately bound up with the nature and extent of the substantive federal rights created by the civil rights acts. Questions of limitation periods and of survival are less related to the substance of the federal rights. See, Dice v. Akron, C. & Y. R. Co., 342 U.S. 359, 72 S.Ct. 312, 96 L.Ed. 398 (1952). Contribution rules declare which defendants are liable and how much they owe. Contribution rules are of high importance in the process of settling claims before trial. Consequently, the selection of a contribution rule bears on the work of the federal courts as well as on the substantive rights and liabilities of the parties.
Second, contribution rules are not traditional matters of state rather than federal concern. Federal courts have fashioned common law contribution principles in civil rights cases, Glus, supra, and in anti-trust cases, Wilson P. Abraham Constr. Corp. v. Texas Industries, Inc., 604 F.2d 897 (5th Cir. 1979), cert. granted sub nom. Texas Industries, Inc. v. Radcliff Materials, Inc.,-U.S.-, 101 S.Ct. 351, 66 L.Ed.2d 213 (1980) (contribution is a matter of federal law). Federal contribution rules have long governed collision cases in admiralty, Halcyon Lines v. Haenn Ship Ceiling & Refitting Corp., 342 U.S. 282, 72 S.Ct. 277, 96 L.Ed. 318 (1952), and govern the availability of contribution in admiralty actions for personal injury not based on collisions, id., Cooper Stevedoring Co. v. Fritz Kopke, Inc., 417 U.S. 106, 94 S.Ct. 2174, 40 L.Ed.2d 694 (1974).
Finally, contribution rules, unlike limitations and survival rules, are not invariably legislative creations. Federal courts have fashioned contribution rules in various fields. Some state courts have overruled the ancient rule against contribution without waiting for the adoption of a contribution statute. W. Prosser, Handbook of the Law of Torts § 50 at 306-07 (4th ed. 1971). Thus no special considerations of institutional competence prevent the courts from elaborating a federal common law of contribution in civil rights cases.
Our decision that federal law determines the availability of contribution in federal civil rights suits requires us to determine what that rule is where one of two defendants settles with a plaintiff before a trial. The non-settling defendants claim that they should receive a pro rata reduction of the damages award because the plaintiff has deprived the defendant of recourse against the settling defendant. This, the defendant urges, would be the result under the “enlightened” New Jersey rule. The plaintiff replies that the district court correctly applied a rule of pro tanto reduction.
Our decision in the Glus case, supra, does not resolve this problem. There the only defendant settled the plaintiffs entire claim. The defendant then sued the joint tort-feasor for contribution, and received it. There this Court did not have to consider the effect of a settlement which ended the settling defendant’s direct liability to the non-settling joint tort-feasor. The effect such settlements should have is not an arid and technical question. It is one rooted in important and conflicting principles of public policy. Three principles must be considered in choosing the rule.
First, the law generally seeks to assure the tort victim neither more nor less than one complete satisfaction of his claim. A rule of pro tanto reduction accomplishes this goal. A rule of pro rata reduction frustrates it to the extent that the plaintiff makes a good or a bad settlement.
Second, the law seeks to encourage settlements. A rule that the settling defendant will remain liable to contribute after an award against a non-settling defendant would impede settlements. So would a rule that the plaintiff must give non-settling defendants the benefit of a pro rata reduction in their liability. The 1939 Uniform Contribution Among Tort-feasors Act emphasized competing policies rather than the policy of promoting settlements. Section 4 of the 1939 Act required a pro tanto credit for the amount of settlements the plaintiff received. However, Section 5 declared that settling defendants remained liable to contribute to non-settling defendants unless the .release provided for a pro rata reduction of the plaintiff’s damages recoverable against all the other tort-feasors. The 1955 Uniform Contribution Among Tort-feasors Act abandoned that policy choice. The 1955 Act retains the direct pro tanto credit rule. But section 4(b) now provides:
When a release or a covenant not to sue or not to enforce judgment is given in good faith to one of two or more persons liable in tort for the same injury or the same wrongful death; . .. (b) It discharges the tort-feasor to whom it is given from all liability for contribution to any other tort-feasor.
See, 73 A.L.R.2d 403 (1960).
Third, considerations of justice suggest that tort-feasors whose conduct has caused a plaintiff a single injury should be equally liable (or, in comparative fault jurisdictions, should be liable in proportion to the degree of their fault) for the injury. A rule of pro rata reduction achieves the goal of equality albeit at the expense of other values. The same could be said of the rule of the 1939 Act which held a settling defendant liable to contribute. A rule of pro tanto reduction, on the other hand, defeats a goal of equality.
None of these competing principles is insignificant. The law must choose to promote some at the expense of others. The choice has varied in different jurisdictions, and some courts have chosen to avoid innovation while calling for a legislative solution to the problem of choice. The issues posed are clear. The work of the law requires an early and definite declaration of a rule for the guidance of attorneys and litigants. The question of contribution rules is fairly presented in this case, and should not be avoided or deferred. As Judge Higginbotham of this panel wrote in Glus,
There are countervailing arguments, and the policy choice is a difficult one. But the litigants before us have tendered the issue, and its closeness does not absolve us from the obligation to decide it. Nor does our action become an impermissible encroachment on the legislative branch, merely because of the difficulty of the issue presented. [Whichever rule we adopt,] we must make a choice.
Supra at 257. In making our choice, we accord the least weight to the third principle. We believe that parties generally will have sufficient incentive to negotiate settlements as vigorously as they can, and that in most cases the settlements achieved will not deviate unacceptably from the aimed for proportionality of payment. We further believe that in most cases favoritism will present no problem, and that skilled attorneys will be able to discover collusive settlements and avoid the feared harmful effects of the collusion. We see no necessary conflict between the first two policies. The policy of allowing complete satisfaction is furthered by a rule of pro tanto credit. And the rule of pro tanto credit is plainly preferable to a rule of pro rata credit in encouraging settlements. We therefore hold that in federal civil rights cases, where one or more defendants have settled with a plaintiff, the damages recoverable by that plaintiff shall be reduced by the amount of the settlement received. Since we see nothing inconsistent with this rule in the decision of the district court, its decision on this point will be affirmed.
One further issue concerning contribution requires discussion. The decision of the district court did not specify whether it was based on the New Jersey law of contribution or on federal law. New Jersey law generally allows non-settling defendants a pro rata credit for settlement. Theobald v. Angelos, 44 N.J. 228, 208 A.2d 129 (1965). However, the non-settling defendant has the burden of proving that the settling defendant was a proper source of contribution, i. e., that the settling defendant would have been liable to the plaintiff for causing the same injury which the non-settling defendant caused. If the non-settling defendant cannot prove this, he is entitled only to a pro tanto credit, id. In this case the decision of the district court does not hold that Mr. Ronay or Apartments and Homes would have been liable to the plaintiffs. In fact, it appears that they would not have been liable. Mr. Ronay, as agent for the non-settling defendants, entered into a lease with the Millers. When the non-settling defendants repudiated it, Mr. Ronay provided further assistance to the Millers. It does not appear that he discriminated against the Millers on the basis of race. Therefore even if New Jersey law applied on the issue of contribution, the decision of the district court would be affirmed.
B.
Additionally, this appeal calls upon the Court to consider whether the limit on the award of punitive damages contained in 42 U.S.C. § 3612(c) creates an absolute ceiling on punitive damages when concurrent liability is established under the Fair Housing Act and section 1982. Although this issue is one of first impression in this Court, decisions elsewhere have held that no ceiling exists, Dillon v. AFBIC Development Corporation, 597 F.2d 556 (5th Cir. 1979) and Fountila v. Carter, 578 F.2d 487 (9th Cir. 1978).
Section 1982 and the Fair Housing Act stand independently of each other. Sullivan v. Little Hunting Park, 396 U.S. 229, 90 S.Ct. 400, 24 L.Ed.2d 286 (1969) and Jones v. Alfred Mayer Co., 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189 (1968). While both statutes prohibit racial discrimination in real estate transactions, the language of each statute suggests that some forms of discrimination are not prohibited by both of these provisions, the Fair Housing Act does not prohibit racial discrimination in transactions having no nexus to realty, and section 1982 does not prohibit discrimination based on sex, religion or national origin. Thus to accept the proposition urged by the defendants, that the award of punitive damages be governed by reference to section 3612(c) when there is concurrent liability under the Fair Housing Act and section 1982, would be to create an undesirable anomaly in the law; punitive damages for racial discrimination having some nexus to realty would be limited to $1000 while no such limit would preclude a greater award for similar conduct in a transaction involving only personalty.
Because of the independence of the Fair Housing Act and section 1982 and because of our desire to avoid this unjustifiable result, we hold there is no ceiling on the award of punitive damages under these circumstances. The Court expresses no opinion as to the applicability of section 3612(c) when the discriminatory conduct is illegal solely under the Fair Housing Act as that problem is not presently before us. However, it is noted that the Fair Housing Act and section 1982 are not completely overlapping and may both remain viable depending upon the facts involved.
C.
Having decided that section 3612(c) does not limit the award of punitive damages in this case, we turn to the defendant’s contention that the district court had no basis to assess $25,000 in punitive damages against Mr. Nuekel and CIB, jointly. Federal courts award punitive damages when a defendant has acted “with actual knowledge that he was violating a federally protected right or with reckless disregard of whether he was doing so,” Coehetti v. Desmond, 572 F.2d 102, 106 (3d Cir. 1978), or “with such conscious and deliberate disregard of the consequences of his actions to others that his conduct is wanton.” Knippen v. Ford Motor Co., 546 F.2d 993, 1002 (D.C.Cir.1976) (quoted in Fountila v. Carter, 571 F.2d 487, 491 (9th Cir. 1978). We hold an employer liable for punitive damages for the conduct of his agent when the record shows that he was, “by action or knowledgeable inaction, involved in the wrongdoing,” Marr v. Rife, 503 F.2d 735, 745 (6th Cir. 1974), or that he has “authorized, ratified, or fostered the acts complained of.” Williams v. City of New York, 508 F.2d 356, 361 (2d Cir. 1974). The district court correctly applied those standards in this case. App. at 130-31. Considering that Mr. Nuekel and CIB had previously entered into a consent decree agreeing to pursue a policy of non-discrimination, and that Mr. Nuekel blithely admitted, via deposition, that he had not taken any action either to implement or enforce a policy of non-discrimination, but rather his only interest was to make money and further considering that guesswork alone was used to fulfill requirements to report the number of minority tenants, this Court is satisfied that the district court’s assessment of $25,000 punitive damages against entities receiving between $300,000 and $400,000 per month in gross rentals was not an abuse of discretion.
D.
The defendants challenge a portion of the compensatory damage award, specifically, the $4451.00 awarded as the difference in rent and utility bills between the substitute apartment and apartment sixty-seven. It is suggested that this award was improper because the Millers received fair economic value in exchange for their rent and utility payments and therefore suffered no legal damage. Defendants further contend that if the plaintiffs did suffer legal damage, then the proper measure of damages should be, by analogy to the measure of damages when a seller breaches a contract to sell real property, the difference between the rent specified in the lease for
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)". 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:
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sc_certreason
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L
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the reason, if any, given by the court for granting the petition for certiorari.
KAVANAGH, COLLECTOR OF INTERNAL REVENUE, v. NOBLE.
No. 70.
Argued November 18, 1947.
Decided December 22, 1947.
Lee A. Jackson argued the cause for petitioner. With him on the brief were Solicitor General Perlman, Assist ant Attorney General Caudle, Arnold Raum and Helen R. Carloss.
E. M. Baynes and W. H. Harris argued the cause and filed a brief for respondent.
Reginald S. Laughlin filed a brief as amicus curiae.
Mr. Justice Murphy
delivered the opinion of the Court.
This case is a companion to Jones v. Liberty Glass Co., ante, p. 524.
The stipulated facts show that on March 16, 1936, the respondent taxpayer filed with the Collector of Internal Revenue a joint individual income tax return for himself and his wife for the calendar year 1935. This disclosed a tax liability of $8,017.01, which was duly paid. In the return the losses and gains from sales of capital assets by the taxpayer and his wife were reported together, the losses of the wife being deducted from the gains of the husband, resulting in a net loss in excess of $2,000. This amount (the allowable limit of loss) was deducted on the return.
On June 7, 1937, the taxpayer was advised at a conference with revenue agents that there was additional income tax due for the year 1935, aggregating $421.80. The taxpayer’s check, which was tendered for that amount, was later returned to him. Then by a letter dated June 11, 1937, a revenue agent notified the taxpayer that instead of a deficiency of $421.80 on the 1935 income tax return there was a deficiency of $19,973.93 and the taxpayer was furnished a computation showing the basis for such determination. The agent relied upon Article 117-5, Treasury Regulations 86, later declared void by this Court in Helvering v. Janney, 311 U. S. 189. After protest and further conference, the taxpayer gave the agent a check for $21,527.70, covering the then proposed deficiency assessment of $19,973.93, plus interest of $1,553.77. This check was remitted to the United States Treasury, after having been received by the Collector on July 21, 1937.
On July 14, 1937, the taxpayer and his wife executed an agreement waiving certain statutory restrictions in their favor and consenting to the immediate assessment and collection against them of 1935 income tax in the principal sum of $19,973.93, plus deficiency interest of $1,553.77, which the Commissioner thereafter assessed. The agreement specified in a footnote that it was not a final closing agreement under § 606 of the Revenue Act of 1928 and that it did not therefore preclude the assertion of a further deficiency if one should be determined, nor did it extend the statutory period of limitation for refund, assessment or collection of the tax.
On January 28, 1941, the taxpayer and his wife filed a claim for refund of $21,105.90, plus interest, on the ground that there had been an illegal assessment and collection since the revenue agents had “refused to allow the losses of one spouse against the gains of the other spouse in the joint return of husband and wife.” Reference was made to § 3313 of the Internal Revenue Code, specifying a four-year period of limitations. The Commissioner of Internal Revenue rejected this claim in reliance upon § 322 (b) (1) of the Revenue Act of 1934 (the same as § 322 (b) (1) of the Code), establishing a two-year period of limitations; it was pointed out that § 3313 specifically excludes income taxes from those for which a claim may be filed within four years after payment.
On July 12, 1941, the taxpayer filed his individual claim for refund of $21,527.70 paid with respect to the year 1935. The claim was on the same grounds as the claim previously filed by the taxpayer and his wife. This claim was returned with the request that the wife join in the execution of the claim; this request was refused and the claim was returned to the Collector; once again the claim was returned to the taxpayer.
The taxpayer then brought this suit against the Collector to recover the amount alleged to be due in the refund claim. The District Court held that the decision of the Sixth Circuit Court of Appeals in United States v. Lederer Terminal W. Co., 139 F. 2d 679, controlled the case and made it clear that the four-year period of § 3313 was applicable. Summary judgment was therefore entered for the taxpayer. 66 F. Supp. 258. The Sixth Circuit Court of Appeals affirmed per curiam, 160 F. 2d 104, citing its previous decision in the Lederer Terminal case.
For reasons which we have set forth in Jones v. Liberty Glass Co., ante, p. 524, the decision below cannot stand. The two-year period provided by § 322 (b) (1), rather than the four-year period of § 3313, governs income tax refund claims. The overpayment which brings § 322 (b) (1) into operation occurs whenever the taxpayer has paid an amount over and above his true liability. Hence, if we assume that the deficiency assessment and collection in this case were without legal authority, the taxpayer’s payment of that illegal assessment was an overpayment within the meaning of § 322 (b) (1). And he had two years from the date of that payment within which to file a claim for refund. Since he did not file his claim until three and a half years after payment, the claim was out of time.
It may well be that the taxpayer’s refund claim was prompted by this Court’s decision in Helvering v. Janney, supra, which set aside the Treasury regulation upon which the deficiency assessment was based. That decision was rendered on December 9, 1940, and the taxpayer filed his first refund claim on January 28, 1941. But assuming that the Janney decision makes clear that the taxpayer here made an overpayment, the loss which he now suffers from an application of § 322 (b) (1) is a loss which is inherent in the application of any period of limitations. Such periods are established to cut off rights, justifiable or not, that might otherwise be asserted and they must be strictly adhered to by the judiciary. Rosenman v. United States, 323 U. S. 658, 661. Remedies for resulting inequities are to be provided by Congress, not the courts.
Moreover, it is not our province to speculate as to why Congress established a shorter period of limitations relative to the income tax than is the case of those taxes governed by § 3313. It is enough that § 322 (b) (1) creates a two-year period applicable to all income tax refund claims and that the claim in this case is of that type.
Reversed.
Mr. Justice Douglas dissents.
Question: What reason, if any, does the court give for granting the petition for certiorari?
A. case did not arise on cert or cert not granted
B. federal court conflict
C. federal court conflict and to resolve important or significant question
D. putative conflict
E. conflict between federal court and state court
F. state court conflict
G. federal court confusion or uncertainty
H. state court confusion or uncertainty
I. federal court and state court confusion or uncertainty
J. to resolve important or significant question
K. to resolve question presented
L. no reason given
M. other reason
Answer:
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