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songer_genresp1
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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.
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.
Leonard L. EDSALL, Plaintiff-Appellant, v. PENN CENTRAL TRANSPORTATION COMPANY, Defendant-Appellee.
No. 72-1995.
United States Court of Appeals, Sixth Circuit.
Argued April 20, 1973.
Decided May 22, 1973.
John Ruffalo, Youngstown, Ohio, for plaintiff-appellant.
Thomas R. Skulina, Cleveland, Ohio, for defendant-appellee; John F. Dolan, Cleveland, Ohio, of counsel.
Before PHILLIPS, Chief Judge, and McCREE, and LIVELY, Circuit Judges.
PER CURIAM.
We consider the appeal of a Federal Employers’ Liability Act claimant whose complaint was dismissed without prejudice on September 6, 1972, because neither he nor his counsel of record appeared in court to proceed with the trial of his case when it was called on September 5. The trial date had been set in an order filed by the District Judge on July 21, 1972, and the order further provided:
No additional continuance will be granted, and it is FURTHER ORDERED that in the event John Ruf-falo, Sr. is unable to proceed on the date heretofore indicated, replacement counsel will be prepared to proceed as aforesaid.
Although the order of dismissal purported to be without prejudice, the three-year statute of limitations (45 U.S.C. § 56) had run on one of plaintiff’s claims, and the statute ran on plaintiff’s other claim two weeks later.
Appellant’s counsel argues that he did not appear to try the case because he had been ill and had so apprised the court in July. He claims that he endeavored to telephone the District Judge a few days before the trial date but that the Judge was unavailable. (This period included the Labor Day weekend.)
We regard the attorney’s efforts as totally insufficient. He could have but did not write to the court to request a continuance. He could have but did not ask another lawyer to answer the call of the case to explain his absence and to request a continuance. He could have but did not arrange for his client to be present to explain the indisposition of his lawyer and to request a continuance. He could have but did not obtain replacement counsel to try the case in his stead (he did manage to secure replacement counsel by October 1).
The failure to accord opposing counsel and the court this minimum consideration and courtesy in these days of crowded calendars would ordinarily have fully justified the drastic sanction of dismissal of the cause. However, there are special circumstances here. The record does not indicate that Mr. Edsall knew of the requirement in the July 21 order that he be prepared to proceed with replacement counsel if Mr. Ruffalo should have been unavailable, and in the absence of the affirmative showing of such knowledge we are reluctant to punish the client for the behavior of the lawyer. Further, plaintiff’s claims are now time-barred and the dismissal thus effectively prevents plaintiff from ever having his day in court. And, the relief he seeks is based on a remedial and humanitarian statute that was specially enacted by Congress to afford relief to employees from injury incurred in the railway industry. See Urie v. Thompson, 337 U.S. 163, 69 S.Ct. 1018, 93 L.Ed. 1282 (1949).
Accordingly, as we said in Berardi v. Pure Oil Corporation, 456 F.2d 98, 99 (6th Cir. 1972), “we are hard-pressed to find an abuse of discretion in the court’s dismissal, and do so only because we believe that the interests of justice require that [appellant] be afforded one more opportunity to conform [his actions] to the court’s orders.” Any further delay occasioned by appellant or his counsel will not evoke the same special solicitude on our part, and we expressly reject counsel’s contention that the court was without power to enter the dismissal order. We reverse only because in balancing the equities, the interest of the employee who claims injury (not his counsel) outweighs, if only slightly so, the interest of the railroad and the concern of the court for its calendar, on these facts.
We decline to consider the issues relating to discovery because as the ease now stands they are interlocutory in nature and review of them may never be required.
Reversed and remanded for further proceedings consistent herewith. Costs will abide the outcome of the case on its merits.
. The letter, dated July 20, 1972, read as follows:
Dear Judge Krupansky:
I am enclosing herewith a letter from Dr. John N. McCann of Youngstown, Ohio in respects to his medical advice relating to my present physical condition.
Dr. McCann, as you will note, advises that I cease activities for a period of one month and will evaluate me again at that time as to the likelihood of my resuming my activities or whether to continue on the basis of his original medical advice or on a restricted activity basis.
I regret that I am unable to fulfill my obligations at this time but matters concerning my health must be given first priority. As soon as my physician advises me that I can return to active duty, I will notify you.
SS: John Ruffalo
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_weightev
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A
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What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?" This includes discussions of whether the litigant met the burden of proof. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
EAGLE IRON WORKS v. MCLANAHAN CORPORATION, Appellant.
No. 17925.
United States Court of Appeals, Third Circuit.
Argued Jan. 23, 1970.
Decided July 9, 1970.
William H. Pattison, Jr., Pattison, Wright & Pattison, Washington, D. C. (William H. Webb, Webb, Burden, Robinson & Webb, Pittsburgh, Pa., on the brief), for defendant-appellant.
Thomas E. Dorn, Wallace, Kinzer & Dorn, Chicago, 111. (V. A. Peckham, Brown, Murray, Flick & Peckham, Pittsburgh, Pa., Kinzer, Dorn & Zickert, Chicago, 111., on the brief,) for plaintiff-appellee.
Before FORMAN, SEITZ and ADAMS, Circuit Judges.
OPINION OF THE COURT
FORMAN, Circuit Judge.
This is an appeal by the McLanahan Corporation of Hollidaysburg, Pennsylvania, from a judgment of the United States District Court for the Western District of Pennsylvania in favor of Eagle Iron Works [Eagle], a corporation of Des Moines, Iowa. The case involves a patent infringement suit instituted by Eagle against McLanahan under 28 U.S. C. §§ 1338(a) and 1400(b), alleging infringement of United States Letters Patent No. 3,160,321. McLanahan urges that the patent is invalid as obvious and that Eagle is estopped from claiming infringement because McLanahan acquired intervening rights as a result of a Certificate of Correction issued to Eagle and because of Eagle’s inequitable conduct before the Patent Office in securing the Certificate. The case was tried without a jury and the District Judge held that the patent was valid; that McLanahan had infringed claims 1, 2, 3, 15 and 16, and that Eagle was not estopped from claiming infringement.
The patent in question is known commercially as “AUTOSPEC.” It is an automated control system for a water scalping and sand classifying tank, a principal element in the apparatus of modern sand plants, which classifies sand and gravel by size and reblends them to given specifications. It was developed by Clement B. Cochran, an employee of Eagle, who began working on it in 1959. The first patent application was filed in 1961. Ultimately, the patent in suit, numbered 3,160,321, was issued on December 8, 1964 to Mr. Cochran, assignor to Eagle.
In general, sand is classified by size by introducing a slurry mixture of sand and water into a water scalping and sand classifying tank. The tank is an elongated V-shaped rectangular receptacle which allows the slurry to flow longitudinally into it. The coarser sand settles first nearest the feed end and progressively finer sand settles toward the other end. This settling occurs as a result of two forces: (1) the velocity of the slurry stream; and (2) gravity. Slimes and extremely fine particles are discharged at an overflow weir at the end opposite the introduction point.
In a conventional tank reblending was accomplished by a series of discharge stations located along the bottom of the tank. Each station discharged a different size sand. Discharge occurred when a sand level sensing device, such as a paddle on a rotating shaft, usually 14 to 18 inches above the bottom of the tank, determined an adequate accumulation of sand. When this occurred, the station opened and the sand flowed into a splitter box. Each splitter box (one for every station) had two or more discharge gates connected to separate flumes. If two different specifications were desired, a three-gate splitter box was used, two gates for products and one for waste. Each gate of the box was manually adjusted to give the desired proportion. The two proportions representing products were then passed into two separate flumes to form the two specification products. A typical arrangement was a three gate box where two gates were set for products, one cement and one concrete, and the third for waste. The structural and functional details of the operation of the conventional tank, as described above, were well known in the art at the time of the Cochran invention.
The primary problem with a conventional tank was that the size gradations fed into the tank could vary, creating a corresponding variation in the amounts available at each discharge station. This made it necessary to sample each product at frequent intervals to determine whether it was receiving a proper proportion of the various sizes of sand. If the proper proportion of one size was not being fed into the products, the gates had to be adjusted accordingly. Without constant sampling and readjusting, large build-ups of non-specification material resulted.
The Cochran invention eliminates the manual operation and the need for splitter boxes. It produces a continuous product despite changes in the input to the tank. To accomplish this, it employs a number of timers that measure the cumulative times of sand discharged from the individual outlets at the discharge stations. This cumulative timing mechanism is one of the essential features of the Cochran invention. Simply described, it is a system having three outlets with two discharge stations for products and one for waste, which operates as follows: When the predetermined amount of sand at any outlet is discharged, the timer “times out” and closes the valve. The excess material is diverted to either another product outlet at the discharge station or to a waste outlet. When all the outlets for a product “time out” the system resets itself.
Late in 1962, McLanahan, a competitor of Eagle in the manufacturing and sale of this type of machinery, undertook to develop an automatic system to control its sand classifying and water scalping tanks. Allegedly, this undertaking was totally independent of Eagle’s work. McLanahan solicited the aid of Jordan Controls, a supplier of electrical control apparatus. McLanahan submitted to Jordan a set of specifications of the type of system it desired together with drawings pursuant to which and under Mc-Lanahan’s direction Jordan designed a system which McLanahan incorporated in its tanks and sold under the name of “CARDO-MATIC.” One of its sales was to Fayettville Sand and Gravel Inc., in Fayettville, North Carolina in March 1965. It is this system that Eagle alleged, and the District Judge found, infringed the Cochran invention.
Practically all of the facts involved in this litigation were stipulated by the parties. There is little contest as to Mc-Lanahan’s infringement of the Cochran patent unless McLanahan prevails in its contention that the patent is void for obviousness, that the Certificate of Correction was invalidly issued or on its subsidiary assertions that it had intervening rights and that Eagle acted in bad faith in inducing the Patent Office to issue the Certificate of Correction.
Defense of Obviousness
McLanahan claims that the Cochran invention is invalid under 35 U.S.C. § 103 which states:
“A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102 of this title, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negatived by the manner in which the invention was made.”
In Graham v. John Deere Co., the Supreme Court outlined the applicable test in determining obviousness as follows:
“Under § 103, the scope and content of the prior art are to be determined, differences between the prior art and the claims at issue are to be ascertained; and the level of ordinary skill in the pertinent art resolved. Against this background, the obviousness or non-obviousness of the subject matter is determined.”
In connection with this test, it is important to note that under 35 U.S.C. § 282, a patent is presumed valid and the burden of establishing invalidity is on the party claiming it.
At trial, McLanahan introduced into evidence five patents as prior art which it argued proved that the Cochran invention was obvious in 1961. The five patents are: (1) Martin, No. 2,766,886, issued April 2, 1951; (2) Saxe, No. 2,760,-634, issued December 18, 1951; (3) Simmons No. 3,012,156, issued March 13, 1957; (4) Nielson, No. 2,948,437, issued April 24, 1957 and (5) Lovette, No. 3,-042,261, issued October 27, 1958. •
McLanahan contends that the District Judge's holding that Eagle’s patent was valid and infringed was erroneous both in law and fact. Specifically it urged that his conclusions that the prior patents it introduced did not in fact constitute prior art in these proceedings were meaningless under a section 103 defense, having relevance only if a defense under section 102 had been asserted. Moreover, MeLanahan asserts that although the District Judge recognized the criteria for obviousness of the subject matter of an issued patent laid down in Graham v. John Deere Co., it made only summary conclusions that the subject matter of the patents was non obvious without meaningful findings of fact in support of such conclusions.
Of the three patents upon which MeLanahan relied to prove obviousness, the Lovette patent dispenses rocks of varying size from different bins situated along a conveyor belt. The system depends on a constant supply of material in each bin. Unlike the Cochran invention, it does not control a varying output. More importantly, there is no cumulative time measuring control.
The Simmons patent is a system designed to perform routine industrial plant operational functions. It does not specifically refer to sand but it is claimed to operate any machine of almost any nature. It is questionable whether it could be adapted to a tank which does not have a constant flow of all materials. Although Eagle’s expert, Mr. Fischer, admitted that perhaps the Simmons patent could control a sand classifying tank he went on to state:
• “Well, you would have to have a tank that — I am assuming that the scalping tank has the valve arrangements you were thinking of, electrically operated valves. But, you would have to add, you would also have to be sure that you had a sensing switch in the tank at each station. You would also have to get some timers.
“There is no provision in the Simmons patent for the timers that you would need. The type of timers that you would need. So you would have to get those.
“Then this device, I am sure, someway or other that in time you could make it work. Now, what I mean by that is that you could not make it decide how to operate the tank, but you could make the electrical connections through this device. It would be sort of a ridiculous use of it because there are something like 25 decision units.
“Then, of course, the big thing, the Simmons patent would not tell you, it would not tell you what you wanted to do because the Simmons patent is not related in any way to any scalping tank or any sand classifying tank. It is not related in any way to the timing and the obtaining of two products.
“The Simmons patent, you might just as well say that you could do this with electrical control circuits because that is all really the Simmons patent is, a bunch of electrical circuits. But, there are hundreds of other circuits you could use too. It sheds no light, really on the problem.” (Emphasis added.)
Finally, the Martin patent was not actually admitted into evidence because MeLanahan failed to give Eagle the required notice of its intention to offer it, but testimony concerning it was accepted under Rule 43(e). This patent is on a system for separating coal from slag and rock. It does use a sensing device and a valve system to release the coal. Importantly, however, it does not measure cumulative periods of time of discharge as does the Cochran system.
As stated previously, the essential feature of the Cochran invention was that it cumulatively measured the output of sand of different sizes from each of several discharge stations and closed the valves when the predetermined amount had been discharged thereby preventing non-specification build-ups. Because if incorporated a cumulative timing system, it was able to deal with varying inputs into the scalping tank. None of the three patents — Lovette, Simmons and Martin — introduced by McLanahan described a system that suggested or could accomplish this.
The opinion of the District Judge discloses that he considered (1) the scope and content of the prior art and (2) the differences between it and the patent in question substantially in conformity with the foregoing discussion. He analyzed the function of each of the three patents and how they differed in important aspects from the Cochran invention. Specifically, he observed:
“The Saxe and Nielson patents were considered by the Patent Office. The Lovette patent discloses a mixing apparatus for a sand and gravel aggregate plant. However, it lacks timing or other means for the measurement of flow. Likewise, the Simmons pat-tent does not utilize timing or other means to measure materials flowing at indeterminate intervals. The Martin patent lacks the cumulative timing devices of the Cochran patent. We are not satisfied that either Martin or Simmons, or Lovette constitute part of the prior art of the Cochran patent.”
Thus, the District Judge satisfied the first and second criteria established in Graham v. John Deere Co.
As to the third criterion in Graham— the resolution of “the level of ordinary skill in the pertinent art” — McLanahan argues that the District Judge failed to meet that requirement. Thus the question is raised whether the District Judge found non obviousness of the Cochran patent from his own evaluation of the prior art rather than by determining it against the background of the level of ordinary skill in the art as prescribed in section 103.
At the trial McLanahan offered its engineer, Joseph G. Rigby, Jr. as a worker skilled in the art. ' He testified as to his familiarity with the prior art and the subject patent. He described the manner in which the scalping and sand classifying machines operated before and after the development of the AUTOSPEC and CARDOMATIC systems and to his contribution to the latter. Roy F. Rumbaugh, McLanahan’s sales manager, also testified regarding the development of its CARDOMATIC system. Both witnesses were conceded to be skilled in the art.
Similarly, Eagle offered three witnesses — Weldon Arden Thalacker, its sales engineer; Robert B. Keeney, its engineer and Clement B. Cochran, its chief engineer and the inventor, all of whom described the state of the art before and after the Cochran invention. Additionally, expert witnesses for each of the respective parties — Don A. Fischer for Eagle, and Franklyn M. Mc-Corkle for McLanahan — gave their opinions as to whether a worker skilled in the art would have found the Cochran invention obvious at the time it was conceived. Not unexpectedly, their testimony is in direct conflict. While no specific statement was adduced from any witness as to the level of skill of the art in 1959, the time of the invention, the general testimony of each witness amply manifested his knowledge of, and familiarity with, the state of the art at the time in question.
In his opinion the District Judge noted the testimony of the various witnesses above mentioned making him aware of the level of skill in the art described by them. It is true that in his opinion he followed a listing of the witnesses with the comment: “None of the witnesses was totally disinterested. The testimony of each party’s witnesses supported its interest.” This observation merely indicated that the District Judge was weighing the credibility of the witnesses, as was his province, and in no measure can be sáid to be an outright rejection of all of the testimony regarding the level of skill in the art. It is obvious that the District Judge in fact accredited Eagle’s expert, Mr. Fischer, more heavily than McLanahan’s expert, Mr. Mc-Corkel.
The testimony to which we have adverted made quite clear the level of skill in the art. Any suggestion that the District Judge ignored it and determined the unobviousness of the Cochran patent solely from his own evaluation of the pri- or art, is far from convincing in the light of his specific reference to the issue of obviousness and his recital of witnesses in connection therewith. We are persuaded that in determining that the Cochran patent was not obvious he did so with the level of skill in the art as a background.
The thorough and exhaustive opinion of the District Judge demonstrated a comprehensive exposition of all of the issues presented. His particularization of section 103 and his frequent references to the issue of obviousness in his opinion show that he was completely aware of McLanahan’s defense based thereon and leave unsubstantiated its charge that he directed his decision to section 102 rather than section 103. Although his reference to Graham’s third criterion regarding the level of skill in the art and the necessity for determining obviousness in the prior art against a background of its resolution was sparse, a reading of the entire opinion reinforces the conviction that there was a full compliance with all criteria of Graham.
McLanahan’s assertion that it found it a simple matter to duplicate the system is not a conclusive test of obviousness. Even if this suggests that the Cochran patent was simple, the simplicity of an invention is not a necessary bar to a patent. Similarly, that Mr. Cochran used devices already known, such as timers, does not invalidate his invention as long as he put them together in a manner heretofore unknown which was not obvious. The fact remains that Mr. Cochran was the first to develop a system which apparently solved many of the problems plaguing the efficient control of scalping tanks.
The burden of proving invalidity is a heavy one, and McLanahan, on whom it rested, failed to meet this difficult task. We conclude that the District Judge’s decision as to the non-obviousness of the Cochran invention was sufficient in both law and fact.
Defenses Arising Out of Certificate of Correction
McLanahan contends that a Certificate of Correction issued to Eagle on March 1, 1966 rendered the patent unenforceable against it for three reasons, viz., that it enlarged the scope of certain of the patent claims; that McLanahan had acquired intervening rights by its sale of equipment incorporating the control system alleged to have infringed Claims 1 and 3 of the Cochran patent 3,160,321, as amended by the Certificate of Correction, more than a year prior to the application for the Certificate, and that the Patent Office was induced to issue it by the exercise of bad faith. The Certificate authorized the deletion of the word “first” from Claims 1 and 3 which McLanahan contends changed the system from a sequential to a simultaneous operation. It is argued that prior to the Certificate the claims mentioned provided that the second product valve would not open until the first product valve “timed out.” Since the system developed by McLanahan operates simultaneously, it is its position that prior to the issuance of the Certificate McLanahan did not infringe the patent.
The Certificate of Correction was issued pursuant to 35 U.S.C. § 255 which in pertinent part provides:
“Whenever a mistake oí a clerical or typographical nature, or of a minor character, which was not the fault of the Patent Office, appears in a patent and a showing has been made that such mistake occurred in good faith, the Commissioner may * * * issue a certificate of correction, if the correction does not involve such changes in the patent as would constitute new matter or would require re-examination. Such patent, together with the certificate, shall have the same effect and operation in law on the trial of actions for causes thereafter arising as if the same had been originally issued in such corrected form.”
The statute permits a minor error, when made in good faith, to be corrected. In effect, the correction is given retroactive application in order that intervening rights may not be alleged. It does not constitute a reissuance of the patent and does not authorize a broadening of claims. Where there is a change altering the scope of a patent, 35 U.S.C. § 252, regulating reissued patents, controls and under it intervening rights may be achieved.
MeLanahan insists that the Certifícate of Correction was the equivalent of a reissuance of the Cochran Patent since it did not simply change a minor error but substantially changed the manner in which the system functioned. It asserts that before the Certificate of Correction the Cochran Patent envisioned a two product one waste system which was designed to operate by presetting the second product valve to zero and diverting material to waste until the predetermined amount was discharged at the first product valve. When it “timed out” the second product valve would then operate.
Eagle, on the other hand, urges that McLanahan’s interpretation is without foundation because it would require each timer preset at zero to measure a discharge which could not occur because the zero setting would prevent the timer from allowing a discharge. It argues that the zero-setting theory was conceived by McLanahan’s taking out of context statements made to the Patent Office by Eagle. Eagle adds that it made no misrepresentation in requesting the Patent Office to permit the correction of its minor error.
Both the Patent Office and the District Judge agreed with Eagle that the deletion of the word “first” in Claims 1 and 3 was a minor correction which only clarified the obviously intended simultaneous operation of the invention. That the Patent Office was aware of the alternative theory offered by McLanahan is apparent from McLanahan’s attempt to block the issuance of the Certificate by its letter contesting Eagle’s application for the Certificate.
An examination of the record confirms the opinion of the Patent Office and the District Judge that the Certificate of Correction was validly issued. Mr. Fischer’s. testimony makes it clear that McLanahan’s reading of the claims prior to their correction is contrived.
McLanahan vehemently asserts that Mr. Cochran conceded that the uncorreeted claims limited the invention to a sequential operation. A review of the cross-examination of Mr. Cochran, however, fails to support so restricted an interpretation of his testimony. It is true that he conceded that it is possible to operate the system by presetting one group of timers at zero thereby performing a one product operation and this was in no wise denied by Eagle at any time during the litigation. However, such concession does not derogate from Mr. Cochran’s positive testimony that a sequential operation was never intended or from Eagle’s position that the advantages of the patent resided in the concept of a simultaneous operation.
Additional support for the argument that the machine was not intended to operate only sequentially is found in the fact that there is an absence of evidence suggesting that Eagle constructed a machine where the second product responds only to the timer of the first product. When the original Claims 1 and 3 are read in conjunction with the remaining claims and specifications, it is clear that it was never intended to describe only an operation in which one set of timers was fixed at zero. The logical reading of the claims as a whole reveals that they describe that which could operate as a single product system but that they also describe that which was primarily designed to function as a simultaneous two product system.
Since it is our conclusion that the District Judge correctly held that the Certificate of Correction did not change the scope of the patent and that it was validly issued pursuant to the statute, McLanahan’s contention that it achieved intervening rights and its charge of bad faith on Eagle’s part in dealing with the Patent Office in connection with its application for the Certificate of Correction must fall.
For the foregoing reasons the final judgment and order of the United States District Court for the Western District of Pennsylvania of February 27, 1969 adjudicating that the United States Letters Patent No. 3,160, 321 is valid; that McLanahan infringed Claims 1, 2, 3, 15 and 16; that the Certificate of Correction was validly issued; that Eagle is entitled to a permanent injunction enjoining further infringement, an accounting for past infringement, costs, but not attorney’s fees as provided therein, and the denial of McLanahan’s counterclaim, will be affirmed.
. The chronology of pertinent Patent Office filings was:
September 26, 1961 — Application for patent, Serial No. 104,914, in the name of Clement B. Cochran.
August 23, 1962 — First official action issued by Patent Office, but that patent application was not prosecuted to a final determination.
August 23, 1963 — A second patent application, Serial No. 304,727, filed as a continuation in part of original application, Serial No. 140,914. It added Figures 8 and 9 which incorporated maximum and minimum timers.
June 4, 1964 — Application Serial No. 140,914 was abandoned in favor of continuation-in-part application Serial No. 304,727.
December 8, 1964 — United States Letters Patent No. 3,160,321 issued to Clement B. Cochran as assignor to Eagle Iron Works from application Serial No. 304,-727.
October 21, 1965 — Application for Certificate of Correction by Eagle correcting Claims 1, 3, 6 and 18.
March 1, 1966 — Certificate of Correction issued pursuant to foregoing Application.
This suit was instituted January 6, 1966 prior to the issuance of the Certificate of Correction by the Patent Office but a supplemental complaint was filed on May 11, 1966 incorporating an allegation concerning the issuance of this Certificate.
. AUTOSPEC was exhibited February 5 through February 8, 1962, in Chicago, at the trade show of the National Sand and Gravel Association. Since several of Mc-Lanahan’s employees attended that show, knowledge of the system was available to McLanahan, although its witnesses denied that they saw the exhibit. Also, by spring 1962, nine systems embodying the Cochran invention had been sold by Eagle.
. 383 U.S. 1, 86 S.Ct. 684, 15 L.Ed.2d 545 (1966).
. ' Id. at 17, 86 S.Ct. at 694. And in Anderson’s Black Bock Inc. v. Pavement Salvage Co., Inc., 396 U.S. 57, 62, 90 S.Ct. 305, 24 L.Ed.2d 258 (1969), a case involving a combination patent, the Court reminded us of its admonition “that strict observance of those requirements is necessary.”
. 35 U.S.C. § 282 in part reads:
“A patent shall be presumed valid. The burden of establishing invalidity of a patent shall rest on a party asserting it.”
. Mr. Cochran is charged with a comprehensive knowledge of the prior art. Continental Can Company v. Crown Cork & Seal Company, 415 F.2d 601, 603 (3 Cir. 1969).
. Two of the five patents (Saxe and Nielson) were considered and discarded by the Patent Office at the time of the application. At trial McLanahan did not attempt to show that these two patents rendered the Cochran patent obvious. Instead, they were introduced into evidence to establish that the Patent Office gave them consideration rather than more relevant examples of prior art. McLanahan’s expert, Franklin W. Mc-Corkel, testified as follows:
“Q. Now, Mr. McCorkel, within your skill and knowledge of this particular art, what is your opinion as to the relevancy of those two patents [Saxe and Nielson] on the subject matter of the Cochran patent as compared with the relevancy of the Lovette and Simmons patents to which you have previously referred?
“A. Well, I do not think there is too much relevancy to the Nielson or Saxe patents. Not nearly as much relevancy as there is in the case of Simmons or Lovette.
“Q. You feel that Simmons and Lovette are more closely aligned to and related to the subject matter of the Cochran patent than the disclosure of these two?
“A. Definitely. Much more closely, sir.”
. 35 U.S.C. § 102 states:
“A person shall be entitled to a patent unless
(a) the invention was known or used by others in this country, or patented or described in a printed publication in this or a foreign country, before the invention thereof by the applicant for patent, or
(b) the invention was patented or described in a printed publication in this or a foreign country or in public use or on sale in this country, more than one year prior to the date of the application for patent in the United States, or
(c) he has abandoned the invention, or (d) the invention was first patented or caused to be patented by the applicant or his legal representatives or assigns in a foreign country prior to the date of the application for patent in this country on an application filed more than twelve months before the filing of the application in the United States, or
(e) the invention was described in a patent granted on an application for patent by another filed in the United States before the invention thereof by the applicant for patent, or * *
. 383 U.S. 1, 17, 86 S.Ct. 684, 15 L.Ed.2d 545, supra.
. In fact, there is no time measurement. Eagle’s expert, Mr. Fischer, testified that the Lovette patent did not have a timing mechanism to measure the amount, of discharge. Transcript, pp. 785-86a. Mr. McOorkel, McLanahan’s expert, was unable to determine whether the Lovette patent had timers. He stated only that in the Lovette patent measurement was a function of the size of the opening of the valve. Transcript, p. 754, pp. 765-68.
. Federal Rule of Civil Procedure 43 (c) provides:
“(c) Record of Excluded Evidence. In an action tried by a jury, if an objection to a question propounded to a witness is sustained by the court, the examining attorney may make a specific offer of what he expects to prove by the answer of the witness. The court may require the offer to be made out of the hearing of the jury. The court may add such other or further statement as clearly shows the character of the evidence, the form in which it was offered, the objection made, and the ruling thereon. In actions tried without a jury the same procedure may be followed, except that the court upon request shall take and report the evideuce in full, unless it clearly appears that the evidence is not admissible on any ground or that the witness is privileged.”
. Among Mr. Fischer’s qualifications are a degree of Bachelor of Science in electrical engineering and a degree of Bachelor of Laws. At Washington University he served in the following capacities: as an instructor and associate professor in electrical engineering; as an associate professor in industrial engineering; as a professor in engineering science; as the head of the Department of Industrial Engineering and as the Dean of the School of Engineering. Also he was employed as an engineer and as a patent attorney.
Among Mr. McCorkle’s qualifications are a Bachelor of Science degree in economics and President of the Aggregate Equipment Company, which performs essentially the same operations as the litigants. He has had extensive sales experience with water scalping and sand classifying machines.
. Below, in comparative columns, are pertinent excerpts from opinions of the experts:
By Mr. Pattison (McLanahan’s counsel)
Q. Mr. McCorkel, in your opinion does the Cochran Patent, Plaintiff’s Exhibit 1, disclose or claim any subject matter which as a whole would not have been obvious to a person skilled in the art in mid 1959?
A. No sir.
Q. Mr. McCorkel on what do you base that opinion?
A. There existed at that time a number of patents covering the same material. [The witness then analyzed and compared the following patents: Lovette, Simmons and Martin.] Transcript, p. 710.
Q. Now, Mr. McCorkel in respect to your summation and evaluation of this prior art, what you personally knew of the state of the art to be from your own experience in 1959, would you state what, if any, difference in the functional operation was attained by any one given component in the Cochran control system from the function which that component was known to otherwise individually and independently perform?
A'. I know of none. I mean, we speak of 1959, as though it were 1930 or 1920. We had sputniks orbiting the earth. We had satellites. We had re-entry. We had timing devices on these satellites, remote control systems. We had computers.
A pinball machine that we used when I was in high school is a more sophisticated electrical control system than the device we are discussing, than the device in the Cochran patent.
There are more sophisticated devices involved, I mean, if you are asking if this is an obvious development, it is not the obvious it was almost overdue. It was actually — excuse me.
If we look at the tanks as we have observed them, we put multiple ports in. The arrangement had been successfully worked out and all we had to do was put interrelated timing circuits which, as I say, a pinball machine has in it, and he had the Cochran patent. Transcript, pp. 742-43.
By Mr. Dorn (Eagle’s counsel)
Q. Dean Fischer, in your opinion would the Cochran invention have been obvious to a man of normal skill in the art at the time it was made, based on the evidence that you have heard at this trial?
THE WITNESS: In my opinion, it would not have been obvious. I say that because in all control systems which I have seen cited, and I have been over them very carefully, there is no suggestion of a control system that is similar in any way to the Cochran control system. This is from an electrical standpoint.
Also, in the. art that I saw and in the testimony that I heard, I heard no reference or I have seen nothing in the patents that indicate the concept that Cochran had of having this river of sand coming along a flume and letting it gather at stations, and then in order to conserve sand, to have two products, and a waste valve there, and to gather as much as they could for the first product. When something is left over, use it for the second product without wasting it. Then measuring that by determining how much material goes through the valve and accumulating this all on the timer.
I have seen no suggestion or anything like that, and I think as far as I am concerned, it would not have been obvious to a control man. I do not believe it would be obvious to sand and gravel people. Transcript, pp. 797-98.
. Appendix, p. 87.
. Blish, Mize and Silliman Hdwe Go. v. Time Saver Tools, Inc., 236 F.2d 913, 916 (10 Cir. 1956).
. See United States v. Adams, 383 U.S. 39, 50, 86 S.Ct. 708, 15 L.Ed.2d 572 (1966); Gilbert Spruance Co. v. Ellis-Foster Co., 114 F.2d 771, 773 (3 Cir. 1940).
. It is recognized that factors such as a long felt need in the industry and commercial success are usually regarded as secondary considerations suggesting non-obviousness. Continental Can Company v. Crown Cork & Seal Company, 4
Question: Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_treat
|
I
|
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.
Roque Antonio BELLIDO-TORRES, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
No. 92-1480.
United States Court of Appeals, Seventh Circuit.
Argued Oct. 2, 1992.
Decided April 29, 1993.
James Hallagan (argued), Minsky, McCormick & Hallagan, Chicago, IL, for petitioner.
Fred Foreman, U.S. Atty., Criminal Div., Chicago, IL, William J. Howard, David J. Kline, Robert Kendall, Jr., Anthony W. Nor-wood (argued), Dept, of Justice, Office of Immigration Litigation, Washington, DC, Richard L. Thornburg, U.S. Atty. Gen., Washington, DC, Samuel Der-Yeghiayan, I.N.S., Chicago, IL, for respondent.
Before POSNER and COFFEY, Circuit Judges, and FAIRCHILD, Senior Circuit Judge.
FAIRCHILD, Senior Circuit Judge.
Petitioner Roque Antonio Bellido-Torres petitions for review of a final order of deportation, including a denial of discretionary relief from deportation under § 212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c). An immigration judge had originally granted a waiver, but the Board of Immigration Appeals sustained the appeal of the Immigration and Naturalization Service, and ordered Bellido deported to Belgium or alternatively to Peru.
Bellido concedes that he is a resident alien and is deportable by reason of convictions for drug offenses. He fulfills the statutory requirements, as currently construed, for consideration of discretionary relief from deportation. See Akinyemi v. INS, 969 F.2d 285, 288 n. 3 (7th Cir.1992). Even where an applicant meets the statutory requirements under § 212(c), however, the Attorney General or his delegate must determine as a matter of discretion whether an applicant merits the relief sought, and the alien bears the burden of demonstrating that his application merits favorable consideration. Matter of Marin, 16 I & N Dec. 581 (BIA 1978); Matter of Buscemi, 19 I & N Dec. (BIA 1988); Akinyemi, 969 F.2d at 288.
Decisions of the BIA, principally Matter of Marin, set out the framework for the Board’s exercise of discretion, which requires a balancing of the social and humane considerations presented in an applicant’s favor against the adverse factors evidencing his undesirability as a permanent resident. Matter of Marin, 16 I & N Dec. at 584. The BIA has articulated a list of relevant factors, both favorable and unfavorable, to be weighed in the context of a 212(c) application. The favorable factors include family ties within the United States, residence of long duration — particularly if it begins at a young age, evidence of hardship to the alien and his family if deportation occurs, service in this country’s armed forces, a history of employment, existence of property or business ties, evidence of value and service to the community, proof of genuine rehabilitation if a criminal record exists, and other evidence attesting to the alien’s good character — e.g., affidavits from family, friends and responsible community representatives. Id. at 584-85.
Factors deemed adverse to an applicant seeking 212(c) relief include the nature and underlying circumstances of the exclusion ground at issue, the presence of additional significant violations of this country’s immigration laws, the existence of a criminal record — and if so the nature, recency, and seriousness of the offense, and the presence of other evidence indicative of the alien’s bad character or undesirability as a permanent resident. Id. at 584. One or more of these adverse considerations may ultimately be determinative of whether section 212(c) relief is in fact granted in an individual case. Id.
“As the negative factors grow more serious, it becomes incumbent upon the applicant to introduce additional off-setting favorable evidence, which in some cases may have to involve unusual or outstanding equities.” Id. at 585. Such a heightened showing is required when an alien has been convicted of a serious drug offense, particularly when it relates to the trafficking or sale of drugs. Id. at 586 n. 4. Although in its earlier decisions the Board stated that an alien with a criminal record “will ordinarily be required to make a showing of rehabilitation,” the BIA later took pains to make clear that rehabilitation is a factor to be considered, and not “an absolute prerequisite to a favorable exercise of discretion in every case involving an alien with a criminal record.” Matter of Edivards, Int.Dec. 3134, 1990 WL 289514, 1990 BIA Lexis at *13 (BIA May 2, 1990). Rather, a section 212(c) applicant with a criminal conviction must be evaluated on a case-by-case basis, with rehabilitation a factor to be considered in the exercise of discretion. Id.
We review the Attorney General’s discretionary denials for an abuse of discretion. Garcia-Lopez v. INS, 923 F.2d 72, 74 (7th Cir.1991). “Our examination of the denial is limited to whether the discretion was actually exercised and whether it was exercised in an arbitrary or capricious manner.” Id. (citing Villanueva-Franco v. INS, 802 F.2d 327, 329 (9th Cir.1986)); Akinyemi v. INS, 969 F.2d 285, 288 (7th Cir.1992). An abuse of discretion arises when a decision “was made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis such as invidious discrimination against a particular race or group.” Hernandez-Patino v. INS, 831 F.2d 750, 752 (7th Cir.1987) (quoting Achacoso-Sanchez v. INS, 779 F.2d 1260, 1265 (7th Cir.1985)); Vergara-Molina v. INS, 956 F.2d 682, 684 (7th Cir.1992).
Bellido, a 32-year-old native and citizen of Peru, was admitted to the United States in 1973 as a lawful " permanent resident. Bellido began selling cocaine in 1981 and continued until 1987, when he was arrested in Chicago for selling to an undercover police officer. The charges stemmed from three transactions: the first transaction took place on February 6, 1987, involving the sale of 2 to 3 ounces of cocaine; the second transaction occurred a few months later, again involving the sale of 2 to 3 ounces of cocaine; and the third transaction took place on March 17,1987, involving the sale of 12 to 13 ounces of cocaine. Prior to trial, Bellido jumped bail and fled to Miami, Florida, where he continued to use cocaine and, in 1988, was convicted for possession and sentenced to time served. On February 9, 1989, Bellido was arrested pursuant to a warrant issued in Illinois and returned to Chicago to stand trial on the 1987 charges. Bellido was convicted on April 7, 1989, in the Circuit Court of Cook County, Illinois, on three counts of delivery of a controlled substance and was sentenced to ten years imprisonment.
In its written decision, the Board first considered the factors in favor of waiver. Bellido presented evidence that he had resided continuously in the United States since his arrival at age 14 and that his mother, sister and older brother were United States citizens. In addition, Bellido demonstrated that he worked in the United States on a regular basis since age 15, attended junior high and high school in the United States and enrolled in one semester at a local community college. The Board also considered evidence that, after leaving home in 1978, Bellido had little contact with his family for a number of years and that he has a daughter whom he has not seen since her birth in 1987 and whom he does not support. Since his incarceration, Bellido has reestablished a relationship with his family. The BIA concluded that Bellido’s family ties demonstrated “a favorable but not unusual or outstanding equity.” In addition, the BIA found that Bellido’s period of residence was not an outstanding equity because during the time he had resided in the United States he engaged in criminal activity for six of the years and fled justice for five.
The BIA then considered the rehabilitation evidence submitted by Bellido. The BIA recounted Bellido’s testimony that he plans never to use drugs again, that he plans to return to school to obtain a degree in hotel management, and that he regretted the crimes he committed and the harm he had caused his family. Additionally, the Board took note that, while in prison, Bellido attended a number of college courses, received drug counseling through a 12-week substance abuse program and enrolled in Narcotics Anonymous. The Board found that, within his prison environment, Bellido had “demonstrated [a] good promise of rehabilitation”.
However, the Board found, his promise to change his past misconduct was insufficient to grant him relief. In this regard, the Board considered evidence that Bellido had used and sold cocaine for eight years but never sought treatment previously, had fled justice and continued to use drugs after his arrest in 1987, was again arrested and convicted while in Florida for possession of cocaine, and that he did not stop his drug involvement until his imprisonment in 1989. The Board found that Bellido’s “present claim of rehabilitation does not carry significant weight as a favorable factor in the discretionary balancing for section 212(c) relief.” The Board concluded that “though strong, [the equities] are not outstanding and do not overcome his drug trafficking crimes to warrant a grant of section 212(c) relief.” The Board sustained the Service’s appeal and ordered Bellido deported.
Bellido first contends that the Board’s finding of no outstanding equities inexplicably departed from established policies because the Board reached a different result under identical facts in Matter of Buscemi, supra. Second, Bellido argues that the Board abused its discretion by failing to give proper consideration to evidence of his rehabilitation. Bellido argues here that the Board did not give significant weight to its finding that he had demonstrated a good promise of rehabilitation, thereby departing from established policies by requiring him to show “complete rehabilitation.” Bellido’s arguments are unpersuasive.
In Matter of Buscemi, supra, Buscemi was a 26-year-old single man with no dependents. The Board considered evidence presented by Buscemi that his immediate family resided in the United States, that he had helped to support his family financially and as a father figure, that he remained close with his family, that he had resided in the United States for 17 years and that such residence began at an early age, that he had a history of gainful employment, and that he was forced to grow up under difficult circumstances. The Board considered Buscemi’s 17 years of residence in this country, beginning at the age of nine, to be a particularly outstanding equity. Although the Board found outstanding equities under the facts of that case, it ultimately denied the applicant’s request for 212(c) relief.
Bellido, however, had been estranged from his family for a number of years. Moreover, his mother and sisters are in medical practice together and are not financially dependent upon him. Nor are there any indicia that Bellido was forced to grow up under particularly difficult circumstances. In addition, the Board found that Bellido’s residency in the United States was not an outstanding equity because during this time he engaged in criminal activity for six years and fled justice for five. These facts are sufficiently distinct to explain the disparate treatment in these two cases.
In any light, a 212(c) application is evaluated on a case-by-case basis. Matter of Edwards, 1990 WL 289514. To uphold the Board’s denial of waiver, we need only find that it articulated a rational explanation for its decision, and that it did not inexplicably depart from an established policy. Vergara-Molina, 956 F.2d at 684. Regardless of the similarities in Bellido’s case with that in Bus-cemi, the Board weighed the evidence within the Marin framework and concluded that Bellido had not shown unusual or outstanding equities. The Board’s decision was not irrational, nor did it depart from an established policy.
Moreover, we believe the Board did give proper consideration to the evidence of rehabilitation. The Board considered the evidence presented by Bellido that he plans never to use drugs again, that he intends to return to school, and that he regrets the crimes he committed and the harm caused to his family. The Board also recounted his efforts towards rehabilitation while in prison, including his enrollment in college courses and participation in a substance abuse program. The Board found that, within his prison environment, Bellido had “demonstrated [a] good promise of rehabilitation”, but concluded that this evidence did not have significant weight in light of his repeated drug use and drug-related offenses over a span of years. We think the Board could properly doubt whether Bellido would avoid criminal activity once released from prison.
Bellido argues that the Board required him to show “complete rehabilitation” and in so doing, departed from established policies. We understand the Board’s order, however, as weighing the degree of persuasiveness of Bellido’s showing of rehabilitation along with all other favorable factors in making its judgment that he had not shown outstanding equities, and we see no abuse of discretion nor departure from established policy.
Petition for review is Denied.
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:
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sc_respondent
|
178
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the respondent of the case. The respondent is the party being sued or tried and is also known as the appellee. Characterize the respondent as the Court's opinion identifies them.
Identify the respondent by the label given to the party in the opinion or judgment of the Court except where the Reports title a party as the "United States" or as a named state. Textual identification of parties is typically provided prior to Part I of the Court's opinion. The official syllabus, the summary that appears on the title page of the case, may be consulted as well. In describing the parties, the Court employs terminology that places them in the context of the specific lawsuit in which they are involved. For example, "employer" rather than "business" in a suit by an employee; as a "minority," "female," or "minority female" employee rather than "employee" in a suit alleging discrimination by an employer.
Also note that the Court's characterization of the parties applies whether the respondent is actually single entitiy or whether many other persons or legal entities have associated themselves with the lawsuit. That is, the presence of the phrase, et al., following the name of a party does not preclude the Court from characterizing that party as though it were a single entity. Thus, identify a single respondent, regardless of how many legal entities were actually involved. If a state (or one of its subdivisions) is a party, note only that a state is a party, not the state's name.
March 23, 1998
No. 96-1925.
Caterpillar Inc. v. International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, et al.
C. A. 3d Cir. [Certiorari granted, 521 U. S. 1152. ] Writ of certiorari dismissed under this Court’s Rule 46.1.
Question: Who is the respondent of the case?
001. attorney general of the United States, or his office
002. specified state board or department of education
003. city, town, township, village, or borough government or governmental unit
004. state commission, board, committee, or authority
005. county government or county governmental unit, except school district
006. court or judicial district
007. state department or agency
008. governmental employee or job applicant
009. female governmental employee or job applicant
010. minority governmental employee or job applicant
011. minority female governmental employee or job applicant
012. not listed among agencies in the first Administrative Action variable
013. retired or former governmental employee
014. U.S. House of Representatives
015. interstate compact
016. judge
017. state legislature, house, or committee
018. local governmental unit other than a county, city, town, township, village, or borough
019. governmental official, or an official of an agency established under an interstate compact
020. state or U.S. supreme court
021. local school district or board of education
022. U.S. Senate
023. U.S. senator
024. foreign nation or instrumentality
025. state or local governmental taxpayer, or executor of the estate of
026. state college or university
027. United States
028. State
029. person accused, indicted, or suspected of crime
030. advertising business or agency
031. agent, fiduciary, trustee, or executor
032. airplane manufacturer, or manufacturer of parts of airplanes
033. airline
034. distributor, importer, or exporter of alcoholic beverages
035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked
036. American Medical Association
037. National Railroad Passenger Corp.
038. amusement establishment, or recreational facility
039. arrested person, or pretrial detainee
040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association
041. author, copyright holder
042. bank, savings and loan, credit union, investment company
043. bankrupt person or business, or business in reorganization
044. establishment serving liquor by the glass, or package liquor store
045. water transportation, stevedore
046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines
047. brewery, distillery
048. broker, stock exchange, investment or securities firm
049. construction industry
050. bus or motorized passenger transportation vehicle
051. business, corporation
052. buyer, purchaser
053. cable TV
054. car dealer
055. person convicted of crime
056. tangible property, other than real estate, including contraband
057. chemical company
058. child, children, including adopted or illegitimate
059. religious organization, institution, or person
060. private club or facility
061. coal company or coal mine operator
062. computer business or manufacturer, hardware or software
063. consumer, consumer organization
064. creditor, including institution appearing as such; e.g., a finance company
065. person allegedly criminally insane or mentally incompetent to stand trial
066. defendant
067. debtor
068. real estate developer
069. disabled person or disability benefit claimant
070. distributor
071. person subject to selective service, including conscientious objector
072. drug manufacturer
073. druggist, pharmacist, pharmacy
074. employee, or job applicant, including beneficiaries of
075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan
076. electric equipment manufacturer
077. electric or hydroelectric power utility, power cooperative, or gas and electric company
078. eleemosynary institution or person
079. environmental organization
080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer.
081. farmer, farm worker, or farm organization
082. father
083. female employee or job applicant
084. female
085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of
086. fisherman or fishing company
087. food, meat packing, or processing company, stockyard
088. foreign (non-American) nongovernmental entity
089. franchiser
090. franchisee
091. lesbian, gay, bisexual, transexual person or organization
092. person who guarantees another's obligations
093. handicapped individual, or organization of devoted to
094. health organization or person, nursing home, medical clinic or laboratory, chiropractor
095. heir, or beneficiary, or person so claiming to be
096. hospital, medical center
097. husband, or ex-husband
098. involuntarily committed mental patient
099. Indian, including Indian tribe or nation
100. insurance company, or surety
101. inventor, patent assigner, trademark owner or holder
102. investor
103. injured person or legal entity, nonphysically and non-employment related
104. juvenile
105. government contractor
106. holder of a license or permit, or applicant therefor
107. magazine
108. male
109. medical or Medicaid claimant
110. medical supply or manufacturing co.
111. racial or ethnic minority employee or job applicant
112. minority female employee or job applicant
113. manufacturer
114. management, executive officer, or director, of business entity
115. military personnel, or dependent of, including reservist
116. mining company or miner, excluding coal, oil, or pipeline company
117. mother
118. auto manufacturer
119. newspaper, newsletter, journal of opinion, news service
120. radio and television network, except cable tv
121. nonprofit organization or business
122. nonresident
123. nuclear power plant or facility
124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels
125. shareholders to whom a tender offer is made
126. tender offer
127. oil company, or natural gas producer
128. elderly person, or organization dedicated to the elderly
129. out of state noncriminal defendant
130. political action committee
131. parent or parents
132. parking lot or service
133. patient of a health professional
134. telephone, telecommunications, or telegraph company
135. physician, MD or DO, dentist, or medical society
136. public interest organization
137. physically injured person, including wrongful death, who is not an employee
138. pipe line company
139. package, luggage, container
140. political candidate, activist, committee, party, party member, organization, or elected official
141. indigent, needy, welfare recipient
142. indigent defendant
143. private person
144. prisoner, inmate of penal institution
145. professional organization, business, or person
146. probationer, or parolee
147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer
148. public utility
149. publisher, publishing company
150. radio station
151. racial or ethnic minority
152. person or organization protesting racial or ethnic segregation or discrimination
153. racial or ethnic minority student or applicant for admission to an educational institution
154. realtor
155. journalist, columnist, member of the news media
156. resident
157. restaurant, food vendor
158. retarded person, or mental incompetent
159. retired or former employee
160. railroad
161. private school, college, or university
162. seller or vendor
163. shipper, including importer and exporter
164. shopping center, mall
165. spouse, or former spouse
166. stockholder, shareholder, or bondholder
167. retail business or outlet
168. student, or applicant for admission to an educational institution
169. taxpayer or executor of taxpayer's estate, federal only
170. tenant or lessee
171. theater, studio
172. forest products, lumber, or logging company
173. person traveling or wishing to travel abroad, or overseas travel agent
174. trucking company, or motor carrier
175. television station
176. union member
177. unemployed person or unemployment compensation applicant or claimant
178. union, labor organization, or official of
179. veteran
180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL)
181. wholesale trade
182. wife, or ex-wife
183. witness, or person under subpoena
184. network
185. slave
186. slave-owner
187. bank of the united states
188. timber company
189. u.s. job applicants or employees
190. Army and Air Force Exchange Service
191. Atomic Energy Commission
192. Secretary or administrative unit or personnel of the U.S. Air Force
193. Department or Secretary of Agriculture
194. Alien Property Custodian
195. Secretary or administrative unit or personnel of the U.S. Army
196. Board of Immigration Appeals
197. Bureau of Indian Affairs
198. Bonneville Power Administration
199. Benefits Review Board
200. Civil Aeronautics Board
201. Bureau of the Census
202. Central Intelligence Agency
203. Commodity Futures Trading Commission
204. Department or Secretary of Commerce
205. Comptroller of Currency
206. Consumer Product Safety Commission
207. Civil Rights Commission
208. Civil Service Commission, U.S.
209. Customs Service or Commissioner of Customs
210. Defense Base Closure and REalignment Commission
211. Drug Enforcement Agency
212. Department or Secretary of Defense (and Department or Secretary of War)
213. Department or Secretary of Energy
214. Department or Secretary of the Interior
215. Department of Justice or Attorney General
216. Department or Secretary of State
217. Department or Secretary of Transportation
218. Department or Secretary of Education
219. U.S. Employees' Compensation Commission, or Commissioner
220. Equal Employment Opportunity Commission
221. Environmental Protection Agency or Administrator
222. Federal Aviation Agency or Administration
223. Federal Bureau of Investigation or Director
224. Federal Bureau of Prisons
225. Farm Credit Administration
226. Federal Communications Commission (including a predecessor, Federal Radio Commission)
227. Federal Credit Union Administration
228. Food and Drug Administration
229. Federal Deposit Insurance Corporation
230. Federal Energy Administration
231. Federal Election Commission
232. Federal Energy Regulatory Commission
233. Federal Housing Administration
234. Federal Home Loan Bank Board
235. Federal Labor Relations Authority
236. Federal Maritime Board
237. Federal Maritime Commission
238. Farmers Home Administration
239. Federal Parole Board
240. Federal Power Commission
241. Federal Railroad Administration
242. Federal Reserve Board of Governors
243. Federal Reserve System
244. Federal Savings and Loan Insurance Corporation
245. Federal Trade Commission
246. Federal Works Administration, or Administrator
247. General Accounting Office
248. Comptroller General
249. General Services Administration
250. Department or Secretary of Health, Education and Welfare
251. Department or Secretary of Health and Human Services
252. Department or Secretary of Housing and Urban Development
253. Interstate Commerce Commission
254. Indian Claims Commission
255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement
256. Internal Revenue Service, Collector, Commissioner, or District Director of
257. Information Security Oversight Office
258. Department or Secretary of Labor
259. Loyalty Review Board
260. Legal Services Corporation
261. Merit Systems Protection Board
262. Multistate Tax Commission
263. National Aeronautics and Space Administration
264. Secretary or administrative unit of the U.S. Navy
265. National Credit Union Administration
266. National Endowment for the Arts
267. National Enforcement Commission
268. National Highway Traffic Safety Administration
269. National Labor Relations Board, or regional office or officer
270. National Mediation Board
271. National Railroad Adjustment Board
272. Nuclear Regulatory Commission
273. National Security Agency
274. Office of Economic Opportunity
275. Office of Management and Budget
276. Office of Price Administration, or Price Administrator
277. Office of Personnel Management
278. Occupational Safety and Health Administration
279. Occupational Safety and Health Review Commission
280. Office of Workers' Compensation Programs
281. Patent Office, or Commissioner of, or Board of Appeals of
282. Pay Board (established under the Economic Stabilization Act of 1970)
283. Pension Benefit Guaranty Corporation
284. U.S. Public Health Service
285. Postal Rate Commission
286. Provider Reimbursement Review Board
287. Renegotiation Board
288. Railroad Adjustment Board
289. Railroad Retirement Board
290. Subversive Activities Control Board
291. Small Business Administration
292. Securities and Exchange Commission
293. Social Security Administration or Commissioner
294. Selective Service System
295. Department or Secretary of the Treasury
296. Tennessee Valley Authority
297. United States Forest Service
298. United States Parole Commission
299. Postal Service and Post Office, or Postmaster General, or Postmaster
300. United States Sentencing Commission
301. Veterans' Administration
302. War Production Board
303. Wage Stabilization Board
304. General Land Office of Commissioners
305. Transportation Security Administration
306. Surface Transportation Board
307. U.S. Shipping Board Emergency Fleet Corp.
308. Reconstruction Finance Corp.
309. Department or Secretary of Homeland Security
310. Unidentifiable
311. International Entity
Answer:
|
songer_standing
|
C
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to some threshold issue at the trial court level. These issues are only considered to be present if the court of appeals is reviewing whether or not the litigants should properly have been allowed to get a trial court decision on the merits. That is, the issue is whether or not the issue crossed properly the threshhold to get on the district court agenda. The issue is: "Did the court determine that the parties had standing?" 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".
ERIE HUMAN RELATIONS COMMISSION et al., Appellees, v. Hon. Louis J. TULLIO, Mayor of the City of Erie, et al., Appellants.
No. 73-1707.
United States Court of Appeals, Third Circuit.
Argued Jan. 7, 1974.
Decided March 4, 1974.
See also, D.C., 360 F.Supp. 628.
Lawrence L. Kinter, Erie, Pa., for appellants.
Norman J. Watkins, Deputy Atty. Gen., Harrisburg, Pa., argued for the appellees.
Michael Louik, Robert P. Vogel, Asst. Attys. Gen., Israel Packel, Atty. Gen., for Commonwealth of Pennsylvania as ami-cus curiae.
Henry W. Sawyer, III, Amy F. Davis, Philadelphia, Pa., for amicus curiae American Civil Liberties Union.
Before ADAMS, HUNTER and WEIS, Circuit Judges.
OPINION OF THE COURT
JAMES HUNTER, III, Circuit Judge:
This is an appeal in an action brought by the Erie Human Relations Commission and four individual blacks in which it was alleged that the hiring procedures used to staff the Erie, Pennsylvania Police Department discriminate against blacks, in violation of the Civil Rights Act, 42 U.S.C. §§ 1981, 1983 (1970), and the equal protection clause. The district court found in favor of the plaintiffs on the merits and ordered the imposition of a limited racial hiring quota. The appellants, various officials of the City of Erie, do not appeal the finding of discrimination, but they do challenge the propriety of this relief. In addition, they contend that the plaintiff Erie Human Relations Commission lacks standing to sue. We agree with the appellants on the standing issue but conclude that their attack on the district court’s affirmative order lacks merit.
This suit was filed on March 22, 1973 and was accompanied by a Motion for a Temporary Restraining Order that sought, inter alia, to enjoin the defendants from administering a police civil service “mental” examination scheduled to be given on March 24, 1973. The motion was granted and a Temporary Restraining Order was issued on March 23, 1973.
The parties thereupon entered into negotiations that resulted in a stipulation which permitted the City to proceed with the mental examination on April 21, 1973. In return, the defendants agreed to make numerous changes in the requirements that must be met in order to be eligible to take the police mental examination (these preliminary requirements are hereinafter referred to as “pre-exam requirements”). In addition, the City agreed that:
“[u]pon verification by the federal Equal Employment Opportunity Commission that there exists a mental examination for applicants for the position of police officer, which has been validated both as to job-relatedness and to the exclusion of cultural bias, the Civil Service Board will substitute that examination for the one presently in use.”
Finally, the parties agreed to submit to the district court the question of what affirmative relief, if any, should be granted with respect to the hiring of black police officers.
In considering the question of affirmative relief, the district court adopted as its findings the factual assertions that were made a part of the stipulation. As a result, the record upon which the judgment is based contains the following agreed upon facts:
“1) The Erie Police Department (hereinafter “E.P.D.”) presently consists of 214 officers, 3 of whom are black.
“2) During the period 1962-1972, 2 black officers were hired as police officers for the E.P.D.
“3) During the period 1952-1972, 7 black officers were hired as police officers for the E.P.D.
“4) 6.8% of the residents of the City of Erie, Pennsylvania (hereinafter “City”) are black.
“5) 1.4% of the officers of the E.P.D. are black.
* * -X- # -X- *
“7) Any discrimination based upon the above-mentioned disparity and statistics is not the result of any intentional discrimination on the part of the City or any of the named defendants.
•3f *X*
“12) The mental examination given to applicants is, and has been validated, as job-related.
“13) The mental examination given to applicants has not been validated with respect to cultural bias which may or may not exist in said examination.
* * * -x- * *»
The district court determined that these facts established “as a matter of law that a pattern of racial discrimination has existed for a considerable period of time in the selection of officers of the Police Department of the City of Erie.”
The court went on to conclude that, since the changes in the pre-exam requirements provided only a partial cure for this pattern of discrimination, affirmative relief was necessary. It therefore imposed a special racial quota upon the hiring procedures to be employed in filling the 20 positions presently open on the police force. The court’s order reads as follows:
“. . . Defendants shall, in filling the next twenty positions . . . nominate to the appointing authority a sufficient number of candidates of the black race from the existing eligibility lists prepared pursuant to examinations administered in April 1973 to provide for the appointment of one black race candidate for every candidate of the white race so appointed until not less than ten black candidates have been so appointed unless the list of eligible black candidates is sooner exhausted. . . . ”
The appellants raise two contentions with regard to the propriety of this order. Their first claim is that a racial hiring quota can only be ordered by a court if the facts of the case establish either 1) that there is a history of intentional racial discrimination or 2) that the testing and other pre-hiring procedures which exclude minority group members are not job-related. In the present case, they argue, the facts do not establish either of these conditions (and in fact establish the opposite). As a result, they conclude that the racial hiring quota that was ordered is impermissible.
This contention is faulty in two respects. First, even if we were to agree that racial quotas are barred in situations where there is no intentional discrimination and where the pre-hiring procedures are job-related, this rule would have no application here. The appellants contend that the stipulation establishes job-relatedness when it states that “[t]he mental examination . . . has been validated as, job-related.” However, since the “mental examination” is only one part of the City’s pre-hiring procedure, this statement by itself cannot fully establish that all of the criteria used "to evaluate those interested in becoming police officers were job-related. In fact, the stipulation (which constitutes all findings of facts in the case) is entirely silent on whether the various “pre-exam requirements,” in effect when they created the pool of applicants who took the April 21, 1973 mental examination, were job-related.
The absence of findings on this question is fatal to the appellants’ claim. Since the appellees’ evidence clearly established a prima facie case of discrimination, the burden shifted to the appellants to justify their pre-hiring procedures in order to avoid a finding of discrimination. Educational Equality League v. Tate, 472 F.2d 612, 616 (3d Cir. 1973); Bridgeport Guardians, Inc. v. Civil Service Comm’n, 482 F.2d 1333, 1337 (2d Cir. 1973); Castro v. Beecher, 459 F.2d 725, 732 (1st Cir. 1972).
We do not believe that the appellants’ burden of proof is any lighter here where they concede that discrimination exists (as they do in this appeal) but seek to invoke the job-relatedness of their prehiring procedures to avoid the imposition of a particular equitable remedy. Thus, since the record is silent on whether the pre-exam requirements used are job-related, the appellants have failed to establish a necessary element of their own rule, and they cannot invoke it to avoid imposition of the racial quota ordered by the district court.
Moreover, we believe that this contention is faulty in a second and more basic respect as well. The rule they seek to establish would, in effect, limit, as a matter of law a district court’s discretion in formulating equitable relief. We believe that such a per se limitation would be unwise absent a compelling demonstration of its necessity. As the Supreme Court has said:
“The framing of decrees should take place in the District rather than in the Appellate Courts. They are invested with large discretion to model their judgments to fit the exigencies of the particular case.” Int’l Salt Co. v. United States, 332 U.S. 392, 400-411, 68 S.Ct. 12, 17, 92 L.Ed. 20 (1947).
We do not feel such a compelling demonstration has been made here, and indeed believe that the arguments against appellants’ proposed rule predominate. Since many factors must go into a district court’s judgment as to the form of equitable relief, a rule that would make two factors — intent and job-relatedness— determinative would appear to limit the district court in a rather arbitrary way. We do not believe this is desirable. On the contrary, preservation of the court’s flexibility in the framing of remedies would seem to be particularly important in racial discrimination cases since they often require the district court to tailor its order to meet the needs of a highly complex and emotionally charged factual situation. As a result, we must reject the appellants’ first claim on this basis as well.
Appellants’ second contention with regard to the affirmative relief ordered is that the one black for one white (or 50%) ratio imposed is too high and constitutes an abuse of discretion by the district court. We reject this contention as well. The ratio here established is entirely reasonable when viewed within the context of the facts of the case and the limited scope of the total order. The quota imposed can only affect the next 20 positions filled, and will affect those positions only if 10 qualified blacks are available for appointment. Moreover, even if all 10 “black” positions are filled, it will only bring the percentage of blacks on the force up to 5.5%, a figure still somewhat below their 6.8% representation in the total population of Erie.
Finally, we note that the quota was designed to take advantage of the unique opportunity presented by the creation of 20 new police positions through a special state grant. We cannot say that the district court abused its discretion in using this grant as a vehicle to expedite the removal of the effects of the discrimination found here. Indeed, given the sensitive and highly visible role played by the police in maintaining racial peace and harmony, we feel that we should commend the district court since its order acts decisively and yet at the same time is carefully limited so that its adverse impact on others is minimized. Imposition of a 50% quota limited to the next 20 positions is not reversible error in these circumstances.
Appellants’ last contention— that the district court erred in refusing to dismiss the Erie Human Relations Commission as a plaintiff for lack of standing — is meritorious. As the recent discussion of the subject by this court in Schiaffo v. Helstoski, 492 F.2d 413 (3d Cir., filed Jan. 4, 1974) makes clear, to have standing a party must allege, at a minimum, a personal stake in the outcome of the action. In this case, the Erie Human Relations Commission has made no such allegation either for itself as a body or for its individual members. Instead, it seeks to bring this suit in its own name but on behalf of what it terms its “black clientele.” Brief for Appellees at 5. This is improper. A party with no personal stake in the outcome of a case cannot establish standing to sue in federal court by alleging a concern for the rights of others, even if it is a body created by local ordinance for the express purpose of protecting those rights.
The order of the district court will be remanded with directions that it dismiss the Erie Human Relations Commission as a party plaintiff. In all other respects the order of the district court will be affirmed.
. The changes were designed to eliminate allegedly discriminatory effects.
. We note that the defendants also agreed to reduce the minimum passing rate on the mental examination from 70% to 60%. Stipulation, If 9.
. These 20 additional positions were apparently made possible by virtue of a special state grant. See Erie Human Relations Commission v. Tullio, 360 F.Supp. 628 (W.D.Pa., filed July 12, 1973).
. “[A] prima facie case is established by a demonstration that blacks were under-represented and that there was an opportunity for racial discrimination.” Educational Equality League v. Tate, 472 F.2d 612, 618 (3d Cir. 1973) ; Smith v. Yeager, 465 F.2d 272, 279 (3d Cir. 1972), cert. denied 409 U.S. 1076, 93 S.Ct. 685, 34 L.Ed.2d 665 (1972). In this case under-representation was established by the disparity between the percentage of blacks on the force and the percentage of blacks in Erie’s total population. The opportunity for discrimination was created by the necessity for making subjective judgments in applying several of the pre-exam requirements that were amended by the stipulation.
. We note in passing that the “pre-exam requirements” which were used to select the pool of applicants who took the April, 1973 examination have now been substantially altered by agreement of the parties. Thus, while there are no findings of fact on this point, common sense would suggest that they were altered because they had a discriminatory effect, and that therefore they were not, in fact, job-related. However, this line Of reasoning involves a series of inferences based on evidences in the record. Since this process is more properly performed by the district court, we do not rely upon it as the basis for our decision.
. In this latter respect, the present order differs significantly from the order reviewed in Commonwealth of Pennsylvania v. O’Neill, 473 F.2d 1029 (3d Cir. 1973) (aff’d by an evenly divided court en lane). Since in this case the order clearly requires that all blacks appointed under the quota be qualified, the most serious concern of the dissenting judges in O’HTeill is not present here.
. Before concluding our discussion of the claims raised with regard to the relief ordered, we should note that while constitutional objections to the imposition of remedial quotas based on race have been raised in other cases, see, e. g., Porcelli v. Titus, 431 F.2d 1254 (3d Cir. 1970); Bridgeport Guardians, Inc. v. Civil Service Comm’n, 482 F.2d 1333 (2d Cir. 1973); Carter v. Gallagher, 452 F.2d 315 (8th Cir. 1972) (en banc) ; DeFunis v. Odegaard, 82 Wash.2d 11, 507 P.2d 1169 (1973), cert. granted, 414 U.S. 1038, 94 S.Ct. 538, 38 L.Ed.2d 329 (1973), no such contention appears to be raised here. However, even if it could be argued that constitutional contentions are implicit in the appellants’ brief, the bulk of the cases that have dealt with these considerations both in this circuit, Porcelli v. Titus, supra; Contractors Ass’n v. Secretary of Labor, 442 F.2d 159 (3d Cir. 1971); Commonwealth of Pennsylvania v. Sebastian, 368 F.Supp. 854 (W.D.Pa., filed Dec. 1, 1972) (unreported), aff’d by judgment order, 480 F.2d 917 (3d Cir. filed June 7, 1973), and elsewhere, see, e. g., Bridgeport Guardians, Inc. v. Civil Service Comm’n, supra; Carter v. Gallagher, supra; DeFunis v. Odegaard, supra, have upheld the constitutionality of the use of quotas to eliminate the effects of discrimination. Since the disparity between blacks on the police force (1.4%) and blacks in Erie (6.8%) indicates that serious discriminatory effects are present here, this precedent would appear to be controlling on the question in any event.
. At the same time, we reject the appellees’ contention that the issue is moot. Since the affirmative relief ordered by the court has not yet been put into effect, the right of the Erie Human Relations Commission to compel proper implementation in a future proceeding before the district court turns on a determination of this issue.
Question: Did the court determine that the parties had standing?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_geniss
|
F
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous".
AMALGAMATED MEAT CUTTERS AND BUTCHER WORKMEN OF NORTH AMERICA, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
No. 5515.
United States Court of Appeals First Circuit.
May 21, 1959.
Edward Schneider, Harold Roseriwald, Maurice Epstein, and Schneider, Bronstein & Shapiro, Boston, Mass., for Geilich Tanning Co. on motion, for leave to intervene.
Arthur J. Flamm, Boston, Mass., for petitioner.
Marcel Mallet-Prevost, Washington, D. C., for respondent.
Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.
PER CURIAM.
This case was initiated by the filing of a petition on behalf of the Union asking us to review and set aside a decision and order of the National Labor Relations Board adverse to it. We have before us a motion by Geilich Tanning Company under our Rule 16(6), 28 U.S.C.A., for leave to intervene as a party respondent with a view to supporting the Board’s order, along with the Board. The grounds of this motion are stated to be that the Company participated as a party in the administrative proceedings before the Board, and that the Company is directly interested in the results of this proceeding because it will be substantially and immediately affected by the fate of the Board’s order. The petitioner Union and the Board have both consented to the intervention by the Company.
In the light of the Supreme Court’s decision in Amalgamated Utility Workers (C.I.O.) v. Consolidated Edison Co., 1940, 309 U.S. 261, 60 S.Ct. 561, 84 L.Ed. 738, it is apparent that the Company is not given any enforceable rights by a decision of the Board under the National Labor Relations Act. On the contrary, the Act vests in the Board full power, authority and discretion with regard to the enforcement of its orders. Moreover we assume, and the movant does not deny, that the Board will adequately represent the legitimate interests of the Company in defending against the Union’s petition to set aside the Board’s order.
The mere fact that the Company participated in the proceedings before the administrative agency is clearly not a sufficient ground, in itself, for the Company to intervene in a judicial review proceeding. Cf. Atchison, Topeka & Santa Fe Ry. Co. v. United States, D.C.E.D. Mo.1955, 130 F.Supp. 76, affirmed 1955, 350 U.S. 892, 76 S.Ct. 152, 100 L.Ed. 785. Nor can the stipulation of the parties create a standing to intervene. Cf. Commonwealth of Massachusetts Division of Employment Security v. United States, 1 Cir., 1958, 261 F.2d 449. The Company’s desire to help sustain the administrative order proves that it has no standing as a “person aggrieved” under § 10(f), of the National Labor Relations Act, 61 Stat. 148 (1947), 29 U.S.C.A. § 160(f). Compare. N.L.R.B. v. Corning Glass Works, 1 Cir., 1953, 204 F.2d 422, 35 A.L.R.2d 408.
Since we are clear that in the ordinary case a private party should not be allowed to intervene in Labor Board litigation on the side of the Board,
An order will be entered denying the motion.
Question: What is the general issue in the case?
A. criminal
B. civil rights
C. First Amendment
D. due process
E. privacy
F. labor relations
G. economic activity and regulation
H. miscellaneous
Answer:
|
songer_method
|
G
|
What follows is an opinion from a United States Court of Appeals. Your task is to determine the nature of the proceeding in the court of appeals for the case, that is, the legal history of the case, indicating whether there had been prior appellate court proceeding on the same case prior to the decision currently coded. Assume that the case had been decided by the panel for the first time if there was no indication to the contrary in the opinion. The opinion usually, but not always, explicitly indicates when a decision was made "en banc" (though the spelling of "en banc" varies). However, if more than 3 judges were listed as participating in the decision, code the decision as enbanc even if there was no explicit description of the proceeding as en banc.
MEYER v. ROWEN et al. In re MEYER.
No. 4295.
United States Court of Appeals Tenth Circuit.
Feb. 23, 1952.
J. D. Skeen, Salt Lake City, Utah (F. R. Bayle, Salt Lake City, Utah, was with him on the brief), for appellant.
George S. Ballif, Provo, Utah, for ap-pellees.
Before PHILLIPS, Chief Judge, and BRATTON and MURRAH, Circuit Judges.
MURRAH, Circuit Judge.
This is an appeal from a judgment of the District Court of Utah, affirming an order of its referee, dismissing appellant Meyer’s petition for an arrangement of his debts under Chapter 12 of the Bankruptcy Act, as amended June 28, 1938, 11 U.S.C.A. §§ 801-909, 52 Stat. 916.
When the case was here in 181 F.2d 715, we held that the debtor’s petition, filed April 21, 1949, under Section 422 of Chapter 12, operated to automatically stay state court proceedings to 'foreclose a mortgage on the real estate listed as the principal asset of the bankrupt, and that the subsequent order of sale and sale of property were therefore void. The District Court was accordingly directed to overrule the appellees’ motion to dismiss the debtor’s petition for an order to show cause why the sale of April 25, 1949, should not be set aside by the bankruptcy court.
After remand, and on July 26, 1950, the Rowens, appellees and the only secured creditors, moved to dismiss the petition for arrangement for failure to comply with the mandatory requirements of Section 461 of Chapter 12. The motion recited the mortgage indebtedness, the foreclosure judgment prior to the filing of the petition for arrangement, and the subsequent sale on April 25, 1949, subject to the statutory six months period of redemption in Utah. It went on to recite that after the six months period of redemption, and after the court’s order dismissing the debtor’s petition for a show cause order, the appellees obtained possession of the property by a writ of assistance from the state court; that during the pendency of the first appeal, appellees had sold the scheduled real estate under contract, and had obligated themselves to deliver merchantable title, and that unless the bankruptcy court recognized and approved the sheriff’s sale, they would be required at great expense to conduct another sheriff’s sale.
On the following August 9, the debtor petitioned the bankruptcy court for an order to show cause why he should not be restored to possession of the scheduled property, from which he had been forcibly ejected, and for damages for such wrongful ejection. A show cause order, returnable August 25, was issued on the same day. The appellees answered, admitting the forcible ejection under state court process on November 15, 1949, but denied that it was wrongful or in disregard of the bankruptcy court’s jurisdiction. They made reference to the prior motion to dismiss the proceedings, and also moved for dismissal of the show cause order.
These motions were all appropriately referred to the referee in bankruptcy, but before disposition of them, and on September 26, 1950, the debtor petitioned for another order to show cause, alleging that during the pendency of the former appeal, and on April 15, 1950, the Rowens had sold the real estate involved for $23,000.00 and listed personal property for $1,000.00; that in part payment, they had taken a farm valued at $5,500.00, the remaining $17,500.00 to be paid in monthly installments; that the farm in turn was sold for $5,000.00, $1,000.00 in cash and the remainder in deferred payments; that the vendees of both of the properties are now in possession. Then it was alleged that upon inquiry, it was found that the sale of the property for $24,000.00 was a fair price, and that it was for the best interests of the debtor bankrupt to approve the sales. He accordingly asked that a trustee be appointed to receive the consideration for the sales until the termination of the bankruptcy proceedings. An order to show cause, returnable October 15, 1950, was issued. All pending motions and orders came on regularly for hearing before the referee on October 13, 1950, and evidence was heard. A meeting of the creditors under Section 434 was also called for the same date on order of the referee.
The schedule attached to the petition for arrangement listed an indebtedness of $13,-459.97, secured by the Rowen mortgage on the scheduled real estate, on which the decree of foreclosure had been entered. It also listed unsecured debts in the sum of $15,248.69. The real estate covered by the Rowen mortgage was listed as the principal asset and valued at $36,000.00. Personal property valued at $10,715.00 was also scheduled.
The proposed arrangement under Section 423 provided for the payment of $200.00 per month from the earnings of the debtor’s business, to be paid to a trustee and applied on the accrued interest on the state court judgment in favor of the Rowens. The residue was to be applied proportionately upon the allowed claims of other creditors until the indebtedness was reduced to the loan value of the scheduled property and until a long-time loan sufficient to pay the entire indebtedness could be negotiated.
At the conclusion of the hearing on all pending motions and orders, the referee made extensive findings of facts and conclusions of law. After reciting the various proceedings, motions and orders, the proposed arrangement and the calling of the creditor’s meeting to consider it, the nonappearance of the unsecured creditors, and the formal rejection of the proposed arrangement by the Rowens, as the only secured creditors, the referee specifically found that the proposed arrangement failed to provide for the payment of the creditors other than the secured creditors, required by Section 461, sub. 2; for the payment of cost or expense of administration required by Section 461, sub. 8; provide for creditors not affected by the arrangement as required by Section 461, sub. 10; or for those affected and not accepting the proposed arrangement as required by Section 461, sub. 11; or for adequate means for the execution of the arrangement required by Section 461, sub. 12. He noted that no application had been made for confirmation of the proposed arrangement under either Sections 467 or 468, and that no such confirmation could be effected, since all of the creditors had not accepted the plan as contemplated by Section 467; nor had the plan been accepted by creditors of each class holding two-thirds in amount of the debts of such class affected by the arrangement, as contemplated and required by Section 468. Then the referee observed that no confirmation could ever be effected inasmuch as the Rowens, the only secured creditors affected by the arrangement, had expressly rejected it. Moreover, the referee found that the debtor’s petition, dated September 26, 1950, for an order to show cause why the court should not adopt and approve the sale of the listed real estate after the first dismissal of the bankruptcy proceedings,, operated as an abandonment of his petition of August 9, 1950, for an order to show cause why he should not be restored to the full possession of the same property, this for the reason that the debtor cannot be put back into possession of the property without ousting the present occupants — the ven-dees of the Rowens.
The referee found that the actions taken by the Rowens for the possession of the property and the sale of it during the pend-ency of the appeal was in good faith and pursuant to a bona fide belief in their legal rights, but that any individual responsibility for the eviction of the debtor should be determined according to the law of the State of Utah in the state courts. Finally, being of the opinion that nothing could be salvaged for the creditors by adjudicating the debtor a bankrupt and proceeding in general bankruptcy, the referee overruled the debtor’s objection to his jurisdiction to dismiss the Chapter 12 proceedings, and dismissed the same, subject to the allowance of reasonable compensation to the referee by the District Court.
On petition for review to the District Court, the debtor specifically challenged all of the findings and conclusions of the referee. The petition came on regularly for hearing on March 9, 1951, pursuant to which the trial court affirmed the order of the referee in all things.
On appeal, the debtor does not contend that the proposed arrangement met the mandatory requirements of Section 461, or that it received the requisite acceptance of creditors for confirmation under Sections 467 or 468, The burden of his argument seems to be that since, under the mandate of this court on the former appeal, the order of sale and sale of the listed real estate was void, the bankruptcy court was without jurisdiction on remand to entertain the Rowens’ motion to dismiss the proceedings until the debtor had been restored to the full possession of the scheduled property, and that all acts done or proceedings had subsequent to the adjudication were therefore in direct contravention of this court’s judgment.
It is of course true, as appellant suggests, and as we formerly held, the order of sale and the sale of the property listed in the debtor’s schedule are nullities. The state court proceedings subsequent to adjudication conferred no rights and imposed no liabilities. It was undoubtedly within the province of the bankruptcy court to invalidate the state court proceedings after bankruptcy and every act committed thereunder. But, the adjudication did not operate to wipe out the mortgage indebtedness or impair the judgment entered in the District Court prior to adjudication. After adjudication and after remand on appeal, the Rowens were secured creditors. In fact, they were the only secured creditors and they were affected by the proposed arrangement. Since they expressly rejected the proposal, it was essential to its confirmation that the arrangement, or any order confirming it, provide adequate protection for the realization by them of the value of their debts against the property “(a) by the transfer or sale, or by the retention by the debtor, of such property subject to such debts; or (b) by a sale of such property free of such debts, at not less than a fair upset price, and the transfer of such debts to the proceeds of such sale; * * * or (d) by such method as will, under and consistent with the circumstances of the particular case, equitably and fairly provide such protection”. Section 461, sub. 11. See Collier on Bankruptcy, 14th Ed., Vol. 9, Sections 8.12 and 9.03.
The petition for arrangement proposed to modify or alter the Rowens’ rights as secured creditors by deferring the time for payment of the debt. And, it might be said to provide “adequate protection” under Section 461, sub. 11, by retention of the property subject to the secured debt. But, it was obviously not the purpose of Section 461, sub. 11 to dispense with an arrangement when no creditors can be found to consent to it; nor does it authorize the bankruptcy court to force secured creditors, unanimously opposed to the plan, to accept it simply because adequate protection is provided. In re Herweg, 7 Cir., 119 F.2d 941; In re Hamburger, 6 Cir., 117 F.2d 932.
Manifestly therefore, the proposed arrangement must fail for the want of any written acceptance by any class of creditors. Section 481 provides in material part that “if no arrangement is accepted at the meeting of creditors or within such further time as the court may fix,” or if the arrangement is refused, where the petition was filed under Section 422, the court shall “enter an order upon hearing after notice to the debtor, the creditors, and such other persons as the court may direct, either adjudging the debtor a bankrupt and directing that bankruptcy be proceeded with pursuant to the provisions of this title or dismissing the proceeding under this chapter, whichever in the opinion of the court may be in .the interest of the creditors.” Section 481, sub. 2. Preas v. Kirkpatrick & Burks, 6 Cir., 115 F.2d 802; In re Potts, 6 Cir., 142 F.2d 883.
The motion to dismiss directly challenged the sufficiency of the petition to meet the mandatory requirements of the Act, and the bankruptcy court’s jurisdiction to consider it was in no way hampered or impaired by the mandate on the former appeal, or by the proceedings in the state court during the pendency of the appeal. The debtor’s petitions for restoration and then for ratification of the sale of the property both came on for hearing concurrently with the Rowens’ motion to dismiss. The court was free to exercise its bankruptcy jurisdiction in any manner consistent with the rights of the parties, and it proceeded to do so.
' We conclude that the court did not err in the exercise of its jurisdiction to entertain the-motion to dismiss the petition for arrangement, or in the dismissal of it.
The judgment of the court is affirmed.
Question: What is the nature of the proceeding in the court of appeals for this case?
A. decided by panel for first time (no indication of re-hearing or remand)
B. decided by panel after re-hearing (second time this case has been heard by this same panel)
C. decided by panel after remand from Supreme Court
D. decided by court en banc, after single panel decision
E. decided by court en banc, after multiple panel decisions
F. decided by court en banc, no prior panel decisions
G. decided by panel after remand to lower court
H. other
I. not ascertained
Answer:
|
songer_direct1
|
D
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for government tax claim; for person claiming patent or copyright infringement; for the plaintiff alleging the injury; for economic underdog if one party is clearly an underdog in comparison to the other, neither party is clearly an economic underdog; in cases pitting an individual against a business, the individual is presumed to be the economic underdog unless there is a clear indication in the opinion to the contrary; for debtor or bankrupt; for government or private party raising claim of violation of antitrust laws, or party opposing merger; for the economic underdog in private conflict over securities; for individual claiming a benefit from government; for government in disputes over government contracts and government seizure of property; for government regulation in government regulation of business; for greater protection of the environment or greater consumer protection (even if anti-government); for the injured party in admiralty - personal injury; for economic underdog in admiralty and miscellaneous economic cases. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards.
PEERLESS CAS. CO. v. WEYMOUTH GARDENS, Inc.
No. 4831.
United States Court of Appeals First Circuit.
Aug. 24, 1954.
John S. Whipple, Boston, Mass. (Douglas Danner and Peabody, Arnold, Bat-chelder & Luther, Boston, Mass., with him on brief), for appellant.
Marcien Jenckes, Boston, Mass. (John L. Hall, John B. Reigeluth and Choate, Hall & Stewart, Boston, Mass., with him on brief), for appellee.
Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.
WOODBURY, Circuit Judge.
This is an appeal from a judgment for the plaintiff in an action brought for the penal sum of a bond conditioned on the faithful performance of a contract for the construction of a group of small dwelling houses. The case was referred to a master who after hearing filed a detailed report containing findings of fact and rulings of law on the basis of which he concluded that the defendant was liable to the plaintiff for the full amount of the bond ($75,000) with interest thereon from the date of demand. The District Court, after a hearing on the plaintiff’s motion to confirm the master’s report and the defendant’s objections thereto, adopted the master’s findings of fact, and, concluding that there was no error in the master’s rulings of law, entered the judgment for the plaintiff from which the defendant has taken this appeal.
Federal jurisdiction under Title 28 U.S.C. § 1332(a) (1) based on diversity of citizenship and amount in controversy is alleged and clearly established.
No useful purpose would be served by stating the voluminous and complicated facts in full detail. It will suffice to summarize them briefly and then to proceed at once to a consideration of the contentions of the appellant which seem to us of sufficient moment to warrant discussion.
The bond in suit was given to secure the performance of a fixed cost contract for the construction of a group of small houses in Weymouth, Massachusetts entered into in May, 1950, between Wey-mouth Gardens, Inc., a Massachusetts corporation, as the owner, and Weymouth Construction Company, Inc., another Massachusetts corporation and the principal on the bond, as the builder. The latter apparently began construction at once but soon ran into difficulties, for with the advent of hostilities in Korea in June there sprang up a system of priorities with resultant shortages of materials and increases in prices. Furthermore, many building materials, temporarily at least, vanished from the market altogether. These factors severely interfered with construction. Furthermore in August the construction company began to feel the effects of lumbermen’s and teamsters’ strikes which further increased the cost of materials. In consequence the houses were not completed within ninety days as the contract required. Nevertheless the builder strove to maintain construction in spite of the financial pressures and other difficulties under which it labored. It became evident in February, 1951, however, that it would not be able to finish the houses and later that month it abandoned the job altogether.
The defendant bonding company through one of its vice-presidents knew of the delay in completing the houses, and the reasons therefor, as early as August, 1950, but took no action on that information. The plaintiff notified the defendant by ordinary letter on March 19, 1951, that the contract was in default, and on April 6 the plaintiff gave notice of that fact again, this time by registered letter in conformity with the notice provision of the bond. Promptly thereafter the defendant signified its election not to avail itself of its option to complete the contract, or to sub-let the completion thereof, and the plaintiff thereafter completed construction at an additional cost substantially in excess of the penal sum of the bond.
The appellant’s first contention is that the master’s finding that the excess cost of completing the houses was due to economic restrictions engendered by the hostilities in Korea rather than by fault of the contractor requires the entry of a judgment in its favor. The argument is that the above finding by putting the blame for the unanticipated increase in the costs of construction on the Korean conflict instead of on any fault of the contractor absolves the latter from liability for non-performance, and, since the contractor could not be held for breach of contract, the surety cannot be held for the reason that the obligation of a surety coexists with the obligation of the principal and is extinguished when the obligation of the principal comes to an end. In short, the defendant-appellant says that the master’s finding that the hostilities in Korea made it impossible for the principal to perform its contract absolves the surety because an impossibility which excuses a principal also excuses a surety.
We do not quarrel with the general principle of law upon which the appellant relies. The trouble with the appellant’s contention is that it rests upon a misinterpretation of the master’s findings. He did not find that the conflict in Korea, with its resultant economic dislocation, made it impossible ever to perform the construction contract. Indeed, he could hardly have made such a finding in the face of the established fact that the houses eventually were built while hostilities in Korea continued.
The master’s findings are that dislocations in this country’s economy caused by the Korean conflict made it impossible for the contractor to finish the houses on time, and thus excused it from that feature of the contract, but that it was the contractor’s financial inability to cope with those economic dislocations which made it unable to complete the houses at all. Certainly unexpected increases in cost is a risk every contractor takes in entering into a fixed price contract like the one under consideration here. And an increase in costs caused by the unexpected outbreak of a war does not constitute the intervention of a superior force which ends the obligation of a valid contract by preventing its performance. Columbus Ry. & Power Co. v. City of Columbus, 1919, 249 U.S. 399, 39 S.Ct. 349, 63 L.Ed. 669. The principal undertook the contractual duty to build the houses regardless of cost and at least one purpose of the bond was to secure performance of that duty regardless of the principal’s financial capacity to carry out its obligation.
The appellant’s second contention is that it is relieved of any liability by the plaintiff-appellee’s failure to give it notice by registered letter mailed to its home office of the contractor's breach of contract within a reasonable time after the breach occurred as required by the terms of the bond. The argument in a nut shell is that a breach of contract occurred in August, 1950, when the contractor failed to complete the houses within the time limit imposed, but that it was not legally notified of any breach of contract until April, 1951, about eight months later, which cannot possibly be considered “within a reasonable time” as required by the third condition precedent of the bond.
The fallacy in the argument lies in its assumption that the principal’s breach of contract occurred in August, 1950, when it became obvious that none of the houses could be completed within the ninety day time limited by the contract. It is true that there was a failure to comply with the terms of the contract in this respect. But the master found and the appellant itself emphasizes that finding in its first contention on this appeal, that that failure was excused, or rendered non-actionable, by a supervening impossibility. Therefore this is not a case in which a breach of contract occurred in August, 1950, which the obligee-owner waived, thereby extending the surety’s obligation on its bond. It is a case of failure to comply with the time limit for construction specified in the contract, but not a breach of that term of the contract, for the master found that compliance with that provision was impossible because of the effect of the hostilities in Korea on the economy of the country. The first actionable breach of contract occurred in February, 1951, when the principal abandoned the job. In view of the fact that for months prior to that time the surety’s vice-president in the area knew of the principal’s difficulties but did nothing, apparently in the hope that the principal would eventually complete the houses and relieve it of liability on the bond, and the fact that the surety was notified informally, that is by ordinary letter, on March 19, 1951, a few weeks after the breach, we do not think that it must be said that formal notification of default on April 6, 1951, by registered letter in strict compliance with the condition precedent of the bond was not “within a reasonable time” after breach.
Other contentions advanced by the appellant have on consideration been found too insubstantial to warrant discussion.
The judgment of the District Court is affirmed.
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer:
|
songer_appnatpr
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Joanne KOTLER, Individually and as Administratrix, etc., Plaintiff, Appellant, v. The AMERICAN TOBACCO COMPANY, et al., Defendants, Appellees.
Nos. 90-1297, 90-1400.
United States Court of Appeals, First Circuit.
Submitted Nov. 3, 1992.
Decided Dec. 4, 1992.
Michael J.- Traft, Diana Lumsden, Garry Van Inge, Eric Nissen, Carney & Bassil, and Nissen & Lumsden, Boston, Mass., on memoranda, for plaintiff, appellant.
Andrew F. Lane, Boston, Mass., Thomas E. Bezanson, Bruce G. Sheffler, Mary T. Yelenick, Warner & Stackpole, Boston, Mass., and Chadbourne & Parke, New York City, on memoranda for defendant, appellee American Tobacco Co.
Samuel Adams, Joseph J. Leghorn, Boston, Mass., James V. Kearney, New York City, Warner & Stackpole, Boston, Mass., and Mudge Rose Guthrie Alexander & Fer-don, New York City, on memoranda for defendant, appellee Liggett Group Inc.
Marshall Simonds, Thomas J. Griffin, Jr., Paul E. Nemser, Boston, Mass., Thomas E. Silfen, Washington, D.C., Goodwin, Proctor & Hoar, Boston, Mass., and Arnold & Porter, Washington, D.C., on memoranda for defendant, appellee, Philip Morris, Inc.
Before SELYA, Circuit Judge, COFFIN and CAMPBELL, Senior Circuit Judges.
SELYA, Circuit Judge.
This opinion promises to be the final trek in a long safari of a case. At journey’s end, we reaffirm our earlier judgment, see Kotler v. American Tobacco Co., 926 F.2d 1217 (1st Cir.1990) [Kotler III], and dismiss the vestiges of plaintiff’s two appeals.
I. BACKGROUND
Our prior opinion memorializes much of this case’s convoluted procedural history. See id. at 1219-20. We merely summarize and update here, highlighting the events that bear on the residuum of the litigation.
Plaintiff-appellant Joanne Kotler sued three cigarette manufacturers, American Tobacco Company (ATC), Philip Morris, Inc. (PMI), and Liggett Group Inc. (Lig-gett), in federal district court to recover damages for her husband’s death from lung cancer. Plaintiff’s claims fell into four general categories: negligence, misrepresentation, breach of warranty based on failure to warn, and breach of warranty based on design defects. During pretrial proceedings, the district court put to rest everything except plaintiff’s pre-1966 claims against ATC for breach of warranty (failure to warn) and negligence. See Kotler v. American Tobacco Co., 685 F.Supp. 15, 18-20 (D.Mass.1988) [Kotler I]; Kotler v. American Tobacco Co., 731 F.Supp. 50, 52-57 (D.Mass.1990) [Kotler II]. Those claims went to trial. The lower court directed a verdict for ATC on the former claim and the jury returned a defendant’s verdict on the negligence count. See Kotler III, 926 F.2d at 1220.
On appeal, we considered myriad assignments of error. These included plaintiff’s challenge to the district court’s May, 1988 ruling that the Federal Cigarette Labeling and Advertising Act, codified as amended, 15 U.S.C. §§ 1331-1341 (1988) [the Labeling Act], preempted her post-1965 misrepresentation claims. See Kotler I, 685 F.Supp. at 20. Inasmuch as the preemption question was clearly controlled by our earlier opinion in Palmer v. Liggett Group, Inc., 825 F.2d 620 (1st Cir.1987), we affirmed the district court's dismissal of these claims without deciding whether Kot-ler’s notice of appeal adequately preserved the preemption issue for appellate review. See Kotler III, 926 F.2d at 1221-24. We did, however, express considerable skepticism about the existence of appellate jurisdiction. See id. at 1221.
Plaintiff also argued that the district court erred in failing to submit her breach of warranty (failure to warn) claim to the jury. We agreed with this assertion but determined that, under Massachusetts products liability law as explicated in Anderson v. Owens-Illinois, Inc., 799 F.2d 1 (1st Cir.1986), the error was harmless. See Kotler III, 926 F.2d at 1228-35. Hence, we affirmed the judgment.
Plaintiff petitioned for certiorari in respect to both the preemption and breach of warranty rulings. The Supreme Court withheld action on the petition pending its disposition of Cipollone v. Liggett Group, Inc., — U.S. —, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992), a case that addressed the Labeling Act’s preemptive effect. The Court decided Cipollone on June 24, 1992, and, in the process, narrowed Palmer’s sweep. Five days later, the Court vacated our judgment in the instant case and remanded “for further consideration in light of Cipollone v. Liggett Group, Inc..... ” See Kotler v. American Tobacco Co., — U.S. —, 112 S.Ct. 3019, 120 L.Ed.2d 891 (1992). Three weeks thereafter, the Massachusetts Supreme Judicial Court (SJC) issued an opinion that clarified, albeit in dicta, state breach of warranty law. See Simmons v. Monarch Machine Tool Co., 413 Mass. 205, 207 n. 3, 596 N.E.2d 318 (1992).
II. ISSUES PRESENTED
Following remand, the defendants moved to dismiss the remnants of plaintiff’s appeals on jurisdictional grounds. The plaintiff opposed this motion and simultaneously asked that we go beyond the letter of the High Court’s remand order to reconsider the directed verdict in light of Simmons. In this posture of the case, two threshold questions loom:
1. Did Kotler’s notice of appeal addressed to PMI and Liggett (No. 90-1400) preserve the preemption issue for appellate review? This is, of course, the very issue which we previously left open. See Kotler III, 926 F.2d at 1221-22. Only if this question warrants an affirmative response can we reach the merits of the preemption claim.
2. Do sufficient grounds exist to impel us to revisit our prior affirmance of the directed verdict in ATC’s favor on the breach of warranty claim (notwithstanding that to do so would require us to surpass the scope of the Supreme Court's limited remand)? Only if this question warrants an affirmative response can we rework the decisional calculus in light of the SJC’s statements in Simmons.
III. THE PREEMPTION ISSUE
PMI and Liggett argue that the preemption issue is not properly before us because plaintiff failed to direct her notice of appeal to the district court’s May, 1988 order.
A
This point is governed by Fed. R.App.P. 3(c), which requires, inter alia, .that a notice of appeal “designate the judgment, order or part thereof appealed from.” The rule’s commands are jurisdictional and mandatory. See Smith v. Barry, — U.S. —, —, 112 S.Ct. 678, 682, 116 L.Ed.2d 678 (1992); Torres v. Oakland Scavenger Co., 487 U.S. 312, 315-16, 108 S.Ct. 2405, 2407-08, 101 L.Ed.2d 285 (1988). Its dictates, however, should be construed liberally. See Smith, — U.S. at —, 112 S.Ct. at 682; Foman v. Davis, 371 U.S. 178, 181-82, 83 S.Ct. 227, 228-30, 9 L.Ed.2d 222 (1962). Noncompliance with “mere technicalities” will not defeat appellate jurisdiction. Foman, 371 U.S. at 181, 83 S.Ct. at 230. Rather, an appeal survives so long as the litigant’s filing “is the functional equivalent of what the rule requires.” Torres, 487 U.S. at 317, 108 S.Ct. at 2409.
In deciding whether a notice of appeal confers appellate jurisdiction over a specific issue, we are cognizant that “the notice afforded by a document, not the litigant’s motivation in filing it, determines the document’s sufficiency as a notice of appeal.” Smith, — U.S. at —, 112 S.Ct. at 682. Accordingly, we examine the notice of appeal addressed to PMI and Lig-gett, see supra note 2, in order to ascertain whether plaintiff sufficiently manifested an intention to appeal the May, 1988 preemption order, or stated another way, whether the notice adequately apprised the defendants of such an intention. See id. (stating that “a notice of appeal must specifically indicate the litigant’s intent to seek appellate review”); Mariani-Giron v. Acevedo-Ruiz, 945 F.2d 1, 3 (1st Cir.1991) (similar); see also Foman, 371 U.S. at 181, 83 S.Ct. at 229 (deciding that petitioner’s intention to appeal a particular order “was manifest”). However, we do not examine the notice in a vacuum but in the context of the record as a whole. See FirsTier Mortgage Co. v. Investors Mortgage Ins. Co., 498 U.S. 269, — n. 6, 111 S.Ct. 648, 653 n. 6, 112 L.Ed.2d 743 (1991) (noting that compliance with Rule 3(c)’s judgment-designation requirement is to be scrutinized “ ‘in light of all the circumstances’ ”) (quoting Torres, 487 U.S. at 316, 108 S.Ct. at 2408); Foman, 371 U.S. at 181, 83 S.Ct. at 229 (considering the entire appellate record); Kelly v. United States, 789 F.2d 94, 96 (1st Cir.1986) (similar); see also Kotler III, 926 F.2d at 1221 (observing that the court of appeals is “not limited to the four corners of the notices [of appeal], but may examine them in the context of the record as a whole”).
B
Upon careful perscrutation of the total record, we are persuaded that plaintiff failed to satisfy the requirements of Appellate Rule 3(c). The body of the relevant notice of appeal is reproduced in the appendix. It makes no reference to the district court’s May, 1988 dismissal of plaintiff’s failure to warn and negligent misrepresentation claims on preemption grounds. Instead, it specifically references the district court’s entirely separate order of November 21, 1989, granting summary judgment on certain design defect claims. Omitting the preemption order while, at the same time, designating a completely separate and independent order loudly proclaims plaintiff’s intention not to appeal from the former order. See, e.g., Mariani-Giron, 945 F.2d at 3; Pope v. MCI Telecommunications Corp., 937 F.2d 258, 266-67 (5th Cir.1991), cert. denied, — U.S. —, 112 S.Ct. 1956, 118 L.Ed.2d 558 (1992); Chaka v. Lane, 894 F.2d 923, 925 (7th Cir.1990); Spound v. Mohasco Indus., Inc., 534 F.2d 404, 410 (1st Cir.), cert. denied, 429 U.S. 886, 97 S.Ct. 238, 50 L.Ed.2d 167 (1976). As an ancient maxim teaches, “expressio unius est exclusio alteráis.” PMI and Liggett were entitled to rely on the plain language and apparent purport of the notice appellant prepared and served.
C
Plaintiff bobs and weaves in an artful attempt to overcome this deficiency. She tries three approaches. We consider them seriatim.
Plaintiff’s reliance upon her explicit mention of the May, 1988 order in a previously filed, yet untimely, notice of appeal is misplaced. Her subsequent reiteration of all the other grounds listed in the untimely notice, coupled with her omission of any further allusion to the May, 1988 order, would inevitably lead reasonably prudent appellees to infer that plaintiff had abandoned her quest for review of the ruling on preemption.
Next, plaintiff theorizes that because the first three paragraphs of her notice of appeal run the gamut of the November, 1989 order, the final paragraph could “only logically refer” to the May, 1988 order. This hypothesis smacks of wishful thinking. The most natural reading of the notice is that all four paragraphs parse the particulars of the November, 1989 order. A review of the proceedings below makes this conclusion pellucidly clear.
In November, 1989, the district court granted defendants’ motions for a protective order and for summary judgment on plaintiffs design defect claims. See Kotler II, 731 F.Supp. at 56-57. It held that plaintiffs evidence was insufficient to support her claim that defendants’ cigarettes were defective because they contained adulterated tobacco. See id. at 56. The court also rejected on state-law grounds an alternative claim that, even if the tobacco was pristine, defendants’ cigarettes were still defective. See id. at 55. The memo-randa that the parties submitted to the district court at that time left no doubt but that this alternative theory represented an attempt to balance product risk against product utility — what we subsequently called “the risk/utility interface.” Kotler III, 926 F.2d at 1224 (excess capitalization omitted).
With this background in mind, it is virtually impossible to read plaintiff's notice of appeal as manifesting anything but an intent to appeal from the whole of the November, 1989 order. Paragraphs (1) and (2) target the grant of summary judgment in favor of PMI and Liggett, respectively, on the ground that plaintiff’s evidence was insufficient to prove adulteration; paragraph (3) targets the district court’s issuance of a protective order; and paragraph (4) targets the court’s rejection of other “theories of defective product,” that is, “risk utility and/or consumer expectation.” After all, Judge Skinner rejected, explicitly and by name, the risk utility theory in his January, 1990 decision granting ATC summary judgment on plaintiff’s design defect claims, see Kotler II, 731 F.Supp. at 52-53; and, moreover, reasonable consumer expectations comprised the focal point of plaintiff’s state-law design defect claims. See Kotler I, 685 F.Supp. at 19. On this basis, we think it is perfectly plain that the fourth paragraph of plaintiff’s notice of appeal did not draw attention to the May, 1988 order.
Third, and finally, we find entirely unpersuasive plaintiff’s argument that the trial judge’s passing allusion to the prior preemption decision in the November, 1989 order sufficiently incorporated the earlier order into the later order to the extent that a notice to appeal the 1989 order constituted, at the same time, notification that plaintiff was appealing the preemption decision.
In sum, plaintiff’s notice of appeal does not mention the May, 1988 order, and nothing else within the record’s perimeter adequately manifests an intent to preserve the preemption ruling for appellate review. In the absence of either a properly targeted notice of appeal or the functional equivalent thereof, we lack jurisdiction over plaintiff’s present claim that the district court erred in assessing the Labeling Act’s preemptory effects.
IV. THE BREACH OF WARRANTY ISSUE
We next consider whether this court can and should revisit its prior affirmance of a judgment for ATC on the state-law breach of warranty count. Plaintiff’s position is that we should dredge up the warranty issue despite the narrow language of the Supreme Court’s remand order (remanding “for further consideration in light of Cipol-lone," a case unrelated to any issue of state law). Because the Court’s order had the effect of vacating our earlier mandate, Kotler asseverates, we are now at liberty to reconsider even issues unrelated to those delineated in the remand order.
The general rule is that, when the Supreme Court remands in a civil case, the court of appeals should confine its ensuing inquiry to matters coming within the specified scope of the remand. See Escalera v. Coombe, 852 F.2d 45, 47 (2d Cir.1988) (“Any reconsideration at this juncture of our earlier opinion [granting petitioner’s writ of habeas corpus] must be limited to the scope of the Supreme Court’s remand.”); Hyatt v. Heckler, 807 F.2d 376, 381 (4th Cir.1986) (limiting review to the scope of the remand), cert. denied, 484 U.S. 820, 108 S.Ct. 79, 98 L.Ed.2d 41 (1987); Hermann v. Brownell, 274 F.2d 842, 843 (9th Cir.) (declaring that the appellate court’s jurisdiction “is rigidly limited to those points, and those points only, specifically consigned to our consideration by the Supreme Court”), cert. denied, 364 U.S. 821, 81 S.Ct. 56, 5 L.Ed.2d 50 (1960). This rule is grounded on sound prudential considerations. Repose is important in the law and, consequently, there must be an end to litigation.
To be sure, there are exceptions to the rule. Thus, we agree with Kotler that, when the Supreme Court vacates an entire judgment, an appellate court, on remand, has the naked power to reexamine an issue that lies beyond the circumference of the Supreme Court’s specific order. See Moore v. Zant, 885 F.2d 1497, 1502-03 (11th Cir.1989), cert. denied, 497 U.S. 1010, 110 S.Ct. 3255, 111 L.Ed.2d 765 (1990); Hill v. Black, 920 F.2d 249, 250 (5th Cir.1990), modified on other grounds, 932 F.2d 369 (5th Cir.1991); but cf. Escalera, 852 F.2d at 47 (refusing to relax general rule in favor of habeas petitioner). This power is to be exercised sparingly and only when its invocation is necessary to avoid extreme injustice. Cf. Eubank Heights Apartments, Ltd. v. Lebow, 669 F.2d 20, 23 (1st Cir.1982) (stating, in connection with what was in effect an untimely petition for rehearing under Fed.R.App.P. 40, that “reopening an issued opinion” would require “a showing of injustice of major proportions — not mere arguable error”). Habeas cases like Moore and Hill often present compelling scenarios for invoking the long-odds exception to the general rule and lowering conventional barriers to further review. In the context of traditional civil litigation, however, even those circuits that have exhibited uncommon liberality in habeas cases are careful to operate within the confines of the Supreme Court’s mandate. See, e.g., United States v. M.C.C. of Florida, Inc., 967 F.2d 1559, 1563 (11th Cir.1992) (refusing to interpret Supreme Court order vacating an entire judgment, but for a specific purpose, as entitling the appellant to a new trial on all issues); Aladdin’s Castle, Inc. v. City of Mesquite, 713 F.2d 137, 138-39 (5th Cir.1983) (vacating a prior decision that strayed outside the scope of the Supreme Court’s remand order).
Nothing in this case compels us to depart from the accepted norm. This is a civil case, pure and simple. The plaintiff has had her full day in court. Allowing our previous decision to stand does not appear to work a gross injustice. To the contrary, reopening the breach of warranty issue on the basis of the fortuitously timed Simmons dictum would set an unfortunate precedent — especially when the Supreme Court’s specific directive tells us to review only a preemption issue that in no way affects ATC.
In the absence of truly egregious error or some other extraordinary circumstance, the Supreme Court’s mandate is “our compass and our guide.” Hermann, 274 F.2d at 843. The situation here is unremarkable and counsels strict adherence to the scope of the Court’s remand order. Hence, we decline to revisit the breach of warranty count. In our view, a decision gratuitously to reopen this issue, like any decision belatedly to reopen a judgment that is arguably in error, would deprive the defendants of their rightful sense of repose and frustrate the judicial system’s core principles of finality and efficiency. Accord Robinson v. Ariyoshi, 854 F.2d 1189, 1190 (9th Cir.1988) (rejecting the proposition that a Supreme Court order remanding for consideration in light of a designated case “reopens the whole case for reconsideration of all issues that have arguably been changed by state law in the interim”).
Y. CONCLUSION
We need go no further. We lack appellate jurisdiction to review the district court's May, 1988 order anent preemption. And, because we are constrained by the narrowly circumscribed scope of the Court’s remand order, we will not revisit the previously decided state-law breach of warranty issue.
The judgment of this court is reissued and mandate is to issue forthwith.
APPENDIX
NOTICE OF APPEAL
Notice is hereby given that the Plaintiff, Joanne Kotler, Individually and as Adminis-tratrix of the Estate of George P. Kotler, hereby appeals to the United States Court of Appeals for the First Circuit from the following:
1) decision of Judge Skinner of November 21, 1989 granting the Motion of the Defendant, Philip Morris for Summary Judgment, from which judgment entered on March 26, 1990;
2) decision of Judge Skinner on November 21, 1989 granting the Motion of the Defendant, Liggett Group, Inc. for Summary Judgment, from which judgment entered on March 26, 1990;
3) limitation of discovery as to Philip Morris and Liggett Group, Inc.; and
4) preclusion of the many theories of defective product, risk utility and/or consumer expectation as to Philip Morris and Lig-gett.
. Kotler II comprises the district court’s memorandum and order of January 12, 1990, granting ATC’s motion for summary judgment on the design defect claims, and incorporates, as an appendix, the court's memorandum and order of November 21, 1989, granting the other defendants’ motions for summary judgment on all remaining claims asserted against them.
. It is crystal clear that plaintiff never intended to appeal the preemption ruling vis-a-vis ATC and she has not made any developed argument to the contrary. At this juncture, then, we ignore Kotler’s notice of appeal against ATC (No. 90-1297) and train our sights exclusively on the notice of appeal plaintiff filed in connection with her claims against PMI and Liggett (No. 90-1400).
. We note that, by vacating and remanding for further consideration in light of Cipollone, the Supreme Court neither reached the merits of plaintiff's preemption claim, see Parker v. Randolph, 442 U.S. 62, 75-76 n. 8, 99 S.Ct. 2132, 2140-41 n. 8, 60 L.Ed.2d 713 (1979), nor passed upon the threshold jurisdictional issue which we must now confront. See United States v. Ferri, 686 F.2d 147, 157 (3d Cir.1982), cert. denied, 459 U.S. 1211, 103 S.Ct. 1205, 75 L.Ed.2d 446 (1983).
. We emphasize that the design defect claims are distinct from the failure to warn and negligent misrepresentation claims which were the object of the May, 1988 order. See, e.g., Kotler I, 685 F.Supp. at 19 (recognizing that, under state law, plaintiffs "claims for defective design [are] independent of [her] claims for failure to warn”).
. We take no view of whether the Simmons dictum, had it been available earlier, might (or might not) have made an outcome-determinative difference in regard to our affirmance of the directed verdict on the breach of warranty count.
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer:
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songer_circuit
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F
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What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case.
SEAGRAVE CORP. v. MOUNT et al. SPAIN et al. v. MOUNT et al.
Nos. 11914, 11915.
United States Court of Appeals, Sixth Circuit.
April 23, 1954.
Walter M. Shohl, Cincinnati, Ohio (Allen I. Pretzman, Noel L. Greenlee, Columbus, Ohio, on the brief), for appellants.
George E. Netter, New York City, Robert S. Marx, Cincinnati, Ohio (Robert N. Gorman, Cincinnati, Ohio, Robert Dow Hamilton, Columbus, Ohio, on the brief), for appellees.
Before ALLEN, MARTIN and MILLER, Circuit Judges.
MILLER, Circuit Judge.
Appellees, minority stockholders in The Seagrave Corporation, hereinafter called Seagrave, brought a stockholders’ derivative suit against Seagrave and its officers to enjoin them from carrying out a proposed transaction between Seagrave and Herbert A. Post, Incorporated, hereinafter called Post, which provided for the purchase by Seagrave from Post of all the common stock of The Fyr-Fyter Company, hereinafter called Fyr-Fyter, on the ground that it was unfair to Sea-grave and its stockholders and in violation of the fiduciary duty of the officers and dominant stockholders to Seagrave and all its stockholders. The District Judge held the plan to be unfair and illegal, and enjoined the defendants from consummating the transaction. Separate appeals by Seagrave and by its officers were consolidated and heard together.
The underlying facts, which are not in controversy, are as follows: Seagrave, a Michigan Corporation, has its principal place of business in Columbus, Ohio. Its principal product is motorized firefighting equipment. It has an authorized capital of 125,000 shares of common stock of the par value of $5 per share, of which there are issued and outstanding 122,700 shares. The ten plaintiffs own 800 shares.
The Fyr-Fyter Company, an Ohio corporation, is engaged in the manufacture of portable fire extinguishers and other items of fire-fighting equipment. Its capital consists of 40,000 shares of common stock of the par value of $5 per share, owned by Herbert A. Post, Incorporated, and 20,000 shares of 5% cumulative preferred stock of the par value of $30 per share, of which William McKinley Wetzel owns at least 9,485 shares, and Mr. Marlier, a friend and business associate of Wetzel, owns 10,000 shares. Wetzel is the owner of all the issued and outstanding stock of Post. Fyr-Fyter owns the stock of the Wooster Brass Company, which it operates as a division of its business.
Seagrave’s chief competitor is American-LaFrance Foamite Company, which not only manufactures motorized firefighting equipment, but also portable fire prevention equipment, such as is manufactured by Fyr-Fyter. Seagrave has no affiliation with any company manufacturing portable fire prevention equipment.
The proposed transaction now under attack would join Seagrdve with Fyr-Fyter and its subsidiary the Wooster Brass Company for the purpose of enabling Seagrave to better meet the competition of American-LaFrance. The plan provides for the purchase by Sea-grave from Post of all of the common stock of Fyr-Fyter, in consideration of the issuance and delivery to Post of 146,084 shares of Seagrave common stock, and for the purchase by Seagrave •from the holders thereof of not less than 95% of the 20,000 shares of 5% cumulative preferred stock of Fyr-Fyter of the par value of $30 per share, in consideration of the issuance and delivery to such preferred shareholders of Fyr-Fyter shares of 5% cumulative preferred stock of Seagrave, of the par value of $30 per share, on a share for share basis. This required that Sea-grave increase its authorized common stock to 268,784 shares and create a new issue of 20,000 of 5% cumulative preferred stock of the par value of $30 per share. The plan provided for an increase in the authorized common stock to 368,784 shares, thus authorizing 100,-000 shares of unissued common stock. A written agreement of date August 26, 1952 was entered into between Seagrave and Post containing the foregoing provisions.
As a part of the over-all plan, Wet-zel, who owns all of the outstanding stock of Post, entered into contracts with approximately thirty stockholders of Seagrave for the purchase of 35,000 shares of the Seagrave stock at a price of $20 per share. Of these 35,000 shares, Arthur A. Marcus and Charles B. Wilkes, two of the seven Seagrave directors, are selling 1700 shares and 15,700 shares respectively. This purchase is conditioned upon consummation of the contract between Seagrave and Post and its approval by a majority vote of all outstanding Seagrave stockholders, after deducting from the total outstanding shares the stock of those stockholders who were under contract to sell to Wet-zel. This contract provides that the selling stockholders deliver to Wetzel, on the closing date therein referred to, the written resignations of four directors of the Company.
Following approval of the plan by the Board of Directors of Seagrave, it was submitted to a special meeting of the stockholders of Seagrave on September 29, 1952, at which 97,168 shares voted in favor of the purchase, and 6,673 shares voted against the purchase. This action was filed shortly prior to the stockholders’ meeting, but by agreement the meeting was permitted to be held, but completion of the transaction was stayed pending the final ruling of the Court upon the merits.
The evidence showed that as of June 30, 1952, Seagrave had capital and surplus of $2,377,158.37, while Fyr-Fyter and its subsidiary had capital and surplus of $1,087,986.72. For the four and one-half years prior to June 30, 1952 Seagrave earned $1,661,681, while Fyr-Fyter and its subsidiary earned $842,-095. In the eleven and one-half years prior to June 30, 1952 Seagrave earned $2,160,804, while Fyr-Fyter and its subsidiary earned $2,810,396. The years 1943-1947 were poor years for Seagrave. Its net earnings in 1946 and 1947 dropped to $25,213 and $36,791 respectively from $130,053 in 1941 and $124,-609 in 1942. In 1948, they jumped to $322,567. On the other hand, Fyr-Fyter and its subsidiary had two of its best years in 1946 and 1947 with net earnings of $318,244 and $334,393 respectively. In 1948, its net earnings were $298,268. The book value of the shares of Sea-grave as of June 30, 1952 was $19.37 per share. Upon consummation of the plan it would be $10.29 per share. The high and low sales prices on the New York Stock Exchange on August 22, 1942 for Seagrave common stock was 15 and 14y2 respectively.
The evidence also showed that a group of investors, headed by Charles B. Wilkes, Arthur A. Brown, and Morton Globus, of New York City or environs, had over a period of time accumulated sufficient stock of Seagrave to constitute by the spring of 1951 a working majority for the election of directors and to enable them to accomplish the replacement of a majority of four of the seven board members with directors of their own choosing at the annual meeting in March 1951. This stockholder group, referred to as the Wilkes group, are represented on the board by Charles B. Wilkes, Robert B. Wilkes, Arthur A. Marcus and John J. McCarthy. The other three directors are H. B. Spain, President, J. Lester Stevenson, Vice-President, and Allen Pretzman, Counsel and Chairman of the Board, who constitute the active management. Their connection with the corporation long antedates that of the Wilkes group. Spain, Stevenson and Pretzman have been in disagreement with the dominant Wilkes group. The Wilkes group was insistent upon a dividend in excess of the current earnings which was strongly opposed by the management group. This, together with other differences, made an unhappy situation for these three to the extent that their resignations were probable if the Wilkes group continued to dominate the Board. Under the plan, the four members of the Wilkes group would resign as directors, Wetzel would name their successors, and Spain, Stevenson and Pretzman would continue with the Company, with Pretzman becoming local counsel and director instead of Counsel and Chairman of the Board.
The Proxy Statement, sent out in connection with the stockholders meeting, gave the details of the plan together with appropriate background and financial information about the two companies. It recited the purpose and advantages of the plan. It referred to the proposed purchase by Wetzel of 35,000 shares at $20 per share and contained the statement, “such price being approximately one-third higher than the current market on the New York Stock Exchange.” It stated the proposed change of directors effective upon the consummation of the plan, advising that it was the intention of the Board to elect as the four new directors Wetzel and three others to be nominated by Wetzel, who had “not yet been determined.” It stated that consummation of the plan would vest voting control in Wetzel, who “does not at present contemplate any substantial change in the operating management.” No reference was made to any existing differences among the present directors. It stated that the Board of Directors of Seagrave (Arthur A. Marcus opposing) had approved the plan. The reason for the negative vote of Marcus was not given.
The District Judge found that the conflict between the members of the Board of Directors was so bitter and intense that if it continued the logical consequences appeared to be either the resignation or discharge of Pretzman, Spain and Stevenson from their respective positions as Counsel, President and Vice-President of Seagrave; that Wetzel, who would gain control of Seagrave if the plan was consummated, had promised to continue to employ Pretzman, Spain and Stevenson in their respective positions with the Corporation; that the proxy statement did not inform the stockholders of the conflict among the directors or of the fact that Pretzman, Spain and Stevenson had definite reasons to believe that their continued employment by the Corporation would be more certain if the plan was consummated; that the members of the Wilkes group who would sell 35,000 shares of common stock to Wetzel under the plan would receive approximately $6 per share in excess of the current market value, or a total of more than $200,000 in excess of the current market value of said common stock; that the invested capital of Seagrave was several times greater than that of Fyr-Fyter and its subsidiary Wooster Brass; that in the last four and one-half years Seagrave earned for its common stockholders $1,661,681 while during the same period Fyr-Fyter and its subsidiary Wooster Brass earned $842,095; that each of the Directors had a substantial personal interest in the consummation of the proposed plan; that in the case of the four Directors representing the so-called Wilkes group the interest of such Directors and of the group which they represented was clearly in conflict with the interest of the minority stockholders; that these four directors did not act in the unprejudiced exercise of their judgment for the benefit of Seagrave and all its stockholders, but acted primarily in the special interest of the controlling group of stockholders; that Directors Pretzman, Spain and Stevenson, in considering and approving the proposed plan, did not act in the unprejudiced exercise of their judgment for the benefit of Seagrave and all its stockholders, but acted primarily because of their desire to continue in their present positions ; that the plan was inequitable, unfair and illegal; that the Directors in considering and approving the proposed plan did not act in good faith or with reasonable care, but on the contrary violated their fiduciary duties as directors; that the proxy statement was inadequate, incomplete, misleading, unfair and did not fairly inform the stockholders of all the material facts; and that the approval by the majority of the stockholders of the proposed plan, which was in violation of the principles of equity, was not binding upon the stockholders or the Corporation.
Appellees contend that these findings are supported by the evidence, are not clearly erroneous, and must be accepted on this review under Rule 52(a), Rules of Civil Procedure, 28 U.S.C.A. Appellants contend that since substantially all of the testimony was submitted to the Court in written form with the District Judge not seeing or hearing the witnesses, the District Judge had no better opportunity of judging the credibility of the witnesses than does this Court, and that the findings of the District Judge are not accorded the finality which would otherwise attach under Rule 52(a). This appears to be the prevailing view throughout the Circuits. Letcher County v. De Foe, 6 Cir., 151 F.2d 987, 990; Orvis v. Higgins, 2 Cir., 180 F.2d 537, 539; Bowles v. Beatrice Creamery Co., 10 Cir., 146 F.2d 774, 780; Equitable Life Assur. Soc. v. Irelan, 9 Cir., 123 F.2d 462, 464; State Farm Mut. Automobile Ins. Co. v. Bonacci, 8 Cir., 111 F.2d 412, 415; Himmel Bros. Co. v. Serrick Corp., 7 Cir., 122 F.2d 740, 742. Accordingly, we do not accept the findings as controlling. The documentary and statistical evidence, including the details of the plan, are not in dispute, but we will make our own evaluation of the conclusions to be drawn from them on this review. Letcher County v. De Foe, supra.
Appellees successfully contended in the District Court, and renew the contention here, that the underlying provisions of the plan caused the proposed purchase to be unfair and equitable to the minority stockholders of Seagrave. They rely chiefly upon the material difference in the net assets of the two companies, the fact that the earnings of Sea-grave over the past four and one-half years were approximately double those of Fyr-Fyter and its subsidiary, and the decrease in book value of Seagrave stock from $19.37 per share to $10.29 a share upon consummation of the plan. Appellants urge upon us that the fairness of the plan involves numerous factors, including, in addition to the ones referred to, such intangible ones as good will, effect of existing patents, recent and prospective earning power, and the competitive situation in the industry. They point out that regardless of the difference in the net assets, the annual net profits of Fyr-Fyter have been more consistent than those of Seagrave, and over the period of the past eleven and one-half years, instead of the four and one-half considered by the District Judge, Fyr-Fyter’s net profits have exceeded those of Seagrave. They contend that the economic fairness of the plan is a matter of business judgment, in the exercise of which the action of the Board of Directors and the majority of the stockholders is controlling, and that majority stockholders are at liberty to dispose of their shares at any time and for any price to which they may agree without being liable to other stockholders.
As a general proposition appellants are correct in this contention. United Milk Products Corp. v. Lovell, 6 Cir., 75 F.2d 923, 927, certiorari denied 295 U.S. 751, 55 S.Ct. 831, 79 L.Ed. 1696; Roby v. Dunnett, 10 Cir., 88 F.2d 68, 69. However, there are recognized exceptions to the general rule, such as where fraud is involved in the actions of the dominant directors and stockholders, where controlling stockholders turn over their shares to purchasers who mismanage the corporation or loot the corporate assets, where non-controlling stockholders are induced to sell their shares by concealment of the fact that a premium is to be paid to the controlling stockholders, where controlling stockholders or directors make a secret profit from a transaction, or where directors are dealing directly with the corporation to their own personal advantage, known or unknown. Ashman v. Miller, 6 Cir., 101 F.2d 85, 90; Oil Shares v. Kahn, 3 Cir., 94 F.2d 751, reversed on other grounds, Oil Shares v. Commercial Trust Co., 304 U.S. 551, 58 S.Ct. 1059, 82 L.Ed. 1522; Kroese v. General Castings Corp., 3 Cir., 179 F.2d 760, 763, 15 A.L.R.2d 1117; Moulton v. Field, 7 Cir., 179 F. 673; In-suranshares Corp. of Delaware v. Northern Fiscal Corp., D.C., 35 F.Supp. 22.
A recognition of this general principle and the exceptions to it removes from the case a great deal of what has been argued to us by the parties on this appeal. The fairness of the plan to the stockholders of Seagrave is questionable, but its provisions are not so inequitable or so at variance with what sound business judgment would call for under existing business conditions, as to constitute actual fraud on the part of the directors. We find it unnecessary to discuss and compare the alleged inequities and the claimed advantages. It is a matter which addresses itself to the business judgment of the directors and those in control of the destinies of Seagrave. United Milk Products Corp. v. Lovell, supra, 75 F.2d at page 927.
We also agree with appellants’ contention that the case does not fall within any of the other classifications referred to above, such as where directors are dealing directly with the corporation for their own personal advantage, or are making a secret profit for themselves in a corporate transaction. The profit from the sale of their stock to Wetzel at $20 per share was fully disclosed by the Proxy Statement.
Appellees’ contention and the finding of the District Judge, that the Proxy Statement was incomplete, misleading, and did not fairly inform the stockholders of the material facts, are not, in our opinion, sustained by the evidence. The factual situation is explained in detail by the Proxy Statement, which contains a copy of the Plan and financial statements of the two companies giving the information hereinabove referred to. It appears to us to be a complete and fair statement of the Plan and the expected result of the merger. Appellees strongly stress its failure to refer to the existing differences between the two factions on the Board of Directors. As hereinafter pointed out, we think such dissention plays a part in the final ruling on this case. But it has little, if any, bearing on the intrinsic merits of the Plan, and is an intangible factor difficult to accurately portray, any statement of which is potentially misleading or prejudicial to at least some of the stockholders. What effect, if any, it would have had on the voting is not shown. In our opinion, a statement concerning it in the Proxy Statement, would have probably influenced votes in favor of the Plan, and would have been definitely prejudicial to appellees. We do not consider the omission prejudicial to appellees.
We are of the opinion, however, that the case is controlled by the fundamental principle of equity governing the personal transactions of fiduciaries in matters involving the interests of those to whom the fiduciary duty runs. As expressed by then Chief Justice Cardozo of the Court of Appeals of New York in Meinhard v. Salmon, 249 N.Y. 458, 164 N.E. 545, 546, 62 A.L.R. 1: “Many forms of conduct permissible in a workaday world for those acting at arm’s length, are forbidden to those bound by fiduciary ties. A trustee is held to something stricter than the morals of the market place. Not honestly alone, but the punctilio of an honor the most sensitive, is then the standard of behavior. As to this there has developed a tradition that is unbending and inveterate. Uncompromising rigidity has been the attitude of courts of equity when petitioned to undermine the rule of undivided loyalty by the ‘disintegrating erosion’ of particular exceptions.”
A director is a fiduciary. So is a dominant or controlling stockholder or group of stockholders. Pepper v. Litton, 308 U.S. 295, 306, 60 S.Ct. 238, 84 L.Ed. 281; Southern Pacific Co. v. Bogert, 250 U.S. 483, 491-492, 39 S.Ct. 633, 63 L.Ed. 1099; Wagner Elec. Corp. v. Hydraulic Brake Co., 269 Mich. 560, 566, 257 N.W. 884. When the dual relationship of individual and fiduciary creates a conflict of interest the fiduciary relationship must prevail. The Supreme Court said in United Copper Securities Co. v. Amalgamated Copper Co., 244 U.S. 261, at pages 263-264, 37 S.Ct. 509, at page 510, 61 L.Ed. 1119, that questions of internal management are ordinarily left to the discretion of the directors, and “Courts interfere seldom to control such discretion intra vires the corporation, except where the directors are guilty of misconduct equivalent to a breach of trust, or where they stand in a dual relation which prevents an unprejudiced exercise of judgment; * * * (Emphasis added.) This was repeated with approval by this Court in United Milk Products Corp. v. Lovell, supra, 75 F.2d 923, 927. In Ashman v. Miller, supra, 101 F.2d 85, 91, we again said: “It is too plain for citation of authority that a director of a corporation cannot barter or sell his official discretion or enter into any contract whatever that will in any way restrict or limit the free exercise of his judgment and discretion in his official capacity, nor can he place himself under any direct and powerful inducement to disregard his duty to the corporation and its stockholders in the management of corporate affairs.” See also: Thomas v. Matthews, 94 Ohio St. 32, 43, 60, 113 N.E. 669, L.R.A.1917A, 1068.
In the present case, we are of the opinion that the personal interest of the directors representing the Wilkes group was involved to an extent which interferred with the unprejudiced exercise of judgment to which the minority stockholders were entitled. As part of their contract of purchase on behalf of Seagrave from Post (in practical effect Wetzel) they were at the same time selling for themselves and others to Wetzel 35,000 shares of Seagrave stock at a price of $5 or more per share than was available on the open market. This price was not available to the minority stockholders. Nor was the purchase of any of this stock by Wetzel necessary to give Wetzel a majority of the voting stock of Seagrave. Against the background of dissention in the Board of Directors, the possibility of such an advantageous sale of this stock interest necessarily injected into the picture a personal interest which could affect the exercise of unprejudiced judgment with respect to the interests of the corporation and the minority stockholders. . The desire of the three management directors to get rid of the Wilkes group, to end the dissention which threatened their positions with the Company, together with Wetzel’s ■stated intention to make no substantial change in operating management if the plan was consummated, likewise injected into the picture a personal interest on the part of these three directors in favor of consummating the plan. Whether conscious of the effect or not, the combination of such factors deprived the stockholders of that impartial, unprejudiced action which the fiduciary relationship required.
Although good faith on the part of the Directors and the disclosure of the material facts eliminate the question of actual fraud, equity will still act to enforce the fiduciary obligation under circumstances amounting to constructive fraud. Constructive fraud refers to acts which may have been done in good faith, with no purpose to harm the corporation, but which are done by one who has placed himself in a position of conflict between a fiduciary obligation and his own private interests. In such a situation, by reason of the strict rule applicable to fiduciaries, equity will take appropriate action to prevent the harm resulting from such actions, regardless of the good intentions of the fiduciary. Levitan v. Stout, D.C.W.D.Ky., 97 F.Supp. 105, 117; Epstein v. United States, 6 Cir., 174 F.2d 754, 765-766; Hyams v. Calumet & Hecla Mining Co., 6 Cir., 221 F. 529, 542-543.
Appellants contend that because a large majority of the shares voted at the stockholders’ meeting were in favor of the purchase, the action of the directors was ratified. We must take into consideration the influence of the Wilkes group, the solicitation and use of proxies by management, and the previous action of the directors in determining the effect of such an alleged ratification. Under the circumstances, we do not consider it a valid ratification. Hyams v. Calumet & Hecla Mining Co., 6 Cir., supra, 221 F. 529, 541-542; Kahn v. Schiff, D.C.S.D.Ohio, 105 F.Supp. 973, 976. See also Geddes v. Anacondo Mining Co., 254 U.S. 590, 591, 599, 41 S.Ct. 209, 65 L.Ed. 425. In any event, in order to amend the charter, as required by the Plan, it was necessary under the law of Michigan, the State of incorporation, to obtain the vote of the majority of the outstanding shares, which would require 61,351 shares. Not counting the vote of the 43,-000 shares of the Wilkes group, only 53,979 shares voted in favor of the proposed change.
The judgment is affirmed.
Question: What is the circuit of the court that decided the case?
A. First Circuit
B. Second Circuit
C. Third Circuit
D. Fourth Circuit
E. Fifth Circuit
F. Sixth Circuit
G. Seventh Circuit
H. Eighth Circuit
I. Ninth Circuit
J. Tenth Circuit
K. Eleventh Circuit
L. District of Columbia Circuit
Answer:
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songer_genresp1
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E
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
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.
Kirk Bradley BELL, Petitioner-Appellant, v. Jack DUCKWORTH, Respondent-Appellee.
No. 87-2591.
United States Court of Appeals, Seventh Circuit.
Submitted Aug. 30, 1988.
Decided Nov. 8, 1988.
Rehearing and Rehearing En Banc Denied Dec. 21, 1988.
Kirk Bradley Bell, Michigan City, Ind., pro se.
David A. Nowak, Deputy Atty. Gen., Indianapolis, Ind., for respondent-appellee.
Before POSNER, MANION and KANNE, Circuit Judges.
POSNER, Circuit Judge.
Kirk Bell was convicted of murder in an Indiana state court. After exhausting his state remedies he brought this habeas corpus action. The district court dismissed and he appeals. The appeal has no merit; we write only to make as clear as we can that procedural errors committed in the course of a state criminal trial are not a ground for federal habeas corpus. Smith v. Phillips, 455 U.S. 209, 221 (1982). Only constitutional error is a ground. This fundamental limitation on the habeas corpus jurisdiction may not be got round by the facile equation of state procedural error to due process denial. See Jones v. Thieret, 846 F.2d 457, 459-61 (7th Cir.1988).
That is Bell’s tactic. He complains to begin with about the judge’s refusal to order the prosecution witnesses to leave the courtroom during the voir dire of the jury. He claims that the witnesses may have been contaminated by hearing the questions asked of prospective jurors. (In fact the prosecutor had told his witnesses to remain outside the courtroom until called to testify; and there is no evidence that any of those witnesses were in the courtroom during the voir dire. But that is a detail.) A refusal to exclude (“separate”) witnesses until they testify is not a denial of due process. Separation or sequestration of witnesses, on which see Geders v. United States, 425 U.S. 80, 87 (1976); Fed. R.Evid. 615, is a long-established and well-recognized measure designed to increase the likelihood that testimony will be candid. But the due process clause does not incorporate every refinement of legal procedure designed to make trials fairer or more accurate — not even one hallowed by time. See, e.g., Watson v. Camp, 848 F.2d 89 (7th Cir.1988). It forbids only egregious departures (illustrated by Walberg v. Israel, 766 F.2d 1071 (7th Cir.1985)) from accepted standards of legal justice. Hill v. United States, 368 U.S. 424, 428 (1962).
Bell’s next complaint is about the denial of a continuance to enable a defense to be prepared against a prosecution witness who first appeared the day the trial began, having been a fugitive till then. In some circumstances such a ruling could be a denial of due process: if the witness was crucial to the prosecution and the defense needed time to develop evidence to counter his testimony. This witness’s testimony was important (he was an eyewitness), but defense counsel had and exercised the opportunity to cross-examine him fully; and to this day there is no suggestion of what defense against his testimony Bell’s counsel might have developed if given a continuance. Cf. United States ex rel. Searcy v. Greer, 768 F.2d 906, 913 (7th Cir.1985).
Next Bell argues about limitations that the judge placed on the scope of one of the witnesses’ testimony. Again the argument is misconceived. Errors in the management of a state criminal trial do not deny the defendant due process of law, see, e.g., Willard v. Pearson, 823 F.2d 1141, 1149 (7th Cir.1987), unless they are so harmful to the cause of truth that, singly or cumulatively, they make the defendant’s conviction fundamentally unfair, see, e.g., Dudley v. Duckworth, 854 F.2d 967, 972 (7th Cir.1988).
Last, Bell complains about the judge’s granting a four-day Thanksgiving recess to the jury, rather than resuming on the Friday following Thanksgiving Day for closing arguments (they were held on the following Monday, when the case resumed). The jury was given, and so far as appears obeyed, the usual admonition about not discussing the case with anyone during the recess. So Bell cannot show that he was denied a fair trial. See United States ex rel. Jones v. DeRobertis, 766 F.2d 270, 279 (7th Cir.1985). We find it hard to imagine circumstances in which a scheduling decision unrelated to the right to a speedy trial would deny a defendant due process of law. It trivializes the Constitution and the function of federal habeas corpus to argue that the minutiae of trial scheduling furnish grounds for federal intervention in the state criminal process.
AFFIRMED.
Question: What is the nature of the first listed respondent?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_appbus
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
RICHMOND DEVELOPMENT CORPORATION v. FEDERAL RADIO COMMISSION.
Court of Appeals of District of Columbia.
Argued October 11, 1929.
Decided November 4, 1929.
Rehearing Denied.
No. 4925.
Stanton C. Peelle, of Washington, D. C., for appellant.
Paul D. P. Spearman and Bethuel M. Webster, Jr., all of Washington, D. C., for appellee.
Before MARTIN, Chief Justice, and ROBB and VAN ORSDEL, Associate Justices.
MARTIN, Chief Justice.
This is an appeal from an order of the Federal Radio Commission denying appellant’s application for an extension of time for the construction of a radio broadcasting station at Roanoke, Va.
It appears that in August, 1927, appellant applied to the commission for a construction permit to erect a radio station at Roanoke, Va. The application was granted, and a permit was issued in April, 1928. The permit stated that the maximum power of the station should be 250 watts, and that its frequency would be assigned later. It required that construction of the station should he commenced at once, and should be completed by May 31,1928.
It is provided by section 21 of the Radio Act of 1927, 44 Stat. 1162 (47 TTSCA § 101), that such a permit becomes automatically forfeited if the station is not ready for operation within the time specified in the permit, or within such further time as the licensing authority may allow, unless prevented by causes not under the control of the grantee. The same section provides that upon the completion of any station for the construction of-which a permit has been granted, and upon it being made to appear to the licensing authority that all the terms, conditions and obligations set forth in the application and permit have been fully met, and that no cause or circumstance arising or first coming to the knowledge of the licensing authority since the granting of the permit would, in the judgment of the licensing authority, make the operation of such station against the publie interest, the licensing authority shall issue a license to the lawful holder of the permit for the operation of the station.
The permit in question was not actually received by appellant until May 2,1928. On May 7th appellant by personal interview undertook to secure the necessary equipment for the station from the Radio Corporation of America, but on May 11th it was indicated by that company that it could give no definite date for the delivery of the equipment. On the following day appellant opened negotiations with the Graybar Electric Company for the equipment, and a contract therefor was signed by the parties as of that date. On May 14th appellant informed the commission of these facts and applied for an extension of time for the completion of the station. On June 1st the commission extended the time until- July 1st, and afterwards granted a second extension until September 1st. The uncontradieted evidence is to the effect that during this time appellant was making diligent efforts to complete the station within the specified time, but owing to delays caused by contractors, by engineering difficulties, and by weather conditions, construction was not completed by September 1st.
On September 15th appellant applied to the commission for an extension of time until October 31st for the completion of the station. This application was heard on evidence by the commission, and a rehearing also was had. At the conclusion thereof one of the five commissioners refused to vote at all upon the application; two of the commissioners voted to grant the extension; the remaining two commissioners voted to deny it. Inasmuch as the application did not receive a majority of the votes east, it was regarded as denied, and an order was entered to that effect. This appeal was then taken.
We are convinced by a review of the record that it was the duty of the commission to grant the application. The evidence, without substantial contradiction, discloses that the applicant had acted, not only in good faith, but also with diligence, in its efforts to construct the station within the time allowed by the permit, and that the completion thereof! was prevented by causes not under its control. The evidence includes the affidavit of the sales manager of the Graybar Electric Company, Inc., with whom appellant had contracted as early as May 12th for the purchase of the broadcasting equipment, and the development of plans and specifications for the erection of the station. The affidavit contains the following statement:
“We know from our experience in the manufacture and installation of radio equipment and radio broadcasting stations that it was impossible for the Richmond Development Corporation to complete the necessary construction work in accordance with the complete plans and specifications furnished by us prior to September 1, 1928, which we lare advised was the date of the expiration of their construction permit. The equipment and plans for the proposed station at Roanoke, Va., call for the most up-to-date station and most modem equipment which can be secured, and should prove, when completed, capable of giving first-class service, both to the city of Roanoke and the surrounding territory.”
The evidence discloses that prior to September 1st appellant had expended about $7,000 in the erection of buildings for the station, and had incurred expenses sufficient to increase its total expenditures to more than $30,000. If appellant is denied the privilege of completing the station, it will suffer a heavy loss in consequence. On the other hand, it cannot be contended that the public interests have suffered any loss or prejudice by reason of the delay in the completion of the station, and, if allowed to proceed with the construction, appellant agrees “to make every human effort to push it through to the earliest possible completion.”
Furthermore, in our opinion, the record discloses no cause or circumstance arising or first coming to the knowledge of the commission since the granting of the permit which would make the operation of such station against the public interest. It is manifest that the opposition to appellant’s application is largely based upon the claim that when the construction permit was first granted there already was an efficient broadcasting station in Roanoke, and that there was no public need for another station; also that the erection of a second station in Roanoke would tend to deprive other cities in Virginia of their just and equal righto in broadcasting. This argument, however, is answered by the fact that all of these conditions were well known to the commission and must have been considered by that body, when it granted the construction permit and the extensions thereof. Consequently they do not constitute a “cause or circumstance arising or first coming to the knowledge of the licensing authority sinee the granting of the permit.” With reference to the alleged injustice which may result to other cities from the operation of this station, if completed, it may be noted that prior to the date, of appellant’s permit the competing Roanoke station was not using all of its time, and when the commission made an allocation on September 1, 1928, it provided that the two stations should share time. This allocation was rescinded when it came to the attention of the commission that appellant’s station had not been completed within the prescribed time. But it does not appear that such an allocation cannot be made without injustice to other cities, if the station should hereafter be completed.
It is therefore the decision of this court that the appellant was on September 1, 1928, and still is, entitled to an extension of time reasonably sufficient to enable it to complete the construction of the broadcasting station in question. The decision appealed from is reversed, and this cause is remanded to the Federal Radio Commission, to carry the present decision into effect.
Question: What is the total number of appellants in the case that fall into the category "private business and its executives"? Answer with a number.
Answer:
|
songer_weightev
|
D
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?" This includes discussions of whether the litigant met the burden of proof. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
UNITED STATES of America, Plaintiff-Appellee, v. Juan Angel HUGUEZ-IBARRA, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Dagobastro OLIVARRIA-PALACIOS, Defendant-Appellant.
Nos. 88-1354, 88-1384.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Dec. 12, 1989.
Decided Jan. 21, 1992.
Peter B. Keller, Keller & Postero, Tucson, Ariz., for defendant-appellant Juan Huguez-Ibarra.
Stephen G. Ralls, Sean Bruner, Ralls & Bruner, Tucson, Ariz., for defendant-appellant Dagobastro Olivarria-Palacios.
Phillip G. Espinosa, Asst. U.S. Atty., Tucson, Ariz., for plaintiff-appellee.
Before POOLE, REINHARDT and BEEZER, Circuit Judges.
POOLE, Circuit Judge:
Appellants Juan Huguez-Ibarra and Da-gobastro Olivarria-Palacios appeal their convictions for conspiracy to possess with intent to distribute and possession with the intent to distribute 500 grams or more but less than five kilograms of cocaine in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(l)(B)(ii)(II). They were tried as co-defendants and their appeals have been consolidated.
They appeal the district court’s denial of their motions to suppress. Both also claim that the district court erred when it denied their motions to exclude from evidence notebooks found in their residence. Hu-guez-Ibarra alone alleges the district court erred when it allowed a receipt for the purchase of an automobile, found in the residence, to be admitted into evidence. Furthermore, Huguez-Ibarra challenges the district court’s denial of his motion for a mistrial or continuance based on the late disclosure of evidence. Finally, Huguez-Ibarra argues that the district court erred when it denied his proposed jury instruction on a so-called “lesser included offense.”
We conclude that the government agents lacked probable cause for their warrantless entry into Appellants’ residence. The evidence which the government obtained as a result of that entry should therefore have been suppressed. Because of the prejudicial impact which the inadmissible evidence potentially had on the jury, we reverse the convictions and remand for a new trial.
We have also concluded that the search warrant for the residence was not supported by probable cause. Accordingly, we reverse and remand to the district court for further proceedings to consider whether the evidence seized pursuant to the search warrants is nevertheless admissible under United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). For the guidance of the district court in the event of retrial, we also discuss the other issues raised by Appellants in their appeals.
FACTS
In August 1987, United States Drug Enforcement Administration (DEA) agents received citizen complaints regarding a high level of vehicular traffic at 3701 East Dover Stravenue (“residence”), in Tucson, Arizona. In response to the citizen complaints, DEA Agents Teresa Gulotta and Alex Vazquez began drive-by surveillance of the residence several times a week in August 1987. Agents began extended surveillance in October 1987, while continuing to drive by periodically. Starting in December 1987 or January 1988, stationary surveillance of the residence was conducted one or two times a month. Agent Gulotta herself participated in stationary surveillance three or four times over the course of the investigation.
Over the course of the entire investigation, agents documented in excess of forty different vehicles at the residence. The agents ran checks on those vehicles, and found that some were registered to individuals reputed to be “affiliates” of narcotics organizations. Agents on occasion tried to follow vehicles departing the residence, and found them to drive in “an erratic and circuitous manner.” Several vehicles were stopped after leaving the residence, their occupants questioned, and the vehicles searched.
During the stationary surveillance, which lasted five or six hours, agents observed as many as six to eight vehicles pulling up to the residence, although the number of vehicles observed varied. Individuals would enter the residence, sometimes empty-handed and sometimes carrying boxes or bags. Visits would last anywhere from a few minutes to several hours, and then the visitors would return to their vehicles, sometimes carrying boxes and bags, and sometimes empty-handed. Agents also observed cars pulling into the carport, and on at least one occasion, a vehicle pulling through the carport and into the backyard. Agents noted that when the vehicle would reach the carport, the carport lights would be extinguished. Agents also on occasion observed “activity” surrounding the vehicles, but were unable to discern what was being done.
On April 29, 1988, at approximately 6:00 p.m., agents Vazquez and Gulotta, accompanied by other agents from the United States Customs Service and the United States Border Patrol, set up a stationary surveillance at the house. Two cars parked in front of the residence were joined by a Mercury Lynx (Mercury) and later a two-tone pick-up truck (pick-up). The occupants of the Mercury were seen entering the residence empty-handed and returning to their car with a white plastic shopping bag. They then drove away from the residence. The Border Patrol agents stopped the Mercury about two miles from the residence. Upon approaching the car, the agents detected the smell of marijuana. They brought a narcotics detection dog to the car, and the dog alerted to two suitcases visible in the car’s hatch area. The white plastic bag seen carried to the car was empty and a search of the car revealed no drugs. A subsequent search of the suitcases also failed to reveal any narcotics. The occupants of the Mercury were released.
When the dog alerted to the suitcases, the agents decided to seek a search warrant for the residence. Agent Gulotta ended her surveillance of the residence to obtain the warrant. After she left the surveillance area but before she could obtain the search warrant, Agent Vazquez with other agents stopped the pick-up. Agent Gulotta’s affidavit supporting the first search warrant contains no information regarding the events which took place after the stop of the Mercury. The stop of the pick-up occurred some time between 6:40 p.m. and 6:52 p.m. In response to questioning, the occupants of the pick-up denied having been at the residence. In addition to questioning the occupants, the agents brought a narcotics detection dog to the pick-up. The dog did not alert to the presence of drugs, and the agents released the pick-up.
At 7:20 p.m., Agent Vazquez made the decision to secure the residence until the search warrant could be obtained. He estimated that it would take two hours to obtain the search warrant and he was afraid that the occupants of the stopped vehicles would warn the residents of 3701 East Dover Stravenue. At approximately 7:36 p.m., Agent Vazquez and law enforcement agents drove up to the residence in one unmarked car and three marked cars. While approaching the residence, the agents saw the front door shut and the lights inside the residence go out. Agent Vazquez proceeded to the front door of the residence, knocked on the door, and announced his presence in Spanish and English. He heard rustling inside the residence. Receiving no response, he forced the front door open and entered the residence.
Agent Vazquez entered a bedroom and opened its bathroom door where he found a man, later identified as Huguez-Ibarra, holding an empty plastic bag, later found to contain cocaine residue, over a toilet. Agent Vazquez retrieved a semi-liquid slush from the toilet. The slush was found to be cocaine. A plastic bag and plastic sifter both containing cocaine residue, and money totaling approximately $10,000 were scattered around the toilet.
A second agent entered another bedroom and found Olivarria-Palacios in it. Both Huguez-Ibarra and Olivarria-Palacios were taken from the residence, and the agents waited outside for the search warrant. Until they entered the residence, the agents neither knew who lived in the residence nor had they actually found or seen any narcotics being carried into or out of the residence.
Upon obtaining the search warrant, the agents re-entered the residence. In the residence agents found a loaded Colt .38 revolver, phone bills, some rent receipts, and bottled water receipts in the name of Olivarria-Palacios. Inside the bedroom in which they found Olivarria-Palacios, the agents discovered two safes, one open and one closed. In the open safe they found a plastic bag containing cocaine residue, a notepad, a check payable to Olivarria-Pa-lacios, and an automobile receipt in the name of Juan Beltran Hughes. In the closed safe, opened at the DEA office pursuant to a second search warrant, agents found approximately three pounds (1,323.6 grams) of cocaine, about $9,000 in cash, and five more notebooks.
PROCEDURAL HISTORY
On May 18, 1988, Huguez-Ibarra and Olivarria-Palacios were charged in a two-count indictment with conspiracy to possess with intent to distribute 500 grams or more but less than 5 kilograms of cocaine in violation of 21 U.S.C. § 846 and possession with intent to distribute 500 grams or more but less than 5 kilograms of cocaine in violation of 21 U.S.C. § 841(a)(1) and 841(b)(l)(B)(ii)(II). Huguez-Ibarra and Oli-varria-Palacios filed various pre-trial motions. Among them were motions requesting a Franks hearing, the suppression of evidence seized in the warrantless entry, and the suppression of evidence seized in the subsequent entry pursuant to the search warrant.
In response, the district court redacted portions of the affidavit used to obtain the search warrant. The court then denied the motion for a Franks hearing and the motions to suppress, finding that probable cause existed to support a search warrant and, after the testimony of Agent Vazquez, that exigent circumstances existed to justify the warrantless entry.
On July 13, 1988, the first day of trial, the government revealed the existence of a videotape recording of activities surrounding the residence taken by a neighbor of the defendants. The government previously had turned the tape over to the the court for in camera review. Huguez-Ibarra’s motion to produce the tape was denied. On July 14, 1989 he renewed his motion to produce the tape, which was also denied. At the end of that day the court reconsidered and allowed Huguez-Ibarra’s attorney to view the tape before he cross-examined Agent Gulotta. For security reasons it was not introduced at trial.
The district court denied Appellants’ motions to exclude the notebooks allegedly detailing drug transactions as well as Hu-guez-Ibarra’s motion to exclude the car payment receipt. The notebooks were admitted with a limiting instruction. In addition, the court denied Huguez-Ibarra’s motion for a continuance or mistrial based on the late disclosure of the videotape and the agents’ notes. Finally, the court denied Huguez-Ibarra’s proffered jury instruction on a so-called “lesser included offense.”
Both Appellants were found guilty on each count of the indictment. On July 22, 1988, Huguez-Ibarra filed a motion for a new trial which was denied on September 16, 1988. On September 16, 1988, both Appellants were sentenced to six years imprisonment on both counts to run concurrently with one another.
DISCUSSION
1. The Motions to Suppress
Appellants have argued for suppression of evidence seized in the warrant-less search of the residence, and for evidence seized pursuant to the search warrants. We review de novo the trial court’s determination of the validity of a warrant-less entry into a residence. United States v. Lindsey, 877 F.2d 777, 780 (9th Cir.1989). In assessing the validity of the searches conducted pursuant to the warrants, we review the magistrate’s decision that probable cause existed for clear error. The district court’s determination of probable cause in a case with redacted affidavits is reviewed de novo. United States v. Dozier, 844 F.2d 701, 706 (9th Cir.), cert. denied, 488 U.S. 927, 109 S.Ct. 312, 102 L.Ed.2d 331 (1988).
A. The Warrantless Entry
The agents’ warrantless entry securing the residence was a seizure subject to the requirements of the Fourth Amendment. United States v. Howard, 828 F.2d 552, 554 (9th Cir.1987). The government has the burden of justifying the seizure under one of a few specifically established exceptions to the warrant requirement. To justify a warrantless entry, the government must demonstrate both probable cause and the existence of an exception to the warrant requirement, such as exigent circumstances. Lindsey, 877 F.2d at 780. Because we find that there was no probable cause, we need not consider whether exigent circumstances existed.
In reviewing a warrantless entry, it is up to this court “to make a practical, commonsense decision” whether based on the “totality of the circumstances” as known by the agents when they entered the residence there was a “fair probability that contraband or evidence of a crime” would be found inside. Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983); Lindsey, 877 F.2d at 780.
The agents observed facts during the course of the investigation giving rise to a suspicion of illegal activity. However, the only evidence of narcotics ever uncovered during the vehicular stops — the narcotics detection dog alerting to the suitcases in the Mercury on April 29th — was discredited when a search of the suitcases failed to turn up any narcotics. In addition, as the agents themselves admitted, there was no connection between the suitcases and the residence — the occupants of the Mercury had entered the residence empty handed and had returned with only a bag, itself found to be empty.
The only other circumstance supporting an inference that the residence housed narcotics or evidence of narcotics trafficking was the ability of agents to trace automobiles frequenting the residence to “affiliates” of narcotics organizations or “facilitators” of narcotics trafficking. While such evidence is certainly relevant, it alone is not sufficient to transform otherwise legal (albeit suspicious) activity into circumstances supporting probable cause. This is especially true where, as here, the visitors to the residence had at best a tenuous and undefined relationship to narcotics trafficking. Such allegations show only that the residents of the house at 3701 East Dover Stravenue were acquaintances of acquaintances of individuals involved in the narcotics trade. Such twice-removed evidence, while not wholly irrelevant, cannot reasonably give rise to a “fair probability” that the residence was the locus of criminal activities. This is true even when combined with the unusual amount of vehicular traffic.
Since there was not probable cause supporting the warrantless entry of the residence, the evidence seized as a direct result of this illegal entry should have been suppressed. Segura v. United States, 468 U.S. 796, 812, 104 S.Ct. 3380, 3389, 82 L.Ed.2d 599 (1984).
B. Searches Pursuant to Warrants
In reviewing the magistrate’s decision that probable cause existed, we are limited to the information contained within the four corners of the affidavits supporting the application for the search warrant. United States v. Stanert, 762 F.2d 775, 778 (9th Cir.), amended, 769 F.2d 1410 (1985). The redacted affidavits in this case contained even less proof than that known to the agents who seized the residence, and thus were deficient for the same reasons as discussed above. We therefore find that the magistrate’s determination that sufficient probable cause existed to issue the warrant was clearly erroneous.
This, however, does not automatically require suppression. Under United States v. Leon, 468 U.S. 897, 922, 104 S.Ct. 3405, 3420, 82 L.Ed.2d 677 (1984), evidence will not be suppressed if the government acted in good faith — i.e., if the agents’ reliance on the warrant was objectively reasonable. Because the reasonableness of the agent’s reliance on the facially valid search warrant was not addressed in the trial court, we remand for a hearing on this issue.
II. The Notebooks
Appellants assert that the court erred in admitting the notepads because the government did not sufficiently establish the factual predicate for their admission as co-conspirator statements. They argue that under United States v. Ordonez, 737 F.2d 793 (9th Cir.1984), the government was required to lay a foundation for admission of drug ledgers. Ordonez, however, held only that the hearsay rule prohibits the introduction of drug ledgers without a foundation when the ledgers are being admitted to prove the truth of the matters asserted in them. In this case the trial judge made clear in his limiting instructions to the jury that the ledgers were not being admitted to prove the truth of what was written in them. Instead, they were admitted to show that the type of activities charged in the indictment were being carried out in the residence. Thus, “the rule against hearsay was not implicated and the requirement of ‘a proper foundational showing for admitting the records to prove the truth of the matters asserted’ was not triggered.” United States v. Jaramillo-Suarez, 942 F.2d 1412, 1416 (9th Cir.1991).
Since it is not hearsay, such evidence may come in if there is a sufficient showing of relevance and authenticity and if its probative value outweighs undue prejudice. Id. at 1416-1417 (citing United States v. Wilson, 532 F.2d 641, 645 (8th Cir.), cert. denied, 429 U.S. 846, 97 S.Ct. 128, 50 L.Ed.2d 117 (1976)). The notebooks in this case were circumstantially authenticated because they were found in the Appellants’ home in safes with cocaine and documents bearing the Appellants’ names. They were further authenticated by the nature of their contents and the fact that they corroborated the testimony of government agents regarding the suspected drug-trafficking. We do not believe that the trial court abused its discretion in determining that the ledgers were sufficiently authenticated and relevant to come into evidence.
III.The Car Payment Receipt
Appellant Huguez-Ibarra argues that the district court erred in admitting into evidence a receipt for an automobile in the name of “Juan Hughes.” The receipt showed a cash payment of $4000.00 to Watson Chevrolet on March 18, 1988. It was found in the unlocked safe in the same room as the locked safe in which the cocaine was found. Appellant Huguez-Ibar-ra argues that the admission of this document violates the hearsay rule and the prejudice caused by it outweighs its probative value.
As was the case with the notebooks, the receipt falls outside of the hearsay doctrine because it was not offered for the purpose of proving the truth of its contents. See United States v. Campbell, 466 F.2d 529, 531 (9th Cir.), cert. denied, 409 U.S. 1062, 93 S.Ct. 571, 34 L.Ed.2d 516 (1972).
The fact that the name on the receipt was spelled differently than Huguez-Ibarra’s was fully probed. Defense counsel was permitted to attempt to establish that the receipt belonged to Juan Beltran Hughes and not the Appellant. In light of the foregoing, the district court did not abuse its discretion in allowing the receipt into evidence.
IV. The Videotape and Agent’s Notes
Huguez-Ibarra asserts that his conviction was based on an alleged violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and in light of this violation he should have been granted a mistrial or at the very least a continuance. It is well-settled that the suppression of evidence favorable to the accused upon request violates due process when the evidence is material to either guilt or punishment. Brady, 373 U.S. at 87, 83 S.Ct. at 1196. Since, however, we reverse the Appellants’ conviction on other grounds, this argument is now moot. Appellants’ counsel have had access to all the information that was sought and, in the event of a retrial, will be fully able to employ that information in Appellants’ defense.
V. Huguez-Ibarra’s Requested Jury Instruction
Huguez-Ibarra asserts that the court erred in refusing to give the jury an instruction which would have allowed him to be convicted of possession of less than 500 grams of cocaine.
Huguez-Ibarra’s theory of the case at the beginning of the trial was to ask the jury to find him guilty only of possession of the drugs he was caught dumping in the toilet and not conspiracy or possession of the three pounds in the safe. The district court refused to instruct the jury on possession of the cocaine recovered from the toilet because the indictment did not charge Huguez-Ibarra with possession of that cocaine. Instead, both Appellants were charged with conspiracy and possession with intent to distribute the three pounds of cocaine found in the safe.
We see no grounds for granting the request for instructing the jury on a crime unconnected with the charges in the indictment. The prosecution enjoys broad discretion in choosing what charges to bring against criminal defendants. Since the government did not charge Huguez-Ibarra with possession of the approximately 74 grams of cocaine recovered from the toilet, the jury could not have rationally convicted him of possession of that cocaine, and consequently there was no error in the refusal to instruct the jury on the “lesser charge.” See Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932); United States v. Gonzalez, 800 F.2d 895, 897 (9th Cir.1986).
CONCLUSION
The judgment is REVERSED as to each count. The case is REMANDED to the district court for further proceedings consistent with this opinion.
. See Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978).
. One example is provided by the affidavit supporting the applications for search warrants, which observes that Clementina Rivera, one of the subscribers for utilities at the residence, was married to Jesus Arias "who was involved in a narcotics related shooting in 1984.” This fact, although more specific than many of the other allegations of involvement with narcotics trafficking, does little to support an inference that the residence was the site of illegal narcotics trade.
This would, of course, be a different case were there a specific showing that the individuals frequenting the residence had themselves been previously involved in narcotics trafficking. Even so, however, such evidence would not alone provide probable cause for a seizure of the residence.
. It is well established that mere association with known or suspected criminals does not give rise to probable cause. Ybarra v. Illinois, 444 U.S. 85, 91, 100 S.Ct. 338, 342, 62 L.Ed.2d 238 (1979); United States v. Hillison, 733 F.2d 692, 697 (9th Cir.1984).
. The affidavit in support of the search warrant for the closed safe included information gained in the warrantless seizure of the residence. It goes without saying that this "fruit of the poisonous tree” is not to be considered in evaluating the existence of probable cause. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).
.As we read the record, the district court denied Appellants’ motion for a Franks hearing on the ground that probable cause existed even without the allegedly false statements in the supporting affidavit. Since we reverse on the issue of probable cause, we direct the district court on remand to determine whether Appellants can make a "substantial preliminary showing that a false statement knowingly and intentionally or with reckless disregard for the truth, was included by the affiant in the warrant affidavit.” Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 2676-77, 57 L.Ed.2d 667 (1978).
. We note that a limiting instruction should have been given but was not, apparently due to the failure of defense counsel to request one. Prior to admitting the document the court asked defense counsel if he wanted a limiting instruction. Counsel moved to have the jury advised where the receipt was found but to withhold submitting the actual document to the jury. This motion was denied, and no limiting instruction was given. Huguez-Ibarra does not specifically raise the failure to give one on appeal.
. Huguez-Ibarra seems to have recognized this by arguing in his closing presentation that his theory of the case had changed — that now it was "all or nothing,” and that the jury could either convict him of possession of the three pounds or acquit him, but that it could not convict him for possession of the cocaine he was found dumping in the toilet.
Question: Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
sc_issuearea
|
B
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states.
PATTON v. MISSISSIPPI.
No. 122.
Argued November 21, 24, 1947.
Decided December 8, 1947.
Thurgood Marshall argued the cause for petitioner. With him on the brief was Andrew Weinberger.
George H. Ethridge, Assistant Attorney General of Mississippi, argued the cause for respondent. With him on the brief was Greek L. Rice, Attorney General.
Mr. Justice Black
delivered the opinion of the Court.
The petitioner, a Negro, was indicted in the Circuit Court of Lauderdale County, Mississippi, by an all-white grand jury, charged with the murder of a white man. He was convicted by an all-white petit jury and sentenced to death by electrocution. He had filed a timely motion to quash the indictment alleging that, although there were Negroes in the county qualified for jury service, the venires for the term from which the grand and petit juries were selected did not contain the name of a single Negro. Failure to have any Negroes on the venires, he alleged, was due to the fact that for a great number of years previously and during the then term of court there had been in the county a “systematic, intentional, deliberate and invariable practice on the part of administrative officers to exclude negroes from the jury lists, jury boxes and jury service, and that such practice has resulted and does now result in the denial of the equal protection of the laws to this defendant as guaranteed by the 14th amendment to the U. S. Constitution.” In support of his motion petitioner introduced evidence which showed without contradiction that no Negro had served on the grand or petit criminal court juries for thirty years or more. There was evidence that a single Negro had once been summoned during that period but for some undisclosed reason he had not served, nor had he even appeared. And there was also evidence from one jury supervisor that he had, at some indefinite time, placed on the jury lists the names of “two or three” unidentified Negroes. In 1940 the adult colored population of Lauderdale County, according to the United States Census, was 12,511 out of a total adult population of 34,821.
In the face of the foregoing the trial court overruled the motion to quash. The Supreme Court of Mississippi affirmed over petitioner's renewed insistence that he had been denied the equal protection of the laws by the deliberate exclusion of Negroes from the grand jury that indicted and the petit jury that convicted him. 201 Miss. 410, 29 So. 2d 96. We granted certiorari to review this serious contention. 331 U. S. 804.
Sixty-seven years ago this Court held that state exclusion of Negroes from grand and petit juries solely because of their race denied Negro defendants in criminal cases the equal protection of the laws required by the Fourteenth Amendment. Strauder v. West Virginia, 100 U. S. 303 (1880). A long and unbroken line of our decisions since then has reiterated that principle, regardless of whether the discrimination was embodied in statute or was apparent from the administrative practices of state jury selection officials, and regardless of whether the system for depriving defendants of their rights was “ingenious or ingenuous.”
Whether there has been systematic racial discrimination by administrative officials in the selection of jurors is a question to be determined from the facts in each particular case. In this case the Mississippi Supreme Court concluded that petitioner had failed to prove systematic racial discrimination in the selection of jurors, but in so concluding it erroneously considered only the fact that no Negroes were on the particular venire lists from which the juries were drawn that indicted and convicted petitioner. It regarded as irrelevant the key fact that for thirty years or more no Negro had served on the grand or petit juries. This omission seriously detracts from the weight and respect that we would otherwise give to its conclusion in reviewing the facts, as we must in a constitutional question like this.
It is to be noted at once that the indisputable fact that no Negro had served on a criminal court grand or petit jury for a period of thirty years created a very strong showing that during that period Negroes were systematically excluded from jury service because of race. When such a showing was made, it became a duty of the State to try to justify such an exclusion as having been brought about for some reason other than racial discrimination. The Mississippi Supreme Court did not conclude, the State did not offer any evidence, and in fact did not make any claim, that its officials had abandoned their old jury selection practices. The State Supreme Court’s conclusion of justification rested upon the following reasoning. Section 1762 of the Mississippi Code enumerates the qualifications for jury service, the most important of which apparently are that one must be a male citizen and “a qualified elector.” Sections 241, 242, 243 and 244 of the State Constitution set forth the prerequisites for qualified electors. Among other things, these provisions require that each elector shall pay an annual poll tax, produce satisfactory proof of such payment, and be able to read any section of the State Constitution, or to understand the same when read to him, or to give a reasonable interpretation thereof. The evidence showed that a very small number of Negro male citizens (the court estimated about 25), as compared with white male citizens, had met the requirements for qualified electors, and thereby become eligible to be considered under additional tests for jury service. On this subject the State Supreme Court said:
“Of the 25 qualified negro male electors there would be left, therefore, as those not exempt, 12 or 13 available male negro electors as compared with 5,500 to 6,000 male white electors as to whom, after deducting 500 to 1,000 exempt, would leave a proportion of 5,000 nonexempt white jurors to 12 or 13 nonexempt negro jurors, or about one-fourth of one per cent negro jurors, — 400 to 1. ... For the reasons already heretofore stated there was only a chance of 1 in 400 that a negro would appear on such a venire and as this venire was of one hundred jurors, the sheriff, had he brought in a negro, would have had to discriminate against white jurors, not against negroes, — he could not be expected to bring in one-fourth of one negro.”
The above statement of the Mississippi Supreme Court illustrates the unwisdom of attempting to disprove systematic racial discrimination in the selection of jurors by percentage calculations applied to the composition of a single venire.
The petitioner here points out certain legislative record evidence of which it is claimed we can take judicial notice, and which it is asserted establishes that the reason why there are so few qualified Negro electors in Mississippi is because of discrimination against them in making up the registration lists. But we need not consider that question in this case. For it is clear from the evidence in the record that there were some Negroes in Lauderdale County on the registration list. In fact, in 1945, the circuit clerk of the county, who is himself charged with duties in administering the jury system, sent the names of eight Negroes to the jury commissioner of the Federal District Court as citizens of Lauderdale County qualified for federal jury service. Moreover, there was evidence that the names of from thirty to several hundred qualified Negro electors were on the registration lists. But whatever the precise number of qualified colored electors in the county, there were some; and if it can possibly be conceived that all of them were disqualified for jury service by reason of the commission of crime, habitual drunkenness, gambling, inability to read and write, or to meet any other or all of the statutory tests, we do not doubt that the State could have proved it.
We hold that the State wholly failed to meet the very strong evidence of purposeful racial discrimination made out by the petitioner upon the uncontradicted showing that for thirty years or more no Negro had served as a juror in the criminal courts of Lauderdale County. When a jury selection plan, whatever it is, operates in such way as always to result in the complete and long-continued exclusion of any representative at all from a large group of Negroes, or any other racial group, indictments and verdicts returned against them by juries thus selected cannot stand. As we pointed out in Hill v. Texas, 316 U. S. 400, 406, our holding does not mean that a guilty defendant must go free. For indictments can be returned and convictions can be obtained by juries selected as the Constitution commands.
The judgment of the Mississippi Supreme Court is reversed and the case is remanded for proceedings not inconsistent with this opinion.
Reversed.
Petitioner also argued that his conviction was based solely on an extorted confession; that use of this extorted confession denied him due process of law; and that the case should be reversed for that reason. The view we take as to the systematic exclusion of Negro jurors makes it unnecessary to pass on the alleged extorted confession.
Bush v. Kentucky, 107 U. S. 110, 122.
Ex parte Virginia, 100 U. S. 339; Neal v. Delaware, 103 U. S. 370; Carter v. Texas, 177 U. S. 442; Rogers v. Alabama, 192 U. S. 226; Norris v. Alabama, 294 U. S. 587; Hollins v. Oklahoma, 295 U. S. 394; Hale v. Kentucky, 303 U. S. 613; Pierre v. Louisiana, 306 U. S. 354; Smith v. Texas, 311 U. S. 128; Hill v. Texas, 316 U. S. 400.
Smith v. Texas, 311 U. S. 128, 132.
Akins v. Texas, 325 U. S. 398, 403.
Norris v. Alabama, 294 U. S. 587, 590; Pierre v. Louisiana, 306 U. S. 354, 358; Akins v. Texas, 325 U. S. 398, 402; Fay v. New York, 332 U. S. 261, 272.
Neal v. Delaware, 103 U. S. 370, 397; Norris v. Alabama, 294 U. S. 587, 591; Pierre v. Louisiana, 306 U. S. 354, 361.
Although this latter statement was made with particular reference to the special venire from which the petit jury was drawn, the reasoning of the court applied also to its grounds for holding that there was no discrimination in excluding Negroes from the grand jury.
Akins v. Texas, 325 U. S. 398, 403.
Hearings before Special Committee to Investigate Senatorial Campaign Expenditures, 1946, 79th Cong., 2d Sess. (1947).
Hill v. Texas, 316 U. S. 400, 404-405.
Question: What is the issue area of the decision?
A. Criminal Procedure
B. Civil Rights
C. First Amendment
D. Due Process
E. Privacy
F. Attorneys
G. Unions
H. Economic Activity
I. Judicial Power
J. Federalism
K. Interstate Relations
L. Federal Taxation
M. Miscellaneous
N. Private Action
Answer:
|
songer_method
|
I
|
What follows is an opinion from a United States Court of Appeals. Your task is to determine the nature of the proceeding in the court of appeals for the case, that is, the legal history of the case, indicating whether there had been prior appellate court proceeding on the same case prior to the decision currently coded. Assume that the case had been decided by the panel for the first time if there was no indication to the contrary in the opinion. The opinion usually, but not always, explicitly indicates when a decision was made "en banc" (though the spelling of "en banc" varies). However, if more than 3 judges were listed as participating in the decision, code the decision as enbanc even if there was no explicit description of the proceeding as en banc.
UNITED STATES v. BROWN et al.
No. 216.
Circuit Court of Appeals, Second Circuit.
Jan. 18, 1932.
M. Michael Edelstein, of Now York City, for appellants David Brown and Abe Lieberman, appearing specially.
Geoige 7. Medalie, U. S. Atty., of New York City (Earle N. Bishopp, Asst. U. S. Atty., of Brooklyn, N. Y., and Leonard J. Obevmeier, Jr., Asst. TJ. S. Atty., of New York City, of counsel), for the United States.
Before MANTON, AUGUSTUS N. HAND, and CHASE, Circuit Judges.
PER CURIAM.
There was sufficient evidence to support the finding that Brown and Lieberman were the owner's of the business; that a common nuisance was permitted by the owners to exist at the premises in violation of the Prohibition Act (27 USCA); but not enough was done under the special appearance for Lieberman to amount to submission to the jurisdiction. United States v. Collins and Lawlor (C. C. A.) 55 F.(2d) 70.
Decree modified to vacate the personal injunction against Lieberman and in all other respects affirmed.
Question: What is the nature of the proceeding in the court of appeals for this case?
A. decided by panel for first time (no indication of re-hearing or remand)
B. decided by panel after re-hearing (second time this case has been heard by this same panel)
C. decided by panel after remand from Supreme Court
D. decided by court en banc, after single panel decision
E. decided by court en banc, after multiple panel decisions
F. decided by court en banc, no prior panel decisions
G. decided by panel after remand to lower court
H. other
I. not ascertained
Answer:
|
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.
TELESERVICE COMPANY OF WYOMING VALLEY, Petitioner-Appellant, v. COMMISSIONER OF INTERNAL REVENUE.
No. 12255.
United States Court of Appeals Third Circuit.
Argued Nov. 8, 1957.
Decided March 24, 1958.
Writ of Certiorari Denied June 16, 1958.
See 78 S.Ct. 1360.
Edward P. Morgan, Washington, D. C., (Herbert E. Forrest, Welch, Mott & Morgan, Washington, D. C., on the brief), for petitioner-appellant.
Thomas N. Chambers, Washington, D. C. (John N. Stull, Acting Asst. Atty. Gen., Harry Baum, Joseph P. Goetten, Attys., Dept. of Justice, Washington, D. C., on the brief), for appellee.
Before MARIS, KALODNER and STALEY, Circuit Judges.
KALODNER, Circuit Judge.
Were “contributions” received by the taxpayer, a television signal transmission service, from its customers, “toward the total cost of constructing” its facilities, under a contract which simultaneously provided for such “contributions” and the further payment of a “monthly maintenance charge”, includable as “gross income” under Section 22(a) of the Internal Revenue Code of 1939 ?
That is the issue presented by this petition for review of the decision of the Tax Court which answered it affirmatively, thereby making the “contributions” toward the cost of construction taxable as gross income. The Tax Court’s decision was premised on its “Ultimate Finding” that the “contributions” to the taxpayer “ * * * were not gifts or contributions to capital; they were part of the payment for services rendered or to be rendered by the petitioner [taxpayer] and are includable in petitioner’s [taxpayer’s] gross income.”
“(a) General definition. — ‘Gross income’ includes gains, profits, and income derived from salaries, wages, or compensation for personal service, of whatever kind and in whatever form paid, or from professions, vocations, trades, businesses, commerce, or sales, or dealings in property, whether real or personal, growing out of the ownership or use of or interest in such property; also from interest, rent, dividends, securities, or the transaction of any business carried on for gain or profit or gains or profits and income derived from any source whatever. * * * ” 26 U.S.C. 1952 ed., Sec. 22.
It must immediately be noted that the “Ultimate Finding” of the Tax Court “ * * * was jn the nature of an ultimate finding of fact and since such finding is but a legal inference from other facts it is subject to review free of the restraining impact of the so-called ‘clearly erroneous’ rule applicable to ordinary findings of fact by the trial court * *
The facts may be summarized as follows:
Teleservice Company of Wyoming Valley (“taxpayer”) is a Pennsylvania corporation. It promoted, constructed and now operates for profit a community antenna television system at Wilkes-Barre and Kingston, Pennsylvania.
The residents of Wilkes-Barre and Kingston were unable by conventional television roof-top or built-in antennas to receive television signals of an adequate visual quality due to the fact that the cities are located in valleys surrounded by hills which effectively screened or cut off television signals which would otherwise be available for reception by conventional methods. Therefore, in January,' 1951, the taxpayer’s incorpo-fatórs determined that a company should be organized for the purpose of providing television signals to the residents of the Wilkes-Barre area through a community television system.
In 1951 no licenses for Ultra High Frequency (U.H.F.) television stations (to provide a local, conventional television service to the area) had then been issued, but there were indications that such licenses would be granted in the near future, and it was known that at least one company in Wilkes-Barre would make application for such license. This created a hazard to investment of money in the enterprise contemplated by the taxpayer. In addition, taxpayer’s founders determined that the construction of a community antenna system' was an unknown business with no adequate precedent to follow and without definite information available on past experience.
Two community antenna systems were investigated — one in Lansford, Pennsylvania, which was observed in operation, and another in Pottsville, Pennsylvania, which was in the process of being constructed. The taxpayer was the third company of its type in existence.
After a study of some six months, the taxpayer selected a suitable location for the interception of television signals on top of the mountain range surrounding Wilkes-Barre- and Kingston. It found that it would be necessary to run a trunk line of coaxial cables from the location selected to the edge of the populated area on the fringe of Wilkes-Barre, a distance of about five miles, before any significant service could be offered. This “dead” trunk line was not. found in the other systems studied; it would be costly, and taxpayer was not certain it would be a success. The Radio Corporation of America (R.C.A.) provided engineers to make a survey of the projected system, and furnished estimates of the cost of the equipment and materials that would be required. On the basis of the experience of the two other community antenna systems and the advice received from R.C.A. it was estimated that it would cost 96 cents per foot for the trunk line cable or feeder line cable to be installed and erected. This cost tended to be constant, regardless of the size of the system, since the only fixed cost was that of constructing the antenna tower atop the mountains which was relatively small — $1,500 to $3,000. It was calculated that the cost of constructing a system to serve Wilkes-Barre and Kingston would be as much as $250,000.
Before construction was begun or money paid into its treasury by its founders, the taxpayer decided that construction of the system would have to be financed essentially through contributions from prospective customers or subscribers since it would be too great a risk for it to undertake the entire investment and that, in any event, it would be impossible for it to realize a profit should it do so. It determined that whatever profit it might realize from the venture would come from monthly service charges.
Under the program formulated by the taxpayer contributors were divided into two classes — residential and commercial. The residential customers were to be required to make contributions of $145.-00; the commercial customers $200.00. These varying scales were fixed by the taxpayer because, although service installation costs were the same with respect to both classes of customers, it believed that the commercial establishments could afford to contribute a greater amount than could a private individual. In fixing the amount of the contributions to be made by customers the taxpayer took into consideration its estimated construction costs and amounts solicited by other community systems. In this connection taxpayer estimated that the contributions, if it obtained the number of customers anticipated, would just about balance the costs of construction of its entire system.
The taxpayer’s program also provided that residential customers were to pay $4.00 monthly and commercial customers $6.00 monthly as a service or maintenance charge in addition to their initial contributions. The monthly charges were designed to cover the maintenance of the community system and included an element of profit to the taxpayer. The rates were not set by any regulatory commission.
The taxpayer’s system was constructed in several distinct stages. The first step was the erection of a tower and intercepting antennas and the installation of a main trunk line cable, approximately five miles in length, to the first distribution area. The cost of this first stage, $24,138.49, was advanced by the taxpayer’s incorporators.
On completion of this first step potential subscribers were solicited. When a sufficient number of applications for service had been received to indicate that further extension of the system would be feasible the taxpayer entered into contracts with subscribers and then proceeded with construction in the area in which they were located. Six months elapsed after completion of the initial construction before the first extension of the system was undertaken. Thereafter, the delay between extensions was substantially reduced.
Upon acceptance of an area for the extension of service, taxpayer entered into contracts with the subscribers. Taxpayer agreed “to furnish subscriber at the place of installation * * * a television signal transmission service”. The subscriber, in turn, agreed (1) to contribute the sum specified “toward the total cost of constructing a system for the transmission of a television signal” and (2) to pay “a monthly maintenance” charge which would entitle him to receive service. While a contribution was a prerequisite to eligibility to use of the system, it did not entitle the contributor to receive television signals. The contributor was required to make monthly payments, in advance, in order to receive the signals. Potential subscribers were advised that the contribution was in aid of construction of the facility for supplying the television signals, and had no bearing on the service, which would be charged as an extra item.
A contributor could not sell, assign, or transfer his eligibility to receive television signals, but he remained eligible to receive the signals without additional cost if he moved to another part of Wilkes-Barre or Kingston. However, the person who moved into the contributor’s old home was required to make a contribution in order to become eligible to use the system.
The contract between taxpayer and its customers specified that it was subject to “General Provisions.” The latter in turn provided, inter alia: (1) if the taxpayer by reason of its public utility contracts or governmental action found it “ * * * either impossible or impractical * * * to furnish television transmission service under this contract * * * ” it had the right to terminate the contract and in such event “ * * * all contributions, maintenance rates, and other moneys paid * * * by Subscriber [io it] shall be forfeited”; (2) taxpayer could terminate its contract with the subscriber in the event of the latter’s violation and that in such event “ * * * Subscriber shall not be entitled to a refund of any kind * * *”; and (3) if taxpayer terminated the contract for its convenience “ * * * Subscriber shall be refunded a part of his contribution money, as follows: A maximum of Sixty (60) Dollars less Ten (10) Dollars for each month this contract has been in effect * * * (emphasis supplied)
No change was ever made in the $4.00 monthly charge for maintenance in the case of a residence, or in the $6.00 monthly charge in the case of a commercial establishment. Also, the $200.00 contribution required of commercial establishments was never changed. However, the amount required of residential subscribers was reduced to $89.00 on January 1, 1953; to $80.00 on June 1, 1954; to $30.00 in August, 1955, and no contributions have been required since 1956.
The greatest number of connections in operation at one time was about 900 and the least was about 200 to 300. In 1956 there were about 400 connections in operation. The decrease in connections resulted in 1952 when U.H.F. licenses were granted to local television stations in Wilkes-Barre and .Scranton, Pennsylvania. The number of contributions also fell off sharply at that time.
. During the period February 20, 1951, to January 31, 1952, the first tax 'year here involved, taxpayer received under contracts “contributions” totalling $27,-601.98; during the same period construction costs of the system totalled $62,880.64.
. During the period February 1, 1952, to January 31, 1953, the second tax year here involved, taxpayer received under contracts “contributions” totalling $88,-544.79; during this period construction costs of the system totalled $70,620.78.
As reflected by the foregoing, the • total cost of constructing the system amounted to $133,501.42 of which sum $116,146.77 was paid for by the “contributions” and the balance of $17,354.65 was financed with borrowed money. All of the funds received as “contributions” were applied to construction costs. Taxpayer’s operating expenses were paid from sums collected from subscribers as monthly payments for maintenance and operation, under the terms of their contracts.
All initial payments received by the taxpayer were credited to an account maintained in its books and records called “Customer Contributions”. Segregation of the funds paid as contributions was maintained on the books of the taxpayer, as against sums received from monthly maintenance charges. All funds were deposited in the taxpayer’s general bank account from which were paid general operating expenses and the cost of all assets acquired. However, the taxpayer’s accounting system segregated the costs of construction and the amounts received as contributions. The amounts received as contributions were never applied by the taxpayer to any of the expenses normally chargeable to operation. Only the monthly service charges were employed for such expenses.
Taxpayer in filing its income tax returns did not include the contributions from subscribers in its gross income. Further, it did not claim deductions upon its income tax returns for depreciation of the physical facilities of the community antenna television system but showed the accounting depreciation as a non-deductible item.
The Commissioner treated the contributions as gross income during the taxable years involved and determined a deficiency accordingly. In such determination he, however, allowed the taxpayer a deduction for depreciation of the physical assets of its system purchased with the contributions. The Commissioner’s determination resulted in the tax deficiencies here in issue — $3,-210.83 for the year ended January 31, 1952, and $13,013.09 for the year ended January 31, 1953.
Taxpayer unsuccessfully petitioned the Tax Court for redetermination of the deficiencies asserted by the Commissioner. It may be noted parenthetically that the Tax Court’s decision was “Reviewed by the Court” and that one judge dissented.
Sketched in sweeping outline the contentions of the taxpayer and the Government may thus be stated:
Taxpayer urges that the contributions received from subscribers here were “in aid of capital construction” and thus did not constitute “income” under what it characterizes as the basic teaching of the “doctrine” of Edwards v. Cuba Railroad Co., 1925, 268 U.S. 628, 45 S.Ct. 614, 69 L.Ed. 1124.
The Government asserts (1) the Internal Revenue Code of 1939 accords no tax exemption for “contributions in aid of capital construction”; (2) only payments which are made in the nature of gifts or capital contributions are excludable from gross income; (3) payments in aid of construction which are made in return for services rendered or to be rendered are not gifts or capital contributions and (4) the so-called “contributions” made by subscribers here actually constituted part of the price of the services to be rendered by the taxpayer. In support the Government cites Detroit Edison Co. v. Commissioner, 1943, 319 U.S. 98, 63 S.Ct. 902, 87 L.Ed. 1286.
The parties agree, as did the Tax Court, that Edwards v. Cuba Railroad Co., supra, was followed by the Tax Court (and its predecessor Board of Tax Appeals) for some thirty years until the decision now under review.
The Tax Court in its opinion declared that it was compelled to the conclusion it reached under Detroit Edison Co. v. Commissioner, supra, and the doctrine of Commissioner v. Glenshaw Glass Co., 1955, 348 U.S. 426, 75 S.Ct. 473, 99 L.Ed. 483 and General American Investors Co. v. Commissioner, 1955, 348 U.S. 434, 75 S.Ct. 478, 99 L.Ed. 504. It conceded, that apart from Edwards v. Cuba Railroad, supra, which it distinguished factually, it was unable to make similar distinction with respect to its own prior application of the Edwards decision in numerous cases. With respect to the latter it frankly stated (27 T.C. at page 729):
“In spite of the sheer weight in number of those decisions, we feel bound to make an ultimate finding consistent with that of the Detroit Edison case, and what in our view appears to be a gradually but persistently broadening concept of taxable income as exemplified by the Glenshaw Glass Co. and General Investors Co. cases, supra.”
In view of the foregoing, since the precise issue here presenteMjj^^f first impression on the appellate level, and, according to the taxpayer, is a test case affecting a substantial number of cases now pending before the Internal Revenue Service, we are constrained to relate in some detail the factual aspects of this controversy.
The taxpayer cites as critical and dis-positive on the score of the issue as to whether the initial payments made by subscribers were “contributions in aid of capital construction”, or, as the Government asserts, and the Tax Court found, “part of the payment for services rendered or to be rendered” the following elements:
The communal aspects of the enterprise, and its pioneer, highly expensive and hazardous nature; subscribers’ initial payments were intended to be, and were, expended solely for capital construction; the advice given to subscribers on their solicitation that it was the considered and declared intention of the taxpayer’s incorporators to finance capital construction through “contributions”; the latter were denominated as “contributions” by the contracts; total “contributions” at all times were less than construction costs; they were segregated on the taxpayer’s books and treated in its tax returns as such; the amount of the contributions was reduced from time to time so as not to exceed the costs of construction; subscribers were required by their contracts to make monthly service payments in order to receive service and profits, if there were any, were only realizable from the monthly service payments; and finally, the capital facilities had no salvage value.
The Government cites these factual elements :
The initial payments were made pursuant to a contract under which taxpayer legally obligated itself to perform services in exchange; only those persons who made the. initial payments were eligible to receive ’service upon further payment of monthly service charges; the payments' in qú^Mién were no't made for the benefit of JdSBpblic or the community at large, but for the sole and exclusive benefit of tbe customers making the payment —that benefit consisting of agreed services to be rendered by the taxpayer; the customer could not sell, assign, or transfer his eligibility to service; although a customer who made the initial payment remained eligible to receive service, even though he moved to a different part of the community, the person who moved into his old home was required to make an initial payment of his own in order to become.’eligible to receive the taxpayer’s service; and, commercial establishments were required to make a higher initial payment than residential customers solely because it was thought they could pay the higher amount.
In considering the. issue presented here we are guided by these well-settled principles; .“Taxation is an intensely practical matter, and, it deals with realities not semblances; with substance and not form * * * ”, and, “It must ever be kept in mind ‘that the substance of the transactions will prevail over form’'” .
Upon consideration of the record and the contentions of the parties as to the ultimate finding of fact to be made from the undisputed basic facts we are of the opinion that-the Tax Court’s ultimate finding that the initial payments made by the taxpayer’s customers “ * * were not gifts or contributions to capital”, but “ * * * were part of the payment for services rendered or to be rendered” by the taxpayer, was amply sustained by the record and that the Tax Court correctly ruled the initial payments to be includable in the taxpayer’s gross income under Section 22(a) of the Internal Revenue Code of 1939.
Detroit Edison Co. v. Commissioner, supra, is an illuminating guide to our determination, although it is true, as the taxpayer urges, that the Supreme Court did not, nor was it required to, there decide the precise issue here presented.
In Detroit Edison the taxpayer claimed depreciation on certain extensions of its lines paid for by prospective customers as a prerequisite to obtaining service and treated by the taxpayer as contributions to capital. The payments made by the customers never exceeded and sometimes fell short of the actual cost of the facilities. They were not included in taxpayer’s gross income in its tax returns.
In holding that the Detroit Edison Company did not acquire a substituted basis for depreciation by virtue of its receipt of estimated construction costs from applicants for its services the Supreme Court said (319 U.S. at pages 102, 103, 63 S.Ct. at page 904):
“The Company, however, seeks to avoid this result by the contention that what it has obtained are gifts to it or contributions to its capital of . the property paid for by the customer, and that therefore by the provisions of § 113(a) (2) and (8) (B) it • takes the basis of the donor or trans-feror. It is enough to say that it overtaxes imagination to regard the farmers and other customers who furnished these funds as makers either of donations or contributions to the Company. The transactions neither in form nor in substance bore , such a semblance.
“The payments were to the customer the price of the service * - * * (emphasis supplied)
We are unable to discern any substantial factual distinction between the initial payments made by the taxpayer’s customers in the instant case and the payments made by the customers in Detroit Edison. In each case the payments were made as a prerequisite to obtaining direct personal service via the construction of facilities which would provide such service; in each instance the payments were not for a community or public benefit, as in Brown Shoe Co. v. Commissioner, 1950, 339 U.S. 583, 70 S.Ct. 820, 94 L.Ed. 1081, and in Commissioner v. McKay Products Corp., 3 Cir., 1949, 178 F.2d 639, 641, where the payments were made to the taxpayer by a community group to promote communal interests, and were for that reason held to be “contributions to capital” meriting depreciation allowance under applicable revenue laws.
In both the Brown Shoe and the McKay Products cases it was stressed that the payments were not made by “customers” nor as “payments for service” to them.
In Brown Shoe the Supreme Court emphasized these factors, stating (339 U.S. at page 591, 70 S.Ct. at page 824):
“Because 'in the Detroit Edison case ‘The payments were to the customer the price of the service,’ the Court concluded that ‘it overtaxes imagination to regard the farmers and other customers who furnished these funds as makers either of donations or contributions to the Company.’ Since in this case there are neither customers nor payments for service, we may infer a different purpose in the transactions between petitioner and the community groups. The contributions to petitioner were provided by citizens of the respective communities who neither sought nor could have anticipated any direct service or recompense whatever, their only expectation being that such .contributions' might prove advantageous to the community at large. Under these circumstances the transfers manifested a definite purpose to enlarge the working capital of the company.” (emphasis supplied)
In McKay Products, Judge Goodrich, speaking for this Court said (178 F.2d at page 643):
“We think that what is significant is that the Detroit Edison Co..was in the business of selling electric power to the very persons whose payments it sought to depreciate, and that it was Detroit Edison’s policy to deliver power to outlying areas only if the consumer bore the cost of the line extension. The matter is really summed up in the Court’s statement that payments were the price of the service.’’ (emphasis supplied)
Our determination that the initial payments in the instant case were “the price of the service” received by taxpayer’s customers is buttressed by these additional factors, absent in Detroit Edison: (1) while a customer who made the initial payment remained eligible to receive taxpayer’s service even though he moved to a different part of the community the person who moved into his old home was required to make an initial payment of his own in order to become eligible to receive service; (2) the contract between the taxpayer and its customers provided for “forfeiture” of the latter’s initial payments in the event of any default on their part and for a “refund” of such payments, according to a fixed schedule, in the event the “taxpayer terminated the contract for its convenience” and (3) commercial establishments were required to make a higher initial payment than residential customers solely because it was deemed by the taxpayer that they could afford the higher amount.
The requirement that one who moved into a customer’s old home must make an initial payment of his own in order to receive service scarcely squares with the taxpayer’s contention that all initial payments by subscribers were “in aid of capital construction” and the contractual provisions for “refunds” of initial payments on certain contingencies are certainly at odds with the taxpayer’s concept of such payments as “contributions”.
The variation in the scale of initial payments required of individual and commercial customers based on the “ability to pay” concept certainly lends itself more to a “price for service” finding than a “contribution” theory.
Analysis of the substance rather than the semblance of the relationship existing between the taxpayer and its customers in the light of the principle that “taxation is an intensely practical matter” inescapably discloses that the relationship was that of seller-customer.
The communal aspects of the enterprise, urged by the taxpayer, are entirely lacking in significance. The initial payment made by a customer was the admission price which he paid for his individual enjoyment of the taxpayer’s facilities and in no sense could it be regarded as a contribution to community participation. Only he who bought a ticket could “go for the ride”. The pioneer and hazardous nature of the enterprise and the circumstance that the capital facilities had no salvage value, heavily stressed by the taxpayer, are of no critical value with respect to the issue here involved.
The taxpayer’s reliance on Edwards v. Cuba Railroad Co., supra, is, to state it bluntly, misplaced. The facts in that case are clearly distinguishable. There as the Supreme Court stated (268 U.S. at page 633, 45 S.Ct. at page 615) “The subsidy payments taxed were not made for services rendered or to be rendered.” Furthermore, as observed by Chief Judge Biggs, speaking for this Court in Commissioner v. Glenshaw Glass Co., 3 Cir., 1954, 211 F.2d 928, 931, the Supreme Court in Detroit Edison “ * * * indicated some halt in the doctrine of capital donation expressed in Edwards v. Cuba R. Co.”
As to Liberty Light & Power Co., 1926, 4 B.T.A. 155, Great Northern Railway Co., 1927, 8 B.T.A. 225 affirmed 8 Cir., 1930, 40 F.2d 372, certiorari denied Great Northern R. Co. v. Burnet, 282 U.S. 855, 51 S.Ct. 31, 75 L.Ed. 757 and cases which followed the rule they enunciated, we can only say we are not in accord. We agree with the Tax Court that these cases cannot be distinguished factually.
The Supreme Court, in Commissioner v. Glenshaw Glass Co., 1955, 348 U.S. 426, 75 S.Ct. 473, 99 L.Ed. 483, General American Investors Co. v. Commissioner, 1955, 348 U.S. 434, 75 S.Ct. 478, 99 L.Ed. 504, Commissioner v. LoBue, 1956, 351 U.S. 243, at page 246, 76 S.Ct. 800, at page 803, 100 L.Ed. 1142, has, as it stated in the latter case “ * * * repeatedly held that in defining ‘gross income’ as broadly as it did in § 22(a) Congress intended to ‘tax all gains except those specifically exempted’ ”. In Robertson v. United States, 1952, 343 U.S. 711, 714, 72 S.Ct. 994, 996, 96 L.Ed. 1237, it was specifically held that “Where the payment is in return for services rendered, * * * ” such payment is. gross income under § 22(a).
There remains but this to be said.. Taxpayer urges that Congress has now specifically recognized, by the enactment, of Section 118(a) of the Internal Revenue Code of 1954, 26 U.S.C. § 118(a), that gross income does not include any contribution to the capital of a company.. Our agreement with the Tax Court’s, ultimate finding that the initial payments, here were “part of the payment for services rendered or to be rendered” and not. as capital contributions makes unnecessary any discussion of that contention. However, we must point out that the' Committee Reports accompanying Sections 118 and 362 of the 1954 Code-(also cited by taxpayer) make it clear these provisions are not applicable to contributions or other payments by persons who are direct beneficiaries of the service rendered by the recipient corporation.
For the reasons stated the decision of the Tax Court will be affirmed.
. Ҥ 22. Gross income
. 27 T.C. 722 (1957).
. Philber Equipment Corporation v. Commissioner, 3 Cir., 1956, 237 F.2d 129, 131.
Thompson v. Commissioner, 8 Cir., 1953, 205 F.2d 73, 78.
. Urquhart v. Commissioner, 3 Cir., 1954, 215 F.2d 17, 19.
. Reversed on other grounds, Commissioner v. Glenshaw Glass Co., 1955, 348 U.S. 426, 75 S.Ct. 473, 99 L.Ed. 483, rehearing denied 349 U.S. 925, 75 S.Ct. 657, 99 L.Ed. 1256.
. H.R. No. 1337, 83d Cong., 2d Sess. 17 (1954); Sen.Rep. No. 1662, 83d Cong., 2d Sess. 18 (1954).
. Sen.Rep. No. 1662, 83d Cong., 2d Sess. 271-272 (1954).
. It merits observation that in his excellent Note — Contributions to Capital by Non-shareholders, 3 Tax L.Rev. 568, 573 (1948), Joseph O’Meara, Jr., then lecturer on Federal Taxation, University of Cincinnati, College of Law, concluded with this statement:
“Detroit Edison accordingly appears to foreshadow a contraction of the area in which Cuba Railroad will be followed in the future; it suggests that a payment will not be considered a contribution to capital if exacted from a prospective customer as a prerequisite to doing business with him.”
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_appfiduc
|
2
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "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.
GORMAN et al. v. SHAFFER OIL & REFINING CO. et al.
No. 1083.
Circuit Court of Appeals, Tenth Circuit.
Dec. 28, 1934.
Glenn Alcorn and R. W. Raynolds, both of Tulsa, Okl. (A. S. Wells, of Wewoka, Okl., Bob Howe, and Chai Wheeler, on the brief), for appellants.
Hubert. Ambrister, of Tulsa, Okl. (W. H. Francis and A. S. Hardwicke, both of Dallas, Tex., and B. B. Blakeney and W. R. Wallace, both of Oklahoma City, Okl., on the brief), for appellee Magnolia Petroleum Co.
Alger Melton, of Chickasha, Old., for appellees Cutlip and Horsley.
J. H. Maxey, of Tulsa, Okl. (Gibson, Maxey & Holleman, of Tulsa, Old., on the brief), for appellee Blakeney.
Robert M. Rainey, of Oklahoma City, Okl. (W. F. Semple, of Tulsa, Old., and Rainey, Flynn, Green & Anderson, of Oklahoma City, Okl., on the brief), for Deep Rock- Oil Corporation, successor eo nomine to Shaffer Co.
Before LEWIS and PHILLIPS, Circuit Judges, and JOHNSON, District Judge.
LEWIS, Circuit Judge.
On March 20, 1923, Tal Jones, plaintiff below, gave an oil and gas lease to Shaffer Oil & Refining Company, a Delaware corporation, on land in Seminole county, Oklahoma, described as follows: Lot Two (2) and Lot Three (3) less 20 acres for graveyard of Section 32, Township 8, Range 8, and containing 40.57 acres more or less. Oil was discovered by the lessee in September, 1924. In 1929 this suit was instituted by Jones in the state district court in said county, which was removed to the court below. His original petition' is not in the record. After removal he filed an amended petition containing four counts. In addition to jurisdictional facts it is alleged that plaintiff gave said lease reserving one-eighth of the mineral to be produced as royalty; that he was the owner of one-half of said royalty interest from the time oil was discovered in September, 1924, till March 5, 1925; that during that time large amounts of oil had been taken from said land; that the exact amount of accumulated oil runs were not ascertainable by him; that one-half of the royalty interest was his property; that he had not sold or transferred said interest in the oil runs from September 27, 1924, to March 5, 1925; that he did execute a quit claim deed to the land on March 5, 1925; that the original defendant, and Magnolia Petroleum Company, a foreign corporation, and B. B. Blakeney, the latter two being made defendants after the suit was removed,, had withheld his interests in the reserved royalties and converted it to their own use; that he was informed and believed that their withholding was because of purported transfers from him to Blakeney of his royalty interest, which transfer orders were forgeries and a scheme and trick to defraud him out of his property; that he had never received anything for said transfer orders, although he was the owner of half of the royalty interest reserved in said lease. He prayed judgment for the amount thereof.
In a second count he prayed for an accounting to ascertain the amount of his interest claimed to have been withheld from him and that a receiver be appointed. In a third count he prayed damages in the sum of $5,000 for the withholding of his said royalty interest. In a fourth count he again alleged that the purported transfers of his interests in said withheld royalties were forgeries; that he had received no consideration therefor, and that the only consideration that had been received by him was the sum of $20,000 for a quit claim deed of date March 5, 1925, and asked judgment for cancellation of said purported transfer orders.
The suit was then transferred to the equity side, and plaintiff was given time to recast his pleadings. He then filed an amended petition containing four counts, which are in substance the same as the four counts in his preceding petition. There were no material changes or additions. With leave of court he then filed another amended petition the first paragraph of which is this: Plaintiff “reiterates and realleges all of the material allegations contained in his original petition and amended petitions in as full and complete a manner as if set out verbatim. * * * ” He then alleges that he had seen the purported transfer orders directed to the two defendant companies, and they were forgeries; that he had been defrauded out of his property by means of fraud and collusion on the part of the defendants; that his knowledge of the fraud had been recently obtained; that at the time he executed the quit claim deed to the lahd covered by the lease he only received $20,000, and at that time there was $45,000 or more due the various royalty owners, and he was the owner of half thereof; that he never received any consideration for the purported transfer orders, which he never executed; and he prayed that the transfer orders and all other instruments tending to deprive him of his property be cancelled, and that he have such other and further relief as might seem equitable.
By supplemental bill the plaintiff sought recovery not only of the royalties withheld from him up to March S, 1925, but half of the royalties accruing thereafter, and that title in him to the land leased be quieted as against the defendants. Plaintiff verified the facts stated in his pleadings on oath.
The defendants by answers denied the allegations of the plaintiff’s petitions generally and in detail. In the answer of defendant Blakeney it is alleged that by a transaction between him and plaintiff on March 5, 1925, through others, he purchased from plaintiff the leased lands and impounded royalties in consideration of $20,000 paid by him to plaintiff; that at the time he made the purchase one Mary Perryman claimed to be the owner of the land and had instituted an action in the state district court for Seminole county for the purpose of recovering the same; that one or more other suits by other parties claiming ownership in the land had been instituted against plaintiff; that plaintiff represented that he was being harassed and annoyed by these claims and suits which prevented him from receiving his claimed half of the royalty interest; that he wished to convert his interest therein into cash and be rid of the vexatious litigation and annoyance that it caused him; that he so informed his attorneys at Wewoka of his intentions, and these representations were made to Blakeney through ■them.
It appeared in evidence conclusively, we think, that plaintiff was trying to negotiate a sale of all-his interest to another party for the sum of $16,000. He so informed Cutlip and. Horsley, his attorneys at Wewoka. They undertook to convince him that he should not sell; they told him it was their opinion he would be successful in the litigation that had been instituted against him and in additional litigation that was threatened; that if he insisted on selling he should get more; that if he would wait they would make an effort to get him more than $16,-000; that his interest was worth more. They further testified that they had him bring his two sons to their office in their effort to persuade him not to sell. The sons came with the plaintiff, but the plaintiff in their presence insisted that he wanted to sell. The sons were not called by plaintiffs to deny this. Horsley went to Oklahoma City where he met Blakeney who , then had a small interest in the royalties withheld. After negotiations Blakeney agreed to pay plaintiff $20,000 for the land and his half interest in royalties, Blakeney to assume certain obligations of plaintiff to his attorneys. Cutlip prepared the necessary papers. He drew a contract between plaintiff and Blakeney setting forth the terms of sale. Plaintiff signed the contract, a quit claim deed conveying the land to Blakeney, and assignments to Blakeney of plaintiff’s interest in the royalties held in part by the Magnolia Petroleum Company and in part by the Shaffer Oil and Refining Company. These documents were acknowledged before a notary public by the plaintiff. Plaintiff had a written contract with Cutlip and Horsley by which he engaged them to defend pending and threatened suits attacking his title, and if they should be successful he was to give them a deed to one-fourth of the mineral rights in the land for their services. Blakeney assumed-plaintiff’s obligations to Cutlip and Horsley. After said documents were executed Horsley delivered to plaintiff Blakeney’s check for $20,000, went to the •bank with plaintiff where it was deposited to plaintiff’s credit, and with its proceeds plaintiff immediately purchased United States bonds. Mr. Cutlip testified that he dictated •the instruments just referred to in plaintiff’s presence. The evidence is convincing that no fraud or overreaching or deception was practiced on the plaintiff in the transaction with Blakeney. Blakeney had never met the plaintiff until after the transaction was closed through Horsley. The District Judge in his memorandum and findings of fact said:
“There was no fraud or overreaching on the part of the defendant, B. B. Blakeney, nor was there any collusion between Cutlip and Horsley and Blakeney in the transaction.”
He said there was not even a fair degree of suspicion.
“Plaintiff evidently thought that, regardless of the advice of his attorneys, a net cash sale of $20,000.00 was worth more to him under the circumstances than continued worry and trouble over the defence of the various lawsuits pending and threatened. * * * ”
The findings of a Chancellor are presumptively correct [Standard Oil Co. of Colo. v. Standard Oil Co. (C. C. A.) 72 F.(2d) 524, 527, and cases there cited], and our examination of the record convinces that he did not err as to the facts or law.
A few words about plaintiff’s title. The land included in the lease had been allotted to James Perryman, a full blood Seminole Indian. Plaintiff claimed as Perry-man’s devisee. Perryman was supposed to have died testate. His will is not in the record, and there is no proof that it was ever proved and established in the court of probate jurisdiction. Impliedly it is conceded that it was not so established. His widow Mary is a full blood Creek Indian. In one of the suits collateral Seminole heirs to James Perryman claimed that he died before statehood; that because thereof his widow, being a full blood Creek Indian, was not his heir; and that the land descended to the nearest Seminole heirs. Oklahoma was admitted as a state November 16, 1907. James Perryman was not living at home at the time of his death. He • left surviving his wife Mary and one child Benjamin, who was born after the execution of the claimed will, and Benjamin died on or about February 1, 1909, leaving surviving him his mother Mary. Mary executed a deed conveying the land in controversy to Tal Jones on August 26, 1909, but the deed was not approved by the county judge, as the statutes required it should be to render it valid, until many years after its execution. Thereafter, July 24, 1915, Mary Perryman executed another deed to Tal Jones, properly approved, conveying the land less twenty acres occupied as Oakwood Cemetery. The grounds on which she, in her suit against plaintiff, repudiated her conveyances are not disclosed in this suit. Blakeney, after he purchased, settled all the litigation against Tal Jones involving title at a cost to him of about $7,000. Thereafter in 1925 Blakeney brought a suit against Mary Perryman and others in the state district court of Seminole county to quiet his title. Tal Jones was made party defendant to that suit, and he filed a disclaimer, signed by himself, to any interest in the property. In the decree in that case the court found and adjudged that Blakeney was the owner in fee of both of said lots except 4.04 acres that was included in an Indian allotment to one Betty Lena. That 4.04 acres lies across the south end of said Lot 3, and is a strip 165 feet in width. The District Court over objections permitted the city of Wewoka in Seminole county to intervene as a party on its petition stating that in 1909 it brought a condemnation suit against Tal Jones and others to condemn twenty acres of said Lot 3 for cemetery purposes; that by error the 4.04 acres allotted to Betty Lena was included as part of the twenty acres; that the error was caused by beginning the survey for the cemetery plot at the southwest corner of said Lot 3 instead of 165 feet north of said corner, and it asked the court below to reform and correct the decree of condemnation of the state court by excluding the Betty Lena 4.04 acres, and by including 4.04 acres on the north side of said condemned plot. Of course, a federal court has no jurisdiction to grant such relief. Folk v. Monsell (C. C. A.) 71 F.(2d) 816, 819. The trial court did not grant the relief sought. It should have dismissed the petition, in fact, refused intervention on the ground stated and also on the ground that it presented a controversy not germane to the suit pending.
The decree dismissing plaintiffs bill of complaint, including all supplements and amendments thereto, with prejudice is affirmed.
Question: What is the total number of appellants in the case that fall into the category "fiduciaries"? Answer with a number.
Answer:
|
songer_abusedis
|
D
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in civil law issues involving government actors. The issue is: "Did the court conclude that it should defer to agency discretion? For example, if the action was committed to agency discretion. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
GREAT SOUTHERN LUMBER CO. v. WILLIAMS.
(Circuit Court of Appeals, Fifth Circuit.
February 17, 1927.)
No. 4894.
1. Limitation of actions <@=I27(3) — Amendment setting out cause of action for unlawful conspiracy, imperfectly alleged in original petition, held not subject to prescription.
Where original petition, filed within period of limitation, set out cause of action for unlawful conspiracy, although imperfectly, amendment alleging such cause of action helé not subject to prescription because not filed within period of limitation.
2. Death <@=60 — Evidence of threats of violence to prevent apprehension held erroneously excluded on issue of unlawful killing during arrest.
Where issue in action for damages for alleged unlawful killing of plaintiff’s husband was whether party, a member of which killed deceased, went to his premises as peace officers to arrest' persons there, or whether they went at. defendant’s .instance to unlawfully kill deceased, testimony of threats that persons arrested intended to prevent apprehension by violence, if necessary, helé relevant, and rejection thereof reversible error.
3. Evidence <@=317(2) — Testimony of statement of third person of posse’s intention to kill plaintiff’s husband held inadmissible as hearsay.
In action for damages for alleged unlawful killing of plaintiff’s husband, admission of testimony of plaintiff as to statement by third person that posse had come to deceased’s premises to kill him helé erroneously admitted as being hearsay. «
4. Master and servant <@=302(3) — Employer is liable for assault committed by employee while engaged within scope of authority.
Employer is liable for willful and criminal assault of employee, committed while he was engaged in acts within his function or scope of his authority, or when protecting employer’s property.
5. Master and servant <@=307 — Employer is liable for unlawful killing, which employee knowingly aided and abetted during arrest authorized by employer.
If employee knowingly aided and abetted unlawful killing of deceased, when going to deceased’s premises to help make arrest under authority of employer, employer would be liable for such unlawful killing.
In Error to the District' Court of the United States for the Eastern District of Louisiana; Benjamin C. Dawkins, Judge.
Action by Mrs. L. E. Williams against the Great Southern Lumber Company. Judgment for plaintiff (13 F.[2d] 246), and defendant brings error.
Reversed and remanded for a new trial.
H. Generes Dufour, of New Orleans, La., Benj. M. Miller, of Covington, La., Delos R. Johnson, of Franklinton, La., and Bascom D. Talley, of Bogalusa, La., for plaintiff in error.
Hiddleston Kenner, A. T. Higgins and Max M. Schaumburger, all of New Orleans, La., for defendant in error.
Before WALKER, and BRYAN, Circuit Judges, and GRUBB, District Judge.
Rehearing denied March 30, 1927.
GRUBB, District Judge.
This was an action for damages, brought in the District Court by the defendant in error (as plaintiff) against the plaintiff in error (as defendant), arising out of the alleged unlawful killing of the husband of the plaintiff and the father of her minor child, in whose behalf she sued as tutrix. The deceased husband and father was killed on his own premises by a policeman of the city of Bogalusa, on November 22, 1919, under the following circumstances:
The defendant had been for many years operating a sawmill in Bogalusa, and employed in . it some 2,500 men, white ‘ and black. Friction had arisen between the defendant and its employees some months before the deceased was killed. There was no strike in force, but a shut-down, due to an accident to defendant’s machinery, had thrown the defendant’s employees, except its millwrights, out of work, and they had been idle for some weeks before deceased was killed. During this period, troubles had arisen between the workmen of defendant and itself and with the municipal authorities of Bogalusa. On one occasion, prospective employees' of the defendant, arriving at the railroad station at Bogalusa, had been forced by laborers to re-enter the train from which they had debarked and to leave Bogalusa. On. another occasion, certain laborers had been put in jail, and a crowd of their sympathizers had threatened to effect a jail delivery. There had also been disorders at meetings of the Bogalusa city commission at various times.
Due to these occurrences additional paid policemen had been employed by the city, and a voluntary citizen police force had been organized and sworn in by the city, and had been actually called into service upon one or more occasions before the killing of the deceased.. At the defendant’s sawmill, there was a whistle used during the operation of the mill, to notify its employees when quitting time had arrived. The commissioner of public safety of Bogalusa had arranged with the superintendent of the defendant that, in case of disorder and the need to call upon the voluntary police force to quell it, the whistle should be sounded to notify the voluntary police to assemble at the city hall. The signal had been used for that purpose by the defendant’s superintendent at the request of the municipal officers before the killing of deceased. On the day before the deceased was killed, a warrant for one Daeus, a negro, had been issued by the city on a charge that he was a dangerous and suspicious person. Daeus was not found at his home on the day the warrant issued. On the morning of the succeeding day, Daeus, in company with two labor sympathizers, both armed with shotguns, and with Daeus between them, walked down Columbia street in Bogalusa in al public way, and were seen to enter the premises of Lem Williams, the deceased, who was the president of Trades Council.
The chief of police of Bogalusa was notified by a policeman and by others that Daeus had been seen on the street in company with the labor leaders and had gone upon the premises of the deceased, Williams, with them. The chief of police then consulted with the commissioner of safety with reference to the situation, and the expediency of summoning the special and voluntary police to help execute the warrant on Daeus, and also warrants which were then issued for the two labor leaders. It was decided that it would be best to summon special officers to make the arrests. The special officers were to be summoned by the mill whistle, and word was sent to the superintendent of the mill to that effect. The superintendent caused the whistle to be blown to notify the special officers to report at the City Hall. Upon their assembling there, together with' one Magee, who was a paid officer of the city to whom the warrants were given for execution, they went in company with the commissioner of safety to the premises of the deceased for the purpose of making the arrest. There were about 75 men in the party.
The evidence was conflicting as to how many were employees of defendant. The superintendent of the defendant was there, but whether he was armed or not was in dispute. The facts as to what transpired after the party had arrived, and while the warrants were being executed, were in conflict. The witnesses of the plaintiff testified that the deceased and others were killed by members of the party without warning or provocation. The witnesses of the defendant testified that the deceased, Williams, was notified that the purpose of the visit was to serve warrants on Daeus and the two labor leaders, and that deceased was called upon to put down a pistol, which he had, and permit the arrest to be made, and that he refused to do so; that a shot was fired from the inside of the office, at the door of which the deceased was standing; and that it was then only that the arresting party fired, killing the deceased and others.
The foregoing is a mere outline of the voluminous evidence in the record, but sufficient in view of the disposition we make of the appeal. The liability of the defendant depended upon whether (1) deceased was unlawfully killed; and (2) if so, whether defendant was connected with and legally responsible for his death.
The important questions presented by the 23 assignments of error relate to the second question. The theory relied upon by the plaintiff to connect the defendant with responsibility for the killing was twofold: (1) That there had been formed a conspiracy between the defendant, its officers and agents, and others, who were strangers to it, to kill the deceased, because he was objectionable to the defendant, because of his labor activities, and that his death resulted from the conspiracy, or that the defendant had knowingly aided and abetted strangers to it in the unlawful killing with the same motive; and (2) that the presence of officers and employees of the defendant, armed and participating in making the arrest, at the place where the shooting occurred, made the defendant responsible upon the principle of respondeat superior, for the death of the deceased.
The questions presented by the assignments of error may be grouped and discussed as follows: (1) Those relating to the amendments to the petition, made before and after verdict. (2) Rejection of evidence offered by the defendant as to what was said by O’Rourke and Bouehillon as they were walking along Columbia street with Daeus on the morning of the day of the •killing. (3) Permitting Mrs. L. E. Williams, the plaintiff, and other witnesses to testify that Bob Carson stated to them that they had come there to kill the deceased and that they had done it. (4) The refusal of the District Court to direct a verdiet for the defendant.
I. The plaintiff, after the lapse of more than a year from the date of the deceased’s death, by leave of court, amended her petition. The contention of the defendant is that the amendment introduced a new cause of action, not contained in the original petition, and barred by the Louisiana prescription of one year. If the amendment is given the effect contended for by defendant, the new cause of action would, under the jurisprudence of Louisiana, have been prescribed by the limitation of one year. The contention of the defendant is that the original petition contained no cause of action based on an unlawful conspiracy between defendant and others to kill deceased, to remove him from defendant’s path because of his labor activities. While the original complaint, as we construe it, set out the cause of action for unlawful conspiracy in too vague and uncertain terms to be good against exception, it did present, though imperfectly, such a cause of action, together with one based upon the principle of respondeat superior. We conclude that the cause of action for unlawful conspiracy was not subject to prescription at the time the amendment was filed.
After verdict and before judgment, the plaintiff further amended by striking out all the original defendants, except the Great Southern Lumber Company. As the individual defendants, so stricken, were citizens of Louisiana, as was the plaintiff, this amendment was necessary to give the District Court jurisdiction. The right of the plaintiff in proper season to so amend as to preserve jurisdiction is not questioned by defendant. It is contended that, after verdict and after the individual defendants, so dismissed, had testified as witnesses for the corporate defendant, affected with the interest of eodefendants, it was too late to dismiss them as defendants. The conclusion reached by us makes a decision of this question unnecessary. Upon a subsequent trial, the individuals will not again appear before the jury as both witnesses and defendants.
II. An important issue on the trial was whether the party, a member of which killed deceased, went to his premises to enforce the law as peace officers by the arrest of offenders, whom they believed were there, and against whom warrants were outstanding and in their possession, or whether they went there at the instance of defendants or its agents to unlawfully kill deceased to get rid of him. The defense of the defendant was predicated on a showing that the raid was in the interest of law enforcement, and the party or posse legally bent on serving the warrants with no ulterior motive. Clearly in aid of this defense, defendant was entitled ' to show that an occasion had arisen and still existed calling for the enforcement of the . law by the serving of the warrants for Bouchillon, O’Rourke, and Daeus, and the need for a number of officers, instead of á single one, to safely accomplish the arrest. If there had been a defiance of the law shortly before by Bouchillon and O’Rourke by threatening to protect Dacus by violence against arrest, this was a fact tending to show an occasion requiring the exercise of force to uphold the law and by a posse rather than by a single officer.
The trial judge permitted evidence tending to show that Bouchillon and O’Rourke paraded Columbia street, armed and with Daeus between them; but the court refused to permit witnesses to testify to threats asserted to have been made by Bouchillon and O’Rourke to prevent Dacus’ apprehension by violence, if necessary, upon the ground that it was hearsay and immaterial. The issue was whether or not such threats had been in fact made, and the testimony of witnesses, who heard them made, is not hearsay. The making of the threatening statements, and not the truth of what had been said by the makers, was the inquiry. Permitting the defendant to show the parading of the street, while denying it the privilege of showing the unlawful character of the parade by the accompanying declarations of the paraders, was less than half a loaf. Plaintiff contended, and the District Judge charged, that Bouchillon and O’Rourke had the right to bear arms in the public street. The pertinent fact, therefore, was not that they had borne arms, but their purpose in doing so. Crime or innocence was to be determined by their purpose. If they had no intent to defy the law and protect Daeus from it by violence, no crime was committed and no occasion for a posse to make the arrest existed. If their purpose was to intimidate the police by threats of violent protection of Daeusagainst arrest, then they were committing a crime and one which could only safely be met by the summoning of a posse. A posse-was summoned, a member of it killed deceased, and defendant was sought to be held liable for his death upon the theory that the-party was not a posse, but an aggregation of strong-armed gunmen, assembled by defendant to unlawfully remove deceased. The-relevancy of any declaration of Bouchillon and O’Rourke that might serve to illustrate-the character of their march with Daeus is-clear, for it was the criminal character and not the march itself that would justify the issuing of warrants and the raising of. a posse to execute them. The evidence rejected was neither hearsay or irrelevant. Its rejection was error, and the injury resulting to the defendant serious enough to require a reversal of the judgment.
III. The court below, over the objection and exception of the defendant, permitted the plaintiff and others to testify that one Bob Carson subsequently introduced as a witness for defendant said to her in the presence of others that they (referring to the posse) had come there to kill her husband and had done it. The admission of this evidence is sought to be justified both as the statement of a conspirator against the defendant, a co-conspirator, and as a res geste declaration of an agent binding on his principal. Carson had not been examined when the evidence was admitted, and it was not offered to impeach him, but as an admission against interest of the defendant. We think the court erred in admitting this evidence. It was not the declaration of a co-conspirator. The record fails to establish any conspiracy between the defendant and Carson with reference to the deceased. Again, if there had been a conspiracy between them, the object of which was to kill deceased as charged, the conspiracy was ended by the death of deceased, before the statement asserted to have been made was made by Carson. All the shooting was over, the brother of deceased had already been rescued, and O’Rourke, who was wounded, was being put in a car to be taken to a hospital. Carson had been placed at the gate of the deceased’s premises to keep order. The statement itself was not a verbal act. It was not made to carry out the conspiracy, but was a mere narration of what had already been done and of its purpose. It was not part of the res geste. Carson was not even employed by the defendant. The evidence of the plaintiff to that effect shows on its face that she had no knowledge that would qualify her to testify to his employment. Carson and all other witnesses denied such employment. If Carson was not employed, his declaration, whenever made, would not be binding on the defendant. It was the hearsay of a stranger to defendant, made after the transaction, and narrative of it, and the court erred in admitting it.
■ IY. The District Judge denied the request of defendant for a directed verdict. Upon a subsequent trial, the evidence may differ from that presented in this record, and it is unnecessary to pass upon its sufficiency to establish either or both of the grounds of liability, relied upon by plaintiff to connect the defendant with the killing of the deceased. We do not think the present reeord contains direct evidence of a conspiracy between the defendant through its agents and strangers to kill deceased. There is evidence tending to show that Guerre, the superintendent of the defendant, caused the whistle signal to be given, when requested by the city authorities, and that he was at the place of the shooting armed, when the shooting occurred, though this was denied by him. An employer is liable for the willful and criminal assault of an employé, committed while he is engaged in acts within his function or the scope of his authority, as, when protecting his employer’s property from trespass or destruction. What the employé does, that is beyond the subject-matter committed to him by his employer, does not bind the employer. In this case, the evidence tended to show that Guerre was helping to arrest Dacus and the two labor leaders. No express authority to do so is shown to have been conferred upon him by the defendant. A previous course of conduct on defendant’s part, from which the authority for its superintendent to assist the police in making arrests could be inferred, would have to be shown. It would also have to appear that the authority was exercised for the benefit of the defendant, as distinguished from the duty of the citizen. If Guerre went to the premises of the deceased to help make the arrest and had been authorized by the defendant to make arrests in its interest, and knowingly aided and abetted in an unlawful killing of deceased, the defendant would be liable, but not otherwise.
Par the reasons assigned, the judgment is reversed, and the case remanded to the District Court for a new trial in conformity with the opinion.
Reversed and remanded.
Question: Did the court conclude that it should defer to agency discretion? For example, if the action was committed to agency discretion.
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_civproc1
|
52
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited federal rule of civil procedure in the headnotes to this case. Answer "0" if no federal rules of civil procedure are cited. For ties, code the first rule cited.
Richard J. DILLANE, Appellant, v. UNITED STATES of America, Appellee.
No. 20571.
United States Court of Appeals District of Columbia Circuit.
Argued May 10, 1967.
Decided Sept. 1, 1967.
Mr. Thomas J. Schwab, Washington, D. C. (appointed by this court), for appellant.
Mr. Albert W. Overby, Jr., Asst. U. S. Atty., with whom Messrs. David G. Bress, U. S. Atty., and Frank Q. Nebeker and William M. Cohen, Asst. U. S. Attys., were on the brief, for appellee.
Before Prettyman, Senior Circuit Judge, and Wright and Robinson, Circuit Judges.
PER CURIAM:
This is the latest chapter in appellant’s quest for ultimate review of a 1964 conviction of housebreaking and assault with intent to commit rape. When the case was here previously, we upheld the District Court’s denial of leave to appeal in forma pauperis because the petition therefor was not presented within the ten-day period fixed mandatorily for the filing of a notice of appeal. However, with an emerging claim that appellant’s trial counsel had neglected to inform him either of his right to appeal or as to when that right had to be asserted, our affirmance was without prejudice to a motion pursuant to 28 U.S.C. § 2255 seeking vacation and reentry of sentence to provide anew the opportunity for timely steps in that direction.
Appellant thereafter exhibited such a motion, repeating his earlier allegations and charging ineffective assistance of counsel, and a hearing thereon was conducted. The District Judge denied the motion, finding that appellant was "ably and conscientiously” defended throughout the proceedings and, more specifically, that he was duly advised of his right to appeal but consciously decided to resort exclusively to a motion for reduction of his sentence.
In considering appellant’s challenge to this disposition we must honor these findings unless they are clearly erroneous, and we cannot say that they are. One of appellant’s trial advocates testified that, to the best of his recollection, he apprised appellant, after as well as before conviction, of his right to appeal and of the ten-day period for noticing it. He stated that appellant decided to forego appellate examination of the trial proceedings and to seek a paring of his sentence instead. Appellant, while denying that at any time after the trial began was the subject mentioned, admitted that there was pretrial discussion of a possible appeal. And two letters appellant wrote to his counsel — both after conviction, and one within hours after sentencing — lend support to the finding that a motion for reduction of sentence was to be the only post-sentence effort.
True it is that the evidence was not fully harmonious, and that it contributed something to appellant’s side of the case. In particular, a letter from counsel to appellant, dated eight days after imposition of sentence, suggests that an appeal was not completely out of the picture, an inference other evidence did not necessarily eradicate. But it was the trial judge’s responsibility to assess the conflicts, and it is now ours to abide his evaluation if not plainly wrong, however we might be inclined were we at liberty to make a de novo determination. Adverting to what we have characterized as the “classic formulation of the test” by which our action is to now be guided, we are not, as to the findings mentioned, “on the entire evidence * * * left with the definite and firm conviction that a mistake has been committed.”
There remains appellant’s contention, rebutted by his counsel, that appellant was never told about the ten-day limitation on appealing — an issue, as we read the record, the judge was unable to resolve. This question, however, is rendered academic by the finding that appellant concluded that his interests would be served better by undertaking to ameliorate the sentence without endeavoring to win reversal of the conviction. With this finding unimpeachable, any omission to inform him of the period for noting the unwanted appeal is inconsequential.
Affirmed.
. Dillane v. United States, 121 U.S.App.D.C. 354, 350 F.2d 732 (1965).
. F.R.Crim.P. 37 (a) (2). See also United States v. Robinson, 361 U.S. 220, 80 S.Ct. 282, 4 L.Ed.2d 259 (1960); Kirksey v. United States, 94 U.S.App.D.C. 393, 219 F.2d 499 (1954), cert. denied 358 U.S. 848, 79 S.Ct. 74, 3 L.Ed.2d 82 (1958).
. Appellant was represented at his trial by two attorneys, both retained, other than counsel appointed for this appeal.
. We said: “In the record before us there appear to be allegations that appellant’s counsel, retained for his defense at the trial, never apprised him of his right to file a notice of appeal, or of the time within which that right must be exercised. If true, and if unexplained, this impresses us as such an extraordinary inattention to a client’s interests as to amount to ineffective assistance of counsel cognizable under Section 2255. A motion under that statute containing such allegations, and otherwise entertain-able by the court, would entitle appellant to a hearing. If the court should find the facts to be as alleged, it should, by the expedient of vacating and resentencing, restore appellant to the status of one on whom sentence has just been imposed and who has 10 days in which to institute a direct appeal. Whether there are in fact grounds for such an appeal seems to us a subject to which appellant is entitled to address himself once he has been restored to the aforementioned status.” 121 U.S.App.D.C. at 355, 350 F.2d at 733.
. This appeal is governed by F.R.Civ.P. 52(a) providing that “[findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.” Jackson v. United States, 122 U.S.App.D.C. 324, 327 n. 4, 353 F.2d 862, 865 n. 4 (1965), and cases cited therein. See also United States v. Hayman, 342 U.S. 205, 209 n. 4, 72 S.Ct. 263, 96 L.Ed. 232 (1952). The same standard would obtain for review of the issue presented here even if the proceedings were to be considered criminal in character. Campbell v. United States, 373 U.S. 487, 493-495, 83 S.Ct. 1356, 10 L.Ed.2d 501 (1965); Jackson v. United States, supra, 122 U.S.App.D.C. at 326-327, 353 F.2d at 864-865.
. “It is not enough that we might give the facts another construction, resolve the ambiguities differently, and find a more sinister cast to actions which the District Court apparently deemed innocent. * * * We are not given those choices, because our mandate is not to set aside findings of fact ‘unless clearly erroneous.’ ” United States v. National Ass’n of Real Estate Bds., 339 U.S. 485, 495-496, 70 S.Ct. 711, 717, 94 L.Ed. 1007 (1950). Compare Jackson v. United States, supra note 5, 122 U.S.App.D.C. at 327, 353 F.2d at 865.
. Id. at 327 n. 5, 353 F.2d at 865 n. 5.
. United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 D.Ed. 746 (1948).
. The trial judge made a finding that appellant “was informed of his right to appeal from his conviction * * * within the period of ten days from the entry of the final judgment of conviction.” This could mean either that within the ten-day period appellant was informed only of his right to appeal, or that he was told that this was the period during which the appeal must be taken. We take it that the latter was not intended because the judge, at the conclusion of the hearing and prior to filing formal findings, stated that he was unable to determine whether appellant was enlightened as to the ten-day period for initiating the appeal.
Question: What is the most frequently cited federal rule of civil procedure in the headnotes to this case? Answer with a number.
Answer:
|
songer_appbus
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Leroy SMITH, Jr., Plaintiff-Appellant, Cross-Appellee, v. FIRESTONE TIRE AND RUBBER COMPANY, Defendant-Appellee, Cross-Appellant.
Nos. 88-1841, 88-1916.
United States Court of Appeals, Seventh Circuit.
Submitted Feb. 10, 1989.
Decided May 26, 1989.
Gregory L. Barnes, Brinkoetter & Barnes, P.C., Decatur, Ill., for plaintiff-appellant, cross-appellee.
C. Daniel Karnes, Jones Day Reavis & Pogue, Chicago, Ill., Glen D. Nager, Washington, D.C., for defendant-appellee, cross-appellant.
Before CUMMINGS, CUDAHY, and FLAUM, Circuit Judges.
CUMMINGS, Circuit Judge.
Plaintiff filed this action under 42 U.S.C. § 1981 on October 21, 1986, alleging that his employer, defendant Firestone Tire and Rubber Company (“Firestone”), demoted him on the basis of his race on September 20, 1984. Defendant’s motions for summary judgment on the grounds of expiration of the statute of limitations and the absence of any genuine issues of material fact as to whether defendant’s decision to demote plaintiff was motivated by race were denied on January 8 and 13, 1988, respectively. 675 F.Supp. 1134. The case was tried on March 29, 1988. On March 30, 1988, the jury informed the court that it was unable to reach a decision and was discharged. On March 31, 1988, Judge Mills granted defendant’s motion for directed verdict on which he had earlier reserved ruling until deliberation of the jury and judgment was entered in favor of defendant. Plaintiff appeals the entry of directed verdict and defendant cross-appeals the denial of summary judgment based on the statute of limitations. We affirm.
I.
Statute of Limitations
Defendant contends that plaintiff’s action, filed over twenty-five months from plaintiff’s demotion, is barred by Illinois’ two-year statute of limitations for personal injuries (Ill.Rev.Stat. ch. 110, ¶ 13-202 (1983)), rendered applicable to Section 1981 actions by Goodman v. Lukens Steel Co., 482 U.S. 656, 107 S.Ct. 2617, 96 L.Ed.2d 572 (1987). Because Sections 1981 and 1983 do not contain a statute of limitations, courts applied various types of state statutes of limitations to the federal claims based on analogies to state causes of action, resulting in an undesirable lack of uniformity among jurisdictions. This inconsistency as to Section 1983 actions was resolved by Wilson v. Garcia, 471 U.S. 261, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985), which held that for purposes of choosing the most appropriate state statute of limitations, Section 1983 claims are essentially claims for personal injury. Accordingly, the appropriate state statute of limitations for personal in-juiy should be borrowed from the forum state. Goodman merely applied the holding of Wilson to Section 1981 claims. Goodman, 107 S.Ct. at 2621.
Defendant argues that Goodman should be applied retroactively to bar plaintiff’s claim under the general rule that “cases should be decided in accordance with the law existing at the time of decision.” Goodman, 107 S.Ct. at 2621. An exception to this general maxim exists where: (1) the decision at issue overrules clear precedent on which litigants may have relied or addresses an issue of first impression which was not foreshadowed; (2) retroactive application of the decision would retard the operation of a federal statute; and (3) retroactive application would result in substantial inequity. Chevron Oil Co. v. Huson, 404 U.S. 97, 106-107, 92 S.Ct. 349, 355-356, 30 L.Ed.2d 296 (1971). We agree with the district court that such an exception to retroactive application is warranted here.
Prior to the decision in Goodman on June 19, 1987, precedent in this Circuit beginning with Waters v. Wisconsin Steel Works, 427 F.2d 476, 488 (7th Cir.1970), certiorari denied, 400 U.S. 911, 91 S.Ct. 137, 27 L.Ed.2d 151, 911, established that the Illinois five-year statute of limitations for residual claims (Ill.Rev.Stat. ch. 110, 1113-205 (1983)), applied to actions under Section 1981. This case is therefore distinguishable from Goodman in which the Court determined that there was no clear precedent within the Third Circuit on which plaintiffs could have relied in filing their suit and applied the statute of limitations retroactively to the claims of that class of plaintiffs. Plaintiff here, however, was clearly justified in relying on this Court’s case law applying the five-year statute of limitations prior to Goodman.
Conceding that the five-year statute of limitations had been applied to Section 1981 actions in this Circuit prior to Goodman, defendant argues that plaintiff should have been forewarned as to the holding in Goodman by the Supreme Court’s earlier decision in Wilson. By analogy to Section 1983 actions, defendant contends, plaintiff should have concluded that Section 1981 actions would likewise be subject to the two-year Illinois personal injury statute of limitations.
This Court rejected similar reasoning in Nazaire v. Trans World Airlines, Inc., 807 F.2d 1372, 1380 (7th Cir.1986). There this Court refused to apply the Illinois two-year statute of limitations to a Section 1981 action in spite of Wilson since “ ‘Section 1981 ... is more fundamentally concerned with injury to the contractual or economic rights of minorities [than Section 1983], and as such should appropriately be governed by the longer contract statute of limitations.’ ” Nazaire, 807 F.2d at 1380, quoting Judge Garth’s dissent in the Goodman court oí appeals decision, 777 F.2d 113, 132 (3rd Cir.1985). Accordingly, even after Wilson, this Circuit continued to apply the Illinois five-year statute of limitations to Section 1981 actions.
Even if plaintiff should have been on notice after Wilson but prior to Goodman that the statute of limitations in Section 1981 cases was an open question, his claim would nonetheless be timely filed under Anton v. Lehpamer, 787 F.2d 1141 (7th Cir.1986), which established transitional statutes of limitations for Section 1983 decisions which accrued prior to Wilson. In Anton, this Court decided that Wilson should not be applied retroactively to Section 1983 causes of action that accrued prior to that decision on April 17, 1985. Instead, such plaintiffs should be given the first to expire of either the five-year residual statute of limitations on which they may have relied or the two-year personal injury statute of limitations from the date of the Wilson decision. Therefore even if plaintiff is deemed to have been on notice that the Wilson decision was likely to be extended to Section 1981 claims, he still met the Anton time limitations for actions accruing before Wilson by commencing this action within two years of the Wilson decision.
The second factor of the Chevron test, whether retroactive application of the law will further or retard the operation of a federal statute, militates in favor of prospective application of Goodman as well. Both Goodman and Wilson serve the interests of safeguarding the rights of federal civil rights litigants, achieving uniformity and certainty and minimizing unnecessary collateral litigation. Wilson, 105 S.Ct. at 1947-1949; Goodman, 107 S.Ct. at 2622. Fully retroactive application of Goodman would clearly interfere with the rights of federal litigants who were injured prior to Goodman by shortening the limitations period from five to two years. Further, the interests of uniformity and certainty will be only minimally affected by prospective application of Goodman since only those actions which accrued prior to Goodman would be subject to a different limitations period. Although for a period of time there will be two effective limitations periods, thereby temporarily undermining the goal of uniformity, the delineation is clearly demarcated by the date of the Goodman decision, reducing the likelihood of unnecessary litigation.
The final Chevron factor requires us to examine the inequity that may be caused by retroactively applying a shorter limitations period than previously applied by this Circuit. The inequity in terminating this action by a two-year statute of limitations while this Court’s precedent clearly allowed the plaintiff five years to commence this litigation is self-evident. This is certainly not a situation where plaintiff “slept on his rights” and equity warranted retroactive application to cut off his cause of action. Plaintiff commenced this action well within the five-year statute of limitations applicable when his action accrued. Prospective application only of the Goodman decision is therefore clearly appropriate.
Consistent with Anton we hold that a plaintiff whose Section 1981 cause of action accrued prior to the decision in Goodman should be allowed to file that action within the period first to expire of: (1) five years from the accrual of the cause of action or (2)two years from the decision in Goodman on June 19, 1987. Plaintiffs action is not time-barred under this rule.
II.
Directed Verdict
In reviewing the entry of a directed verdict by the district court, this Court must determine “whether a fairminded jury could return a verdict for the plaintiff on the evidence presented.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986). In order to establish a violation of Section 1981, plaintiff must have presented sufficient evidence to enable a reasonable jury to conclude that defendant’s decision to demote plaintiff was motivated by his race. Goodman, 107 S.Ct. at 2623. Plaintiff may meet this burden by either direct evidence of the employer’s discriminatory motive or circumstantial evidence showing that the employer’s articulated rationale for demotion was merely a pretext for underlying discrimination. United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 716, 103 S.Ct. 1478, 1482, 75 L.Ed.2d 403 (1983).
We agree with the district court that plaintiff has failed to establish a case of racial discrimination. However, we disagree with the district court’s conclusion that plaintiff has failed to meet his prima facie case. Once a Section 1981 claim has been fully tried on the merits, the issue of whether plaintiff has established a prima facie case is no longer relevant. Aikens, 460 U.S. at 714-715, 103 S.Ct. at 1481-1482. If plaintiff has failed to make out a prima facie case of race discrimination, the district judge should grant the defendant’s motion for directed verdict relieving the defendant of its burden of establishing nondiscriminatory reasons for the employment action. “Where [as in this case] the defendant has done everything that would be required of him if the plaintiff had properly made out a prima facie case, whether the plaintiff really did so is no longer relevant.” Aikens, 460 U.S. at 715, 103 S.Ct. at 1482. Accordingly, we address the ultimate issue of whether plaintiff has been the victim of his employer’s racial discrimination.
The evidence presented at trial, appropriately viewed in the light most favorable to the plaintiff, reveals that plaintiff failed to perform his job satisfactorily on at least four separate occasions. Plaintiff entered employment with the defendant as an hourly employee at one of defendant’s tire manufacturing plants in Akron, Ohio, in April 1968. He was eventually promoted to a supervisory position several years later, but was laid off in 1981 when defendant closed its Akron, Ohio, facilities. Plaintiff was able to find alternative employment as a supervisor in defendant’s Decatur, Illinois, plant and was hired to work in the “banbury” department by its manager, Jerry Mills, beginning work on April 13, 1981.
Plaintiffs employment as a production supervisor in the banbury department was apparently satisfactory from the commencement of his employment until December 1983, after which four incidents occurred which defendant represents formed the basis for plaintiff’s demotion. On January 4, 1984, one of the banbury machines under the supervision of plaintiff began to malfunction. Plaintiff diagnosed the problem as a failure of the automatic oil-injection system. He accordingly instructed two hourly employees to drop the oil manually into the machine. Subsequently, plaintiff received a phone call from his spouse informing him that her car was incapacitated. Plaintiff received permission to leave the factory to assist his wife, but failed to inform his supervisor of the machine malfunction. Plaintiffs supervisor later determined that 18,000 pounds of defective rubber had been processed by the malfunctioning machine. The malfunction was later found to be caused by a closed air valve. Plaintiff was reprimanded by Jerry Mills and a shift foreman, Gary Mol-lohan, for his failure to diagnose the cause of the mechanical malfunction accurately and for risking the safety of his workers by stationing them inside the banbury machine.
In June of 1984, plaintiff was observed by another shift foreman, Dale Hubner, lying with his eyes closed on a conveyor belt behind a banbury machine during work hours. Plaintiff denied actually sleeping on the conveyor belt and offered the alternative characterization that he was merely resting his eyes. He was reprimanded for this incident and was requested to take a few days’ leave from work as discipline.
Plaintiff subsequently twice failed to report for work in August of 1984. The failure apparently resulted from plaintiff’s neglect to check the work shift and overtime schedule. He was informed that a note documenting his failure to report would be placed in his personnel file.
The final incident occurred on September 7, 1984, when one of the machines under the supervision of plaintiff ran thirteen bad batches of rubber before the error in the rubber recipe was detected. Plaintiff offered the explanation that the operator of the machine must have changed the rubber recipe after plaintiff had checked it prior to initiating the machine. Jerry Mills, however, testified that it would have been physically impossible for the operator to have changed the recipe after the run was started and concluded that plaintiff must have failed to check the recipe prior to commencing the process or checked it inaccurately. Plaintiff was asked to take a period of vacation as a result of the incident. Upon returning to work, he was informed that due to the recent occurrences he was requested to resign voluntarily from his supervisory position to become an hourly employee or leave the employ of the defendant. Plaintiff chose the former option and this suit was commenced twenty-five months later.
Although at trial plaintiff disputed whether the four incidents were evidence of inadequate performance on the job, he did not deny that the incidents occurred. As proof that defendant’s proffered reasons for demotion were pretextual, plaintiff produced evidence of statements made by Jerry Mills that plaintiff would not be promoted, that Mills did not like plaintiff’s “type” and that one of plaintiff’s “type” was enough. Plaintiff admits that Mills never specifically referred to plaintiff’s race in making the above comments, although plaintiff assumed and it would be a reasonable inference that Mills was referring to plaintiff’s race. Plaintiff offered no other evidence that any employment procedure had been ignored or that white supervisors were treated differently. In response to the statements offered by Smith as evidence that Mills harbored racial prejudice, the defendant presented evidence that Mills had hired the plaintiff initially, Mills demoted a white supervisor merely for sleeping on the job, and that Mills had promoted another black supervisor.
The standard for review of a directed verdict requires “this Court to view all of the evidence in the light most favorable to [the appellant].” Panter v. Marshall Field & Co., 646 F.2d 271, 281 (7th Cir.), certiorari denied, 454 U.S. 1092, 102 S.Ct. 658, 70 L.Ed.2d 631 (1981), emphasis original (quoting Chillicothe Sand & Gravel Co. v. Martin Marietta Corp., 615 F.2d 427 (7th Cir.1980)). Crediting as we must the statements offered by the plaintiff to be inferential evidence of racial prejudice, such statements are not, however, sufficient to demonstrate that the defendant relied on both legitimate and illegitimate criteria, or mixed motives. In its recent reexamination of mixed motive employment decisions, the Supreme Court determined that where a plaintiff has demonstrated that an illegitimate consideration was a substantial factor in the employment decision, the defendant must demonstrate by a preponderance of the evidence that the same decision would have been made absent the illegitimate motive. Price Waterhouse v. Hopkins, — U.S. -, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989). As Justice O’Connor explained in her concurring opinion in Price Waterhouse, “stray remarks in the work place, while perhaps probative of sexual harassment, ... cannot justify requiring the employer to prove that its hiring or promotion decisions were based on legitimate criteria.” Price Waterhouse, — U.S. at -, 109 S.Ct. at 1804 (O’Con-nor, J., concurring). Such remarks, as offered by the plaintiff, when unrelated to the decisional process, are insufficient to demonstrate that the employer relied on illegitimate criteria, even when such statements are made by the decision-maker in issue. Plaintiff has failed to provide the requisite nexus between the statements made by the defendant and the demotion of the plaintiff to demonstrate that plaintiff’s race was a “substantial factor” in the defendant’s decision. The burden-shifting framework for mixed motive cases in Price Waterhouse is therefore inapplicable here. Instead, employing the framework established in Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), we examine whether the legitimate reasons proffered by the defendant were the “ ‘true reasons’ ” for the demotion of Smith. Price Waterhouse, — U.S. at -, 109 S.Ct. at 1787 (Brennan, J., plurality), at -, 109 S.Ct. at 1795 (White, J., concurring), at -, 109 S.Ct. at 1800 (O’Connor, J., concurring).
We agree with the district judge that defendant demoted plaintiff for non-discriminatory reasons. Plaintiff has failed to offer any evidence, other than the statements by Mills, to demonstrate that the justifications offered by the defendant were pretextual. The statements made by Mills were not shown to be related to Smith’s demotion and are simply insufficient to rebut the weight of the detailed and documented testimony by the defendant concerning Smith’s work performance. Plaintiff’s poor performance involved more than a single isolated incident of failing to appear for work on time. Several thousand pounds of defective rubber were produced on two separate occasions. In addition, plaintiff was found lying down on the job which plaintiff himself does not deny, claiming merely to have been resting his eyes. Plaintiff was also late for work on two other occasions. He was questioned and reprimanded regarding each of these occurrences, providing him with some opportunity to confront the criticism of him and improve his performance prior to his demotion. Although his job performance while employed with the defendant prior to 1984 was satisfactory, his quality of work during 1984 was seriously marred by the four incidents cited by defendant. Plaintiff cannot expect to be retained in a supervisory position based on his past performance in light of his sharply deteriorating performance in 1984. It is not our province to second-guess the business judgment of an employer where, as here, it acted on ample legitimate justification for demoting the plaintiff. Mason v. Pierce, 774 F.2d 825, 829 (7th Cir.1985).
The judgment of the district court is affirmed.
. Accord, Usher v. City of Los Angeles, 828 F.2d 556 (9th Cir.1987); Derstein v. Van Buren, 828 F.2d 653 (10th Cir.1987). But see Thomas v. Shipka, 829 F.2d 570 (6th Cir.1987); Smith v. Pittsburgh, 764 F.2d 188 (3rd Cir.), certiorari denied 474 U.S. 950, 106 S.Ct. 349, 88 L.Ed.2d 297 (1985); Wycoff v. Menke, 773 F.2d 983 (8th Cir.1985); Rivera v. Green, 775 F.2d 1381 (9th Cir.1985), in each of which Wilson was applied retroactively either because in the former three cases there was no clear contrary precedent while in Rivera retroactive application would actually lengthen the period of filing for the plaintiff.
. See, however, Baker v. Gulf & Western Industries, Inc., 850 F.2d 1480 (11th Cir.1988), and Larkin v. Pullman-Standard Div., Pullman, Inc., 854 F.2d 1549 (11th Cir.1988), where Goodman was applied retroactively because no one statute of limitations had been applied to Section 1981 cases to establish clear precedent on which plaintiffs could have relied.
. Indeed, plaintiff seems to recognize the futility of his argument in his brief which contains less than five pages of argument replete with grammatical errors and which is devoid of sufficient substance to enable this Court to determine that any error was committed by the district court.
.Defendant moved for a directed verdict at the close of both plaintiffs and defendant’s cases. The district judge denied the first motion, but reserved ruling on the second, which was eventually granted following the jury deadlock.
. The banbury department prepares raw materials according to a rubber recipe to be used in producing tires.
Question: What is the total number of appellants in the case that fall into the category "private business and its executives"? Answer with a number.
Answer:
|
songer_appel1_1_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".
Melita MILLER, Appellee, v. Allan A. CHRISTIAN, Appellant.
No. 91-3410.
United States Court of Appeals, Third Circuit.
Submitted Under Third Circuit Rule 12(6) Dec. 3, 1991.
Decided March 23, 1992.
Allan A. Christian, pro se.
STAPLETON, HUTCHINSON and NYGAARD, Circuit Judges.
OPINION OF THE COURT
HUTCHINSON, Circuit Judge.
I.
Appellant, Allan A. Christian (Christian), is appellee Melita Miller’s (Miller) former landlord. He appeals an order of the Appellate Division of the District Court of the Virgin Islands affirming a judgment of the small claims division of the Territorial Court of the Virgin Islands for $450.00 in Miller’s favor. The territorial court based the $450.00 damage award on its finding that personal property Miller owned was injured when a chronically faulty sewage system serving the leased premises backed up and overflowed into her apartment. It held in a bench trial that Christian was liable to Miller despite a finding that Christian’s immediate efforts to remedy the sewage problem were reasonable. After the territorial court entered judgment for Miller, Christian filed a timely appeal to the appellate division of the district court and, after that court affirmed the territorial court’s judgment, Christian filed a timely notice of appeal to this Court.
Christian contends the territorial court’s finding that he acted reasonably to fix the immediate sewage problem by August 4, 1989 precludes liability. He also argues that the evidence presented by Miller was insufficient to place a dollar value on the injury to Miller’s personal property. We disagree. Christian is liable to his tenant Miller under governing principles of the Restatement (Second) of Property. They impose liability for damages to a tenant’s personal property caused by a dangerous condition resulting from either a landlord’s breach of an implied warranty of habitability or his unreasonable failure to correct a condition that violates local housing regulations. While the territorial court found Christian’s August 4, 1989 efforts to correct the immediate sewage problem that damaged Miller’s property may have been reasonable, it also impliedly found the recurrent nature of the sewage problem was caused by his unreasonable failure to correct a chronic violation of the local housing code or a breach of his implied warranty of habitability. Accordingly, Miller can recover from her landlord Christian for the property damage she suffered in this case. Therefore, since Christian’s argument that Miller’s evidence on damages was speculative lacks merit, we will affirm the order of the district court.
II.
Miller, with her children and grandchildren, lived in a two bedroom, one bathroom apartment she rented from Christian. There was no written lease, and Miller was a month-to-month tenant. See V.I.Code Ann. tit. 28, §§ 241, 242 (1975) (oral leases of duration less than one year permissible). On August 2, 1989, a plumbing problem caused Miller’s bathtub to back up and release sewage into her apartment. This was not the first time sewage had backed up in the tub in Miller’s apartment. Christian was' aware of the recurrent problem and had temporarily fixed it on prior occasions. This time Christian was notified on the same day it happened. Almost at once he tried to get in touch with several plumbers in an effort to get the problem fixed. He was not at first successful. As a result, the problem persisted for a day or two. In the meantime, fetid material from the blocked system had overflowed the tub and percolated from the bathroom into a bedroom in Miller’s apartment. There, it damaged some of Miller’s clothing, linens and bedding. Some bedding and clothing were also damaged when Miller used them to soak up the overflow in an effort to reduce the danger and nuisance the percolating filth and its stench posed to her and the children who occupied the apartment with her. Finally, after the efforts of several plumbers, the sewage problem was fixed on August 4, 1989.
The territorial court rejected Christian’s contention that he was not liable because he had done everything reasonably possible to correct the sewage problem. Specifically, it found:
I find from the testimony that this had been an ongoing problem. It had been reported and had been fixed before. I also find that the defendant made reasonable efforts to repair the problem on this occasion in August of 1989. But that he is, nevertheless, liable for the damages which the plaintiff sustained as a result of the sewage backup.
Appellant’s Appendix (App.) at 86.
III.
We have jurisdiction over Christian’s appeal pursuant to 28 U.S.C.A. § 1291 (West Supp.1991). The district court had jurisdiction over Christian’s appeal from the judgment of the territorial court under V.I.Code Ann. tit. 4, § 33 (Supp.1990).
Whether Virgin Islands law allows a tenant of residential premises to recover damages for injury to personal property caused by a recurring problem that adversely affects the use of an apartment for residential purposes is a legal question over which we exercise plenary review. See Universal Minerals, Inc. v. C.A. Hughes & Co., 669 F.2d 98, 102-03 (3d Cir.1981). We review the district court’s factual findings under the clearly erroneous standard. See Allegheny Int’l, Inc. v. Snyder, 954 F.2d 167, 172-73 (3d Cir.1992). Thus, we apply the same standard as the district court in reviewing the judgment against Christian. See Semper v. Santos, 845 F.2d 1233, 1235 (3d Cir.1988).
iv.
On liability, Christian contends the territorial court’s finding that his efforts to correct the sewage problem between August 2-4, 1989 were reasonable precludes judgment against him. Specifically, he argues that the district court erred in concluding that the judgment of the territorial court is not contrary to its finding that he “made reasonable efforts to repair the problem” on that date. App. at 36. Since the parties had no written lease expressly stating Christian’s obligations to Miller, his duties to her are those which all landlords owe their tenants. Christian says that a Virgin Islands landlord, in the absence of negligence, is not liable to his or her tenant for failure to make repairs unless there is a statute or agreement to the contrary. He cites no Virgin Islands case law or statutory authority that either supports that general proposition or relates it to the facts of this case.
Where there is no governing local law or precedent, V.I.Code Ann. tit. 1, § 4 (1984) “directs us to examine the common law first as expressed in the Restatements, and then as generally understood and applied in the United States.” Polius v. Clark Equip. Co., 802 F.2d 75, 77 (3d Cir.1986). Thus, our decision in this case is informed by the Restatement (Second) of Property (hereinafter Restatement). See Allaire v. United States Trust Co., 478 F.Supp. 826, 827 (D.V.I.1979) (applying Restatement in property dispute); The Lodge, Inc. v. Caravelle Restaurant, Inc., 20 V.I. 268, 273 (Terr.Ct.1984) (same). Where the Restatement expresses no opinion and a split of authority exists, courts should select the sounder rule. Polius, 802 F.2d at 77; Vidal v. Virgin Islands Housing Auth., 20 V.I. 3, 4 (Terr.Ct.1983) (in absence of opinion of drafters of Restatement, reference must be made to United States case law).
Section 5.5(1) of the Restatement states that the landlord of leased residential property
is obligated to the tenant to keep the leased property in a condition that meets the requirements of governing health, safety, and housing codes, unless the failure to meet those requirements is the fault of the tenant or is the consequence of a sudden non-manmade force or the conduct of third persons.
Restatement § 5.5(1). Section 5.5 also provides for an “implied warranty of habitability” which goes beyond the requirement of section 5.5(1). See Restatement § 5.5 cmt. f. Under the implied warranty of habitability, a landlord must keep the premises in a “safe and sanitary condition,” see Hagglund v. American Motors Inn, 18 V.I. 376, 378 (D.V.I.1981), and fit for habitation. See Allen v. Housing Auth. of the County of Chester, 683 F.2d 75, 78 (3d Cir.1982). Under these principles, Christian had a duty to keep the apartment in a state of repair sufficient to meet the standards of the local housing code or minimum standards of habitability.
The evidence before the territorial court was sufficient to permit it to find Miller’s apartment was not kept in a condition that met minimum local health and safety requirements. The purpose of the Virgin Islands Housing Code “is to promote public safety, health and general welfare through the establishment and enforcement of minimum standards of occupancy, sanitation, light and ventilation, -and safety to life and property incident to the use and occupancy of places of residence.” V.I.Code Ann. tit. 29, § 331 (1976). Under V.I.Code Ann. tit. 29, § 333(b), Minimum Standards for Health and Sanitation, a landlord is responsible for the care and maintenance of an apartment’s sewage system. Id. § 333(b)(1). The evidence before the territorial court showed the sewage problem was recurrent. It also showed the presence of raw sewage in a quantity sufficient to overflow a bathtub and graphically demonstrated its offensive and pervasive nature. It showed additionally that Christian was fully aware of the continuing problem with back-up in the building’s sewage lines and that his efforts to correct it permanently were ineffective. After Miller called the Department of Health with a complaint on the fourth recurrence, Christian was informed by the local sanitation inspector that the property was in “deplorable” condition. The sanitation inspector told Christian he would help him find a plumber to fix the sewage problem, but Christian himself finally managed to get one to fix the problem.
We have little difficulty in concluding that the presence of raw sewage in Miller’s apartment also violated minimum standards of habitability. See, e.g., Allen, 683 F.2d at 78 (overflowing sewage from toilet and sink rendered apartment uninhabitable); Schaefer v. Murphey, 131 Ariz. 295, 640 P.2d 857, 860 (1982) (inoperative toilet is “condition materially affecting health and safety”). Thus, Christian breached the implied warranty of habitability the Restatement incorporates into residential leases.
Section 5.5 of the Restatement, however, does not fully determine whether Miller can recover damages for injury to her personal property. In practice, the implied warranty of habitability permits a tenant to raise the landlord’s breach of the warranty as an affirmative defense if the landlord brings an eviction proceeding against a tenant for failure to pay rent or, if a breach exists, allows the tenant to pay rent under protest and sue the landlord to recover for any decrease in value of the leased premises caused by the landlord’s breach. Conille v. Secretary of HUD, 840 F.2d 105, 111 (1st Cir.1988); see Javins v. First Nat’l Realty Corp., 428 F.2d 1071, 1082 (D.C.Cir.1970) (in order to determine rent owed to landlord, tenants must be given opportunity to prove breach of implied warranty of habitability). The District of Columbia Circuit first held in Jav-ins that “leases of urban dwelling units should be interpreted and construed like any other contract” and conditioned the tenant’s obligation to pay rent upon the landlord’s fulfillment of the implied warranty. Javins, 428 F.2d at 1075. The Jav-ins court stated that its holding extended all contract remedies to the tenant for the landlords’s breach of the implied warranty of habitability. Id. at 1082 n. 61.
While section 5.5 of the Restatement recognizes the theory set forth in Javins and its progeny, it limits the tenant to the remedies set out in section 5.4 of the Restatement. Section 5.4 states:
[If] a change in the condition of the leased property caused by the landlord’s conduct or failure to fulfill an obligation to repair ... makes the leased property unsuitable for the use contemplated by the parties and the landlord does not correct the situation within a reasonable time after being requested by the tenant to do so.... [T]he tenant may:
(1) terminate the lease in the manner prescribed in § 10.1 and if the change in condition is due to the landlord’s fault, recover damages to the extent prescribed in § 10.2; or
(2) if the change in condition is due to the landlord’s fault, continue the lease and obtain equitable and legal relief including:
(a) the recovery of damages to the extent prescribed in § 10.2;
(b) an abatement of the rent [until the default is eliminated] to the extent prescribed in § 11.1;
(c) the use of the rent to eliminate the unsuitable condition [after notice to the landlord] to the extent prescribed in § 11.2; and
(d) the withholding of the rent in the manner and to the extent prescribed in § H.3.
Restatement § 5.4 (emphasis added).
Section 10.2, the section cross-referenced by section 5.4(1), does not even mention damages for injury to a tenant’s personal property. It states in pertinent part:
If the tenant is entitled to recover damages from the landlord for his failure to fulfill his obligations under the lease, absent a valid agreement as to the measure of damages, damages may include one or more of the following items as may be appropriate so long as no double recovery is involved:
(1) if the tenant is entitled to terminate the lease and does so, the fair market value of the lease on the date he terminates the lease;
(3) if the tenant is entitled to terminate the lease and does so, reasonable relocation costs;
(4)if the lease is not terminated, reasonable additional costs of substituted premises incurred by the tenant as a result of the landlord’s default while the default continues;
(6) if the tenant eliminates the default, the reasonable costs incurred by the tenant in eliminating the default; and
(7) interest on the amount recovered at the legal rate for the period appropriate under the circumstances.
Restatement § 10.2 (emphasis added).
Here, Miller is not using Christian’s breach as a defense to payment of rent nor is she seeking any costs since she did not pay to repair the plumbing problem nor was she, due to the short duration of the condition, forced to seek substitute premises for herself and her family. Her complaint seeks only “property damages due to failure of [Christian] to make repairs to [her] apartment.” App. at 2. Despite the Restatement’s limitation of remedies, some courts have held that a tenant may rely on a breach of the implied warranty of habitability in bringing an affirmative cause of action for damages. See George Washington Univ. v. Weintraub, 458 A.2d 43, 46-48 (D.C.1983); Old Town Dev. Co. v. Langford, 349 N.E.2d 744 (Ind.Ct.App.1976), superseded by, 267 Ind. 176, 369 N.E.2d 404 (1977).
In Langford, the Indiana Court of Appeals considered at length a landlord’s liability for injuries and property damage resulting from an apartment fire caused by a defective heating system. Applying the teaching of Hadley v. Baxendale, 9 Exch. 341 (1854), it held such items could be recovered as consequential damages. Langford, 349 N.E.2d at 761, 765; see Mease v. Fox, 200 N.W.2d 791, 797 (Iowa 1972) (consequential damages allowable for breach of implied warranty of habitability); Teller v. McCoy, 162 W.Va. 367, 253 S.E.2d 114, 125 (1978) (same).
In Weintraub, the tenants sought to recover damages for the landlord’s alleged breach of the implied warranty of habitability. Their apartment was flooded by water coming from the apartment above them. Weintraub, 458 A.2d at 45. The court of appeals rejected strict liability for breach of the warranty of habitability but agreed with the trial court’s ruling that the implied warranty “may be used as a sword [to collect damages] as well as a shield [to contest the obligation to pay rent].” Id. at 46. Applying the holding in Javins that leases should be interpreted as contracts, the court held that the tenants could sue for damages under the lease with its implied warranty. Id. at 47. The court declined to hold the landlord liable under this contract theory, however, because “the [District of Columbia] Housing Regulations impose only a duty of reasonable care upon owners of rental property.” Id. at 48. It rejected the tenants’ position that liability for losses caused by breach of the implied warranty should be imposed “without regard to whether a landlord has been negligent in maintaining defective premises,” id., because that position would “render a landlord an insurer of his tenant’s property.” Id. The court noted that “[liability for breach of warranty ‘is a curious hybrid, bom of the illicit intercourse of tort and contract_’” Id. (quotation omitted). Since the flooding was a “one time thing” and not a defective condition the landlord had actual or constructive notice of, he was not held liable for damages caused by breach of the implied warranty. Id. at 49. Because Restatement section 10.2 does not provide that injuries to a tenant’s personal property are recoverable as consequential damages, Miller is not entitled to contract damages under this theory.
Under certain conditions, however, section 17.6 of the Restatement imposes tort liability on a landlord both for breach of the implied warranty of habitability and violation of housing codes. Section 17.6 speaks to a landlord’s duty to repair a “dangerous condition” and sets forth the circumstances under which a landlord may be liable to his tenant for “physical harm.” It states:
A landlord is subject to liability for physical harm caused to the tenant and others upon the leased property with the consent of the tenant or his subtenant by a dangerous condition existing before or arising after the tenant has taken possession, if he has failed to exercise reasonable care to repair the condition and the existence of the condition is in violation of:
(1) an implied warranty of habitability; or
(2) a duty created by statute or administrative regulation.
For a definition of “physical harm,” we are referred to the Restatement (Second) of Torts. See Restatement Part 6 introd. note at 154. Section 7(3) of the Restatement (Second) of Torts defines “physical harm” to include harm to land and chattels as well as harm to the person. Restatement (Second) of Torts § 7.3 (1965); see also Restatement (Second) of Torts § 497 cmt. b (1965) (rules of negligence “applicable to harm to property as well as harm to the person”). Several courts have recognized that a tenant may recover damages for injuries to both person and property under either section 17.6 or general principles of negligence. See Keck v. Doughman, 392 Pa.Super. 127, 572 A.2d 724, 727 (1990) (stating general .principle); see also Keller-Loup Constr. Co. v. Gerstner, 476 P.2d 272, 274 (Col.Ct.App.1970) (landlord liable for damage to tenant’s personal property caused by burst water pipe); State Farm Fire & Cas. Co. v. Home Ins. Co., 88 Wis.2d 124, 276 N.W.2d 349, 352 (Ct.App.1979) (same).
Thus, under section 17.6, a landlord’s violation of a local statute or ordinance may be negligence per se. See Restatement § 17.6 cmt. a. With respect to a landlord’s breach of the implied warranty of habitability, the comment to section 17.6 states:
The implied warranty of habitability is the basis of a duty on the landlord to maintain the property in a habitable condition. By analogy to the negligence per se doctrine, when the landlord violates this duty, he becomes subject to liability for physical harm resulting from such violation.
Id. (emphasis added).
We have already demonstrated that Christian breached the implied warranty of habitability when he failed to correct the recurrent sewage problem. The present record also allows the territorial court to infer that the recurrent presence of sewage in Miller’s apartment violated the statutory duty V.I.Code Ann. tit. 29, § 333(b)(1) imposes on all landlords to maintain an adequate sewage system. As previously mentioned, the August 2,1989 problem was not an isolated incident. Christian knew that similar problems had occurred in the past and that such problems had not been permanently fixed. Christian testified that, “[w]e try to keep a plumber because we find there is a continuing problem, persons have leak or sewage in there. But may have a backup problem. Usually some type of leak.” App. at 30. Christian admits that the sanitation inspector himself noted that the apartment was in a “deplorable condition.” Id. at 33. The unsanitary nature of the problem warrants its characterization as a “dangerous condition.”
As noted above, section 17.6 imposes liability only if the landlord has “failed to exercise reasonable care” to repair the condition. This essential element of Miller’s case is not contradicted by the territorial court’s finding that Christian made reasonable efforts to correct the problem on August 4, 1989 after the fourth recurrence. That finding relates only to the immediate problem as it acutely appeared on August 4, 1989, not the chronic condition of the sewage system that served Miller’s apartment. Here, the condition was a faulty sewage system which caused overflow in Miller’s apartment no less than four times. Each time, Miller notified Christian of the problem but he failed to prevent its recurrence. Christian is subject to liability “after he has had a reasonable opportunity to discover the condition and to remedy it.” Restatement (Second) of Property § 17.6 cmt. b. The territorial court recognized this was an “ongoing problem [that] had been reported before.” App. at 36. We cannot say this finding is clearly erroneous.
Simply because Christian called in a plumber each time does not mean that he corrected the defective condition within a reasonable time. The recurrent presence of overflowing sewage is a breach of both the local housing code and the implied warranty of habitability entitling Miller to damages. See Simon v. Solomon, 385 Mass. 91, 431 N.E.2d 556, 562 (1982) (landlord liable for breach of implied warranty for failure to permanently correct sewage and flooding problem despite fact that he pumped out water each time); Nepveu v. Rau, 155 Vt. 373; 583 A.2d 1273, 1274 (1990) (landlord breached warranty by failing to adequately repair clogged toilet despite fact that plumbers made two attempts at repair); Gokey v. Bessette, 154 Vt. 560, 580 A.2d 488, 492 (1990) (landlord’s response to recurrent sewage problem inadequate); see also Wade v. Jobe, 818 P.2d 1006, 1011 (Utah 1991) (remand for finding whether landlord’s failure to permanently correct sewage problem despite fact that he pumped out tenant’s basement on several occasions was breach of implied warranty). The sewage problem in this case was not a “sudden occurrence” or “one time thing” of which Christian had no notice or ability to control. See Weintraub, 458 A.2d at 49; Dwyer v. Skyline Apartments, Inc., 123 N.J.Super. 48, 301 A.2d 463 (App.Div.1973) (landlord not liable for injuries caused when faucet came out of wall because defect not reasonably discoverable).
We hold that Christian did breach his duty to maintain Miller’s apartment in a habitable condition and that the sewage problem was a dangerous condition. We reject Christian’s contention that the damages award of $450.00 was speculative. Miller presented sufficient evidence to permit a factfinder to award damages in that amount. Accordingly, we will affirm the order of the district court affirming the territorial court’s entry of judgment in Miller’s favor.
V.
For the foregoing reasons, we will affirm the order of the district court.
. V.I.Code Ann. tit. 4, § 111 (Supp.1990) states:
There is in the Territorial Court a small claims division, in which the procedure shall be as informal and summary as is consistent with justice.
. That section states:
The rules of the common law, as expressed in the restatements of the law approved by the American Law Institute, and to the extent not so expressed, as generally understood and applied in the United States, shall he the rules of decision in the courts of the Virgin Islands in cases to which they apply, in the absence of local laws to the contrary.
V.I.Code Ann. tit. 1, § 4 (1984).
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_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.
In re CRYSTAL PALACE GAMBLING HALL, INC., Debtor. CRYSTAL PALACE GAMBLING HALL, INC., Frank P. Silver, Donald Brown, Frank Meyer, Appellants and Cross-Appellees, v. MARK TWAIN INDUSTRIES, INC., Appellee and Cross-Appellant.
Nos. 85-1614, 85-1663.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Dec. 8, 1986.
Decided May 20, 1987.
Eric Zubel, Las Vegas, Nev., for appellants and cross-appellees.
Dawn Coda-Wagener, Los Angeles, Cal., for appellee and cross-appellant.
Before NORRIS, BEEZER and BRUNETTI, Circuit Judges.
PER CURIAM:
I
FACTS AND PROCEEDINGS BELOW
On January 16, 1980, the Crystal Palace Gambling Hall filed a Chapter 11 bankruptcy petition. On May 25, 1984, Crystal Palace and Mark Twain Industries (MTI) entered into an agreement whereby Crystal Palace would sell the casino to MTI. Pursuant to this purchase agreement, MTI deposited $450,000 into an escrow account on June 18 of that year.
Crystal Palace had filed a plan of reorganization on May 31, 1984, and on October 1 the district court ordered that the proposed plan be confirmed. In that order, the court stated that “[t]he effective date of the plan shall be the date the sale to Mark Twain Industries closes, which sale shall close not less than thirty (30) days from the entry of this Order.” For some reason, the district court’s order of October 1 was not entered until October 17.
On October 29, counsel for Crystal Palace approached the district court ex parte, without notice to MTI, and sought modification of the district court’s order. As a result, the district judge entered a second order modifying the terms of the first order from “not less than thirty days” to “[the] sale shall close by October 31,1984.” That order was entered on November 1 (the day after the order required the sale to close). On October 30, counsel for MTI filed a motion to extend the time for closing the sale until November 10.
On November 8, MTI petitioned for an expungement of the court’s October 29 order, and sought an order confirming the plan of reorganization. The court granted the motion, expunged its second order, and ordered the sale to occur “on or before ... November 16, 1984.”
Between November 9 and November 19, the debtor filed numerous motions. However, none of these motions sought clarification or reconsideration of the district court’s order that required the sale to close on November 16. On November 13; MTI deposited the purchase price ($4,500,000) with the escrow holder.
On November 15, Crystal Palace filed a notice of appeal from the court order that required sale on November 16. This appeal was entitled In re Crystal Palace Gambling Hall, Inc., Debtor, Crystal Palace Gambling Hall, Inc. vs. Mark Twain Industries, No. 84-2735. Crystal Palace did not seek a stay of the district court’s order pending appeal. On December 27, MTI filed a motion for dismissal of the appeal, and on February 21, 1985, the appeal was dismissed.
On November 16, 1984, the district court appointed a special master for the purpose of considering (1) MTI’s motion for an order to show cause why the debtor should not be held in contempt, (2) Crystal Palace’s motion requiring MTI to forfeit the earnest money deposit, and (3) Crystal Palace’s modified plan of reorganization.
On November 27, Crystal Palace signed an agreement with Margaret Elardi to sell the casino to her. Also on November 27, the special master filed his report and recommendations. Both parties filed objections to the special master’s report, and on December 31, the district judge issued an order as to the objections of both parties. In that order, the court generally adopted the master’s recommendations, and directed the appellants to immediately execute all the closing documents necessary to sell the casino to MTI. Contrary to the master’s recommendation, the judge found both Crystal Palace and its shareholders in contempt of court for failure to close the sale in conformity with his prior order. The judge ordered the debtor and shareholders to pay MTI “any reasonable amounts expended by it for interest on monies borrowed from November 16, 1984, until appropriate documents of sale are properly executed by the debtor ... in compliance with the present order.” The judge also expressed concern that he had been misled into signing the October 29, 1984 order.
The sale to MTI was finally concluded on January 11, 1985. On January 30, Crystal Palace filed a notice of appeal from the district court’s December 31 order, and on February 8, the shareholders joined in that appeal. On February 8, MTI also noticed its cross-appeal of the district court’s December 31 order.
II
JURISDICTION
As we have stated previously, “[w]here the contempt proceeding is the sole proceeding before the district court, an order of civil contempt finding a party in contempt of a prior final judgment and imposing sanctions is a final decision under section 1291.” Shuffler v. Heritage Bank, 720 F.2d 1141, 1145 (9th Cir.1983). The order is final for purposes of section 1291 “[e]ven though the size of the sanction imposed by the order depends upon the duration of contumacious behavior occurring after entry of the contempt order, ....” Id. Thus, the contempt order in this case is appealable. However, the filing of a timely notice of appeal is “mandatory and jurisdictional....” United States v. Robinson, 361 U.S. 220, 224, 80 S.Ct. 282, 285, 4 L.Ed.2d 259 (1960).
MTI alleges that the shareholders did not file a timely notice of appeal. Federal Rule of Appellate Procedure 4(a) states that notice of appeal “shall be filed with the clerk of the district court within 30 days after ... entry of the ... order appealed from____” Fed.R.App.P. 4(a)(1). The order appealed from was entered December 31, 1984, and MTI argues that since notice of appeal was not filed until February 8, 1985, well past the thirty day limit, it was untimely.
Generally, an notice of appeal must be filed within thirty days. However, under the circumstances of this case, the shareholders had fourteen days after Crystal Palace filed its appeal to file their notice of appeal. Federal Rule of Appellate Procedure 4(a)(3) states:
f a timely notice of appeal is filed by a party, any other party may file a notice of appeal within 14 days after the date on which the first notice of appeal was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period last expires.
The clear language of this rule indicates that this fourteen day period applies to “any other party” to a lawsuit. It does not distinguish between appellants and appellees. This was the viewpoint of those who drafted the rule. The 1966 committee note to this subsection states:
[t]he added time which may be made available by the operation of the provision is not restricted to cross appeals in the technical sense, i.e., to appeals by parties made appellees by the nature of the initial appeal. The exception permits any party to the action who is entitled to appeal within the time ordinarily prescribed to appeal within such added time as the sentence affords.
Leading commentators have stated that this rule “permits any party to the action ... such added time as the sentence affords.” 9 J. Moore, B. Ward, & J. Lucas, Moore’s Federal Practice ¶ 204.11[1] (2d ed. 1986) (emphasis added); see also id. at ¶ 203.25[3].
The appeal by the shareholders was filed within eight days of the initial appeal by Crystal Palace. Thus, even though thirty days had passed since the final judgment, the shareholders’ appeal was timely, pursuant to Fed.R.App.P. 4(a)(3). Thus, we have jurisdiction over the shareholders’ appeal.
Ill
STANDARD OF REVIEW
“A court has wide latitude in determining whether there has been contemptuous defiance of its order,” and we review a lower court’s decision to impose sanctions for contempt for an abuse of discretion. Gifford v. Heckler, 741 F.2d 263, 266 (9th Cir.1984). Under this standard, a contempt order will not be reversed unless we have a definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached after it weighed the relevant factors. Fjelstad v. American Honda Motor Co., 762 F.2d 1334, 1337 (9th Cir.1985).
IV
ANALYSIS
A. The District Court’s Standard of Review.
The appellants argue that the district court must accept the master’s findings of fact unless they are clearly erroneous. We agree. See Fed.R.Civ.P. 53(e)(2); 9 C. Wright & A. Miller, Federal Practice and Procedure § 2614 (1971); Leader Clothing Company v. Fidelity and Casualty Company of New York, 237 F.2d 7, 11 (10th Cir.1956). The district court accepted all of the master’s findings of fact and conclusions of law except for the master’s conclusions concerning contempt.
Congress has determined that the power to hold a party in contempt is a discretionary power vested in the court whose order has been violated. “A court of the United States shall have power to punish by fine or imprisonment, at its discretion, such contempt of its authority ... as ... disobedience or resistance to its lawful writ, process, order, rule, decree, or command.” 18 U.S.G. § 401 (1982). The appellants in this case did not violate an order of the master, they violated an order of the district court. Thus, the discretion to hold the appellants in contempt remained in the district court and the master’s recommendations on that subject could not bind the court. The judge did not abuse his discretion by disregarding the master’s conclusion and imposing sanctions for contempt on the appellants.
B. The District Court’s Contempt Order.
Appellants argue that their actions were not contemptuous. They state that (1) exceptional circumstances justified their actions, and (2) MTI had not closed escrow within the thirty days provided for in the plan of reorganization.
1.
The appellants explain that they obtained a commitment from Margaret Elardi to purchase their assets for $690,000 more than MTI had agreed to pay and that these “exceptional circumstances” justified their decision not to transfer the property.
The special master seemed to agree with this “exceptional circumstances” analysis. He stated that “[t]he action of the Debtor in Possession in failing to conclude the sale was motivated by a desire to gain additional monies for its equity security holders and as of this time does not appear to be contemptuous in nature.”
The district court expressed doubts that these “exceptional circumstances” justified disobedience to a court order, particularly in light of its order filed November 8th requiring the sale to close on or before November 16,1984. We agree with the district court. The “exceptional circumstances” offered by the appellants are irrelevant. If a person disobeys a specific and definite court order, he may properly be adjudged in contempt. Shuffler v. Heritage Bank, 720 F.2d 1141, 1146 (9th Cir.1983). “A person fails to act as ordered by the court when he fails to take ‘all the reasonable steps within [his] power to insure compliance with the [court’s] order[ ].’ ” Id. at 1146-47 (quoting Sekaquaptewa v. MacDonald, 544 F.2d 396, 406 (9th Cir.1976), cert. denied, 430 U.S. 931, 97 S.Ct. 1550, 51 L.Ed.2d 774 (1977)). It does not matter what the intent of the appellants was when they disobeyed the court’s order. McComb v. Jacksonville Paper Co., 336 U.S. 187, 191, 69 S.Ct. 497, 499, 93 L.Ed. 599 (1949); Donovan v. Mazzola, 716 F.2d 1226, 1240 (9th Cir.1983), cert. denied, 464 U.S. 1040, 104 S.Ct. 704, 79 L.Ed.2d 169 (1984). Moreover, the contempt need not be willful. Perry v. O’Donnell, 759 F.2d 702, 704-06 (9th Cir.1985). Even though “[t]he sole question is whether a party complied with the district court’s order,” a party can escape contempt by demonstrating that he is unable to comply. Mazzola, 716 F.2d at 1240. That was not the case here. If the appellants believed that the district court incorrectly issued an order, their remedy was to appeal and request a stay pending the appeal. Maness v. Meyers, 419 U.S. 449, 458, 95 S.Ct. 584, 590, 42 L.Ed.2d 574 (1975); see also Chapman v. Pacific Telephone and Telegraph Co., 613 F.2d 193, 197 (9th Cir.1979). “Absent a stay, ‘all orders and judgments of courts must be complied with promptly.’ ” Mazzola, 716 F.2d at 1240, (quoting Maness v. Meyers, 419 U.S. 449, 458, 95 S.Ct. 584, 590, 42 L.Ed.2d 574 (1975)). Although both Crystal Palace and the shareholders appealed, no stay was obtained. A party cannot disobey a court order and later argue that there were “exceptional circumstances” for doing so. This proposed “good faith” exception to the requirement of obedience to a court order has no basis in law, and we reject the invitation to create such an exception. The appellants were not justified by exceptional circumstances in disobeying the court’s order.
2.
The appellants argue that they were “amply justified” in not executing the necessary documents, since MTI did not close escrow within the thirty days provided for in the plan of reorganization. They assert that MTI should have forfeited the earnest money deposit of $450,000.
This argument is without merit. The sale closed in a timely manner. Both the special master and the district judge found that the parties intended that the running of the thirty-day closing period should begin with the entry of the confirmation order as opposed to the issuance of the confirmation order. This finding is strongly supported by the record.
However, whether the sale closed in a timely manner, whether there were inconsistencies in the documents, whether the district court was correct, or whether the appellants thought they were justified in their legal position, all became irrelevant when the court filed its November 8th order. That order, in no uncertain terms, required Crystal Palace to execute the necessary documents by November 16. Thus, as of November 8, Crystal Palace had no legal justification for not executing the necessary documents. Again, the appellants’ only recourse was to appeal and obtain a stay pending the outcome of that appeal. No stay was obtained and the documents should have been executed. The appellants’ unreasonable subjective beliefs do not provide legal justification for their disobedience of a court order.
C. The District Court’s Actions,
Appellants also argue that the actions of the court caused confusion and that this confusion was the reason they did not comply with the order. In support of this proposition, Crystal Palace points out that the district judge referred two of its motions to the special master, and therefore, the judge apparently felt that these motions were of sufficient importance and complexity to require this reference. We reject the notion, that by referring these issues to a special master, the court somehow implied that the appellants’ motions were meritorious.
Furthermore, the appellants’ actions betray their allegations of confusion. After the district court ordered Crystal Palace to transfer the documents, Crystal Palace filed numerous motions, but not one of those motions requested either clarification or reconsideration of the court’s order. Nor did the appellants seek a stay while they challenged the court’s order on appeal.
Crystal Palace argues that “[wjhile a party is not free to disregard a lawful order of a court, a party may seek clarification of that order.” At the time the appellants decided not to execute the necessary documents, the district court’s order needed no clarification. The November 8th order explicitly stated that the sale must occur “on or before ... November 16, 1984.” If there had been any ambiguity or uncertainty earlier, that ambiguity ceased to exist when the November 8th court order was issued.
D. Sanctions.
The district court properly concluded that the appellants were in contempt of court. As a sanction, the court ordered that the debtor and its shareholders pay MTI “any reasonable amounts expended by it for interest on monies borrowed from November 16, 1984, until appropriate documents of sale are properly executed by the debtor ... in compliance with the present order.”
In its cross-appeal, MTI argues that the sanctions should include (1) $43,000 in loan fees, (2) the lost use of the purchase price for a two month period, (3) $80,000 in legal fees for “warding off appellants’ various legal attacks on the first order[,j” (4) legal costs in defending the appeal from the district court’s third order, “which this court found meritless and dismissed,” and (5) the two months of lost proceeds it would have otherwise obtained from the operation of the casino.
As we have stated previously, a sanction for “[cjivil contempt is characterized by the court’s desire to ... compensate the contemnor’s adversary for the injuries which result from the noncompliance.” Falstaff Brewing Corp. v. Miller Brewing Co., 702 F.2d 770, 778 (9th Cir.1983). However, an award to an opposing party is limited by that party’s actual loss. United States v. United Mine Workers of America, 330 U.S. 258, 304, 67 S.Ct. 677, 701, 91 L.Ed. 884 (1947); Shuffler, 720 F.2d at 1148; Falstaff, 702 F.2d at 779.
We affirm the imposition of sanctions. The award of interest on monies borrowed by MTI to consummate the purchase of the casino was not an abuse of discretion. See Shuffler v. Heritage Bank, 720 F.2d 1141, 1148-49 (9th Cir.1983). However, the amount and nature of the sanctions imposed by the court are unclear.
We remand this case to the district court for a determination of the amount of the sanctions to be awarded and whether the sanctions shall include the loan fees, the lost use of the purchase price, attorney fees or the proceeds earned by the casino.
V
CRYSTAL PALACE’S MOTION TO STRIKE AND MOTION TO RECONSIDER
The appellants have filed a motion to strike portions of the Appellee’s answering brief. They state that a number of matters discussed in that brief are not properly before this court and should not be raised in the answering brief. They further argue that if they made procedural errors, MTI should have objected pursuant to Fed. R.App.P. 27(a) and (b).
Ninth Circuit Rule 13 requires that an opening brief recite the procedural posture of the case, what justification a party has for seeking attorney fees, and whether an appeal is properly before this court. The appellee’s brief did not go beyond the scope of this rule. The motion to strike is denied.
The appellants also urge us to reconsider our August 25 order, in which we denied their motion for an extension of time to file a reply brief. That motion is now moot. However, we note that the reply brief was due August 11, but the order gave the appellants until September 2 to file their brief. Thus, although the order denied an extension of time, the appellants actually received a twenty-two day extension.
VI
ATTORNEY FEES AND COSTS ON APPEAL
MTI argues that it is entitled to compensation for attorneys’ fees, costs, damages and other expenses incurred as a result of this appeal pursuant to Federal Rule of Appellate Procedure 38. Pursuant to Rule 38, a party may be entitled to attorney fees if an appeal is frivolous. We conclude that this appeal is not frivolous, and deny the award of attorney fees. Each party will bear its own costs.
VII
CONCLUSION
The district court properly found the appellants in contempt, and its ruling was not an abuse of discretion. We remand to the district court so it can determine the amount and nature of the sanctions to be imposed on Crystal Palace and its shareholders. The appellants’ motion to strike is denied, and the motion to reconsider is moot.
AFFIRMED AND REMANDED WITH INSTRUCTIONS. EACH PARTY WILL BEAR ITS OWN COSTS.
. Crystal Palace filed the following motions: motion for forfeiture of earnest money deposit, motion to extend time, motion to disqualify counsel, motion to continue hearing to take place on November 16, debtor’s objection to application for order compelling sale of property, motion for an order modifying the debtor’s plan of reorganization, debtor’s modified plan of reorganization, ex parte application for an order requiring MTI to forfeit earnest money deposit, debtor’s first modified plan of reorganization, brief re: rejection of postpetition executory contract.
. Even though the agreement with Elardi was not signed until November 27, the special master found that it was concluded on November 6.
. Although there is a conflict in the terms of several of the documents as to when this thirty-day closing period was supposed to begin running, three of the four documents that discuss this matter: paragraph 4 of the purchase agreement, the confirmation order (both of which were drafted by counsel for Crystal Palace), and article III of the plan of reorganization, all indicate that the transaction was supposed to occur within a period of time after entry of the order as opposed to issuance of the order,
Question: What is the total number of respondents in the case? Answer with a number.
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".
Frances PARENTE, Appellant, v. Margaret HECKLER, as Secretary of Health and Human Services, Appellee.
No. 737, Docket 83-6244.
United States Court of Appeals, Second Circuit.
Argued Feb. 3, 1984.
Decided May 30, 1984.
Mark Hus, Community Action for Legal Services, Inc., Brooklyn, N.Y. (Steven M. Bernstein, Brooklyn, N.Y., of counsel), for appellant.
Michael P. DiRaimondo, Sp. Asst. U.S. Atty., Brooklyn, N.Y. (Raymond J. Dearie, U.S. Atty., E.D.N.Y., Miles M. Tepper, Asst. U.S. Atty., Brooklyn, N.Y., of counsel), for appellee.
Before LUMBARD, OAKES and CAR-DAMONE, Circuit Judges.
OAKES, Circuit Judge:
Frances Párente appeals from a decision of the United States District Court for the Eastern District of New York, Thomas C. Platt, Jr., Judge, which affirmed a determination by the appellee Secretary of Health and Human Services that Párente was no longer disabled, and hence no longer entitled to the Social Security disability benefits which appellant had received since the Secretary had first found her disabled in 1976. Based on our recent holding in De Leon v. Secretary, 734 F.2d 930 (2d Cir.1984), that “the Secretary may terminate [disability] benefits to a person previously adjudged to be disabled only upon substantial evidence that the individual’s condition has improved to the point that he or she is no longer disabled, or that the initial finding of disability was erroneous,” we reverse. It is abundantly clear from the administrative record that the Secretary made absolutely no determination that there was any improvement or even change in appellant’s physical or psychological condition, but merely conducted what amounted to a de novo hearing on the question of disability. Irrespective of the Secretary’s most recent determination, there can be no doubt that Párente has long suffered from serious physical and emotional disorders. In 1976 she applied for and was granted Social Security disability benefits due to “emotional and various physical problems.” Prior to 1976 appellant had been treated for an ovarian cyst. At the time the cyst was removed, appellant also had a pancreatic tumor removed, and a hysterectomy was performed. Appellant was, and continues to be, extremely obese; she is 5 feet 3 inches tall and weighs over 300 pounds, at one time being up to 347. She cannot lean over to pick up things. She has trouble breathing. She climbs stairs one by one. On September 8, 1981, she was hospitalized with a pleural effusion, possibly indicating heart difficulty. She has edema in her legs from her knees to her ankles, increased by standing. She is frequently nauseous and has ileitis.
But as the 1976 proceeding made clear, even more disabling than appellant’s physical ailments were her psychological and emotional problems. A social worker’s 1976 report in support of Parente’s application for benefits described her as having “a thought disorder, probably schizophrenia, paranoid type.” The social worker observed that Párente has “very few friends ____ In addition, her appearance is extremely poor, she is disheveled and unkempt. She suffers from paranoid ideation and loose association ____ Insight and judgment are poor____” Though she had worked from 1951 to 1970, appellant had been unemployed for six years when her application for benefits was granted in 1976. She has not worked since that time.
In October, 1981, the Social Security Administration notified appellant that, pursuant to its “Accelerated CDI (Continuing Disability Investigation) Program,” it intended to terminate her benefits. While recognizing appellant’s exogenous obesity, the appellee’s position, based on the examinations of a psychiatrist and an internist, was that “[t]he impairment does not meet or equal the level of severity described in the Listing of Impairments.” The appellee concluded that “[b]ased on the medical evidence [Párente] retains the capacity to perform simple, repetitive tasks,” and was thus no longer disabled.
It is very debatable whether there was substantial evidence on the record to support the ALJ’s finding that appellant is not disabled, an issue we need not reach but about which we have grave doubts, especially in light of his failure to discuss the opinion of her treating physician. Eche-varria v. Secretary of Health and Human Services, 685 F.2d 751, 756 (2d Cir.1982). But it is clear that the AU made no effort whatsoever — other than to include some predictable boilerplate — to determine whether her condition had improved. We note, for example, that although the AU did recognize that the initial determination of disability was based on appellant’s “schizophrenia, paranoid type,” no evidence was even presented at the hearing that this condition or disability had been alleviated. In this area the AU relied on a psychiatric evaluation performed by a consulting psychiatrist “who reported a transient situational disturbance” and who, despite offering appellant “a good prognosis,” also recommended that she see a psychiatrist on a regular basis. The doctor did not address the question whether he believed appellant was suffering from schizophrenia, let alone offer any evidence of an improvement in her condition. While the doctor did indicate on a form that appellant’s impairments in various areas were “moderate” rather than “severe,” we note that he also stated that appellant’s capacity to “meet production, quality and attendance standards” was, based on his examination, “severely impaired.” We note also that the designation of a “moderate” impairment on the form provided the consultant psychiatrist— which the Secretary would have us believe is strong evidence of a lack of a disability— must be read in context of the range of choices provided to the doctor who is called upon to categorize an impairment: “None,” “Mild,” “Moderate,” “Severe.”
We need not repeat what we said in De Leon except to emphasize that first to classify a claimant as disabled and then draw precisely the opposite legal conclusion without substantial evidence of improvement violates not only the termination statute but basic considerations of fairness. As that is what we are confronted with in this ease, the decision below is reversed.
Judgment reversed.
Question: What is the general issue in the case?
A. criminal
B. civil rights
C. First Amendment
D. due process
E. privacy
F. labor relations
G. economic activity and regulation
H. miscellaneous
Answer:
|
sc_lcdisagreement
|
B
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the court opinion mentions that one or more of the members of the court whose decision the Supreme Court reviewed dissented. Focus on whether there exists any statement to this effect in the opinion, for example "divided," "dissented," "disagreed," "split.". A reference, without more, to the "majority" or "plurality" does not necessarily evidence dissent (the other judges may have concurred). If a case arose on habeas corpus, indicate dissent if either the last federal court or the last state court to review the case contained one. If the highest court with jurisdiction to hear the case declines to do so by a divided vote, indicate dissent. If the lower court denies an en banc petition by a divided vote and the Supreme Court discusses same, indicate dissent.
UNITED STATES v. FREED et al.
No. 345.
Argued January 11, 1971
Decided April 5, 1971
Douglas, J., delivered the opinion of the Court, in which Burger, C. J., and Black, HarlaN, BrennaN (as to Part I), Stewart, White, Marshall, and BlackmuN, JJ., joined. BrenNAn, J., filed an opinion concurring in the judgment, post, p. 610.
Matthew J. Zinn argued the cause for the United States. On the brief were Solicitor General Griswold, Assistant Attorney General Wilson, Peter L. Strauss, Beatrice Rosenberg, and Mervyn Hamburg.
Luke McKissack argued the cause and filed a brief for appellees.
Mr. Justice Douglas
delivered the opinion of the Court.
Following our decision in Haynes v. United States, 390 U. S. 85, Congress revised the National Firearms Act with the view of eliminating the defects in it which were revealed in Haynes.
At the time of Haynes “only weapons used principally by persons engaged in unlawful activities would be subjected to taxation.” Id., at 87. Under the Act, as amended, all possessors of firearms as defined in the Act are covered, except the Federal Government. 26 U. S. C. § 5841 (1964 ed., Supp. V).
At the time of Haynes any possessor of a weapon included in the Act was compelled to disclose the fact of his possession by registration at any time he had acquired possession, a provision which we held meant that a possessor must furnish potentially incriminating information which the Federal Government made available to state, local, and other federal officials. Id., at 95-100. Under the present Act only possessors who lawfully make, manufacture, or import firerams can and must register them; the transferee does not and cannot register. It is, however, unlawful for any person “to receive or possess a firearm which is not registered to him in the National Firearms Registration and Transfer Record.”
At the time of Haynes, as already noted, there was a provision for sharing the registration and transfer information with other law enforcement officials. Id., at 97-100. The revised statute explicitly states that no information or evidence provided in compliance with the registration or transfer provisions of the Act can be used, directly or indirectly, as evidence against the registrant or applicant “in a criminal proceeding with respect to a violation of law occurring prior to or concurrently with the filing of the application or registration, or the compiling of the records containing the information or evidence.” The scope of the privilege extends, of course, to the hazards of prosecution under state law for the same or similar offenses. See Malloy v. Hogan, 378 U. S. 1; Marchetti v. United States, 390 U. S. 39, 54. And the appellees, apparently fearful that the Act as written does not undertake to bar the use of federal filings in state prosecutions, urge that those risks are real in this case. It is said that California statutes punish the possession of grenades and that federal registration will incriminate appellees under that law.
The Solicitor General, however, represents to us that no information filed is as a matter of practice disclosed to any law enforcement authority, except as the fact of nonregistration may be necessary to an investigation or prosecution under the present Act.
The District Court nonetheless granted the motion to dismiss on two grounds: (1) the amended Act, like the version in Haynes, violates the Self-Incrimination Clause of the Fifth Amendment; and (2) the conspiracy “to possess destructive devices” and the possession charged do not allege the element of scienter. The case is here on direct appeal. 18 U. S. C. § 3731. And see United States v. Spector, 343 U. S. 169; United States v. Nardello, 393 U. S. 286.
I
We conclude that the amended Act does not violate the Self-Incrimination Clause of the Fifth Amendment which provides that no person “shall be compelled in any criminal case to be a witness against himself.” As noted, a lawful transfer of a firearm may be accomplished only if it is already registered. The transferor — not the transferee — does the registering. The transferor pays the transfer tax and receives a stamp denoting payment which he affixes to the application submitted to the Internal Revenue Service. The transferor must identify himself, describe the firearm to be transferred, and the name and address of the transferee. In addition, the application must be supported by the photograph and fingerprints of the transferee and by a certificate of a local or federal law enforcement official that he is satisfied that the photograph and fingerprints are those of the transferee and that the weapon is intended for lawful uses. Only after receipt of the approved application form is it lawful for the transferor to hand the firearm over to the transferee. At that time he is to give the approved application to the transferee. As noted, the Solicitor General advises us that the information in the hands of Internal Revenue Service, as a matter of practice, is not available to state or other federal authorities and, as a matter of law, cannot be used as evidence in a criminal proceeding with respect to a prior or concurrent violation of law.
The transferor — not the transferee — makes any incriminating statements. True, the transferee, if he wants the firearm, must cooperate to the extent of supplying fingerprints and photograph. But the information he supplies makes him the lawful, not the unlawful, possessor of the firearm. Indeed, the only transferees who may lawfully receive a firearm are those who have not committed crimes in the past. The argument, however, is that furnishing the photograph and fingerprints will incriminate the transferee in the future. But the claimant is not confronted by “substantial and heal’ ” but merely “trifling or imaginary hazards of incrimination”— first by reason of the statutory barrier against use in a prosecution for prior or concurrent offenses, and second by reason of the unavailability of the registration data, as a matter of administration, to local, state, and other federal agencies. Marchetti v. United States, supra, at 53-54. Cf. Minor v. United States, 396 U. S. 87, 94. Since the state and other federal agencies never see the information, he is left in the same position as if he had not given it, but “had claimed his privilege in the absence of a . . . grant of immunity.” Murphy v. Waterfront Comm’n, 378 U. S. 52, 79. This, combined with the protection against use to prove prior or concurrent offenses, satisfies the Fifth Amendment requirements respecting self-incrimination.
Appellees’ argument assumes the existence of a periphery of the Self-Incrimination Clause which protects a person against incrimination not only against past or present transgressions but which supplies insulation for a career of crime about to be launched. We cannot give the Self-Incrimination Clause such an expansive interpretation.
Another argument goes to the question of entrapment. But that is an issue for the trial, not for a motion to dismiss.
II
We also conclude that the District Court erred in dismissing the indictment for absence of an allegation of scienter.
The Act requires no specific intent or knowledge that the hand grenades were unregistered. It makes it unlawful for any person “to receive or possess a firearm which is not registered to him.” By the lower court decisions at the time that requirement was written into the Act the only knowledge required to be proved was knowledge that the instrument possessed was a firearm. See Sipes v. United States, 321 F. 2d 174, 179, and cases cited.
The presence of a “vicious will” or mens rea (Morissette v. United States, 342 U. S. 246, 251) was long a requirement of criminal responsibility. But the list of exceptions grew, especially in the expanding regulatory area involving activities affecting public health, safety, and welfare. Id., at 254. The statutory offense of embezzlement, borrowed from the common law where sci-enter was historically required, was in a different category. Id., at 260-261.
“[WJhere Congress borrows terms of art in which are accumulated the legal tradition and meaning of centuries of practice, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken and the meaning its use will convey to the judicial mind unless otherwise instructed.” Id., at 263.
At the other extreme is Lambert v. California, 355 U. S. 225, in which a municipal code made it a crime to remain in Los Angeles for more than five days without registering if a person had been convicted of a felony. Being in Los Angeles is not per se blameworthy. The mere failure to register, we held, was quite “unlike the commission of acts, or the failure to act under circumstances that should alert the doer to the consequences of his deed.” Id., at 228. The fact that the ordinance was a convenient law enforcement technique did not save it.
“Where a person did not know of the duty to register and where there was no proof of the probability of such knowledge, he may not be convicted consistently with due process. Were it otherwise, the evil would be as great as it is when the law is written in print too fine to read or in a language foreign to the community.” Id., at 229-230.
In United States v. Dotterweich, 320 U. S. 277, 284, a case dealing with the imposition of a penalty on a corporate officer whose firm shipped adulterated and mis-branded drugs in violation of the Food and Drug Act, we approved the penalty “though consciousness of wrongdoing be totally wanting.”
The present case is in the category neither of Lambert nor Morissette, but is closer to Dotterweich. This is a regulatory measure in the interest of the public safety, which may well be premised on the theory that one would hardly be surprised to learn that possession of hand grenades is not an innocent act. They are highly dangerous offensive weapons, no less dangerous than the narcotics involved in United States v. Balint, 258 U. S. 250, 254, where a defendant was convicted of sale of narcotics against his claim that he did not know the drugs were covered by a federal act. We say with Chief Justice Taft in that case:
“It is very evident from a reading of it that the emphasis of the section is in securing a close supervision of the business of dealing in these dangerous drugs by the taxing officers of the Government and that it merely uses a criminal penalty to secure recorded evidence of the disposition of such drugs as a means of taxing and restraining the traffic. Its manifest purpose is to require every person dealing in drugs to ascertain at his peril whether that which he sells comes within the inhibition of the statute, and if he sells the inhibited drug in ignorance of its character, to penalize him. Congress weighed the possible injustice of subjecting an innocent seller to a penalty against the evil of exposing innocent purchasers to danger from the drug, and concluded that the latter was the result preferably to be avoided.” Id., at 253-254.
Reversed.
See S. Rep. No. 1501, 90th Cong., 2d Sess., 26, 42, 48, 52; H. R. Conf. Rep. No. 1956, 90th Cong., 2d Sess., 35.
26 U. S. C. §5845 (f) (1964 ed., Supp. V) defines “destructive device” to include “grenades” which are involved in the present case.
Title 26 U. S. C. § 5812 (a) (1964 ed., Supp. V) provides:
“A firearm shall not be transferred unless (1) the transferor of the firearm has filed with the Secretary or his delegate a written application, in duplicate, for the transfer and registration of the firearm to the transferee on the application form prescribed by the Secretary or his delegate; (2) any tax payable on the transfer is paid as evidenced by the proper stamp affixed to the original application form; (3) the transferee is identified in the application form in such manner as the Secretary or his delegate may by regulations prescribe, except that, if such person is an individual, the identification must include his fingerprints and his photograph; (4) the transferor of the firearm is identified in the application form in such manner as the Secretary or his delegate may by regulations prescribe; (5) the firearm is identified in the application form in such manner as the Secretary or his delegate may by regulations prescribe; and (6) the application form shows that the Secretary or his delegate has approved the transfer and the registration of the firearm to the transferee. Applications shall be denied if the transfer, receipt, or possession of the firearm would place the transferee in violation of law.”
Title 26 U. S. C. § 5812 (b) (1964 ed., Supp. V) provides:
“The transferee of a firearm shall not take possession of the firearm unless the Secretary or his delegate has approved the transfer and registration of the firearm to the transferee as required by subsection (a) of this section.”
Title 26 U. S. C. § 5841 (b) (1964 ed., Supp. V) provides:
“Each manufacturer, importer, and maker shall register each firearm he manufactures, imports, or makes. Each firearm transferred shall be registered to the transferee by the transferor.”
26 U. S. C. §5861 (d) (1964 ed., Supp. V).
26 U. S. C. § 5848 (1964 ed., Supp. V); and see 26 CFR § 179.202.
Penal Code § 12303 (1970).
26 U. S. C. § 5811 (1964 ed., Supp. V).
26 U. S. C. § 5812 (a) (1964 ed., Supp. V); 26 CFR §§ 179.98-179.99.
26 CFR § 179.100.
26 U. S. C. § 6848 (1964 ed., Supp. V); 26 CFR § 179.202.
We do not reach the question of “use immunity” as opposed to “transactional immunity,” cf. Piccirillo v. New York, 400 U. S. 548, but only hold that, under this statutory scheme, the hazards of self-incrimination are not real.
26 U. S. C. § 5861 (d) (1964 ed., Supp. V).
As respects the Morissette case, J. Marshall, Intention — In Law and Society 138 (1968), says:
“The defendant wished to take government property from a government bombing range, he had the capacity to take it, he had the opportunity, he tried and succeeded in taking it (his wish was fulfilled, his act accomplished). For recovery in a tort action no more would have to be shown to establish liability, but the court held that to make his action criminal 'a felonious intent,’ mens rea, had to be established. This could not be presumed from his actions, which were open, without concealment, and in the belief — according to his statement — that the property had been abandoned. In other words, for the happening to be criminal, the wish had to be to accomplish something criminal. So in discussing intent we may have wishes of two different characters: one giving a basis for civil liability (the wish to take property not one’s own), and another which would support criminal liability as well as civil (taking property with criminal intent).”
We need not decide whether a criminal conspiracy to do an act “innocent in itself” and not known by the alleged conspirators to be prohibited must be actuated by some corrupt motive other than the intention to do the act which is prohibited and which is the object of the conspiracy. An agreement to acquire hand grenades is hardly an agreement innocent in itself. Therefore what we have said of the substantive offense satisfies on these special facts the requirements for a conspiracy. Cf. United States v. Mack, 112 F. 2d 290.
Question: Does the court opinion mention that one or more of the members of the court whose decision the Supreme Court reviewed dissented?
A. Yes
B. No
Answer:
|
sc_decisiontype
|
A
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the type of decision made by the court among the following: Consider "opinion of the court (orally argued)" if the court decided the case by a signed opinion and the case was orally argued. For the 1791-1945 terms, the case need not be orally argued, but a justice must be listed as delivering the opinion of the Court. Consider "per curiam (no oral argument)" if the court decided the case with an opinion but without hearing oral arguments. For the 1791-1945 terms, the Court (or reporter) need not use the term "per curiam" but rather "The Court [said],""By the Court," or "By direction of the Court." Consider "decrees" in the infrequent type of decisions where the justices will typically appoint a special master to take testimony and render a report, the bulk of which generally becomes the Court's decision. This type of decision usually arises under the Court's original jurisdiction and involves state boundary disputes. Consider "equally divided vote" for cases decided by an equally divided vote, for example when a justice fails to participate in a case or when the Court has a vacancy. Consider "per curiam (orally argued)" if no individual justice's name appears as author of the Court's opinion and the case was orally argued. Consider "judgment of the Court (orally argued)" for formally decided cases (decided the case by a signed opinion) where less than a majority of the participating justices agree with the opinion produced by the justice assigned to write the Court's opinion.
ALLEN et al. v. STATE BOARD OF ELECTIONS et al.
No. 3.
Argued October 15, 1968.
Decided March 3, 1969.
Norman C. Amaker argued the cause for appellants in No. 3. With him on the brief were Jack Greenberg, James M. Nabrit III, Oliver W. Hill, S. W. Tucker, Henry L. Marsh III, and Anthony G. Amsterdam. Armand Derfner and Elliott C. Lichtman argued the cause for appellants in Nos. 25, 26, and 36. Lawrence Aschenbrenner was on the brief for appellants in Nos. 25 and 26. With Mr. Derfner on the brief for appellants in No. 36 were Alvin J. Bronstein and Richard B. Sobol.
R. D. Mcllwaine III, First Assistant Attorney General of Virginia, argued the cause for appellees in No. 3. With him on the brief were Robert Y. Button, Attorney General, William R. Blandjord, and William C. Carter. William A. Allain and Will S. Wells, Assistant Attorneys General of Mississippi, argued the cause for appellees in Nos. 25, 26, and 36. With Mr. Allain on the brief for appellees in No. 25 were Joe T. Patterson, Attorney General, and Dudley W. Conner. With Mr. Wells on the briefs for appellees in Nos. 26 and 36 was Mr. Patterson.
Assistant Attorney General Poliak argued the cause for the United States, as amicus curiae, urging reversal in Nos. 25, 26, and 36. With him on the brief were Solicitor General Grisioold, Louis F. Claiborne, Francis X. Bey-tagh, Jr., and Nathan Lewin.
Together with No. 25, Fairley et al. v. Patterson, Attorney General of Mississippi, et al., No. 26, Bunion et al. v. Patterson, Attorney General of Mississippi, et al., and No. 36, Whitley et al. v. Williams, Governor of Mississippi, et al., on appeal from the United States District Court for the Southern District of Mississippi, argued on October 16, 1968.
Mr. Chief Justice Warren
delivered the opinion of the Court.
These four cases, three from Mississippi and one from Virginia, involve the application of the Voting Rights Act of 1965 to state election laws and regulations. The Mississippi cases were consolidated on appeal and argued together in this Court. Because of the grounds on which we decide all four cases, the appeal in the Virginia case is also disposed of by this opinion.
In South Carolina v. Katzenbach, 383 U. S. 301 (1966), we held the provisions of the Act involved in these cases to be constitutional. These cases merely require us to determine whether the various state enactments involved are subject to the requirements of the Act.
We gave detailed treatment to the history and purposes of the Voting Rights Act in South Carolina v. Katzenbach, supra. Briefly, the Act implemented Congress’ firm intention to rid the country of racial discrimination in voting. It provided stringent new remedies against those practices which have most frequently denied citizens the right to vote on the basis of their race. Thus, in States covered by the Act, literacy tests and similar voting qualifications were suspended for a period of five years from the last occurrence of substantial voting discrimination. However, Congress apparently feared that the mere suspension of existing tests would not completely solve the problem, given the history some States had of simply enacting new and slightly different requirements with the same discriminatory effect. Not underestimating the ingenuity of those bent on preventing Negroes from voting, Congress therefore enacted § 5, the focal point of these cases.
Under § 5, if a State .covered by the Act passes any “voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect on November 1, 1964,” no person can be deprived of his right to vote “for failure to comply with” the new enactment “unless and until” the State seeks and receives a declaratory judgment in the United States District Court for the District of Columbia that the new enactment “does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color.” 79 Stat. 439, 42 U. S. C. § 1973c (1964 ed., Supp. I). See Appendix, infra.
. However, § 5 does not necessitate that a covered State obtain a declaratory judgment action before it can enforce any change in its election laws. It provides that a State may enforce a new enactment if the State submits the new provision to the Attorney General of the United States and, within 60 days of the submission, the Attorney General does not formally object to the new statute or regulation. The Attorney General does not act as a court in approving or disapproving the state legislation. If the Attorney General objects to the new enactment, the State may still enforce the legislation upon securing a declaratory judgment in the District Court for the District of Columbia. Also, the State is not required to first submit the new enactment to the Attorney General as it may go directly to the District Court for the District of Columbia. The provision for submission to the Attorney General merely gives the covered State a rapid method of rendering a new state election law enforceable. Once the State has successfully complied with the § 5 approval requirements, private parties may enjoin the enforcement of the new enactment only in traditional suits attacking its constitutionality; there is no further remedy provided by § 5.
In these four cases, the States have passed new laws or issued new regulations. The central issue is whether these provisions fall within the prohibition of § 5 that prevents the enforcement of “any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting” unless the State first complies with one of the section's approval procedures.
No. 25, Fairley v. Patterson, involves a 1966 amendment to § 2870 of the Mississippi Code of 1942. The amendment provides that the board of supervisors of each county may adopt an order providing that board members be elected at large by all qualified electors of the county. Prior to the 1966 amendment, all counties by law were divided into five districts; each district elected one member of the board of supervisors. After the amendment, Adams and Forrest Counties adopted the authorized orders, specifying that each candidate must run at large, but also requiring that each candidate be a resident of the county district he seeks to represent.
The appellants are qualified electors and potential candidates in the two counties. They sought a declaratory judgment in the United States District Court for the Southern District of Mississippi that the amendment to § 2870 was subject to the provisions of § 5 of the Act and hence could not be enforced until the State complied with the approval requirements of § 5.
No. 26, Bunton v. Patterson, concerns a 1966 amendment to § 6271-08 of the Mississippi Code. The amendment provides that in 11 specified counties, the county-superintendent of education shall be appointed by the board of education. Before the enactment of this amendment, all these counties had the option of electing or appointing the superintendent. Appellants are qualified electors and potential candidates for the position of county superintendent of education in three of the counties covered by the 1966 amendment. They sought a declaratory judgment that the amendment was subject to § 5, and thus unenforceable unless the State complied with the § 5 approval requirements.
No. 36, Whitley v. Williams, involves a 1966 amendment to § 3260 of the Mississippi Code, which changed the requirements for independent candidates running in general elections. The amendment makes four revisions: (1) it establishes a new rule that no person who has voted in a primary election may thereafter be placed on the ballot as an independent candidate in the general election; (2) the time for filing a petition as an independent candidate is changed to 60 days before the primary election from the previous 40 days before the general election; (3) the number of signatures of qualified electors needed for the independent qualifying petition is increased substantially; and (4) a new provision is added that each qualified elector who signs the independent qualifying petition must personally sign the petition and must include his polling precinct and county. Appellants are potential candidates whose nominating petitions for independent listing on the ballot were rejected for failure to comply with one or more of the amended provisions.
In all three of these cases, the three-judge District Court ruled that the amendments to the Mississippi Code did not come within the purview of and are not covered by § 5, and dismissed the complaints. Appellants brought direct appeals to this Court. We consolidated the cases and postponed consideration of jurisdiction to a hearing on the merits. 392 U. S. 902 (1968).
No. 3, Allen v. State Board of Elections, concerns a bulletin issued by the Virginia Board of Elections to all election judges. The bulletin was an attempt to modify the provisions of § 24 — 252 of the Code of Virginia of 1950 which provides, inter alia, that “any voter [may] place on the official ballot the name of any person in his own handwriting The Virginia Code (§ 24— 251) further provides that voters with a physical incapacity may be assisted in preparing their ballots. For example, one who is blind may be aided in the preparation of his ballot by a person of his choice. Those unable to mark their ballots due to any other physical disability may be assisted by one of the election judges. However, no statutory provision is made for assistance to those who wish to write in a name, but who are unable to do so because of illiteracy. When Virginia was brought under the coverage of the Voting Rights Act of 1965, Virginia election officials apparently thought that the provision in § 24-252, requiring a voter to cast a write-in vote in the voter’s own handwriting, was incompatible with the provisions of § 4 (a) of the Act suspending the enforcement of any test or device as a prerequisite to voting. Therefore, the Board of Elections issued a bulletin to all election judges, instructing that the election judge could aid any qualified voter in the preparation of his ballot, if the voter so requests and if the voter is unable to mark his ballot due to illiteracy.
Appellants are functionally illiterate registered voters from the Fourth Congressional District of Virginia. They brought a declaratory judgment action in the United States District Court for the Eastern District of Virginia, claiming that § 24-252 and the modifying bulletin violate the Equal Protection Clause of the Fourteenth Amendment and the Voting Rights Act of 1965. A three-judge court was convened and the complaint dismissed. A direct appeal was brought to this Court and we postponed consideration of jurisdiction to a hearing on the merits. 392 U. S. 902 (1968).
In the 1966 elections, appellants attempted to vote for a write-in candidate by sticking labels, printed with the name of their candidate, on the ballot. The election officials refused to count appellants’ ballots, claiming that the Virginia election law did not authorize marking ballots with labels. As the election outcome would not have been changed had the disputed ballots been counted, appellants sought only prospective relief. In the District Court, appellants did not assert that § 5 precluded enforcement of the procedure prescribed by the bulletin. Rather, they argued § 4 suspended altogether the requirement of § 24-252 that the voter write the name of his choice in the voter’s own handwriting. Appellants first raised the applicability of § 5 in their jurisdictional statement filed with this Court. We are not precluded from considering the applicability of § 5, however. The Virginia legislation was generally attacked on the ground that it was inconsistent with the Voting Rights Act. Where all the facts are undisputed, this Court may, in the interests of judicial economy, determine the applicability of the provisions of that Act, even though some specific sections were not argued below.
We postponed consideration of our jurisdiction in these cases to a hearing on the merits. Therefore, before reaching the merits, we first determine whether these cases are properly before us on direct appeal from the district courts.
I.
These suits-were instituted by private citizens; an initial question is whether private litigants may invoke the jurisdiction of the district courts to obtain the relief requested in these suits. 28 U. S. C. § 1343 provides: “The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person: . . . (4) To recover damages or to secure equitable or other relief under any Act of Congress providing for the protection of civil rights, including the right to vote.” Clearly, if § 5 authorizes appellants to secure the relief sought, the district courts had jurisdiction over these suits.
The Voting Rights Act does not explicitly grant or deny private parties authorization to seek a declaratory judgment that a State has failed to comply with the provisions of the Act. However, § 5 does provide that “no person shall be denied the right to vote for failure to comply with [a new state enactment covered by, but not approved under, § 5].” Analysis of this language in light of the major purpose of the Act indicates that appellants may seek a declaratory judgment that a new state enactment is governed by § 5. Further, after proving that the State has failed to submit the covered enactment for § 5 approval, the private party has standing to obtain an injunction against further enforcement, pending the State’s submission of the legislation pursuant to § 5.
The Act was drafted to make the guarantees of the Fifteenth Amendment finally a reality for all citizens. South Carolina v. Katzenbach, supra, at 308, 309. Congress realized that existing remedies were inadequate to accomplish this purpose and drafted an unusual, and in some aspects a severe, procedure for insuring that States would not discriminate on the basis of race in the enforcement of their voting laws.
The achievement of the Act’s laudable goal could be severely hampered, however, if each citizen were required to depend solely on litigation instituted at the discretion of the Attorney General. For example, the provisions of the Act extend to States and the subdivisions thereof. The Attorney General has a limited staff and often might be unable to uncover quickly new regulations and enactments passed at the varying levels of state government. It is consistent with the broad purpose of the Act to allow the individual citizen standing to insure that his city or county government complies with the § 5 approval requirements.
We have previously held that a federal statute passed to protect a class of citizens, although not specifically authorizing members of the protected class to institute suit, nevertheless implied a private right of action. In J. I. Case Co. v. Borak, 377 U. S. 426 (1964), we were called upon to consider § 14 (a) of the Securities Exchange Act of 1934. 48 Stat. 895, 15 II. S. C. § 78n (a). That section provides that it shall be “unlawful for any person ... [to violate] such rules and regulations as the Commission may prescribe as necessary or appropriate in the public interest or for the protection of investors.” We held that “[w]hile this language makes no specific reference to a private right of action, among its chief purposes is 'the protection of investors,’ which certainly implies the availability of judicial relief where necessary to achieve that result.” 377 U. S., at 432.
A similar analysis is applicable here. The guarantee of § 5 that no person shall be denied the right to vote for failure to comply with an unapproved new enactment subject to § 5, might well prove an empty promise unless the private citizen were allowed to seek judicial enforcement of the prohibition.
l-H H-1
Another question involving the jurisdiction of the district courts is presented by § 14 (b) of the Act. It provides that “[n]o court other than the District Court for the District of Columbia . . . shall have jurisdiction to issue any declaratory judgment pursuant to [§ 5] or any restraining order or temporary or permanent injunction against the execution or enforcement of any provision of this Act . . . 79 Stat. 445, 42 U. S. C. § 1973Z (b) (1964 ed., Supp. I). The appellants sought declaratory judgments that the state enactments were subject to § 5 of the Act; appellees thus argue that these actions could be initiated only in the District Court for the District of Columbia.
Section 14 (b) must be read with the Act’s other enforcement provisions. Section 12 (f) provides that the district courts shall have jurisdiction over actions brought pursuant to § 12 (d) to enjoin a person from acting when “there are reasonable grounds to believe that [such person] is about to engage in any act or practice prohibited by [§ 5].” These § 12 (f) injunctive actions are distinguishable from the actions mentioned in § 14 (b). The § 14 (b) injunctive action is one aimed at prohibiting enforcement of the provisions of the Voting Rights Act, and would involve an attack on the constitutionality of the Act itself. See Katzenbach v. Morgan, 384 U. S. 641 (1966). On the other hand, the § 12 (f) action is aimed at prohibiting the enforcement of a state enactment that is for some reason violative of the Act. Cf. United States v. Ward, 352 F. 2d 329 (C. A. 5th Cir. 1965); Perez v. Rhiddlehoover, 247 F. Supp. 65 (D. C. E. D. La. 1965).
A similar distinction is possible with respect to declaratory judgments. A declaratory judgment brought by the State pursuant to § 5 requires an adjudication that a new enactment does not have the purpose or effect of racial discrimination. However, a declaratory judgment action brought by a private litigant does not require the Court to reach this difficult substantive issue. The only issue is whether a particular state enactment is subject to the provisions of the Voting Rights Act, and therefore must be submitted for approval before enforcement. The difference in the magnitude of these two issues suggests that Congress did not intend that both can be decided only by the District of Columbia District Court. Indeed, the specific grant of jurisdiction to the district courts in § 12 (f) indicates Congress intended to treat “coverage” questions differently from “substantive discrimination” questions. See Perez v. Rhiddlehoover, supra, at 72.
Moreover, as we indicated in South Carolina v. Katzenbach, supra, the power of Congress to require suits to be brought only in the District of Columbia District Court is grounded in Congress’ power, under Art. Ill, § 1, to “ordain and establish” inferior federal tribunals. We further noted Congress did not exceed constitutional bounds in imposing limitations on “litigation against the Federal Government. . . .” 383 U. S., at 332 (emphasis added). Of course, in declaratory judgment actions brought by private litigants, the United States will not be a party. This distinction further suggests interpreting § 14 (b) as applying only to declaratory judgment actions brought by the State.
There are strong reasons for adoption of this interpretation. Requiring that declaratory judgment actions be brought in the District of Columbia places a burden on the plaintiff. The enormity of the burden, of course, will vary with the size of the plaintiff’s resources. Admittedly, it would be easier for States to bring § 5 actions in the district courts in their own States. However, the State has sufficient resources to prosecute the actions easily in the Nation’s Capital; and, Congress has power to regulate which federal court shall hear suits against the Federal Government. On the other hand, the individual litigant will often not have sufficient resources to maintain an action easily outside the district in which he resides, especially in cases where the individual litigant is attacking a local city or county regulation. Thus, for the individual litigant, the District of Columbia burden may be sufficient to preclude him from bringing suit.
We hold that the restriction of § 14 (b) does not apply to suits brought by private litigants seeking a declaratory judgment that a new state enactment is subject to the approval requirements of § 5, and that these actions may be brought in the local district court pursuant to 28 U. S. C. § 1343 (4).
III.
A final jurisdictional question remains. These actions were all heard before three-judge district courts. We have jurisdiction over an appeal brought directly from the three-judge court only if the three-judge court was properly convened. Pennsylvania Public Utility Comm’n v. Pennsylvania R. Co., 382 U. S. 281 (1965); Zemel v. Rusk, 381 U. S. 1, 5 (1965); see 28 U. S. C. § 1253. Appellants initially claimed that the statutes and regulations in question violated the Fifteenth Amendment. However, by stipulation these claims were removed from the cases prior to a hearing in the District Court and the cases were submitted solely on the question of the applicability of § 5. We held in Swift & Co. v. Wickham, 382 U. S. 111, 127 (1965), that a three-judge court is not required under 28 U. S. C. § 2281 if the state statute is attacked on the grounds that it is in conflict with a federal statute and consequently violates the Supremacy Clause. These suits involve such an attack and, in the absence of a statute authorizing a three-judge court, would not be proper before a district court of three judges.
Appellants maintain that § 5 authorizes a three-judge court in suits brought by private litigants to enforce the approval requirements of the section. The final sentence of § 5 provides that “[a]ny action under this section shall be heard and determined by a court of three judges . . . and any appeal shall lie to the Supreme Court.” 42 U. S. C. § 1973c (1964 ed., Supp. I) (emphasis added). Appellees argue that this sentence refers only to the action specifically mentioned in the first sentence of § 5 (i e., declaratory judgment suits brought by the State) and does not apply to suits brought by the private litigant.
As we have interpreted § 5, suits involving the section may be brought in at least three ways. First, of course, the State may institute a declaratory judgment action. Second, an individual may bring a suit for declaratory judgment and injunctive relief, claiming that a state requirement is covered by § 5, but has not been subjected to the required federal scrutiny. Third, the Attorney General may bring an injunctive action to prohibit the enforcement of a new regulation because of the State’s failure to obtain approval under § 5. All these suits may be viewed as being brought “under” § 5. The issue is whether the language “under this section” should be interpreted as authorizing a three-judge action in these suits.
We have long held that congressional enactments providing for the convening of three-judge courts must be strictly construed. Phillips v. United States, 312 U. S. 246 (1941). Convening a three-judge court places a burden on our federal court system, and may often result in a delay in a matter needing swift initial adjudication. See Swift & Co. v. Wickham, supra, at 128. Also, a direct appeal may be taken from a three-judge court to this Court, thus depriving us of the wise and often crucial adjudications of the courts of appeals. Thus we have been reluctant to extend the range of cases necessitating the convening of three-judge courts. Ibid.
However, we have not been unaware of the legitimate reasons that prompted Congress to enact three-judge-court legislation. See Swift & Co. v. Wickham, supra, at 116-119. Notwithstanding the problems for judicial administration, Congress has determined that three-judge courts are desirable in a number of circumstances involving confrontations between state and federal power or in circumstances involving a potential for substantial interference with government administration. The Voting Rights Act of 1965 is an example. Federal supervision over the enforcement of state legislation always poses difficult problems for our federal system. The problems are especially difficult when the enforcement of state enactments may be enjoined and state election procedures suspended because the State has failed to comply with a federal approval procedure.
In drafting § 5, Congress apparently concluded that if the governing authorities of a State differ with the Attorney General of the United States concerning the purpose or effect of a change in voting procedures, it is inappropriate to have that difference resolved by a single district judge. The clash between federal and state power and the potential disruption to state government are apparent. There is no less a clash and potential for disruption when the disagreement concerns whether a state enactment is subject to § 5. The result of both suits can be an injunction prohibiting the State from enforcing its election laws. Although a suit brought by the individual citizen may not involve the same federal-state confrontation, the potential for disruption of state election procedures remains.
Other provisions of the Act indicate that Congress was well aware of the extraordinary effect the Act might have on federal-state relationships and the orderly operation of state government. For example, § 10, which prohibits the collection of poll taxes as a prerequisite to voting, contains a provision authorizing a three-judge court when the Attorney General brings an action “against the enforcement of any requirement of the payment of a poll tax as a precondition to voting . . . .” 79 Stat. 442, 42 U. S. C. §§ 1973h (a)-(c) (1964 ed., Supp. I). See also 42 ü. S. C. § 1973b (a) (1964 ed., Supp. I).
We conclude that in light of the extraordinary nature of the Act in general, and the unique approval requirements of § 5, Congress intended that disputes involving the coverage of § 5 be determined by a district court of three judges.
IV.
Finding that these cases are properly before us, we turn to a consideration of whether these state enactments are subject to the approval requirements of § 5. These requirements apply to “any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting . . . .” 42 U. S. C. § 1973c (1964 ed., Supp. I). The Act further provides that the term “voting” “shall include all action necessary to make a vote effective in any primary, special, or general election, including, but not limited to, registration, listing ... or other action required by law prerequisite to voting, casting a ballot, and having such ballot counted properly and included in the appropriate totals of votes cast with respect to candidates for public or party office and propositions for which votes are received in an election.” §14 (c)(1), 79 Stat. 445, 42 U. S. C. § 19731 (c)(1) (1964 ed., Supp. I). See Appendix, infra. Appellees in the Mississippi cases maintain that § 5 covers only those state enactments which prescribe who may register to vote. While accepting that the Act is broad enough to insure that the votes of all citizens should be cast, appellees urge that § 5 does not cover state rules relating to the qualification of candidates or to state decisions as to which offices shall be elective.
Appellees rely on the legislative history of the Act to support their view, citing the testimony of former Assistant Attorney General Burke Marshall before a subcommittee of the House Committee on the Judiciary:
“Mr. Corman. We have not talked at all about whether we have to be concerned with not only who can vote, but who can run for public office and that has been an issue in some areas in the South in 1964. Have you given any consideration to whether or not this bill ought to address itself to the qualifications for running for public office as well as the problem of registration?
“Mr. Marshall. The problem that the bill was aimed at was the problem of registration, Congressman. If there is a problem of another sort, I would like to see it corrected, but that is not what we were trying to deal with in the bill.”
Appellees in No. 25 also argue that § 5 was not intended to apply to a change from district to at-large voting, because application of § 5 would cause a conflict in the administration of reapportionment legislation. They contend that under such a broad reading of § 5, enforcement of a reapportionment plan could be enjoined for failure to meet the § 5 approval requirements, even though the plan had been approved by a federal court. Appellees urge that Congress could not have intended to force the States to submit a reapportionment plan to two different courts.
We must reject a narrow construction that appellees would give to § 5. The Voting Rights Act was aimed at the subtle, as well as the obvious, state regulations which have the effect of denying citizens their right to vote because of their race. Moreover, compatible with the decisions of this Court, the Act gives a broad interpretation to the right to vote, recognizing that voting includes "all action necessary to make a vote effective.” 79 Stat. 445, 42 U. S. C. § 19731(c)(1) (1964 ed., Supp. I). See Reynolds v. Sims, 377 U. S. 533, 555 (1964). We are convinced that in passing the Voting Rights Act, Congress intended that state enactments such as those involved in the instant cases be subject to the § 5 approval requirements.
The legislative history on the whole supports the view that Congress intended to reach any state enactment which altered the election law of a covered State in even a minor way. For example, § 2 of the Act, as originally drafted, included a prohibition against any “qualification or procedure.” During the Senate hearings on the bill, Senator Fong expressed concern that the word “procedure” was not broad enough to cover various practices that might effectively be employed to deny citizens their right to vote. In response, the Attorney General said he had no objection to expanding the language of the section, as the word “procedure” “was intended to be all-inclusive of any kind of practice.” Indicative of an intention to give the Act the broadest possible scope, Congress expanded the language in the final version of § 2 to include any “voting qualifications or prerequisite to voting, or standard, practice, or procedure.” 42 U. S. C. § 1973 (1964 ed., Supp. I).
Similarly, in the House hearings, it was emphasized that § 5 was to have a broad scope:
“Mr. Katzenbach. The justification for [the approval requirements] is simply this: Our experience in the areas that would be covered by this bill has been such as to indicate frequently on the part of State legislatures a desire in a sense to outguess the courts of the United States or even to outguess the Congress of the United States. . . . [A]s the Chairman may recall ... at the time of the initial school desegregation, . . . the legislature passed I don’t know how many laws in the shortest period of time. Every time the judge issued a decree, the legislature . . . passed a law to frustrate that decree.
“If I recollect correctly, the school board was ordered to do something and the legislature immediately took away all authority of the school boards. They withdrew all funds from them to accomplish the purposes of the act.” House Hearings 60.
Also, the remarks of both opponents and proponents during the debate over passage of the Act demonstrate that Congress was well aware of another admonition of the Attorney General. He had stated in the House hearings that two or three types of changes in state election law (such as changing from paper ballots to voting machines) could be specifically excluded from § 5 without undermining the purpose of the section. He emphasized, however, that there were “precious few” changes that could be excluded “because there are an awful lot of things that could be started for purposes of evading the 15th amendment if there is the desire to do so.” House Hearings 95. It is significant that Congress chose not to include even these minor exceptions in § 5, thus indicating an intention that all changes, no matter how small, be subjected to § 5 scrutiny.
In light of the mass of legislative history to the contrary, especially the Attorney General’s clear indication that the section was to have a broad scope and Congress’ refusal to engraft even minor exceptions, the single remark of Assistant Attorney General Burke Marshall cannot be given determinative weight. Indeed, in any case where the legislative hearings and debate are so voluminous, no single statement or excerpt of testimony can be conclusive. Also, the question of whether § 5 might cause problems in the implementation of reapportionment legislation is not properly before us at this time. There is no direct conflict between our interpretation of this statute and the principles involved in the reapportionment cases. The argument that some administrative problem might arise in the future does not establish that Congress intended that § 5 have a narrow scope; we leave to another case a consideration of any possible conflict.
The weight of the legislative history and an analysis of the basic purposes of the Act indicate that the enactment in each of these cases constitutes a “voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting” within the meaning of § 5.
No. 25 involves a change from district to at-large voting for county supervisors. The right to vote can be affected by a dilution of voting power as well as by an absolute prohibition on casting a ballot. See Reynolds v. Sims, 377 U. S. 533, 555 (1964). Voters who are members of a racial minority might well be in the majority in one district, but in a decided minority in the county as a whole. This type of change could therefore nullify their ability to elect the candidate of their choice just as would prohibiting some of them from voting.
In No. 26 an important county officer in certain counties was made appointive instead of elective. The power of a citizen’s vote is affected by this amendment; after the change, he is prohibited from electing an officer formerly subject to the approval of the voters. Such a change could be made either with or without a discriminatory purpose or effect; however, the purpose of § 5 was to submit such changes to scrutiny.
The changes in No. 36 appear aimed at increasing the difficulty for an independent candidate to gain a position on the general election ballot. These changes might also undermine the effectiveness of voters who wish to elect independent candidates. One change involved in No. 36 deserves special note. The amendment provides that no person who has voted in a primary election may thereafter be placed on the ballot as an independent candidate in the general election. This is a “procedure with respect to voting” with substantial impact. One must forgo his right to vote in his party primary if he thinks he might later wish to become an independent candidate.
The bulletin in No. 3 outlines new procedures for casting write-in votes. As in all these cases, we do not consider whether this change has a discriminatory purpose or effect. It is clear, however, that the new procedure with respect to voting is different from the procedure in effect
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_applfrom
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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 type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court).
George D. GLAUNER and George D. Brown, Appellants, v. Charles MALONE and Norma Malone, and Donald Maxwell, Intervenor.
No. 14131.
United States Court of Appeals Third Circuit.
Argued at Christiansted Jan. 30, 1963.
Decided April 3, 1963.
Francis J. Carey, Jr., Philadelphia, Pa., for appellant.
William W. Bailey, St. Thomas, Virgin Islands, for intervenor appellee, Donald Maxwell.
William H. D. Cox, St. Thomas, Virgin Islands, for appellees, Malone.
Before MARIS, WOODBURY and HASTIE, Circuit Judges.
HASTIE, Circuit Judge.
This is an appeal by the original plaintiffs from a judgment in favor of an intervening claimant in an action for specific performance of a contract to sell real property.
Charles and Norma Malone, the defendants, are the owners of the parcel in question which adjoins their home site. Both the appellants and the intervenor, Maxwell, claim to have valid contracts with the Malones for the purchase of the land. The Malones recognize that they are obligated to sell to someone and that the essential terms of the alleged contracts with appellants and with the intervenor are the same. We have to decide which of the rival claimants is entitled to buy the property.
The district court’s findings of fact, supplemented by undisputed testimony and exhibits, disclose the following course of events. On May 19,1961, the Malones signed and sent to the plaintiffs a proposed contract to sell Parcel 21B, Estate Mandahl, for a consideration upon which the parties had already agreed in informal negotiation. On May 31, 1961, the plaintiffs signed the agreement but did not inform the Malones of this action pending further discussion of the purchasers’ right to accelerate mortgage payments and their desire to provide in advance for the future release of part of the land from the mortgage after payment of a certain amount of the purchase price. On June 12, 1961, the parties and their attorneys met and reached an agreement on these points, which were to be covered by a separate letter agreement without altering the contract of sale. However, at that meeting the plaintiffs’ attorney stated that he had learned of a recorded agreement between the Malones and a former owner of land adjoining the Malones’ holdings which, among other things, purported to give the neighboring landowner, E. Nicholas Sargent, and his heirs and assigns, an option in the form of a first refusal for the purchase of land which included Parcel 21B. After discussion of this discovery the attorneys parted with a view to further investigating the matter.
The court below found that during the discussion on June 12th, counsel for the Malones expressed the thought that “any further negotiations” between the Malones and the plaintiffs “would have to be discontinued” pending determination of their situation under the Sargent agreement. On this basis the court concluded as a matter of law that “the offer [to sell] was withdrawn * * * or at least was suspended” pending determination of third-party rights.
We think that what was said and done at the June 12th meeting was neither intended nor understood by those who were present to mean that the offer to sell had been revoked. Except for clearing up the question of the option, no further negotiations between the Malones and the plaintiffs were needed. The basic contract had already been signed by the Malones and delivered to the plaintiffs, and the two outstanding matters which had been carried over to the meeting had been resolved, with the parties agreeing to incorporate their understanding in a letter of amendment to the contract of sale. At no time before the bringing of the present suit did the Malones request that the contract be returned or did their counsel offer to return a $2,400 check which had been deposited with him as earnest. Both at the June 12th meeting and in subsequent communications the Malones or their agents expressed continuing willingness to sell to the plaintiffs on the terms which had been mutually agreed. The lawyer who represented the plaintiffs at the June 12th meeting testified, under cross-examination by counsel for the Malones, that he remembered that “the essence of what you said and what I said was that we could not proceed to close until we have resolved the situation with respect to this option and right of way”. We recognize that “to close”, in the context of real property transactions, means to make the formal transfer of title. Finally, the Malones’ attorney took the stand and testified that during the course of the discussion, he said to one of the plaintiffs, “ ‘Well, Doctor Glauner, you certainly don’t want to buy yourself a lawsuit, and here you’ve got a situation which can result in a lawsuit.’ Well, he said he didn’t, and it was agreed that I would try to straighten it out.” There was no evidence of anything said or done which would have led the plaintiffs to believe that the deal was off; on the contrary, the evidence concerning the June 12th meeting clearly indicates that if the plaintiffs wanted to go ahead in spite of whatever litigation they might incur, the Malones’ offer was still outstanding for them to accept.
Thereafter, the Malones’ attorney communicated with the intervenor, to whom Dr. Sargent’s rights under his agreement had been assigned, and learned that the intervenor would like to buy the Malone property on the terms already offered to plaintiffs. Concerned by the course the matter was taking, the plaintiffs demanded that the Malones consummate the proposed sale to them and on August 21, 1961, recorded the contract of sale which they had signed on May 31st. Finally, on September 5th, the Malones and the intervenor, with notice of the plaintiffs’ recorded contract of sale, signed a contract of sale for the same property on essentially the same terms.
To resolve this controversy we must examine the terms and the history of the Sargent agreement. Parcel 21B and other land of the Malones lies between Parcel 22, formerly owned by E. Nicholas Sargent, and a public road. An agreement between these adjoining landowners, executed in April 1957 and amended in June 1957, provided that “in consideration of the promise of Dr. E. Nicholas Sargent, his heirs and assigns to cut, bulldose, and construct a dirt road, at their own expense, from the public road into Plot No. 21 of Estate Mandahl * * * to provide access to Parcel No. 22 of Estate Mandahl”, the Malones undertook to grant Dr. Sargent a perpetual right of way over the new road he was to construct. In addition the right of the owners of Parcel 21 to enjoy the use of the new road was expressly reserved. It was further provided that “for the same consideration, the undersigned, Charles Malone, hereby give [sic] and grant [sic] unto Dr. E. Nicholas Sargent, his heirs and assigns, an Option to Buy the said Plot No. 21 of Estate Mandahl for such price as shall be offered to me by any bona fide purchaser”.
This agreement is clear and explicit in making the construction of a road for the benefit of both parcels of land the performance required in exchange for a first refusal of the Malone land. Four years elapsed between the execution of this agreement in mid-1957 and the emergence of the present controversy in 1961. In the meantime, Dr. Sargent had sold his land without building the proposed access road. His successors took no steps to that end. In this suit the intervenor does not contend that either he or any predecessor in title has ever undertaken to perform the obligation of Sargent under the 1957 agreement. Certainly such non-action over a four year period is an unreasonable delay in the performance of the promise to build a new road.
Here we think is the plainest failure of consideration. The intervenor is asserting a right to the performance of the Malones’ promise to Sargent despite the total failure of either Sargent or his successors to perform or tender performance of the reciprocal promise which was the sole consideration for the Malones’ undertaking. It is clear that under such circumstances the Malones’ promise is unenforceable. Restatement, Contracts, § 274; see 6 Corbin, Contracts, 1962, §§ 1252, 1253, 1255. They were free to sell to any prospective purchaser without according Dr. Sargent or his successor a first refusal.
In these circumstances the contract of sale executed by the plaintiffs and the Malones, as recorded on August 21st, was fully effective. The intervenor could acquire nothing under his subsequent contract, executed on September 5th with notice of the plaintiffs’ prior claim and of the Malones’ obligation to honor it.
The judgment will be reversed and the cause remanded for the entry of an appropriate judgment for the plaintiffs.
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_direct1
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for assertion of federal power in federalism cases; "not ascertained" for conflict between states; for attorney; for the validity of challenged selective service regulation; or for the government interest in dispute with someone attempting to resist induction; for the authority of the challenged official in challenge to magistrates or referees; for defendant in Indian law - criminal; for the claim of the Indian or tribal rights in Indian law; for federal or state authority in Indian law vs state and federal authority; for interest of US or US firms when opposed by foreign firms or government; for US government if opposed to either US or foreign business in international law; for government regulation in immigration Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards.
UNITED STATES ex rel. DE VITA v. UHL, District Director of Immigration.
No. 42.
Circuit Court of Appeals, Second Circuit.
Nov. 7, 1938.
Emily Marx, of New York City, for appellant.
Lamar Hardy, U. S. Atty., of New York City (Samuel Brodsky, Asst. U. S. Atty., of Brooklyn, N. Y., of counsel), for appellee.
Before MANTON, AUGUSTUS N. FIAND, and CHASE, Circuit Judges.
CHASE, Circuit Judge.
The relator-appellant is an alien who was lawfully admitted to this country for permanent residence in 1913. He lived here until March, 1921, when he went abroad for a temporary visit. His visit was prolonged until October, 1927, when he re-entered the United States surreptitiously without either an immigration visa or a re-entry permit. He was arrested on November 9, 1936 on a warrant charging that at the time of his entry in 1927 he was not in the possession of an unexpired immigration visa. After due hearings a warrant of deportation was issued. He surrendered and then sued out a writ of habeas corpus. The writ was dismissed upon hearing and he has appealed.
His contention is that, having prior to his surreptitious entry acquired a domicile here which he had never relinquished and to which he was returning in 1927, he could enter of right without an immigration visa. Consequently he did not violate the provisions of the Immigration Act of 1924, 8 U.S.C.A. -§§ 145, 146, 166, 167, 179, 201 et seq., and at most entered only contrary to the Immigration Act of 1917, 39 Stat. 874, in that he did not present himself for inspection. The latter violation of the law cannot be the basis of deportation now since the period of limitation has expired.
We will assume that the alien was returning in 1927 to an unrelinquished domicile in this country but, even ^o, he could not enter lawfully unless he had either a re-entry permit or an unexpired immigration visa. United States v. Trudell, 284 U. S. 279, 52 S.Ct. 143, 76 L.Ed. 291; Id., 2 Cir., 49 F.2d 730. Despite the fact of his previous lawful residence here, he was an alien immigrant within the definition of that term in Sec. 3 of the Immigration Act of 1924, 8 U.S.C.A. § 203. .Karnuth v. United States, 279 U.S. 231, 49 S.Ct. 274, 73 L.Ed. 677. He has failed to show that he was within any of the exceptions dispensing with his neefl for an immigration visa. It is immaterial that he might, perhaps, have secured a re-entry permit which would have done away with the need of an immigration visa for he had no re-entry permit. Sec. 13(b) of the 1924 Act, 8 U.S. C.A. § 213(b), upon which he relies merely permits returning immigrants who have complied with the prescribed regulations to enter without an immigration visa but this relator had not so complied.
That he admittedly violated the 1917 Act is no evidence, of course, that he did not violate the provisions of the 1924 Act also and the record shows clearly that he did. Having entered contrary to the last mentioned statute without an unexpired immigration visa, he was subject to deportation at any time. 8 U.S.C.A. § 214. Deportation on this ground is not barred by the lapse of time. United States ex rel. Giuriciu v. Day, 2 Cir., 54 F.2d 362. That is the ground on which he was ordered deported and, accordingly, it was not error to dismiss the writ.
Affirmed.
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer:
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sc_issuearea
|
A
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What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states.
WILLIAMS v. ILLINOIS
No. 10-8505.
Argued December 6, 2011
Decided June 18, 2012
Auto, J., announced the judgment of the Court and delivered an opinion, in which Roberts, C. J., and Kennedy and Breyer, JJ., joined. Breyer, J., filed a concurring opinion, post, p. 86. Thomas, J., filed an opinion concurring in the judgment, post, p. 103. Kagan, J., filed a dissenting opinion, in which Scalia, Ginsburg, and Sotomayor, JJ., joined, post, p. 118.
Brian W Carroll argued the cause for petitioner. With him on the briefs were Michael J. Pelletier, Alan D. Goldberg, and James E. Chadd.
Anita Alvarez argued the cause for respondent. With her on the brief were Lisa Madigan, Attorney General of Illinois, Alan J. Spellberg, Ashley A. Romito, Michelle Katz, and Amy Watroba Kern.
Deputy Solicitor General Dreeben argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Solicitor General Verrilli, Assistant Attorney General Breuer, and Anthony A. Yang.
Briefs of amici curiae urging reversal were filed for the California Public Defenders Association et al. by Donald J. Bartell and John N. Aqui-lina; for the Innocence Network by Keith A. Findley; for the Public Defender Service for the District of Columbia et al. by Sandra K. Levick, Catharine F. Easterly, and Jeffrey L. Fisher; and for Richard D. Friedman by Mr. Friedman, pro se.
Briefs of amici curiae urging affirmance were filed for the State of Ohio et al. by Michael DeWine, Attorney General of Ohio, Alexandra T. Schimmer, Solicitor General, Elisabeth A. Long, Deputy Solicitor, and Samuel Peterson, Assistant Attorney General, by Kevin T. Kane, Chief State’s Attorney of Connecticut, and by the Attorneys General for their respective jurisdictions as follows: Luther Strange of Alabama, John J. Burns of Alaska, Tom Horne of Arizona, Dustin McDaniel of Arkansas, Kamala D. Harris of California, John W. Suthers of Colorado, Joseph R. Biden III of Delaware, Irvin B. Nathan of the District of Columbia, Pamela Jo Bondi of Florida, Leonardo M. Rapadas of Guam, Lawrence G. Wasden of Idaho, Gregory F. Zoeller of Indiana, Thomas J. Miller of Iowa, Derek Schmidt of Kansas, Jack Conway of Kentucky, James D. “Buddy” Caldwell of Louisiana, William Schneider of Maine, Douglas F. Gansler of Maryland, Martha Coakley of Massachusetts, Bill Schuette of Michigan, Jim Hood of Mississippi, Chris Koster of Missouri, Steve Bullock of Montana, Jon Bruning of Nebraska, Catherine Cortez Masto of Nevada, Mi chael A. Delaney of New Hampshire, Paula T. Dow of New Jersey, Gary King of New Mexico, Wayne Stenehjem of North Dakota, E. Scott Pruitt of Oklahoma, John R. Kroger of Oregon, Linda L. Kelly of Pennsylvania, Peter F. Kilmartin of Rhode Island, Alan Wilson of South Carolina, Marty J. Jackley of South Dakota, Robert E. Cooper, Jr., of Tennessee, Greg Abbott of Texas, Mark L. Shurtleff of Utah, Kenneth T. Cuccinelli II of Virginia, Rob McKenna of Washington, J. B. Van Hollen of Wisconsin, and Gregory A. Phillips of Wyoming; for the National District Attorneys Association et al. by Albert C. Locher and W. Scott Thorpe; and for the New York County District Attorney’s Office et al. by Cyrus R. Vance, Jr., Caitlin J. Halligan, Hilary Hassler, Michael A. Cardozo, and Paul Shechtman.
Justice Alito
announced the judgment of the Court and delivered an opinion, in which The Chief Justice, Justice Kennedy, and Justice Breyer join.
In this case, we decide whether Crawford v. Washington, 541 U. S. 36, 50 (2004), precludes an expert witness from testifying in a manner that has long been allowed under the law of evidence. Specifically, does Crawford bar an expert from expressing an opinion based on facts about a case that have been made known to the expert but about which the expert is not competent to testify? We also decide whether Crawford substantially impedes the ability of prosecutors to introduce DNA evidence and thus may effectively relegate the prosecution in some cases to reliance on older, less reliable forms of proof.
In petitioner’s bench trial for rape, the prosecution called an expert who testified that a DNA profile produced by an outside laboratory, Cellmark, matched a profile produced by the state police lab using a sample of petitioner’s blood. On direct examination, the expert testified that Cellmark was an accredited laboratory and that Cellmark provided the police with a DNA profile. The expert also explained the notations on documents admitted as business records, stating that, according to the records, vaginal swabs taken from the victim were sent to and received back from Cellmark. The expert made no other statement that was offered for the purpose of identifying the sample of biological material used in deriving the profile or for the purpose of establishing how Cellmark handled or tested the sample. Nor did the expert vouch for the accuracy of the profile that Cellmark produced. Nevertheless, petitioner contends that the expert’s testimony violated the Confrontation Clause as interpreted in Crawford.
Petitioner’s main argument is that the expert went astray when she referred to the DNA profile provided by Cellmark as having been produced from semen found on the victim’s vaginal swabs. But both the Illinois Appellate Court and the Illinois Supreme Court found that this statement was not admitted for the truth of the matter asserted, and it is settled that the Confrontation Clause does not bar the admission of such statements. See id., at 59-60, n. 9 (citing Tennessee v. Street, 471 U. S. 409 (1985)). For more than 200 years, the law of evidence has permitted the sort of testimony that was given by the expert in this case. Under settled evidence law, an expert may express an opinion that is based on facts that the expert assumes, but does not know, to be true. It is then up to the party who calls the expert to introduce other evidence establishing the facts assumed by the expert. While it was once the practice for an expert who based an opinion on assumed facts to testify in the form of an answer to a hypothetical question, modern practice does not demand this formality and, in appropriate cases, permits an expert to explain the facts on which his or her opinion is based without testifying to the truth of those facts. See Fed. Rule Evid. 703. That is precisely what occurred in this case, and we should not lightly “swee[p] away an accepted rule governing the admission of scientific evidence.” Melendez-Diaz v. Massachusetts, 557 U. S. 305, 330 (2009) (Kennedy, J., dissenting).
We now conclude that this form of expert testimony does not violate the Confrontation Clause because that provision has no application to out-of-court statements that are not offered to prove the truth of the matter asserted. When an expert testifies for the prosecution in a criminal case, the defendant has the opportunity to cross-examine the expert about any statements that are offered for their truth. Out-of-court statements that are related by the expert solely for the purpose of explaining the assumptions on which that opinion rests are not offered for their truth and thus fall outside the scope of the Confrontation Clause. Applying this rule to the present case, we conclude that the expert’s testimony did not violate the Sixth Amendment.
As a second, independent basis for our decision, we also conclude that even if the report produced by Cellmark had been admitted into evidence, there would have been no Confrontation Clause violation. The Cellmark report is very different from the sort of extrajudicial statements, such as affidavits, depositions, prior testimony, and confessions, that the Confrontation Clause was originally understood to reach. The report was produced before any suspect was identified. The report was sought not for the purpose of obtaining evidence to be used against petitioner, who was not even under suspicion at the time, but for the purpose of finding a rapist who was on the loose. And the profile that Cellmark provided was not inherently inculpatory. On the contrary, a DNA profile is evidence that tends to exculpate all but one of the more than 7 billion people in the world today. The use of DNA evidence to exonerate persons who have been wrongfully accused or convicted is well known. If DNA profiles could not be introduced without calling the technicians who participated in the preparation of the profile, economic pressures would encourage prosecutors to forgo DNA testing and rely instead on older forms of evidence, such as eyewitness identification, that are less reliable. See Perry v. New Hampshire, 565 U. S. 228 (2012). The Confrontation Clause does not mandate such an undesirable development. This conclusion will not prejudice any defendant who really wishes to probe the reliability of the DNA testing done in a particular case because those who participated in the testing may always be subpoenaed by the defense and questioned at trial.
i—i
¡3>
On February 10, 2000, in Chicago, Illinois, a young woman, L. J., was abducted while she was walking home from work. The perpetrator forced her into his car and raped her, then robbed her of her money and other personal items and pushed her out into the street. L. J. ran home and reported the attack to her mother, who called the police. An ambulance took L. J. to the hospital, where doctors treated her wounds and took a blood sample and vaginal swabs for a sexual-assault kit. A Chicago Police detective collected the kit, labeled it with an inventory number, and sent it under seal to the Illinois State Police (ISP) lab.
At the ISP lab, a forensic scientist received the sealed kit. He conducted a chemical test that confirmed the presence of semen on the vaginal swabs, and he then resealed the kit and placed it in a secure evidence freezer.
During the period in question, the ISP lab often sent biological samples to Cellmark Diagnostics Laboratory in Ger-mantown, Maryland, for DNA testing. There was evidence that the ISP lab sent L. J.’s vaginal swabs to Cellmark for testing and that Cellmark sent back a report containing a male DNA profile produced from semen taken from those swabs. At this time, petitioner was not under suspicion for L. J.’s rape.
Sandra Lambatos, a forensic specialist at the ISP lab, conducted a computer search to see if the Cellmark profile matched any of the entries in the state DNA database. The computer showed a match to a profile produced by the lab from a sample of petitioner’s blood that had been taken after he was arrested on unrelated charges on August 3, 2000.
On April 17, 2001, the police conducted a lineup at which L. J. identified petitioner as her assailant. Petitioner was then indicted for aggravated criminal sexual assault, aggravated kidnaping, and aggravated robbery. In lieu of a jury trial, petitioner chose to be tried before a state judge.
B
Petitioner’s bench trial began in April 2006. In open court, L. J. again identified petitioner as her attacker. The State also offered three expert forensic witnesses to link petitioner to the crime through his DNA. First, Brian Ha-pack, an ISP forensic scientist, testified that he had confirmed the presence of semen on the vaginal swabs taken from L. J. by performing an acid phosphatase test. After performing this test, he testified, he resealed the evidence and left it in a secure freezer at the ISP lab.
Second, Karen Abbinanti, a state forensic analyst, testified that she had used polymerase chain reaction (PCR) and short tandem repeat (STR) techniques to develop a DNA profile from a blood sample that had been drawn from petitioner after he was arrested in August 2000. She also stated that she had entered petitioner’s DNA profile into the state forensic database.
Third, the State offered Sandra Lambatos as an expert witness in forensic biology and forensic DNA analysis. On direct examination, Lambatos testified about the general process of using the PCR and STR techniques to generate DNA profiles from forensic samples such as blood and semen. She then described how these DNA profiles could be matched to an individual based on the individual’s unique genetic code. In making a comparison between two DNA profiles, Lambatos stated, it is a “commonly accepted” practice within the scientific community for “one DNA expert to rely on the records of another DNA expert.” App. 51. Lambatos also testified that Cellmark was an “accredited crime lab” and that, in her experience, the ISP lab routinely sent evidence samples via Federal Express to Cellmark for DNA testing in order to expedite the testing process and to “reduce [the lab’s] backlog.” Id., at 49-50. To keep track of evidence samples and preserve the chain of custody, Lam-batos stated, she and other analysts relied on sealed shipping containers and labeled shipping manifests, and she added that experts in her field regularly relied on such protocols. Id., at 50-51.
Lambatos was shown shipping manifests that were admitted into evidence as business records, and she explained what they indicated, namely, that the ISP lab had sent L. J.’s vaginal swabs to Cellmark, and that Cellmark had sent them back, along with a deduced male DNA profile. Id., at 52-55. The prosecutor asked Lambatos whether there was “a computer match” between “the male DNA profile found in semen from the vaginal swabs of [L. J.]” and “[the] male DNA profile that had been identified” from petitioner’s blood sample. Id., at 55.
The defense attorney objected to this question for “lack of foundation,” arguing that the prosecution had offered “no evidence with regard to any testing that’s been done to generate a DNA profile by another lab to be testified to by this witness.” Ibid.
The prosecutor responded: “Pm not getting at what another lab did.” Id., at 56. Rather, she said, she was simply asking Lambatos about “her own testing based on [DNA] information” that she had received from Cellmark. Ibid. The trial judge agreed, noting, “If she says she didn’t do her own testing and she relied on a test of another lab and she’s testifying to that, we will see what she’s going to say.” Ibid.
The prosecutor then proceeded, asking Lambatos, “Did you compare the semen that had been identified by Brian Hapack from the vaginal swabs of [L. J.] to the male DNA profile that had been identified by Karen [Abbinanti] from the blood of [petitioner]?” Ibid.
Lambatos answered “Yes.” Ibid. Defense counsel lodged an objection “to the form of the question,” but the trial judge overruled it. Ibid. Lambatos then testified that, based on her own comparison of the two DNA profiles, she “concluded that [petitioner] cannot be excluded as a possible source of the semen identified in the vaginal swabs,” and that the probability of the profile’s appearing in the general population was “1 in 8.7 quadrillion black, 1 in 390 quadrillion white, or 1 in 109 quadrillion Hispanic unrelated individuals.” Id., at 57. Asked whether she would “call this a match to [petitioner],” Lambatos answered yes, again over defense counsel’s objection. Id., at 58.
The Cellmark report itself was neither admitted into evidence nor shown to the factfinder. Lambatos did not quote or read from the report; nor did she identify it as the source of any of the opinions she expressed.
On cross-examination, Lambatos confirmed that she did not conduct or observe any of the testing on the vaginal swabs, and that her testimony relied on the DNA profile produced by Cellmark. Id., at 59. She stated that she trusted Cellmark to do reliable work because it was an accredited lab, but she admitted she had not seen any of the calibrations or work that Cellmark had done in deducing a male DNA profile from the vaginal swabs. Id., at 59-62.
Asked whether the DNA sample might have been degraded before Cellmark analyzed it, Lambatos answered that, while degradation was technically possible, she strongly doubted it had occurred in this case. She gave two reasons. First, the ISP lab likely would have noticed the degradation before sending the evidence off to Cellmark. Second, and more important, Lambatos also noted that the data making up the DNA profile would exhibit certain telltale signs if it had been deduced from a degraded sample: The visual representation of the DNA sequence would exhibit “specific patterns” of degradation, and she “didn’t see any evidence” of that from looking at the profile that Cellmark produced. Id., at 81-82.
When Lambatos finished testifying, the defense moved to exclude her testimony “with regards to testing done by [Cellmark]” based on the Confrontation Clause. Id., at 90. Defense counsel argued that there was “no evidence with regards to . . . any work done by [Cellmark] to justify testimony coming into this ease with regard to their analysis.” Ibid. (alteration in original). Thus, while defense counsel objected to and sought the exclusion of Lambatos’ testimony insofar as it implicated events at the Cellmark lab, defense counsel did not object to or move for the exclusion of any other portion of Lambatos’ testimony, including statements regarding the contents of the shipment sent to or received back from Cellmark. See id., at 55, 56, 90. See also 385 Ill. App. 3d 359, 367-368, 895 N. E. 2d 961, 968 (2008) (chain-of-custody argument based on shipping manifests waived).
The prosecution responded that petitioner’s Confrontation Clause rights were satisfied because he had the opportunity to cross-examine the expert who had testified that there was a match between the DNA profiles produced by Cellmark and Abbinanti. App. 91. Invoking Illinois Rule of Evidence 703, the prosecutor argued that an expert is allowed to disclose the facts on which the expert’s opinion is based even if the expert is not competent to testify to those underlying facts. She farther argued that any deficiency in the foundation for the expert’s opinion “[d]oesn’t go to the admissibility of [that] testimony,” but instead “goes to the weight of the testimony.” App. 91.
The trial judge agreed with the prosecution and stated that “the issue is . . . what weight do you give the test, not do you exclude it.” Id., at 94. Accordingly, the judge stated that he would not exclude Lambatos’ testimony, which was “based on her own independent testing of the data received from [Cellmark].” Id., at 94-95 (alteration in original).
The trial court found petitioner guilty of the charges against him. The State Appellate Court affirmed in relevant part, concluding that Lambatos’ testimony did not violate petitioner’s confrontation rights because the Cellmark report was not offered into evidence to prove the truth of the matter it asserted. See 385 Ill. App. 3d, at 369, 895 N. E. 2d, at 969-970 (“Cellmark’s report was not offered for the truth of the matter asserted; rather, it was offered to provide a basis for Lambatos’ opinion”). The Supreme Court of Illinois also affirmed. 238 Ill. 2d 125, 939 N. E. 2d 268 (2010). Under state law, the court noted, the Cellmark report could not be used as substantive evidence. When Lambatos referenced the report during her direct examination, she did so “for the limited purpose of explaining the basis for [her expert opinion],” not for the purpose of showing “the truth of the matter asserted” by the report. Id., at 150, 939 N. E. 2d, at 282. Thus, the report was not used to establish its truth, but only “to show the underlying facts and data Lambatos used before rendering an expert opinion.” Id., at 145, 939 N. E. 2d, at 279.
We granted certiorari. 564 U. S. 1052 (2011).
H-i HH
A
The Confrontation Clause of the Sixth Amendment provides that, “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” Before Crawford, this Court took the view that the Confrontation Clause did not bar the admission of an out-of-court statement that fell within a firmly rooted exception to the hearsay rule, see Ohio v. Roberts, 448 U. S. 56, 66 (1980), but in Crawford, the Court adopted a fundamentally new interpretation of the confrontation right, holding that “[testimonial statements of witnesses absent from trial [can be] admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine,” 541 U. S., at 59. Crawford has resulted in a steady stream of new cases in this Court. See Bullcoming v. New Mexico, 564 U. S. 647 (2011); Michigan v. Bryant, 562 U. S. 344 (2011); Melendez-Diaz, 557 U. S. 305; Giles v. California, 554 U. S. 353 (2008); Davis v. Washington, together with Hammon v. Indiana, 547 U. S. 813 (2006).
Two of these decisions involved scientific reports. In Melendez-Diaz, the defendant was arrested and charged with distributing and trafficking in cocaine. At trial, the prosecution introduced bags of a white powdery substance that had been found in the defendant’s possession. The trial court also admitted into evidence three “certificates of analysis” from the state forensic laboratory stating that the bags had been “examined with the following results: The substance was found to contain: Cocaine.” 557 U. S., at 308 (internal quotation marks omitted).
The Court held that the admission of these certificates, which were executed under oath before a notary, violated the Sixth Amendment. They were created for “the sole purpose of providing evidence against a defendant,” id., at 323, and were “‘quite plainly affidavits,’” id., at 330 (Thomas, J., concurring). The Court emphasized that the introduction of the report to prove the nature of the substance found in the defendant’s possession was tantamount to “live, in-court testimony” on that critical fact and that the certificates did “precisely what a witness does on direct examination.” Id., at 311 (internal quotation marks omitted). There was no doubt that the certificates were used to prove the truth of the matter they asserted. Under state law, “the sole purpose of the affidavits was to provide prima facie evidence of the composition, quality, and the net weight of the analyzed substance.” Ibid. (internal quotation marks omitted; emphasis deleted). On these facts, the Court said, it was clear that the certificates were “testimonial statements” that could not be introduced unless their authors were subjected to the “‘crucible of cross-examination.’” Id., at 311, 317 (quoting Crawford, supra, at 61).
In Bullcoming, we held that another scientific report could not be used as substantive evidence against the defendant unless the analyst who prepared and certified the report was subject to confrontation. The defendant in that case had been convicted of driving while intoxicated. At trial, the court admitted into evidence a forensic report certifying that a sample of the defendant’s blood had an alcohol concentration of 0.21 grams per hundred milliliters, well above the legal limit. Instead of calling the analyst who signed and certified the forensic report, the prosecution called another analyst who had not performed or observed the actual analysis, but was only familiar with the general testing procedures of the laboratory. The Court declined to accept this surrogate testimony, despite the fact that the testifying analyst was a “knowledgeable representative of the laboratory” who could “explain the lab’s processes and the details of the report.” 564 U. S., at 674-675 (Kennedy, J., dissenting). The Court stated simply: “The accused’s right is to be confronted with the analyst who made the certification.” Id., at 657.
Just as in Melendez-Diaz, the forensic report that was “introduce[d]” in Bullcoming “contained] a testimonial certification, made in order to prove a fact at a criminal trial.” 564 U. S., at 657. The report was signed by the nontestifying analyst who had authored it, stating, “I certify that I followed the procedures set out on the reverse of this report, and the statements in this block are correct. The concentration of alcohol in this sample is based on the grams of alcohol in one hundred milliliters of blood.” App. in Bullcoming, O. T. 2010, No. 09-10876, p. 62. Critically, the report was introduced at trial for the substantive purpose of proving the truth of the matter asserted by its out-of-court author—namely, that the defendant had a blood-alcohol level of 0.21. This was the central fact in question at the defendant’s trial, and it was dispositive of his guilt.
In concurrence, Justice Sotomayor highlighted the importance of the fact that the forensic report had been admitted into evidence for the purpose of proving the truth of the matter it asserted. She emphasized that “this [was] not a case in which an expert witness was asked for his independent opinion about underlying testimonial reports that were not themselves admitted into evidence.” 564 U. S., at 673 (opinion concurring in part) (citing Fed. Rule Evid. 703). “We would face a different question,” she observed, “if asked to determine the constitutionality of allowing an expert witness to discuss others’ testimonial statements if the testimonial statements were not themselves admitted as evidence.” 564 U. S., at 673.
We now confront that question.
B
It has long been accepted that an expert witness may voice an opinion based on facts concerning the events at issue in a particular case even if the expert lacks firsthand knowledge of those facts.
At common law, courts developed two ways to deal with this situation. An expert could rely on facts that had already been established in the record. But because it was not always possible to proceed in this manner, and because record evidence was often disputed, courts developed the alternative practice of allowing an expert to testify in the form of a “hypothetical question.” Under this approach, the expert would be asked to assume the truth of certain factual predicates, and was then asked to offer an opinion based on those assumptions. See 1 K. Broun, McCormick on Evidence § 14, p. 87 (6th ed. 2006); 1 J. Wigmore, Evidence § 677, p. 1084 (2d ed. 1923) (“If the witness is skilled enough, his opinion may be adequately obtained upon hypothetical data alone; and it is immaterial whether he has ever seen the person, place or thing in question” (citation omitted)). The truth of the premises could then be established through independent evidence, and the factfinder would regard the expert’s testimony to be only as credible as the premises on which it was based.
An early example of this approach comes from the English case of Beckwith v. Sydebotham, 1 Camp. 116, 170 Eng. Rep. 897 (K. B. 1807), where a party sought to prove the seaworthiness of a ship, the Earl of Wycombe, by calling as witnesses “several eminent surveyors of ships who had never seen the ‘Earl of Wycombe.’ ” Ibid. The opposing party objected to the testimony because it relied on facts that were not known to be true, but the judge disagreed. Because the experts were “peculiarly acquainted” with “a matter of skill or science,” the judge said, the “jury might be assisted” by their hypothetical opinion based on certain assumed facts. Id., at 117, 170 Eng. Rep., at 897. The judge acknowledged the danger of the jury’s being unduly prejudiced by wrongly assuming the truth of the hypothetical facts, but the judge noted that the experts could be asked on cross-examination what their opinion of the ship’s seaworthiness would be if different hypothetical facts were assumed. If the party that had called the experts could not independently prove the truth of the premises they posited, then the experts’ “opinion might not go for much; but still it was admissible evidence.” Ibid.
There is a long tradition of the use of hypothetical questions in American courts. In 1887, for example, this Court indicated its approval of the following jury instruction:
“As to the questions, you must understand that they are not evidence; they are mere statements to these witnesses . .. and, upon the hypothesis or assumption of these questions the witnesses are asked to give their [opinion]. You must readily see that the value of the answers to these questions depends largely, if not wholly, upon the fact whether the statements made in these questions are sustained by the proof. If the statements in these questions are not supported by the proof, then the answers to the questions are entitled to no weight, because based upon false assumptions or statements of facts.” Forsyth v. Doolittle, 120 U. S. 73, 77 (internal quotation marks omitted).
Modern rules of evidence continue to permit experts to express opinions based on facts about which they lack personal knowledge, but these rules dispense with the need for hypothetical questions. Under both the Illinois and the Federal Rules of Evidence, an expert may base an opinion on facts that are “made known to the expert at or before the hearing,” but such reliance does not constitute admissible evidence of this underlying information. Ill. Rule Evid. 703; Fed. Rule Evid. 703. Accordingly, in jury trials, both Illinois and federal law generally bar an expert from disclosing such inadmissible evidence. In bench trials, however, both the Illinois and the Federal Rules place no restriction on the revelation of such information to the factfinder. When the judge sits as the trier of fact, it is presumed that the judge will understand the limited reason for the disclosure of the underlying inadmissible information and will not rely on that information for any improper purpose. As we have noted, “[i]n bench trials, judges routinely hear inadmissible evidence that they are presumed to ignore when making decisions.” Harris v. Rivera, 454 U. S. 339, 346 (1981) (per curiam). There is a “well-established presumption” that “the judge [has] adhered to basic rules of procedure” when the judge is acting as a factfinder. Id., at 346-347 (emphasis added). See also Gentile v. State Bar of Nev., 501 U. S. 1030, 1078 (1991) (Rehnquist, C. J., dissenting).
This feature of Illinois and federal law is important because Crawford, while departing from prior Confrontation Clause precedent in other respects, took pains to reaffirm the proposition that the Confrontation Clause “does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted.” 541 U. S., at 59-60, n. 9 (citing Tennessee v. Street, 471 U. S. 409). In Street, the defendant claimed that the police had coerced him into adopting the confession of his alleged accomplice. The prosecution sought to rebut this claim by showing that the defendant’s confession differed significantly from the accomplice’s. Although the accomplice’s confession was clearly a testimonial statement, the Court held that the jurors could hear it as long as they were instructed to consider that confession not for its truth, but only for the “distinctive and limited purpose” of comparing it to the defendant’s confession, to see whether the two were identical. Id., at 417.
⅜—I i—i
A
In order to assess petitioner’s Confrontation Clause argument, it is helpful to inventory exactly what Lambatos said on the stand about Cellmark. She testified to the truth of the following matters: Cellmark was an accredited lab, App. 49; the ISP occasionally sent forensic samples to Cellmark for DNA testing, ibid.; according to shipping manifests admitted into evidence, the ISP lab sent vaginal swabs taken from the victim to Cellmark and later received those swabs back from Cellmark, id., at 52-55; and, finally, the Cellmark DNA profile matched a profile produced by the ISP lab from a sample of petitioner’s blood, id., at 55-56. Lambatos had personal knowledge of all of these matters, and therefore none of this testimony infringed petitioner’s confrontation right.
Lambatos did not testify to the truth of any other matter concerning Cellmark. She made no other reference to the Cellmark report, which was not admitted into evidence and was not seen by the trier of fact. Nor did she testify to anything that was done at the Cellmark lab, and she did not vouch for the quality of Cellmark’s work.
B
The principal argument advanced to show a Confrontation Clause violation concerns the phrase that Lambatos used when she referred to the DNA profile that the ISP lab received from Cellmark. This argument is developed most fully in the dissenting opinion, and therefore we refer to the dissent’s discussion of this issue.
In the view of the dissent, the following is the critical portion of Lambatos’ testimony, with the particular words that the dissent finds objectionable italicized:
“Q Was there a computer match generated of the male DNA profile found in semen from the vaginal swabs of [L. J] to a male DNA profile that had been identified as having originated from Sandy Williams?
“A Yes, there was.” Post, at 124 (opinion of Kagan, J.) (quoting App. 56; emphasis added).
According to the dissent, the italicized phrase violated petitioner’s confrontation right because Lambatos lacked personal knowledge that the profile produced by Cellmark was based on the vaginal swabs taken from the victim, L. J. As the dissent acknowledges, there would have been “nothing wrong with Lambatos’s testifying that two DNA profiles—the one shown in the Cellmark report and the one derived from Williams’s blood—matched each other; that was a straightforward application of Lambatos’s expertise.” Post, at 129. Thus, if Lambatos’ testimony had been slightly modified as follows
Question: What is the issue area of the decision?
A. Criminal Procedure
B. Civil Rights
C. First Amendment
D. Due Process
E. Privacy
F. Attorneys
G. Unions
H. Economic Activity
I. Judicial Power
J. Federalism
K. Interstate Relations
L. Federal Taxation
M. Miscellaneous
N. Private Action
Answer:
|
songer_respond1_3_2
|
E
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Your task is to determine which category of federal government agencies and activities best describes this litigant.
BRADY et al. v. HAM.
No. 2459.
Circuit Court of Appeals, First Circuit.
Nov. 26, 1930.
John E. Wilson, of Augusta, Me., and Dudley B. Wallace, of Springfield, Mass. (William Tudor Gardiner, of Augusta, Me., on the brief), for appellants.
Pereia E. Miller, Sp. Atty., Bureau of Internal Revenue, of Washington, D. C., and Frederick R. Dyer, U. S. Atty., and William B. Nulty, Asst. U. S. Atty., both of Portland, Me. (C. M. Charest, Gen. Counsel, Bureau of Internal Revenue, of Washington, D. C., on the brief), for appellee.
White & Case, of New York City (Russell D. Morrill, Henry Mannix, and A. C. Newlin, all of New York City, of counsel), amici curies.
Before BINGHAM, ANDERSON, and WILSON, Circuit Judges.
WILSON, Circuit Judge.
This is an action to recover the sum 'of $5,173.69 of the collector of internal revenue for the district of Maine, collected of the executrices of the estate of the late Elizabeth S. Haynes as a federal estate tax. The controversy arose over the right of the Commissioner of Internal Revenue to include as a part of the gross estate of the decedent certain funds held by the decedent and one Robert H. Gardiner under a declaration of trust made May 16,1911, for the benefit of certain named beneficiaries, viz., her two daughters.
At the time the trust was created the fund amounted to $25,000. By reason of additions thereto by the decedent, which under the terms of the trust she reserved the right to make at any time, the value of the trust fund at the date of her death was $100,641.79.
The declaration of trust provided that the income of the trust fund should be paid quarterly in equal shares to her two daughters, and in case of the death of either before tho termination of the trust, the share of the income to which the deceased daughter was entitled should be paid to her issue, if any, and if no issue, the entire income was to be paid to the survivor.
The declaration of trust further provided that at the end of twenty-one years after the death of the survivor of the two daughters of tho decedent and a third person named in the declaration of trust, the principal of the trust fund was then to be distributed among such persons as would be entitled to receive it under the intestate laws of Maine as if the decedent had died intestate possessing it in her own right.
The provisions of the declaration of trust which gave rise to this action reads as follows :
“Said Elizabeth S. Haynes shall have full power to make any additions to the trust property and to change and alter any or all of the trusts herein set forth, to name any beneficiaries other than those above named except herself, whether by way of addition or substitution, and to appoint another trustee or other trustees at any time either by way of addition or substitution for the trustee or trustees at any time acting. Any such change, alteration or appointment shall be made by her deed and shall take effect immediately upon the delivery thereof to any one not herself who shall at the time be acting as a trustee hereunder, or if she be the sole trastee upon her execution thereof.” (Italic ours.)
The declaration also contained other provisions as to the powers of the trustees over the sale of securities and the investment of the trust fund, and for the removal or resignation of trustees and the substitution of successors, which, however, has no bearing on the issues in this action.
Elizabeth S. Haynes died February 23d, 1925, having made but one alteration in the terms of the trust to provide for an entire failure of issue.
Section 302 of the Revenue Act of 1924 (26 USCA § 1094 note) and 1926 (26 USCA § 1094) provided that:
“The value of the gross estate of the decedent shall be determined by including the value at the time of his death of all property, real or personal, tangible or intangible, wherever situated. * *
“ (d) To the extent of any interest therein of which the decedent has at any time made a transfer, or with respect to which he has at any time created a trust, where the enjoyment thereof was subject at the date of his death to any change through the exercise of a power, either by the decedent alone or in conjunction with any person, to alter, amend, or revoke, or where the decedent relinquished any such power in contemplation of his death, except in ease of a bona fide sale for a fair consideration in money or money’s worth. * * *
“(h) Subdivisions (b), (e), (d), (e), (f), and (g) of this section shall apply to the transfers, trusts, estates, interests, rights, powers, and relinquishment of powers, as severally enumerated and described therein whether made, created, arising, existing, exorcised or relinquished before or after the enactment of this act.”
By the terms of section 302(d) and (h) the trust fund created by the decedent might seem to have been properly included in the gross estate of the decedent; but it is urged that, under the decisions of the Supreme Court hereinafter eited, the provisions of subdivision (d) of section 302 should not be construed to apply to the trust created by the decedent, and if subdivisions (d) and (h) were held to apply, the result would be so arbitrary and capricious as to render this part of the statute unconstitutional.
At the outset it is agreed that the tax here assessed is an estate or transfer tax and not a succession tax; that is, it is an excise tax on the right to transfer property to another at death and not on the right to receive it by the beneficiary. Knowlton v. Moore, 178 U. S. 41, 56, 20 S. Ct. 747, 44 L. Ed. 969; Edwards v. Slocum, 264 U. S. 61, 44 S. Ct. 293, 68 L. Ed. 564; Saltonstall v. Saltonstall, 276 U. S. 260, 48 S. Ct. 225, 72 L. Ed. 565.
When a decedent prior to his death has made an absolute transfer of his property in trust for the beneficiaries named, even though it does not become irrevocably vested in the beneficiaries until the death of the decedent, it is not subject to an estate or transfer tax. Reinecke v. Northern Trust Co., 278 U. S. 339, 49 S. Ct. 123, 73 L. Ed. 410, 66 A. L. R. 397; Nichols v. Coolidge, 274 U. S. 531, 47 S. Ct. 710, 71 L. Ed. 1184, 52 A. L. R. 1081; Saltonstall v. Saltonstall, 276 U. S. 260, 48 S. Ct. 225, 72 L. Ed. 565. Any act of Congress, therefore, undertaking to impose an excise tax in the form of a death or transfer tax on property absolutely transferred prior to the death of the decedent, would be so arbitrary and capricious as to render sc much of the act unconstitutional. Nichols v. Coolidge, supra, page 542 of 274 U. S., 47 S. Ct. 710; Reinecke v. Northern Trust Co., supra; Brushaber v. Union Pac. R. R., 240 U. S. 1, 24, 36 S. Ct. 236, 60 L. Ed. 493, L. R. A. 1917D, 414, Ann. Cas. 1917B, 713; Tyler v. United States, 281 U. S. 497, 504, 50 S. Ct. 356, 74 L. Ed. 991.
As to what constitutes a transfer of property in ease of a declaration or conveyance in trust where the decedent has reserved the right to control, revoke, alter, or modify the terms of the trust, has been the subject of consideration by the Supreme Court in the recent cases of' Nichols v. Coolidge, supra; Saltonstall v. Saltonstall, supra; Chase National Bank et al. v. United States, 278 U. S. 327, 49 S. Ct. 126, 127, 73 L. Ed. 405, 63 A. L. R. 388; Reinecke Northern Trust Co., supra; May v. Heiner, 281 U. S. 238, 50 S. Ct. 286, 74 L. Ed. 826, 62 A. L. R. 1244.
The government in the instant case relies on language found in Knowlton v. Moore, 178 U. S. 49, 20 S. Ct. 747, 751, 44 L. Ed. 969, in support of its contention: “What it taxes is not the interest to which some person succeeds on a death, but the interest which ceased by reason of the death.” And in Chase National Bank v. United States, supra: “The precise question presented is whether the termination at death of that power and the consequent passing to the designated beneficiaries of all rights under the policies freed of the possibility of its exercise may be the legitimate subject of a transfer tax.” And also in the same case: “The power to tax ? * * cannot be controlled by the mere choice of the formalities which may attend the donor’s bestowal of benefits on another at death, or of the particular methods by which his purpose is effected, so long as he retains control over those benefits -with power to direct their future enjoyment until his death.”
The language quoted, however, must be taken in connection with the facts of the case and the context immediately preceding and following it.
The Chase National Bank Case involved insurance policies made payable to the wife of the insured, but under which the insured retained the right to change the beneficiaries at will. The court held that inasmuch as he could cancel the policies at any time, pledge them for loans, and dispose of them and their proceeds for his own benefit during his lifetime, which subjected them to the control of the bankruptcy courts for the benefit of creditors, and under a local law they were in part subject to the payment of his debts, he retained such a control over the disposition of the proceeds for his own benefit, though he never exercised the power in his own interest, that the termination of such a power of control brought about at his death “the completion of that shifting of the economic benefits of property which is the real subject of the tax.”
The test above suggested in the Chase National Bank Case is more clearly laid down in the case immediately following it, Reinecke v. Trust Co., 278 U. S. 339, on page 346, 49 S. Ct. 123, 125, 73 L. Ed. 410, 66 A. L. R. 397, the same judge writing the opinion in both eases, in which the court said: “Nor did the reserved powers of management of the trusts save to decedent any control over the economic benefits or the enjoyment of the property. He would equally have reserved all these powers and others had he made himself the trustee, but the transfer would not for that reason have been incomplete. The shifting of the economic interest in the trust property which was the subject of the tax was. thus complete as soon as the trust was made. His power to recall the property and of control over it for his own benefit then ceased and as the trusts were not made in contemplation of death, the reserved powers do not serve to distinguish them from any other gift inter vivos not subject to the tax.”
The test, therefore, is. whether the donor or decedent has reserved to himself control over the economic benefits or enjoyment of the trust property. If the economic benefits passed under the trust deed from the decedent’s control beyond recall, there can be no transfer tax.
As the court said in May v. Heiner, 281 U. S. 238, 50 S. Ct. 286, 287, 74 L. Ed. 826, 62 A. L. R. 1244: “At the death [of the decedent] no interest in the property held under the trust deed passed from her to the living.” So in the ease of the decedent in the instant case, the title thereto had been definitely fixed by the trust deed. She could not take it back, either directly or indirectly.
The decedent, Elizabeth S. Haynes, by her declaration of trust expressly deprived herself of tfie enjoyment of all economic benefits in the trust estate. While she might control the final disposition of it so far as the beneficiaries were concerned, she could not restore to herself any beneficial enjoyment of it. She reserved no power of revocation as in the first “two trusts” in the Reineeke Case. Bath Sav. Institution v. Hathom, 88 Me. 122, 33 A. 836, 32 L. R. A. 377, 51 Am. St. Rep. 382; Keyes v. Carleton, 141 Mass. 45, 49, 6 N. E. 524, 55 Am. Rep. 446; Thurston, Petitioner, 154 Mass. 596, 29 N. E. 53, 26 Am. St. Rep. 278; Sands v. Old Colony Trust Co., 195 Mass. 575, 577, 81 N. E. 300, 12 Ann. Cas. 837. So far as any economic benefits of the trust estate were concerned, they passed to the trustees at the time of the execution of the declaration of trust. The enjoyment of them may not have been definitely settled on the beneficiaries until her death, and the beneficiaries may have been subject to a succession tax, hut the right of enjoyment of any economic benefits thereof irrevocably passed from the decedent in 1911. To hold that such property was subject to a transfer tax would amount to what the Supreme Court had termed in the above-cited cases as an arbitrary and capricious exercise of legislative power.
This test established by the Supreme Court has been since followed in the Circuit Court of Appeals in the Third Circuit in McCaughn v. Carnill, 43 F.(2d) 69, and in the District Court for the District of Massachusetts in Erskine et al. v. White, 43 F.(2d) 765, decided October 1, 1930.
The judgment of the District Court is reversed, and the ease is remanded to that court with directions to enter judgment for the plaintiffs for the amount of the tax in question.
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_appfed
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
COMMISSIONER OF INTERNAL REVENUE v. LIBERTY BANK & TRUST CO. LIBERTY BANK & TRUST CO. v. COMMISSIONER OF INTERNAL REVENUE.
Nos. 5780, 5867.
Circuit Court of Appeals, Sixth Circuit.
May 12, 1932.
Ill OKENLOOPER, Circuit Judge, dissenting.
G. A. Youngquist, Ass’t Atty. Gen. (Sewall Key, Hayner N. Larson, C. M. Charest, and Prew Savoy, all of Washington, D. C.), for Commissioner.
George M. Morris, of Washington, D. C. (KixMiller, Baar & Morris, of Washington, D. C., on the brief), for Liberty Bank.
W. A. Sutherland, of Atlanta, Ga., ami-cus curia.
Before MOORMAN, HICKS and HICK-ENLOOPER, Circuit Judges.
MOORMAN, Circuit Judge.
Petitions to review decisions of the Board of Tax Appeals by the taxpayer, the Liberty Bank & Trust Company, in No. 5867, and by the Commissioner in No. 5780.
The petitioner in No. 5867 contends that debts owing to it by the Kentucky Wagon Manufacturing Company and the Wolko Lead Batteries Company were recoverable only in part on December 31, 1921, and that deductions should have been allowed therefor from gross income for the year 1921 in the sum of $175,000. The Commissioner disallowed the deductions, and the Board of Tax Appeals sustained his ruling upon the ground that no art of the indebtedness was charged off by the taxpayer during the taxable year. The ruling of the Board was based on section 234(a) (5) of the Revenue Act of 1921 (42 Stat. 254), which provides that the taxpayer shall be allowed as deductions “debts ascertained to be worthless and charged off within the taxable year (or in the discretion of the Commissioner, a reasonable addition to a reserve for bad debts); and when satisfied that a debt is recoverable only in part, the Commissioner may allow such debt to be charged off in pari.”
This statute deals with two classes of debts: Those that have become wholly worthless, and those recoverable only in part. It makes provision for the deduction of each from gross income, providing as to the first that, when “ascertained to be worthless and charged off,” a deduction therefor “shall be allowed”; and as to the second, that, when “satisfied that a debt is recoverable only in part the -Commissioner may allow such debt to .be charged off in part.” The allowance as to each class depends on the performance of a precedent act or acts. Those in the first are the ascertainment of worthlessness and the charging off, which must be done by the taxpayer, subject, of course,.to tbe review of the Commissioner as to tbe reasonableness of the ascertainment. Sherman & Bryan v. Blair, Comm. (C. C. A.) 35 F.(2d) 713; Deeds v. Commissioner, 47 F.(2d) 695 (6 C. C. A.). In the other class the precedent, act must be performed by the Commissioner. He must be “satisfied that a debt is recoverable only in part,” and, until he is, there can be no charge off, and then only with his permission. The taxpayer being under no -duty to make the charge off in this class until the Commissioner permits ( it to be done, it is sufficient to give him a right to have the Commissioner’s ruling reviewed that his claim to a charge off was made and rejected. In this case claims were presented and disallowed. Whether the disallowances by the Commissioner were because of tbe failure of the taxpayer to charge off the debts in part or were made in the exercise of the discretion which the Commissioner has does not appear. See Stranahan v. Commissioner, 42 F.(2d) 729 (6 C. C. A.) as to the extent of discretion. The Board of Tax Appeals, as we have said, based its decision upon the failure of the taxpayer- to charge off the debts in part. We think it should have considered and determined whether the Commissioner abused his discretion in not allowing the charge offs to be made.
The initial question in case Ho. 5780 is whether this court has jurisdiction and power to hear and determine the questions presented by the petition of the Commissioner. It is said that'there is no such power because there is no “ease or controversy” within the ineaning of section 2 of article 3 of the Constitution. The theory of that view is that the Board of Tax Appeals is an executive or administrative tribunal of the government superior in authority to the Commissioner of Internal Revenue, and that when the Board acted favorably to the taxpayer .on its appeal from the deficiency assessment there was an accord between the taxpayer and the highest administrative body, and no controversy remained. It is to be noted in connection with this contention that there are thirty-five reported eases, among them ■ Commissioner v. Bingham, 35 F.(2d) 503 (6 C. C. A.), And Commissioner v. Leasing & Building Co., 46 F.(2d) 2 (6 C. C. A.), in which petitions in behalf of the Commissioner to review decisions of the Board of Tax Appeals have been accepted without question. Among these eases are decisions from each of the Circuit Courts of Appeals, some of which were reviewed by tbe Supreme Court, and in none of them was the power of the Circuit Court of Appeals to review a decision of the Board of Tax Appeals upon petition of the Commissioner ever questioned or thought to he in doubt.
Whatever may have been assumed heretofore, it is, however, true that, unless a decision against the government by tbe Board of Tax Appeals presents a “case or controversy” within tbe judiciary article, there is no power of review in a constitutional court. We inquire therefore, into the statutory functions of the Board, which, as pointed out in Old Colony Trust Co. v. Commissioner, 279 U. S. 716, 49 S. Ct. 499, 502, 73 L. Ed. 918, was established by the Revenue Act of 1924 (43 Stat. 253). Under that Act it became" tbe duty of the Board to hear and decide whether deficiencies reported by the Commissioner were rightly determined. It was provided in the act that, if the Board determined there was a deficiency, the amount so determined should be assessed and paid upon notice and demand from tbe collector, and no part of the deficiency assessed by the Commissioner hut disallowed as such by tho Board could be assessed. The Commissioner, however, was given the power notwithstanding the decision of the Board, to bring a suit in a proper court against the taxpayer to collect as a deficiency the difference between his assessment and that allowed by the Board. See United States v. Cleveland Co., 42 F.(2d) 413 (6 C. C. A.). The Revenue Act of 1926 (44 Stat. 9) enlarged the original jurisdiction of the Board to consider deficiencies beyond those shown in the Commissioner’s notice if the Commissioner made claim therefor at or before tbe hearing. It further provided for a direct judicial review of the Board’s decision by the filing by either the Commissioner or tho taxpayer of a petition for review. Thus there is full statutory authority for the review here under consideration, and the sole question is whether it was within the power of Congress to confer such authority upon the courts.
The question would seem to depend first upon who is the United States’ “authorized official” or “its representative” Cor the purpose of asserting its right to tho payment of the tax. If the Board is such representative, there is, of course, no controversy between the government and taxpayer after the Board has made a detei mination in favor of the taxpayer. But the sole function of the Board “consists in reviewing, on appeal, determinations of the Commissioner under the revenue laws.” It is not concerned with the collection of taxes and “is not a part of the Bureau of Internal Revenue,” but is “an independent agency * * k ‘in the executive branch of the government.’ ” Williamsport Wire Rope Co. v. United States, 277 U. S. 551, 564, 48 S. Ct. 587, 591, 72 L. Ed. 985. While it is not a court but is an executive or administrative board, it nevertheless exercises “appellate powers which are judicial in character.” Goldsmith v. United States Board of Tax Appeals, 270 U. S. 117, 46 S. Ct. 215, 70 L. Ed. 494; Blair v. Oesterlein Mach. Co., 275 U. S. 220, 227, 48 S. Ct. 87, 89, 72 L. Ed. 249. The Commissioner, on the other hand, has “general superintendence of the assessment and collection of all duties and taxes imposed by any law providing internal revenue.” 26 USCA, § 2. He is designated by Congress to represent the government before the Board and is a party to the proceeding before it. Thus, when a taxpayer seeks a review before the Board of a deficiency assessment, the controversy is between tho taxpayer and the government as represented by the Commissioner, and the Commissioner by statutory designation thereafter continues as the government’s representative to prosecute its claims from adveráis decisions of the Board. 26 USCA § 1224(a).
It makes no difference that the Board is an executive or administrative tribunal. There are certain matters involving public rights which “admit of legislative or exec-' utive determination, and yet from their nature are susceptible of determination by courts.” Den ex dem. Murray’s Lessee v. Hoboken Land & Improvement Co., 18 How. 272, 284, 15 L. Ed. 372; Fong Yue Ting v. United States, 149 U. S. 698, 714, 13 S. Ct. 1036, 37 L. Ed. 905; Ex Parte Bakelite Corporation, 279 U. S. 438, 451, 49 S. Ct. 411, 73 L. Ed. 789. Tho mode of determining matters of this class is completely within congressional control. Congress may reserve the power to itself, may delegate it to executive officials, or may commit it to judicial tribunals. Ex Parte Bakelite Corporation, supra. Tho latter course can only be adopted as to constitutional courts in matters which take such form that tho judicial power is capable of acting upon them. That power is capable of acting when there are parties whose adverse contentions are submitted to the court in the form proscribed by law, and where the determination involves neither advisory nor executive action. In re Pacific Ry. Commission (C. C.) 32 F. 241, 255; Osborn v. Bank of United States, 9 Wheat. 738, 6 L. Ed. 204. In pa-ssing upon matters such as are involved in this case; the Board exercises functions similar to those exercised by a trial court in a. law case without a jury. Phillips v. Commissioner, 283 U. S. 589, 599, 51 S. Ct. 608, 75 L. Ed. 1289. In our opinion, they aro matters susceptible of judicial determination. Tho order for reargumont in the Old Colony Trust Co. Case, supra, recited, among other things, that the court especially desired the assistance of counsel in respect to the question: “Was there power in Congress to confer jurisdiction upon the Circuit Court of Appeals to review action by the Board of Tax Appeals?” The question was not limited to reviews at the instance of the taxpayer, and in holding' that such power existed in the case then under consideration the court said: “In tho case we have here, there are adverse parties. The United States or its authorized official asserts its right to tho payment by a taxpayer of a tax due from him to the gov-eminent, and the taxpayer is resisting that payment or is seeking to recover what he has already paid as taxes when by law they were not properly due. That makes a case or controversy, and the proper disposition of it is the exercise of judicial power.” It is true that in that ease the Board of Tax Appeals had not decided for the taxpayer, but, as already pointed out, that Board is an “independent agency” whose sole function “consists in reviewing, on appeal, determinations of the Commissioner under the revenue laws.” It is not charged with the duty of assessing or collecting taxes but with deciding controversies between the taxpayer and the authorized representative of the government, the Commissioner of Internal Revenue. The position of the Board is analogous to that of. the Board of Appraisers under the Act of June 10, 1890 (26 Stat. 131), That act gave the collector of customs and the Secretary of the Treasury the right to have the decision of the Board of Appraisers as to certain matters reviewed in the Circuit Court. It was never suggested in any of the eases arising under that act that, when the Board of Appraisers decided such matters in favor of the importer, there remained no cognizable controversy for the courts. United States v. Klingenberg, 153 U. S. 93, 14 S. Ct. 790, 38 L. Ed. 647; United States v. Passavant, 169 U. S. 16, 18 S. Ct. 219, 42 L. Ed. 644; United States v. Lies, 170 U. S. 628, 636, 18 S. Ct. 780; 42 L. Ed. 1170.
The questions involved in Federal Radio Commission v. General Electric Co., 281 U. • S. 464, 50 S. Ct. 389, 390, 74 L. Ed. 969, were “purely administrative,” and, while the court held that it could not review such questions, it nevertheless pointed out that the proceedings there under consideration were wholly unlike proceedings under the Revenue Act of 1926 “on a petition for the review of a decision of the Board of Tax Appeals,” saying: “For, as this court heretofore has pointed out, such a petition (a) brings before the reviewing court the United States or its representative on the one hand and the interested taxpayer on the other, (b) presents for consideration either the right of the United States to the payment of a tax claimed to be due from the taxpayer or his right to have refunded to him money whieh he has paid to satisfy a tax claimed to have been erroneously charged against him, and (c) calls for a judicial and binding determination of the matter so presented — all of whieh makes the proceeding a case or controversy within the scope of the judicial power as defined in the judiciary article” — citing the Old Colony Trust Company Case, supra. Nowhere in that case nor in the Old Colony Company Case does it appear that the controversy is any the less a controversy within the judiciary article though the petition to review the decision of the Board of Tax Appeals be filed by the United States through its official representative rather than by the taxpayer. There being a controversy in this case between the taxpayer and the government as to the right of the government through its authorized representative to assess and collect, the tax, and the Board of Tax Appeals being an independent agency set up to review the action of the Commissioner in making the assessment, we can see no reason why a decision by the Board adverse to the Commissioner’s contention does not present a ease or controversy between the taxpayer and the government within the scope of the judiciary article. We accordingly hold that the right exists in this court to review the decision of the Board upon the petition of the Commissioner.
In its returns for 1916 to 1919, inclusive, the taxpayer charged off and reported certain debts as worthless. Due allowances were made for these debts by the Commissioner in the assessment of taxes for those years. Upon the payment of the debts in whole or in part in 1920 and 1921, the Commissioner treated the amounts received as a part of gross income. The Board of Tax Appeals reversed this ruling, holding to which there were dissents, that these payments were not a part of gross income for the years received because they were not in fact ascertained to be worthless for the years for which they were so reported and charged off. The opinion proceeded on the theory that the mistakes made in claiming and allowing the deductions for prior years could not be corrected by crediting the amounts collected to income in the year of collection. The Commissioner contends that the taxpayer, having asserted in its returns for the former years that the debts were ascertained to be worthless and charged off, and having received the benefit of such assertion, is now estopped to deny its truth to the prejudice of the government. The taxpayer contends, first, that the faets of the ease do not call for the application of equitable estoppel; and, second, that even if they did, the debts when collected were not income, but were return of capital.
It is said that it was the duty of the Commissioner, before allowing the deductions in the former years, to exercise reasonable diligence to discover whether the debts were worthless, and if he had done so, he could have ascertained that they were not. While it may be conceded that the Commissioner may not blindly accept every statement which a taxpayer makes as to a fact, and by acting- thereon preclude the taxpayer from showing at some other time that the statement was mistakenly made, we cannot assent to the view that a taxpayer which has been allowed a deduction for a debt, on its statement under oath that the debt has been ascertained to be worthless, is not estopped thereafter from denying the truth of the statement to the prejudice of the government. The Commissioner of necessity does and must rely largely upon the representations of the taxpayer, and, in order to estop the taxpayer from assuming a contrary position, he is not compelled io look with suspicion upon all such representations and himself examine, or cause to be examined, the financial condition of all the taxpayer’s debtors. It is the duty of the taxpayer to deal fairly and truthfully with the government. The taxpayer in this case was in a better position to ascertain the facts as to the value of debts owing to it than was the government, and it cannot now say that the government, by the exercise of reasonable care, ought to have done what it failed to do. The officers of the government charged with the duty of assessing and collecting taxes have the right to assume that a taxpayer will do his duty, and we think it is to be presumed from the fact that these deductions were allowed for the years in which they were claimed that the Commissioner relied upon the taxpayer’s sworn statements that the debts were worthless. It is also to he presumed, in the absence of evidence to the contrary that the government was prejudiced by such reliance, for it is obvious that a deduction from gross income reduces the net income subject to taxation. The purpose which the statute has in view in authorizing deductions for bad debts is to permit the taxpayer to reduce his taxable income. It is fair to infer from the fact that deductions wore claimed and allowed for these debts in former years, nothing else appearing, that there was a consequent reduction in taxable income.
Even if the taxpayer is not estopped from asserting that there was -no ascertainment of worthlessness for the former years, we are of opinion that the amounts received in payment of the debts were chargeable to gross income for the years in which they were received. On this point the ease is controlled, it seems to us, by the principles announced in Burnet v. Sanford & Brooks Co., 282 U. S. 359, 51 S. Ct. 150, 75 L. Ed. 383, where a taxpayer sustained losses on a contract which wore deducted from, income for the year in which they were sustained. These losses were subsequently recovered, and the court held that the recovery was a part of gross income when received, notwithstanding it “equalled, and in a loose sense was a return of, expenditures made in performing the contract.” This accords with the Department’s interpretation of the statutes. The regulations promulgated under section 213 (a) and section 233(a) of the Revenue Act of 1921 (42 Stat. 238, 254) provide tha,t bad debts, charged off because determined to be worthless, which are subsequently recovered, constitute income for the year in which recovered. Like regulations were promulgated under corresponding provisions of the Revenue Acts of 1916 and 1918 (39 Stat. 756; 40 Stat. 1057), and with these earlier regulations in effect Congress enacted sections 213(a) and 233(a) of the Revenue Act of 1921 in substantially the same language as the earlier acts. The same language was incorporated into the succeeding Revenue Acts of 1924, 1926, and 1928. It must be taken as settled that Congress was cognizant of the interpretation which the Treasury Department had put on the Revenue Acts of 1916 and 1918, and yet, with that interpretation extant, the provisions to which it applied were re-ena.cted in 1921. If such interpretation had not been consonant with the intent of Congress, it is reasonable to suppose that it would have modified this construction in the act of 1921, or in the later acts. Copper Queen Consol. Mining Co. v. Territorial Board of Equalization of Arizona, 206 U. S. 474, 27 S. Ct. 695, 51 L. Ed. 1143; Heiner v. Colonial Trust Co., 275 U. S. 232, 48 S. Ct. 65, 72 L. Ed. 256. In view of Burnet v. Sanford & Brooks Co., supra, we hold that it is permissible under the Sixteenth Amendment to credit to gross income the recoveries on debts for which deductions were allowed in former years.
The orders in both cases are reversed and the causes remanded for further proceedings consistent with this opinion.
The provision as to deductions for “debts ascertained to be worthless and charged off” is the same provision found in the Revenue Act of 1918, § 284 (a) (5), 40 Stat. 1078, since which such deductions have been allowed. That act, however, did not provide for addition to reserve for bad debts nor for a charge off of the unrecoverable part of a debt. Theso were first provided for in the Revenue Act of 1921.
First Circuit: Commissioner v. Angier Corporation, 50 F.(2d) 887; Commissioner v. Old Colony R. Co., 50 F.(2d) 896.
Second Circuit: Blair v. Dustin’s Estate, 30 F. (2d) 774; Commissioner v. Adolph Hirsch & Co., 30 F.(2d) 645; Commissioner v. City Button Works, 49 F.(2d) 705; Commissioner v. Field, 42 F.(2d) 820; Commissioner v. Godfrey, 50 F.(2d) 79; Commissioner v. Gong Bell Mfg. Co., 48 F.(2d) 205; Commissioner v. New York Trust Co., 54 F.(2d) 463; Remington Rand, Inc., v. Commissioner, 33 F.(2d) 77.
Fourth Circuit: Burnet v. Hanlon, 51 F.(2d) 453.
Fifth Circuit: Blair v. Stewart, 49 F.(2d) 257; Lucas v. Baucum, 50 F.(2d) 806; Lucas v. Hunt, 45 F.(2d) 781; Lucas v. Colmer-Green Lumber Co., 49 F. (2d) 234.
Seventh Circuit: Commissioner v. Langwell Real Estate Corp., 47 F.(2d) 841; Commissioner v. McCormick, 43 F.(2d) 277, reversed on the merits by the Supreme Court, 283 U. S. 784, 51 S. Ct. 343, 75 L. Ed. 1413; Commissioner v. Wright, 47 F.(2d) 871.
Eighth Circuit: Blair v. Byers, 35 F.(2d) 326; Burnet v. Jones, 50 F.(2d) 14; Burnet v. McDonough, 46 F.(2d) 944; Commissioner, Burnet v. Morsman, 44 F.(2d) 902 (reversed on the merits, 283 U. S. 783, 51 S. Ct. 343, 75 L. Ed. 1412); Lucas v. St. Louis National Baseball Club, 42 F.(2d) 984.
Ninth Circuit: Blair v. Roth, 22 F.(2d) 932; Burnet v. Bank of Italy, 46 F.(2d) 629; Burnet v. First Nat. Bank of Fresno, 46 F.(2d) 631; Burnet v. North American Oil Consolidated, 50 F.(2d) 752; Burnet v. Pacific S. W. Trust & Savings Bank, 45 F.(2d) 773; Burnet v. San Joaquin Fruit & Investment Co., 52 F.(2d) 123; Commissioner v. Garber, 50 F.(2d) 588; Commissioner v. Hind, 52 F.(2d) 1075.
Tenth Circuit: Commissioner v. Moore, 48 F.(2d) 526.
Question: What is the total number of appellants in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number.
Answer:
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sc_decisiondirection
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B
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What follows is an opinion from the Supreme Court of the United States. Your task is to determine the ideological "direction" of the decision ("liberal", "conservative", or "unspecifiable"). Use "unspecifiable" if the issue does not lend itself to a liberal or conservative description (e.g., a boundary dispute between two states, real property, wills and estates), or because no convention exists as to which is the liberal side and which is the conservative side (e.g., the legislative veto). Specification of the ideological direction comports with conventional usage. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. In interstate relations and private law issues, consider unspecifiable in all cases.
McDANIEL v. PATY et al.
No. 76-1427.
Argued December 5, 1977
Decided April 19, 1978
Burger, C. J., announced the Court’s judgment, and delivered an opinion, in which Powell, Rehnquist, and Stevens, JJ., joined. Brennan, J., filed an opinion concurring in the judgment, in which Marshall, J., joined, post, p. 629. Stewart, J., post, p. 642, and White, J., post, p. 643, filed opinions concurring in the judgment. Blackmun, J., took no part in the consideration or decision of the case.
Frederic S. Le Clercq argued the cause and filed a brief for appellant.
Kenneth R. Herr ell, Assistant Attorney General of Tennessee, argued the cause for appellees. With him on the brief for appellees Hassler et al. were Brooks McLemore, Attorney General, and C. Hayes Cooney, Chief Deputy Attorney General. Phillip C. Lawrence filed a brief for appellee Paty.
Leo Pfeffer, Abraham S. Goldstein, Joel Gora, George W. McKeag, John T. Redmond, James W. Respess, and Thomas A. Shaw filed a brief for the American Civil Liberties Union et al. as amici curiae urging reversal.
Mr. Chief Justice Burger
announced the judgment of the Court and delivered an opinion in which Mr. Justice Powell, Mr. Justice Rehnquist, and Mr. Justice Stevens joined.
The question presented by this appeal is whether a Tennessee statute barring “Minister[s] of the Gospel, or priest[s] of any denomination whatever” from serving as delegates to- the State's limited’ constitutional convention deprived appellant McDaniel, an ordained minister, of the right to the free exercise of religion guaranteed by the First Amendment and made applicable to the States by the Fourteenth Amendment. The First Amendment forbids all laws “prohibiting the free exercise” of religion. .v
I
In its first Constitution, in 1796, Tennessee disqualified ministers from serving as legislators. That disqualifying provision has continued unchanged since its adoption; it is now Art. 9, § 1, of the State Constitution. The state legislature applied this provision to candidates for delegate to the State’s 1977 limited constitutional convention when it enacted ch. 848, § 4, of 1976 Tenn. Pub. Acts: “Any citizen of the state who can qualify for membership in the House of Representatives of the General Assembly may become a candidate for delegate to the convention . . . .”
McDaniel, an ordained minister of a Baptist Church in Chattanooga, Tenn., filed as a candidate for delegate to the constitutional convention. An opposing candidate, appellee Selma Cash Paty, sued in the Chancery Court for a declaratory judgment that McDaniel was disqualified from serving as a delegate and for a judgment striking his name from the ballot. Chancellor Franks of the Chancery Court held that § 4 of ch. 848 violated the First and Fourteenth Amendments to the Federal Constitution and declared McDaniel eligible for the office of delegate. Accordingly, McDaniel’s name remained on the ballot and in the ensuing election he was elected by a vote almost equal to that of three opposing candidates.
After the election, the Tennessee Supreme Court reversed the Chancery Court, holding that the disqualification of clergy imposed no burden upon “religious belief” and restricted “religious action . . . [only] in the lawmaking process of government — where religious action is absolutely prohibited by the establishment clause . . . .” 547 S. W. 2d 897, 903 (1977). The state interests in preventing the establishment of religion and in avoiding the divisiveness and tendency to channel political activity along religious lines, resulting from clergy participation in political affairs, were deemed by that court sufficiently weighty to justify the disqualification, notwithstanding the guarantee of the Free Exercise Clause.
We noted probable jurisdiction. 432 U. S. 905 (1977).
II
A
The disqualification of ministers from legislative office was a practice carried from England by seven of the original States; later six new States similarly excluded clergymen from some political offices. 1 A. Stokes, Church and State in the United States 622 (1950) (hereafter Stokes). In England the practice of excluding clergy from the House of Commons was justified on a variety of grounds: to prevent dual officeholding, that is, membership by a minister in both Parliament and Convocation ; to insure that the priest or deacon devoted himself to his “sacred calling” rather than to “such mundane activities as were appropriate to a member of the House of Commons”; and to prevent ministers, who after 1533 were subject to the Crown’s powers over the benefices of the clergy, from using membership in Commons to diminish its independence by increasing the influence of the King and the nobility. In re MacManaway, [1951] A. C. 161,164,170-171.
The purpose of the several States in providing for disqualification was primarily to assure the success of a new political experiment, the separation of church and state. Stokes 622. Prior to 1776, most of the 13 Colonies had. some form of an established, or government-sponsored, church. Id., at 364 — 446. Even after ratification of the First Amendment, which prohibited the Federal Government from following such a course, some States continued pro-establishment provisions. See id., at 408, 418-427, 444. Massachusetts, the last State to accept disestablishment, did so in 1833. Id., at 426-427.
In light of this history and a widespread awareness during that period of undue and often dominant clerical influence in public and political affairs here, in England, and on the Continent, it is not surprising that strong views were held by some that one way to assure disestablishment was to keep clergymen out of public office. Indeed, some of the foremost political philosophers and statesmen of that period held such views regarding the clergy. Earlier, John Locke argued for confining the authority of the English clergy “within the bounds of the church, nor can it in any manner be extended to civil affairs; because the church itself is a thing absolutely separate and distinct from the commonwealth.” 5 Works of John Locke 21 (C. Baldwin ed. 1824). Thomas Jefferson initially advocated such a position in his 1783 draft of a constitution for Virginia. James Madison, however, disagreed and vigorously urged the position which in our view accurately reflects the spirit and purpose of the Religion Clauses of the First Amendment. Madison’s response to Jefferson’s position was:
“Does not The exclusion of Ministers of the Gospel as such violate a fundamental principle of liberty by punishing a religious profession with the privation of a civil right? does it [not] violate another article of the plan itself which exempts religion from the cognizance of Civil power? does it not violate justice by at once taking away a right and prohibiting a compensation for it? does it not in fine violate impartiality by shutting the door [against] the Ministers of one Religion and leaving it open for those of every other.” 5 Writings of James Madison 288 (G. Hunt ed. 1904).
Madison was not the only articulate opponent of clergy disqualification. When proposals were made earlier to prevent clergymen from holding public office, John Witherspoon, a Presbyterian minister, president of Princeton University, and the only clergyman to sign the Declaration of Independence, made a cogent protest and, with tongue in cheek, offered an amendment to a provision much like that challenged here:
“ ‘No clergyman, of any denomination, shall be capable of being elected a member of the Senate or House of Representatives, because (here insert the grounds of offensive disqualification, which I have not been able to discover) Provided always, and it is the true intent and meaning of this part of the constitution, that if at any time he shall be completely deprived of the clerical character by those by whom he was invested with it, as by deposition for cursing and swearing, drunkenness or uncleanness, he shall then be fully restored to all the privileges of a free citizen; his offense [of being a clergyman] shall no more be remembered against him; but he may be chosen either to the Senate or House of Representatives, and shall be treated with all the respect due to his brethren, the other members of Assembly.’ ” Stokes 624-625.
As the value of the disestablishment experiment was perceived, 11 of the 13 States disqualifying the clergy from some types of public office gradually abandoned that limitation. New York, for example, took that step in 1846 after delegates to the State’s constitutional convention argued that the exclusion of clergymen from the legislature was an “odious distinction.” 2 C. Lincoln, The Constitutional History of New York 111-112 (1906). Only Maryland and Tennessee continued their clergy-disqualification provisions into this century and, in 1974, a District Court held Maryland’s provision violative of the First and Fourteenth Amendments’ guarantees of the free exercise of religion. Kirkley v. Maryland, 381 F. Supp. 327. Today Tennessee remains the only State excluding ministers from certain public offices.
The essence of this aspect of our national history is that in all but a few States the selection or rejection of clergymen for public office soon came to be viewed as something safely left to the good sense and desires of the people.
B
This brief review of the history of clergy-disqualification provisions also amply demonstrates, however, that, at least during the early segment of our national life, those provisions enjoyed the support of responsible American statesmen and were accepted as having a rational basis. Against this background we do not lightly invalidate a statute enacted pursuant to a provision of a state constitution which has been sustained by its highest court. The challenged provision came to the Tennessee Supreme Court clothed with the presumption of validity to which that court was bound to give deference.
However, the right to the free exercise of religion unquestionably encompasses the right to preach, proselyte, and perform other similar religious functions, or, in other words, to be a minister of the type McDaniel was found to be. Murdock v. Pennsylvania, 319 U. S. 105 (1943); Cantwell v. Connecticut, 310 U. S. 296 (1940). Tennessee also acknowledges the right of its adult citizens generally to seek and hold office as legislators or delegates to the state constitutional convention. Tenn. Const., Art. 2, §§ 9, 25, 26; Tenn. Code Ann. §§ 8-1801, 8-1803 (Supp. 1977). Yet under the clergy-disqualification provision, McDaniel cannot exercise both rights simultaneously because the State has conditioned the exercise of one on the surrender of the other. Or, in James Madison’s words, the State is “punishing a religious profession with the privation of a civil right.” 5 Writings of James Madison, supra, at 288. In so doing, Tennessee has encroached upon McDaniel’s right to the free exercise of religion. “[T]o condition the availability of benefits [including access to the ballot] upon this appellant’s willingness to violate a cardinal principle of [his] religious faith [by surrendering his religiously impelled ministry] effectively penalizes the free exercise of [his] constitutional liberties.” Sherbert v. Verner, 374 U. S. 398, 406 (1963).
If the Tennessee disqualification provision were viewed as depriving the clergy of a civil right solely because of their religious beliefs, our inquiry would be at an end. The Free Exercise Clause categorically prohibits government from regulating, prohibiting, or rewarding religious beliefs as such. Id., at 402; Cantwell v. Connecticut, supra, at 304. In Torcaso v. Watkins, 367 U. S. 488 (1961), the Court reviewed the Maryland constitutional requirement that all holders of “any office of profit or trust in this State” declare their belief in the existence of God. In striking down the Maryland requirement, the Court did not evaluate the interests assertedly justifying it but rather held that it violated freedom of religious belief.
In our view, however, Torcaso does not govern. By its terms, the Tennessee disqualification operates against McDaniel because of his status as a “minister” or “priest.” The meaning of those words is, of course, a question of state law. And although the question has not been examined extensively in state-law sources, such authority as is available indicates that' ministerial status is defined in terms of conduct and activity rather than in terms of belief. Because the Tennessee disqualification is directed primarily at status, acts, and conduct it is unlike the requirement in Torcaso, which focused on belief. Hence, the Free Exercise Clause’s absolute prohibition of infringements on the “freedom to believe” is inapposite here.
This does not mean, of course, that the disqualification escapes judicial scrutiny or that McDaniel’s activity does not enjoy significant First Amendment protection. The Court recently declared in Wisconsin v. Yoder, 406 U. S. 205, 215 (1972):
“The essence of all that has been said and written on the subject is that only those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion.”
Tennessee asserts that its interest in preventing the establishment of a state religion is consistent with the Establishment Clause and thus of the highest order. The constitutional history of the several States reveals that generally the interest in preventing establishment prompted the adoption of clergy disqualification provisions, see Stokes 622; Tennessee does not appear to be an exception to this pattern. Cf. post, at 636 n. 9 (Brennan, J., concurring in judgment). There is no occasion to inquire whether promoting such an interest is a permissible legislative goal, however, see post, at 636-642, for Tennessee has failed to demonstrate that its views of the dangers of clergy participation in the political process have not lost whatever validity they may once have enjoyed. The essence of the rationale underlying the Tennessee restriction on ministers is that if elected to public office they will necessarily exercise their powers and influence to promote the interests of one sect or thwart the interests of another, thus pitting one against the others, contrary to the anti-establishment principle with its command of neutrality. See Walz v. Tax Comm’n, 397 U. S. 664 (1970). However widely that view may have been held in the 18th century by many, including enlightened statesmen of that day, the American experience provides no persuasive support for the fear that clergymen in public offlce will be less careful of anti-establishment interests or less faithful to their oaths of civil office than their unordained counterparts.
We hold that § 4 of ch. 848 violates McDaniel’s First Amendment right to the free exercise of his religion made applicable to the States by the Fourteenth Amendment. Accordingly, the judgment of the Tennessee Supreme Court is reversed, and the case is remanded to that court for further proceedings not inconsistent with this opinion.
Reversed and remanded.
Mr. Justice Blackmun took no part in the consideration or decision of this case.
“Whereas Ministers of the Gospel are by their profession, dedicated to God and the care of Souls, and ought not to be diverted from the great duties of their functions; therefore, no Minister of the Gospel, or priest of any denomination whatever, shall be eligible to a seat in either House of the Legislature.” Tenn. Const., Art. VIII, § 1 (1796).
The judgment of the Tennessee Supreme Court was stayed until final disposition of this appeal. McDaniel is currently serving as a delegate.
Maryland, Virginia, North Carolina, South Carolina, Georgia, New York, and Delaware. L. Pfeifer, Church, State, and Freedom 118 (Rev. ed. 1967). Three of these — New York, Delaware, and South Carolina— barred clergymen from holding any political office. Ibid.
6 Papers of Thomas Jefferson 297 (J. Boyd ed. 1962). Jefferson later concluded that experience demonstrated there was no need to exclude clergy from elected office. In a letter to Jeremiah Moor in 1800, he stated: “[I]n the same scheme of a constitution [for Virginia which I prepared in 1783, I observe] an abridgment of the right of being elected, which after 17 years more of experience & reflection, I do not approve. It is the incapacitation of a clergyman from being elected. The clergy, by getting themselves established by law, & ingrafted into the machine of government, have been a very formidable engine against the civil and religious rights of man. They are still so in many countries & even in some of these United States. Even in 1783 we doubted the stability of our recent measures for reducing them to the footing of other useful callings. It now appears that our means were effectual. The clergy here seem to have relinquished all pretensions to privilege, and to stand on a footing with lawyers, physicians, &c. They ought therefore to possess the same rights.” 9 Works of Jefferson 143 (P. Ford ed. 1905).
In this case, the Tennessee Supreme Court concluded that the disqualification of McDaniel did not interfere with his religious belief. 547 S. W. 2d 897, 903, 904, 907 (1977). But whether the ministerial status, as defined by state law, implicates the “freedom to act” or the absolute “freedom to believe,” Cantwell v. Connecticut, 310 U. S. 296, 304 (1940), must be resolved under the Free Exercise Clause. Thus, although we consider the Tennessee court’s resolution of that issue, we are not bound by it.
The Tennessee constitutional provision embodying the disqualification inferentially defines the ministerial profession in terms of its “duties,” which include the “care of souls.” Tenn. Const., Art. 9, § 1. In this case, the Tennessee Supreme Court stated that the disqualification reaches those filling a “leadership role in religion,” and those “dedicated to the full time promotion of the religious objectives of a particular religious sect.” 547 S. W. 2d, at 903 (emphasis added). The Tennessee court, in defining “priest,” also referred to the dictionary definition as “one who performs sacrificial, ritualistic, mediatorial, interpretative, or ministerial functions . . . .” Id., at 908 (quoting Webster’s Third New International Dictionary 1799-1800 (1971)) (emphasis added).
The absolute protection afforded belief by the First Amendment suggests that a court should be cautious in expanding the scope of that protection since to do so might leave government powerless to vindicate compelling state interests.
Thus, the courts have sustained government prohibitions on handling venomous snakes or drinking poison, even as part of a religious ceremony, State ex rel. Swann v. Pack, 527 S. W. 2d 99 (Tenn. 1975), cert. denied, 424 U. S. 954 (1976); State v. Massey, 229 N. C. 734, 51 S. E. 2d 179, appeal dismissed for want of substantial federal question sub nom. Bunn v. North Carolina, 336 U. S. 942 (1949), but have precluded the application of criminal sanctions to the religious use of peyote, People v. Woody, 61 Cal. 2d 716, 394 P. 2d 813 (1964); cf. Oliver v. Udall, 113 U. S. App. D. C. 212, 306 F. 2d 819 (1962) (not reaching constitutional issue), or the religiously impelled refusal to comply with mandatory education laws past the eighth grade, Wisconsin v. Yoder.
We need not pass on the conclusions reached in Pack and Woody, which were not reviewed by this Court. Those cases are illustrative of the general nature of free exercise protections and the delicate balancing required by our decisions in Sherbert v. Verner, 374 U. S. 398 (1963), and Wisconsin v. Yoder, when an important state interest is shown.
The struggle for separation of church and state in Virginia, which influenced developments in other States — and in the Federal Government— was waged by others in addition to such secular leaders as Jefferson, Madison, and George Mason; many clergymen vigorously opposed any established church. See Stokes 366-379. This suggests the imprecision of any assumption that, even in the early days of the Republic, most ministers, as legislators, would support measures antithetical to the separation of church and state.
Question: What is the ideological direction of the decision?
A. Conservative
B. Liberal
C. Unspecifiable
Answer:
|
songer_procedur
|
B
|
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant.
Verle AUSTIN, Plaintiff-Appellant, v. BOARD OF EDUCATION OF GEORGETOWN COMMUNITY UNIT SCHOOL DISTRICT NO. 3 OF VERMILION COUNTY, ILLINOIS, Joseph Dalida, Jack Harrold, James W. Bonebrake, Don Ehlenfeld, Elmo Snook, Carl Cunningham and Sarah R. Gleichman, Individually and as members of the Board of Education of Georgetown Community Unit School District No. 3 of Vermilion County, Illinois, Defendants-Appellees.
No. 77-1168.
United States Court of Appeals, Seventh Circuit.
Argued April 21, 1977.
Decided Sept. 21, 1977.
R. W. Deffenbaugh, Springfield, Ill., for plaintiff-appellant.
Wendell W. Wright, Danville, Ill., for defendants-appellees.
Before CUMMINGS, PELL and BAUER, Circuit Judges.
PELL, Circuit Judge.
This is an appeal from the judgment of the district court entered on December 23, 1976, granting the defendants’ motion for summary judgment and dismissing the case with prejudice. The three issues on appeal are (1) whether the defendants’ dismissal of Austin from his teaching position deprived him of his liberty without due process of law, (2) whether the failure of the defendants to consider Austin for employment for the 1976-77 school year deprived him of liberty without due process of law, and (3) whether the defendants’ dismissal of Austin was in accordance with the provisions of Illinois Revised Statutes, 1975, ch. 122, § 24-11.
I. Background
Verle Austin was first employed by Georgetown Community Unit School District No. 3 on January 28, 1975. Thereafter, he was re-employed by the school district by a written contract commencing on August 25, 1975, and ending on June 7, 1976.
On April 2,1976, the Board of Education, at a special meeting, passed a resolution authorizing the termination of Austin’s employment. On that same date, the Board sent Austin a notice of dismissal, stating that this dismissal would take effect on June 7, 1976, and giving as the basis of the dismissal the charge that he had taken indecent liberties with two or more female students in the classroom. The “NOTICE OF CHARGES AND DISMISSAL” stated that a
Bill of particulars or details of these charges will be provided if you request in writing and a Hearing will be granted to you by the Board of Education if you so request it; at which Hearing you may be represented by legal counsel and hear the charges against you with the right to present any defense which you may have.
On April 6, 1976, Austin wrote to the President of the Board requesting a hearing on the charges stated in the April 2, 1976, notification and further requesting written notice of such charges and a bill of particulars to be served upon him at least twenty-one days before the scheduled hearing date in accordance with Illinois Revised Statutes, 1975, ch. 122, § 24-12. Three days later, Donald F. Strohl, Principal, Pine Crest School, transmitted to Austin a bill of particulars. Austin had been suspended from his teaching duties as of April 2, 1976. If the charges of taking indecent liberties with two or more female students in the school had been sustained, his salary was to have ended as of April 20, 1976.
Attempts to set a date for a hearing were unsuccessful as of May 25, 1976. Thereafter, Derry L. Behm, Superintendent of the School District, and the Board of Education determined to proceed to pay Austin for his full contract period ending June 7,1976. It was determined that a due process hearing was not necessary because the notice of dismissal, giving specific reasons and stating that dismissal would be effective at the end of the school term, had been sent by registered mail to Austin at least sixty days before the end of the school term.
On August 19, 1976, Austin filed suit in the district court. His complaint alleged, inter alia, that after providing him with the bill of particulars the defendant Board of Education refused to grant him a pretermination hearing on the charges included in the notice of dismissal and the bill of particulars. The complaint further alleged that the nature of the charges against Austin had become common knowledge among the students, faculty, administration, and community in which Austin worked and lived, that said charges had substantially damaged Austin’s reputation in the community and had materially impaired his ability to find employment and to make a living and that said charges would continue in the future to damage his reputation and to impair his ability to make a living. The complaint charged a violation of Austin’s civil rights by denying him property and liberty without due process of law, and prayed for reinstatement as a full-time teacher, an award of monetary damages, and such further relief as might be required.
In granting the defendants’ motion for summary judgment and in dismissing the case with prejudice, the district court determined that there was no genuine issue as to any material fact and ruled that the defendants were entitled to judgment as a matter of law. The court’s order rested in part upon a determination that an Illinois probationary teacher who receives notice of dismissal at least sixty days before the end of his or her probationary period is not entitled to enter upon contractual continued service. The court’s unreported opinion explained that Austin had received his salary for the entire 1975-76 school term and had suffered no diminution thereof. Finally, the court determined that there was no provision of Illinois law which would entitle Austin to the requested administrative hearing under the circumstances of this case.
II. The Merits
A. The Dismissal as Deprivation of Protected Liberty Interest
The resolution of the first issue in this case is controlled by Codd v. Velger, 429 U.S. 624, 97 S.Ct. 882, 51 L.Ed.2d 92 (1977); Bishop v. Wood, 426 U.S. 341, 96 S.Ct. 2047, 48 L.Ed.2d 684 (1976); and Colaizzi v. Walker, 542 F.2d 969 (7th Cir. 1976), cert. denied, 430 U.S. 960, 97 S.Ct. 1610, 51 L.Ed.2d 811 (1977).
In Codd, a terminated police officer sought reinstatement and damages for the injury to his reputation and future employment prospects. His personnel file contained a report of an apparent suicide attempt when he was a trainee. The respondent’s amended complaint did not seek a delayed hearing under Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). Moreover, the litigation proceeded to a bench trial, thus going beyond the pleading stage, without any affirmative assertion by the respondent that the report of the apparent suicide attempt was substantially false. Expressly refusing to rest decision upon an overly technical application of the rules of pleading, the per curiam Codd opinion stated that the absence of any allegation or court finding that the report was substantially false was fatal to Velger’s claim under the Due Process Clause that he should have been given a hearing. 429 U.S. at 624, 97 S.Ct. 882. The Codd decision recognizes that the hearing required where a nontenured employee has been stigmatized in the course of a decision to terminate his employment is solely to provide the person an opportunity to clear his name and that such a hearing is required only if the employer creates and disseminates a false and defamatory impression about the employee in connection with his termination. Id. at 627, 97 S.Ct. 882.
Because the procedural history in Codd reflected the lack of any allegation of the falsity of the report, the Court found it unnecessary to reach the issue of its stigmatizing nature or whether the circumstances of its apparent dissemination were such as to fall within the language of Roth and Bishop, supra. 429 U.S. at 624, 97 S.Ct. 882. Simply stated, the record in Codd did not raise an issue about the substantial accuracy of the report. Even if the Supreme Court had accepted the determination of the Second Circuit that the creation and disclosure of the file report amounted to stigmatization, which it found it unnecessary to do formally, the Court was able to rule that Velger had not made out a claim under the Fourteenth Amendment that he had been harmed by the denial of a hearing. Id. at 627, 97 S.Ct. 882.
Our present case is both similar to and different from the Codd case. Here, as there, the complaint does not allege that the charges upon which the dismissal was based are substantially false. Under Codd, the complaint as drafted must be viewed as insufficient to state a deprivation of liberty under the Fourteenth Amendment. However, the present case never reached the advanced stages of discovery and trial. Had the district court anticipated the ruling of Codd and dismissed the complaint as insufficient for want of an allegation of falsity, the plaintiff Austin would have had under Rule 15(a) as construed by this court the absolute right to file an amended complaint averring the falsity of the female molestation charges. See Fuhrer v. Fuhrer, 292 F.2d 140, 142 (7th Cir. 1961). Moreover, plaintiff-appellant Austin’s continuing attempt to secure a delayed Roth hearing not only makes the present case proeedurally dissimilar from Codd but can be viewed as an implied assertion that the charges are substantially false. Assuming that the grant of summary judgment was otherwise improper, Austin should be allowed to amend his complaint by including the indispensable “falsity” allegation.
In Bishop, supra, 426 U.S. at 348, 96 S.Ct. 2047, the Court concluded that a discharged employee was not deprived of “liberty” under the Due Process Clause of the Fourteenth Amendment where there was no public disclosure of the reasons for the discharge. On this appeal, the defendants contend that Bishop effectively controls the present case, asserting that there is nothing in the record showing that the Board of Education published its reason for dismissing Austin. The short answer to the contention is that there is a factual dispute about the disclosure to the community of the charges. Although the very specific bill of particulars was communicated only to plaintiff-appellant Austin, the formal resolution of dismissal of the same date incorporated by reference an Exhibit 1, not part of the record on appeal, which set forth the reasons for Austin’s dismissal. If the resolution and the incorporated Exhibit 1 were made available to the public, the defendants’ Bishop argument must certainly fail.
The defendants steadfastly insist that the Board and its agents have told only Austin, not others, of the reasons for his discharge. The plaintiff insists that the nature of the charges has become common knowledge but has not formally alleged a public dissemination. Examination of the record satisfies us that the important question of public dissemination remains in dispute. This factual question is, under Bishop, clearly material. It is not our function, nor was it that of the district court in ruling on a summary judgment motion, to resolve this disputed matter. The district court never considered the matter because it did not reach the issue of a deprivation of a “liberty” interest. If the charges are properly characterized as being of a stigmatizing nature, the court’s grant of summary judgment must fall because of the presence of an unresolved issue of material fact.
We do note the divergent approaches to the question adopted by the parties. An affidavit by the defendant’s superintendent asserts that the resolution was adopted at a special Board meeting. Nowhere in the affidavit is there an averment that the meeting was closed to the public, and the defendants’ brief refers to the fact that the Board of Education listed the reasons as required by statute. The plaintiff asserted at oral argument that under the Open Meeting law of Illinois, official action must be taken in an open meeting. But nothing in the record casts any light on what actually occurred at the Board meeting of April 2, 1976. The text of the Board resolution states that it was read by the Board’s Secretary. But the resolution text, by itself, does not resolve the question whether Exhibit 1, which was formally incorporated into the resolution, was or was not read.
On the record before us, we conclude that the district court erred in granting the defendants’ motion for summary judgment. However, that conclusion does not fully dispose of the case. The district court’s order dismissing the case with prejudice could be sustainable on the ground that public charges that a teacher has sexually molested female pupils are not of a stigmatizing nature. We turn now to that question.
In Colaizzi, supra, 542 F.2d at 973, this court stated that infliction of a stigma to reputation accompanied by a failure to rehire or, a fortiori, by a discharge states a claim for deprivation of liberty without due process within the meaning of the Fourteenth Amendment. We also recognized that the combination of stigma plus failure to rehire or affirmatively to discharge states a claim even if the failure to rehire or discharging of itself deprives the plaintiff of no property interest within the meaning of the Fourteenth Amendment. Id. Thus, we explained:
[SJtigma to reputation (not itself a deprivation of liberty as defined in the Fourteenth Amendment) plus failure to rehire or discharge (not necessarily involving deprivation of property as defined in the Fourteenth Amendment) may nevertheless when found in conjunction state a claim under 42 U.S.C. § 1983 for deprivation of a Fourteenth Amendment liberty interest without due process.
Id. [Emphasis in original.]
We have no difficulty in the present case in finding the conjunction of discharge and stigma. The Board resolution and the “NOTICE OF CHARGES AND DISMISSAL” established beyond cavil the undisputed fact of discharge. We entertain no doubt about the stigmatizing nature of the charge that a teacher has taken indecent liberties with female students in the classroom. It cannot seriously be contended that such a charge does not gravely stigmatize the reputation of Austin, particularly as a teacher of young people. See Colaizzi, supra at 974. Cf. Adams v. Walker, 492 F.2d 1003, 1007-08 (7th Cir. 1974). Accordingly, we must reverse and remand.
If upon remand Austin declines to amend the original complaint so as to allege formally the falsity of the charges, the district court should enter a judgment dismissing the action with prejudice. If Austin does file an amended complaint alleging falsity, the district court should then turn to matters relevant to the Bishop question of private or public disclosure.
B. The Failure to Rehire as Deprivation of Protected Liberty Interest
Plaintiff-appellant Austin also argues that the improper dismissal in violation of the doctrine of Roth necessarily leads to the conclusion that he was not properly considered for employment for the ensuing school term. Contrary to the approach usually taken, which predicates the claim upon the theory that the terminated employee has been deprived of a “property” interest, the appellant contends that the defendants’ failure to consider him for employment for the 1976-77 school year deprived him of a “liberty” interest without due process. This formulation of the argument brings into issue several questions of Illinois law. Thus, Austin observes that the statutes of Illinois do not provide for a hearing upon the failure of the Board of Education to renew a nontenured teacher’s contract. Further, Austin notes that since October 1, 1975, the boards of education in Illinois have lost power to hear cases of dismissal of tenured teachers, such power now being vested in an independent hearing officer whose administrative decision is reviewable by the circuit court. Ill.Rev.Stat. 1975, ch. 122, § 24-12. Austin thus submits that this case should be remanded with instructions to give him an opportunity to vindicate himself in a hearing before the district court.
We think it premature to formulate instructions for the district court regarding this second issue. First, it is unclear whether or not a Roth hearing will be required. As noted, the falsity of the charges has not yet been placed in issue. Even were we to assume that Austin will amend his original complaint, the factual question regarding public or private disclosure has not yet been resolved. Thus, the district court may never have to determine the questions of Illinois law relevant to the charge that boards of education are without power to conduct hearings on charges preferred against teachers who are dismissed. Finally, there remains doubt whether the rule of Colaizzi reaches so far as the appellant’s request for a court hearing suggests.
In Moore v. Knowles, 482 F.2d 1069 (5th Cir. 1973), the court faced a situation where a school board had failed to renew the contract of a male teacher who had been indicted on charges arising out of sexual misconduct with female students. After indicating that the board might be required under defined circumstances to offer a Roth hearing to the teacher, the court concluded that the board “would not, by conducting such a hearing, be bound to re-employ Moore and it would not be liable for back pay.” Id. at 1074. In that case, of course, the board had not itself leveled the charges of sexual misconduct against the teacher. Had that been the case, or had the board relied only upon the charges by the female students, the teacher would certainly have been entitled to a Roth hearing. Id. at 1073.
Here, the Board of Education has itself leveled the charges of sexual misconduct against Austin. Assuming that his exclusion from the classroom without a hearing was proper under Moore, there remains the question whether the failure to rehire was under Colaizzi such a deprivation of a liberty interest as to authorize a federal court to order reinstatement and back pay assuming that Austin is a competent teacher. We think that this question cannot be answered until factual findings of an adjudicative tribunal have been made.
Administrative or judicial factfinding will provide a necessary framework in which Austin’s claim for reinstatement and back pay can be properly considered. Thus, if a fair hearing determines that Austin did not sexually molest the named students, the real harm done to him by the improper dismissal and the failure to rehire will emerge in a clearer perspective. If Austin successfully refutes the molestation charges, the trier of fact can reasonably determine that he has been the innocent victim of false accusations fabricated by a trio of adolescent girls. Should that be the ultimate finding of a fair hearing, the grievous consequences of the Board’s refusal to grant a pretermination hearing are readily apparent. Conversely, if a fair hearing eventuates in a finding that the charges have been proven, the Board’s failure to rehire Austin for 1976-77 appears under an entirely different light. Under that posture of the case, Austin’s claimed deprivation of a protected “liberty” interest rings hollow indeed. As noted in Bishop, supra, 426 U.S. at 349 n.14, 96 S.Ct. 2047, the instances in which the federal judiciary has required a state agency to reinstate a discharged employee for failure to provide a pretermination hearing are extremely rare. We find nothing in the cases which authorizes a federal court to order the reinstatement of a proven child molester. Nor is this court inclined to extend the reach of Colaizzi by so ruling.
Accordingly, we conclude that the issue of an alleged deprivation of a liberty interest by virtue of the Board’s failure to rehire Austin in 1976-77 is not ripe for adjudication. Because the case is not in a posture wherein we can say with certainty that there will or will not be a hearing, we similarly find it unnecessary to pass upon the plaintiff-appellant’s contention that the abolition of the power of the boards of education in Illinois to conduct hearings on charges brought against tenured teachers deprives this particular Board of Education of power to conduct an administrative hearing regarding the instant charges. Should the district court eventually rule that a delayed Roth hearing is required under the authority of Roth, Moore, and Colaizzi, it can then examine the policy reasons supportive of the argument that such a hearing should be conducted by an impartial hearing officer chosen by the State Board of Education. See Ill.Rev.Stat.1975, ch. 122, § 24-12. We find no persuasive reason why this court should determine now whether or not the enactment of an independent hearing officer law incapacitates Illinois boards of education from conducting administrative hearings bearing on charges of sexual misconduct.
C. Compliance with the Illinois School Code as Complete Defense
The defendant argues that the pleadings, including the affidavit submitted therewith, clearly establish that all of the requisites of Ill.Rev.Stat. 1975, ch. 122, § 24-11 were fulfilled. The defendants further argue that there was no constitutional deprivation of a property right in Austin’s contract, inasmuch as he was paid for the full term of his probationary contract and suffered no diminution thereof. Were it not for the fact that the district court appears to have rested its decisions upon acceptance of the arguments, there would be little point in addressing them.
In Miller v. School District Number 167, Cook County, Illinois, 500 F.2d 711 (7th Cir. 1974), this court expressed the view that the Illinois state courts would interpret ch. 122, § 24-11 as empowering a school board to terminate a non-tenured teacher for any reason at all. We were persuaded that as a matter of state law, the non-tenured teacher’s claim of entitlement to his position is insufficient to constitute a property interest within the meaning of the Fourteenth Amendment.
In view of the manner in which the issues in this case have been framed, Miller is manifestly inapposite. We can readily agree that the failure to rehire Austin does not deprive him of a property interest. Such a conclusion is fundamentally irrelevant in this case, for Austin presses an argument directed at his “liberty” interest. The language of Colaizzi, which we have hereinbefore quoted, directly controls upon that issue.
Acceptance of the argument that strict compliance with ch. 122, § 24-11 requires judgment in favor of the defendants as a matter of law would completely devitalize Roth and Colaizzi. The Supremacy Clause of the Constitution will not countenance such a result. Thus, even were this court to assume strict and literal compliance with the appropriate section of the School Code, the district court’s ground of decision could not be supported. The Board’s alleged compliance with § 24-11 is totally irrelevant to Austin’s federal constitutional right.
Moreover, the pleadings and the affidavit fail to provide a completely solid basis for assuming that the Board has fulfilled the exact dictates of § 24 — 11. The language of the statute provides that “any teacher whose salary is reduced shall be entitled to a notice and a hearing as hereinafter provided in the case of certain dismissals or removals,” i. e., the procedures set forth in § 24-12. The affidavit of Superintendent Behm is susceptible of a reading that Austin was not paid his regular salary check from April 20, 1976, until some time after May 25,1976. The nonpayment of a teacher’s salary for some thirty-five days can arguably be classified as a reduction activating the protections of notice and hearing under the statutory language itself. We need not consider that possibility in light of our conclusions regarding Austin’s constitutional claims.
For the reasons hereinbefore stated, the district court’s judgment is reversed. The cause is remanded for further proceedings not inconsistent with this opinion.
REVERSED and REMANDED.
. The three-paragraph bill of particulars stated in substance that Austin on one or more occasions during the 1975-76 school year had touched three specifically identified female students “in the breast and buttocks area.” The alleged touching as to all three was on the outside of the clothing with the additional charge as to one of the students that the touching also was “underneath her clothing, including underpants when wearing a dress” specifying that “the latest instance being before noon on March 31st.”
. In Codd, supra, 429 U.S. at 625, 97 S.Ct. at 883, n.1, the Court stated:
Respondent’s amended complaint did not seek a delayed Roth hearing to be conducted by his former employer at which he would have the opportunity to refute the charge in question.
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_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.
Eugene Kevin WELLS, Plaintiff-Appellant, v. Edward MURRAY, Director, Virginia Department of Corrections, Defendant-Appellee.
No. 86-7683.
United States Court of Appeals, Fourth Circuit.
Argued March 2, 1987.
Decided Oct. 13, 1987.
Deborah C. Wyatt (Gordon & Wyatt, Jeffrey M. Gleason, Martin & Martin, Charlottesville, Va., on brief), for plaintiff-appellant.
Frank Snead Ferguson, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen. of Virginia, Richmond, Va., on brief), for defendant-appellee.
Before WINTER, Chief Judge, and MURNAGHAN and ERVIN, Circuit Judges.
ERVIN, Circuit Judge.
This is an appeal from the dismissal of Eugene Kevin Wells’s federal habeas corpus petition. Wells shot and killed a teenager who had vandalized his car. At trial in Virginia state court, there was conflicting evidence as to whether this shooting was accidental or not. The jury convicted Wells of first degree murder and use of a firearm in the commission of a felony. After his appeal to the Virginia Supreme Court was dismissed, Wells petitioned for habeas corpus relief in federal district court. His petition was denied.
On appeal, Wells claims several procedural errors of a constitutional magnitude. He attacks the trial court’s refusal to allow defense counsel to ask certain questions during voir dire, the trial court’s exclusion of expert testimony concerning the propensity of his weapon for self-firing, and the propriety of jury instructions on self-defense. In our view, none of these alleged errors warrant reversal. Accordingly, we affirm the denial of Wells’s habeas corpus petition.
I.
At the time of the shooting incident, Wells lived in a remote area of Culpeper County, Virginia. On the weekend of September 3, 1983, a group of teenagers went camping near Wells’s home. Wells discovered some of the teenagers vandalizing his car. One of the youths, eighteen year-old Joe Maybury, had smashed a rear window of the car. When Wells confronted the teenagers, they fled. Wells then returned to his home and considered the situation while drinking several beers.
Later that afternoon, Wells went to a lake where the teenagers were swimming. He took his shotgun with him. As he came upon the youths, Wells fired a warning shot into the air. He recocked his weapon and advanced upon the boys. There was conflicting testimony at trial as to the ensuing events. According to the prosecution’s witnesses, Wells pointed the shotgun at Maybury and prodded him with it; May-bury was shot when he tried to push the shotgun away. Wells testified that May-bury attempted to grab the shotgun, that there was a struggle over possession of the weapon, and that the weapon accidentally discharged during the struggle. Maybury was shot in the abdomen. He subsequently died as a result of his gunshot wounds.
Wells was tried before a jury in the Circuit Court of Culpeper County in December, 1983. He was convicted of first degree murder and use of a firearm in the commission of a felony. Wells was sentenced to life imprisonment for the murder charge and a term of two years for the firearms charge. He unsuccessfully appealed to the Virginia Supreme Court. He then petitioned for habeas corpus relief in federal district court, but his petition was denied. Wells now appeals the denial of his federal habeas corpus petition.
II.
A. Voir Dire
Wells first claims that he was denied a fair trial, in violation of the sixth amendment and the due process clause of the fourteenth amendment of the United States Constitution, because the trial judge failed to inquire adequately into juror prejudice on voir dire. Wells’s claim arises from the publicity surrounding an earlier Culpeper County trial.
Less than a week before Wells’s trial, several of the jurors who were in his jury pool sat on another criminal case involving embezzlement charges, Commonwealth v. Richards, (Criminal Court File No. 2516, Nov. 30, 1983). In Richards, the jury returned a verdict of not guilty. The presiding judge, who was not the judge in Wells’s trial, criticized the jurors upon hearing their verdict. He stated that, by their verdict, the jurors were “telling the ’citizens and people of Culpeper County that it’s all right for an employee to [embezzle].” He called their verdict a “gross miscarriage of justice.” The judge asserted that he would have found the defendant guilty in about two minutes. He then discharged the jurors, admonishing them to return by December 6, 1983, the opening day of Wells’s trial. The judge's criticism attracted the attention of a local newspaper, which printed a front-page story on the incident.
At the start of Wells’s trial, defense counsel proposed several voir dire questions based on the jurors’ prior participation in the Richards case. Counsel wished to inquire whether the jurors were more inclined to convict Wells after being chastised for their leniency by the judge in Richards. The trial judge did not permit those questions to be asked. Instead, the judge asked more general questions, such as whether any of the prospective jurors had a personal interest in the outcome of Wells’s case, and whether any of them had prior knowledge of Wells’s case. When the prospective jurors indicated such prior knowledge, the judge questioned them individually, asking them what they had learned and how their knowledge would affect their views of the case. All of the veniremen questioned stated that their knowledge of the case would not influence their decision.
Wells claims that these questions were insufficient, and that the trial court committed reversible error by failing to inquire into the effect of the public castigation which the Richards jurors experienced. His claim raises the much-litigated issue of pretrial publicity. It is firmly established that a defendant such as Wells is entitled to a fair trial, free from publicity that prejudices jurors against the defendant at its outset. See Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751 (1961) (“the right to jury trial guarantees to the criminally accused a fair trial by a panel of impartial, ‘indifferent’ jurors”); see also United States v. Sawyers, 423 F.2d 1335, 1344 (4th Cir.1970). Jurors, however, are presumed to be impartial, absent indications to the contrary. The existence of a juror’s preconceived notion as to the guilt of the accused will not by itself destroy the presumption of impartiality. See Irvin, 366 U.S. at 723, 81 S.Ct. at 1642-43. Only in extreme circumstances may prejudice to a defendant’s right to a fair trial be presumed from the existence of pretrial publicity itself. See United States v. Haldeman, 559 F.2d 31, 60, (D.C. Cir.1976), cert. denied, 431 U.S. 933, 97 S.Ct. 2641, 53 L.Ed.2d 250 (1977).
In other, less extreme situations, when external events such as pretrial publicity raise a strong possibility of jury bias, the court has a duty to determine whether the accused may have a fair trial. Inquiry into jury bias typically entails an evaluation of “the pre-trial publicity complained of and its impact, if any, on the jury, as developed through adequate voir dire examination of the jurors____” Wansley v. Slayton, 487 F.2d 90, 92-93 (4th Cir.1973), cert. denied, 416 U.S. 994, 94 S.Ct. 2408, 40 L.Ed.2d 773 (1974).
It is the defendant’s responsibility to demonstrate a strong possibility of jury bias. He must show, through adequate voir dire, that he was denied his right to a fair trial before a panel of unbiased jurors. See Haldeman, 559 F.2d at 60. The assertion that voir dire was inadequate, by itself, does not prove that the jury was not impartial. As noted in Wansley, “ ‘it is not sufficient to simply allege adverse publicity without a showing that the jurors were biased thereby.’ ” Id. at 92 n. 8 (quoting Ignacio v. Guam, 413 F.2d 513, 518 (9th Cir.1969), cert. denied, 397 U.S. 943, 90 S.Ct. 959, 25 L.Ed.2d 124 (1970)).
In this case, Wells has not shown that he was, in all likelihood, denied his right to a fair trial. The publicity which Wells complains of — publicity surrounding the verdict in the Richards case — simply does not raise a strong possibility of jury bias. The trial court, then, acted within its discretion in refusing, during voir dire, to inquire into the effects of that publicity on the Richards jurors.
We reach this conclusion after much thought and consideration. A comparison of this case with leading decisions concerning the effects of pretrial publicity on the extent of voir dire is instructive. Wells urges us to analogize his case to the Supreme Court’s decision in Irvin. The analogy is not an appropriate one. In Irvin, the defendant was indicted on murder charges in one Indiana county, where press releases stated that the defendant had confessed to the murder. The defendant was granted a change of venue to a nearby county that had also received the press releases. He was denied a second change of venue to a more remote county, and was subsequently convicted. The Supreme Court held that the defendant was denied his due process rights under the fourteenth amendment because his trial in state court was not impartial.
The situation in Irvin must be distinguished from the instant situation. In Irvin, the unfavorable publicity concerned the defendant himself, and it was disseminated throughout the community in which he was tried. By contrast, in this case, the publicity of which Wells complains did not concern Wells and the shooting incident. Instead, the media reported the castigation of several of Wells’s veniremen by a different judge, in a different ease, involving different issues. Wells asserts that this castigation made the Richards jurors reluctant to acquit a defendant in a later case. His assertion is too weak to warrant a reversal, especially in light of the Irvin Court’s cautionary note:
It is not required ... that the jurors be totally ignorant of the facts and issues involved____ To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror's impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.
366 U.S. at 722-23, 81 S.Ct. at 1642-43.
Like Irvin, later Supreme Court decisions have stressed that the kind of adverse publicity that warrants reversal of a criminal conviction is publicity that concerns the defendant himself. See, e.g., Sheppard v. Maxwell, 384 U.S. at 363, 86 S.Ct. at 1522 (reversal of murder conviction required when defendant’s alleged crime was subject of heavy media coverage before and during the trial, and trial judge failed to shield defendant from publicity). Additionally, every case we have examined that discusses the trial court’s duty, during voir dire, to inquire into the effects of pretrial publicity, focuses on publicity about the defendant. See, e.g., Jordan v. Lippman, 763 F.2d at 1265-67 (trial court’s failure to conduct voir dire on inflammatory publicity in murder trial of black inmate violated defendant’s constitutional rights); United States v. Davis, 583 F.2d 190, 196 (5th Cir.1978) (inadequate voir dire required reversal of defendant’s conviction where defendant participated in widely-publicized jailbreak).
This distinction between publicity about the defendant and other types of publicity is strengthened by our decision in Wansley v. Slayton. In Wansley, we held that the denial of a defendant’s motion for a change of venue based upon adverse pretrial publicity was not a violation of due process. Significantly, we noted that:
The most strongly pressed complaint of the petitioner on publicity ... deals with comments published from time to time, not about the petitioner, but about one of his counsel---- It is doubtful, however, that any pre-trial reference in the press to an accused’s attorney in the absence of any prejudicial or unfair comment on the accused himself or the merits of his offense, can justify a finding that the accused’s right to a fair trial has been so prejudiced that due process is violated.
Wansley, 487 F.2d at 95 (emphasis in the original).
The distinction we draw between unfavorable pretrial publicity about a defendant, which often warrants a voir dire inquiry, and publicity about other matters, which may not warrant such an inquiry, seems to us a reasonable one. The trial court’s duty to inquire into the effects of any adverse publicity on jurors’ views is not absolute; this duty is prompted only by a “constitutionally significant likelihood that, absent questioning[,] ... jurors would not be indifferent____” Turner, 106 S.Ct. at 1686. As Irvin and its progeny indicate, the likelihood of juror bias is strongest when the adverse publicity concerns the defendant himself and creates a hostile atmosphere in the community that permeates the jury box. The possibility of juror bias is much more remote when the publicity neither affects the defendant, nor gives the jury any concrete reason to doubt the defendant’s innocence. This was the case in Wansley, in which the publicity of which the defendant complained involved defense counsel, rather than the defendant. It is also the case here, because the publicity at issue concerned the jurors’ participation in an earlier trial, rather than the defendant.
Our conclusion is also supported by decisions discussing the effect that a trial judge’s remarks about a jury’s verdict have on the jurors. Generally, reviewing courts have not treated such remarks harshly; a trial judge’s comments do not warrant reversal unless they are so prejudicial as to constitute the denial of a fair trial. See United States v. Preston, 608 F.2d 626, 636 (5th Cir.1979). Courts have applied this principle to a judge’s remarks about a verdict, as well as a judge’s comments during trial. See United States v. Benson, 495 F.2d 475 (5th Cir.), cert. denied, 419 U.S. 1035, 95 S.Ct. 519, 42 L.Ed.2d 310 (1974); United States v. Salazar, 480 F.2d 144 (5th Cir.1973); Chavez-Martinez v. United States, 407 F.2d 535 (9th Cir.), cert. denied, 396 U.S. 858, 90 S.Ct. 124, 24 L.Ed.2d 109 (1969).
Salazar is especially instructive, since it involves a factual situation similar to our own. In Salazar, the defendant was prosecuted for possession of marijuana with the intent to distribute. His venire included twelve individuals who had sat on a similar criminal case involving a different defendant. In that earlier case, the jury had acquitted the defendant. The trial judge, like the Richards judge, had expressed his disagreement with the jury’s decision. Significantly, the Salazar court found that the judge’s public disapproval of the verdict in the earlier case was not dispositive: “The mere fact that a judge informs a jury, after the verdict, that he probably would have reached a different conclusion does not disqualify that jury for further service.” Salazar, 480 F.2d at 145.
The Benson court relied on this language in finding no prejudice to the defendant, although his venire included several jurors who had been praised by the same judge for returning a guilty verdict in an earlier case. See Benson, 495 F.2d at 482. The government had argued that defense counsel had made several procedural mistakes, such as failing to exercise any peremptory challenges, which should have precluded defendant’s claim of prejudice. The court stressed that, regardless of whether or not these alleged mistakes occurred, the defendant was not denied his right to an impartial jury. The court relied upon Salazar’s ruling that the judge’s comments disapproving the jury’s verdict did not bar jurors from further service; it extended that ruling to the judge’s comments approving the jury’s verdict. Benson suggests that the principle articulated in Salazar may be applied to a number of situations in which the trial court comments upon the jury’s verdict, including the situation presented in Wells’s case.
Chavez-Martinez, which was decided pri- or to Salazar and Benson, also found no prejudice resulting from a judge’s post-verdict comments. In that case, the defendant was convicted of drug smuggling charges. The defendant claimed that the trial judge erred in not asking potential jurors, on voir dire, whether they would be influenced by the judge’s criticism of a jury’s verdict in another case. The court of appeals held that the defendant was not prejudiced by the trial judge’s omission. The court found that the trial judge’s questions to the jury had eliminated any possible prejudice to the defendant.
The few decisions which adopt a more restrictive tone, see, e.g., United States v. Bland, 697 F.2d 262 (8th Cir.1983); Everitt v. United States, 281 F.2d 429 (5th Cir. 1960), and indicate that the trial judge’s post-verdict comments may hamper jurors from serving on further juries, are distinguishable from Wells’s case. In Bland, the defendant was convicted in federal district court for violations of gun control laws. After the jury returned its verdict, the trial judge remarked that criminal cases tried in federal court are generally more thoroughly investigated than those tried in state court. The judge also observed that successful defenses are less frequent in federal court than in state court and that most federal defendants are guilty of the crimes with which they are charged. The court of appeals held that the trial judge’s post-verdict remarks were not prejudicial to the defendant. Yet, the court also observed that the judge’s remarks would be prejudicial to other criminal defendants tried in federal court, because several of the jurors were likely to sit on additional federal criminal cases. See Bland, 697 F.2d at 266.
The general nature of the trial court’s statement in Bland distinguishes that case from the present situation. The observations made by the Bland judge about the differences between federal and state trials, and the culpability of most federal criminal defendants, had broad applicability. These statements could have influenced the jurors’ decisions in future criminal cases they might sit on. It was the broad nature of the trial judge’s statements which the Bland court focused upon in indicating that those statements were prejudicial. By contrast, in the present case, the statements by the Richards judge of which Wells complains were narrowly tailored to fit the case at hand. The trial judge in Richards simply criticized the jurors for acquitting the defendant of embezzlement charges. His remarks, unlike the remarks of the trial judge in Bland, may not have influenced the jurors in future cases. We cannot say that the statements of the judge in Richards prejudiced the jurors, who considered a wholly different set of facts and charges in Wells’s case.
Like Bland, Everitt is distinguishable from Wells’s case. The Everitt court examined the impact on the defendant, Glenn, of an earlier trial involving his codefendant, Everitt. The court held that it was reversible error to allow several jurors to sit on Glenn’s jury after they had returned a guilty verdict in Everitt’s case and had been praised by the trial judge for their speedy decision.
Clearly, the two cases on which the jurors sat were more closely related in Everitt than in the present situation. In Everitt, the two cases involved codefendants; the jurors were likely to have received unfavorable information about Glenn when they sat on Everitt’s jury. The trial judge was the same in the two cases; the jurors might have felt compelled to present the judge with another guilty verdict after he had praised them for their decision in Everitt’s case. Neither of these considerations applies in the present situation. Wells’s case was unconnected to the Richards case, and the trial judge in Wells’s case was not the same judge who presided over the Richards trial.
We conclude that the trial judge did not commit reversible error in failing to question the prospective jurors about the impact which the Richards case had on them. We hasten to add, however, that we do not condone the behavior of the trial judge in Wells’s case. The better practice would have been for the trial judge to prevent the Richards jurors from sitting in Wells’s trial. The judge could have easily discovered which of the veniremen sat on the Richards jury, and removed them from the jury selection process. In this manner, the judge would have forestalled the complaint that Wells now makes. Yet, because Wells’s complaint raises no substantial likelihood of prejudice, the trial judge’s actions do not warrant a reversal.
B. Refusal to Admit Evidence that the Gun Fired Accidentally
Wells’s primary theory of defense at trial was that the gun which killed Maybury discharged accidentally during the struggle between Wells and Maybury. A state expert examined the gun and determined that it could be made to fire without pulling the trigger. Wells sought to introduce evidence to that effect at trial, and the judge held an evidentiary hearing after excusing the jury. In the course of the evidentiary hearing, the expert testified that he had caused the gun to fire by hitting it with a mallet. The expert also testified that the gun could have fired accidentally during a struggle, but only if it was struck against a solid object. The court refused to admit the expert testimony that the gun would discharge if hit with a mallet or struck with a solid object, basing its ruling on the fact that there was no evidence that the gun had received such a blow during the struggle.
Evaluation of the admissibility of evidence is normally the province of the trial judge. See Moore v. Illinois, 408 U.S. 786, 799, 92 S.Ct. 2562, 2570, 33 L.Ed.2d 706 (1972); Savage v. Nute, 180 Va. 394, 23 S.E.2d 133, 137 (1942). However, exclusion of evidence so significant that the defendant is denied due process constitutes reversible error. See, e.g., United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985) (prosecution’s failure to disclose exculpatory evidence); Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974) (right to confront witnesses). At a minimum, for the exclusion of evidence to constitute a denial of due process, the defendant must show that the excluded evidence would have been material to his defense. See United States v. Valenzuela-Bernal, 458 U.S. 858, 867, 102 S.Ct. 3440, 3446, 73 L.Ed.2d 1193 (1982).
Wells makes no such showing. He asserted during oral argument that the failure to allow the introduction of the expert testimony adversely affected the jury’s perception of his credibility, since he testified that the gun had discharged accidentally. That argument is not persuasive. Wells would not have appeared any more credible in light of evidence that the gun could, in theory, discharge accidentally. The testimony which he sought to introduce would have shown that the gun could discharge accidentally only in circumstances other than those which he testified existed, i.e., upon a blow from a solid object.
C. Jury Instructions
Wells claims that the trial judge erred in instructing the jury on self-defense. Wells requested a jury instruction on pure self-defense, which the judge declined to give. Instead, the judge gave an instruction pertaining to self-defense after withdrawal from aggression. On appeal, Wells attacks both the trial judge’s failure to give his instruction and the propriety of the instruction that the judge did give.
Wells’ contention that the trial judge should have instructed the jury on pure self-defense can be quickly answered. A defendant is only entitled to a charge for which there is a foundation in the evidence. See United States v. Parker, 742 F.2d 127, 129 (4th Cir.), cert. denied, 469 U.S. 1076, 105 S.Ct. 575, 83 L.Ed.2d 514 (1984); 2 C. Wright, Federal Practice & Procedure § 485, at 710 (1982). It was simply not open to Wells to claim pure self-defense when he had initiated the altercation by approaching the unarmed victim and pointing a loaded shotgun at him.
Wells’s second claim is that the self-defense instruction which was tendered — as to withdrawal after aggression — was misleading and confusing. We reject Wells’s claim that the charge might have led the jury to conclude that self-defense was not a defense available to him. The withdrawal instruction read as follows:
The court further instructs the jury that where the plea of self defense is relied upon in a trial for murder, the law is that a plea of self defense is not available to the party unless he was without fault in bringing about the difficulty. If you believe that the defendant was with some fault in provoking or bringing on the scuffle, and if you further believe that when attacked he retreated as far as he could safely, as he safely could under the circumstances in a good faith attempt to abandon the fight and made known his desire for peace by word or act and that he reasonably feared under the circumstances as they appeared to him that he was in danger of being killed or was, or he was in danger of great bodily harm, then the killing was in self defense and you shall find the defendant not guilty.
In reviewing this jury instruction, we must read the instruction as a whole. See Cupp v. Naughten, 414 U.S. 141, 146-47, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973); Gore v. Leeke, 605 F.2d 741, 742-43 (4th Cir.1979), cert. denied, 444 U.S. 1087, 100 S.Ct. 1048, 62 L.Ed.2d 774 (1980). Surely, the jury would not have thought that the first sentence of the charge (“a plea of self defense is not available to the party unless he was without fault in bringing about the difficulty”) mooted the effect of the following sentences which addressed self-defense after aggression and withdrawal.
Apart from the merits of the claim that the instruction was confusing, the government argues that Wells cannot now raise the issue, because he failed to enter a contemporaneous objection at trial. A federal habeas petitioner who has failed to comply with the contemporaneous objection rule at trial must show cause for the procedural default and some resulting prejudice in order to obtain review of his constitutional claim. See Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 2678, 91 L.Ed.2d 397 (1986) (Brennan, J., dissenting) (citing Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977)). Wells can show neither cause nor prejudice. Thus, his claim of prejudice from the misleading jury instruction must fail for the additional reason of procedural default.
In conclusion, we uphold the decision of the district court denying Wells’s habeas corpus petition. We find no merit in Wells’s attacks on the exclusion of expert testimony and the jury instruction on self defense. The voir dire issue is more difficult to. resolve. We are, however, unwilling to upset the trial court’s refusal to question the jurors about the Richards case, when Wells has not shown that the court’s action created a substantial likelihood of prejudice.
The judgment of the district court denying the petition for habeas corpus is
AFFIRMED.
. See Hoffman, "Judge Raps Jury for Setting Richards Free,” Culpeper Star Exponent, Dec. 1, 1983, at 1-2, cols. 1-3.
. Such affirmations are not universal guarantees of prospective jurors’ impartiality. See, e.g. Murphy v. Florida, 421 U.S. 794, 803, 95 S.Ct. 2031, 2037, 44 L.Ed.2d 589 (1975): "In a community where most veniremen will admit to a disqualifying prejudice, the reliability of the others’ protestations may be drawn into question.” The veniremen’s avowals of impartiality, however, are most suspect where the jury is comprised of individuals from a community deeply hostile to the accused. See id.
The situation described in Murphy is not present in this case. Wells does not claim that such a hostile atmosphere existed in Culpeper County. In Wells’s case, we think that the trial judge’s questions concerning prior knowledge of the shooting incident, and the veniremen’s responses, are factors in determining the adequacy of voir dire. See) e.g., United States v. Gullion, 575 F.2d 26, 30-31 (1st Cir.1978) (when trial judge polled veniremen for bias resulting from pretrial publicity, conduct of voir dire did not give rise to a sixth amendment violation).
. The Haldeman court ruled that the extensive news coverage surrounding the Watergate affair, standing alone, did not raise a presumption of prejudice to the defendants' constitutional rights. The court stressed that cases creating such a presumption were rare; the Supreme Court had found only one instance where this presumption applied. See Rideau v. Louisiana 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963). Haldeman, 559 F.2d at 60-61.
In Rideau, the defendant’s confession to bank robbery, kidnapping, and murder was filmed and subsequently televised to tens of thousands of people in Calcasieu Parish, which had a total population of only 150,000. The court held that this publicity, which was tantamount to Rideau’s confession to a large segment of the community, prejudiced his right to a fair trial.
Wells's case is clearly distinguishable from the Rideau situation. In contrast to Rideau, Wells strenuously argues his innocence, maintaining that Maybury’s shooting was accidental. Moreover, as developed further in the text of this opinion, Wells does not even complain of publicity which involved him, but only of publicity involving several of the jurors.
. This strong possibility of jury bias has been characterized as a “reasonable likelihood,” Sheppard v. Maxwell, 384 U.S. 333, 363, 86 S.Ct. 1507, 1522, 16 L.Ed.2d 600 (1966), a "constitutionally significant likelihood," Turner v. Murray, 476 U.S. 1, 106 S.Ct. 1683, 1686, 90 L.Ed.2d 27 (1986), or a "significant possibility," Jordan v. Lippman, 763 F.2d 1265, 1267 (11th Cir.1985).
. In Ignacio, defense counsel failed to question the veniremen about the effect of the alleged pretrial publicity, although the trial judge gave counsel ample opportunity to do so. Despite the trial judge’s less compromising position in the present case, we think the principle articulated in Ignacio is applicable since Wells’s claim of bias is quite attenuated.
. Wells also asks us to draw a parallel between his case and the Supreme Court’s decisions stressing the necessity of an adequate voir dire when racial prejudice is a factor. In his brief, Wells relies upon a number of decisions in which the Court considered a trial court’s refusal to ask prospective jurors about their racial biases upon the request of a
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_const2
|
105
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the second most frequently cited provision of the U.S. Constitution in the headnotes to this case. Answer "0" if fewer than two constitutional provisions are cited. If one or more are cited, code the article or amendment to the constitution which is mentioned in the second greatest number of headnotes. In case of a tie, code the second mentioned provision of those that are tied. If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment.
UNITED STATES of America, Plaintiff-Appellee, v. John Martin HUFFMAN, Defendant-Appellant.
No. 77-1741.
United States Court of Appeals, Tenth Circuit.
Submitted Aug. 8, 1978.
Decided March 29, 1979.
Steven W. Snarr, Asst. U. S. Atty., Salt Lake City, Utah (Ronald L. Rencher, U. S. Atty., Salt Lake City, Utah, on brief), for plaintiff-appellee.
John R. Bucher, Salt Lake City, Utah, for defendant-appellant.
Before HOLLOWAY, DOYLE and McKAY, Circuit Judges.
HOLLOWAY, Circuit Judge.
Defendant-appellant Huffman has brought this timely direct appeal of his conviction under 18 U.S.C. § 659 for theft from an interstate shipment. His primary contentions on appeal are (1) that his prosecution violated the Fifth Amendment guarantee against double jeopardy, (2) that the Government should have been collaterally estopped from introducing evidence on certain issues at his trial, and (3) that his Sixth Amendment right to a speedy trial has been violated.
Viewing the record in the light most favorable to the Government as we must on this appeal from a guilty verdict, United States v. Twilligear, 460 F.2d 79, 81-82 (10th Cir.), the evidence tended to show the following facts:
Defendant entered into a lease agreement with Hams Express, Incorporated on May 21, 1975, for the transportation of canned hams and ham hocks from Chicago, Illinois, to the United States Navy at Alameda and Los Angeles, California. The agreement encompassed the lease of a tractor-trailer for hauling the goods and the services of the defendant to drive the shipment to California. When defendant failed to make daily telephone reports, Hams Express, Incorporated contacted the Federal Bureau of Investigation on May 28, 1975, and reported the truck and shipment as missing.
On May 30, F.B.I. agents in Salt Lake City located defendant and interviewed him. He told the agents he had been on a “bender,” that he had gone to a bar at a Travelodge and tried to sell some of the hams, and that he got angry and told two men to “just take the whole truck.” (I R. 46). There was other proof the hams were sold for $5,500, that defendant got $4,000 in cash, and another man got $1,500. (Id. at 55 — 56). Since defendant had no authority to sell the cargo of hams, on June 2, 1975, the United States Magistrate issued a complaint against him. On July 11, defendant waived indictment and was arraigned on an information charging him with the theft of Government property in violation of 18 U.S.C. §§ 641 and 2.
After the case was set for trial, the Government discovered in the course of interviews with its witnesses that title to the hams had not yet vested in the United States when defendant sold the hams. On October 28, 1975, the Government filed a supplemental complaint against defendant alleging violation of 18 U.S.C. § 659, theft from an interstate shipment, and a motion to dismiss the charge under § 641. When the § 641 charge was called for trial on November 12, the Government renewed its motion to dismiss. The court ordered a jury impanelled and sworn. After counsel for the Government stated that elements of the offense originally charged could not be proved, the court granted a judgment of acquittal.
On January 16, 1976, when present for arraignment on the second charge, the defendant refused to waive indictment by a grand jury. (Ill R. 2). A grand jury indicted defendant on July 26, 1976, for violation of 18 U.S.C. §§ 659 and 2, theft of an interstate shipment and aiding and abetting. Defendant filed a “Motion for Order of Acquittal” on December 15, 1976, directed to the new charge under 18 U.S.C. §§ 659 and 2, claiming that the Government was collaterally estopped from proving elements of the new charge and that the defendant was twice put in jeopardy. The trial occurred on July 7, 1977, on the second charge, and the jury returned a guilty verdict that day. After several continuances, the judgment of conviction and sentence was filed on March 15, 1978. (I Supp. R. 1). Defendant appeals, and we turn now to his three major appellate contentions.
I
First, defendant argues that his conviction on the second charge under 18 U.S.C. §§ 659 and 2, theft from an interstate shipment, must be set aside on double jeopardy grounds.
Defendant recognizes the rulings that where one act is a transgression under two statutes, and where different evidence must be used to convict under the statutes, there may be prosecution under both, citing Gavieres v. United States, 220 U.S. 338, 31 S.Ct. 421, 55 L.Ed. 489. He says however that there is a test of more recent origin since Ashe v. Swensen, 397 U.S. 436, 445, 90 S.Ct. 1189, 25 L.Ed.2d 469, and he refers to views in the separate opinions of Justice Brennan in Abbate v. United States, 359 U.S. 187, 198, 79 S.Ct. 666, 3 L.Ed.2d 729, and Ashe, supra, at 448, 90 S.Ct. 1189. He urges adoption of the same transaction test and says that cases applying the same evidence test are distinguishable. He argues that cases applying the same evidence test were ones where the statutes were aimed at substantially different evils, e. g., United States v. DeMarrias, 441 F.2d 1304 (8th Cir.) (earlier plea of guilty to driving while intoxicated, etc., and later prosecution for manslaughter), whereas in our case both statutes deal with theft.
The Government replies with two basic contentions. In the first place it is argued that this case is closely parallel to United States v. Appawoo, 553 F.2d 1242 (10th Cir.), where we held that the Government was entitled to appeal a “judgment of acquittal” under the circumstances and that the trial court erred in entering a “judgment of acquittal” for defendant when the court had failed properly to hear a motion to dismiss on constitutional grounds before trial, had impanelled a jury and then taken some evidence, and had then entered the “judgment of acquittal” which was actually based on a holding that the application of the statute was unconstitutional. However, in Appawoo the Government appealed the “judgment of acquittal” and obtained a reversal to lay a predicate for retrial, along with an appellate ruling that the constitutional holding of the trial judge had been in error. Here, there was no appeal by the Government from the “judgment of acquittal.” The judgment was not reversed as was the case in Appawoo. The first contention of the Government is thus untenable and we must reckon with the effect of the “judgment of acquittal” on the subsequent prosecution under the theft of interstate shipment charge.
The second response of the Government to defendant’s double jeopardy defense is that the two offenses are separate and distinct and not identical in fact and law, that the same evidence could not prove both offenses, and that therefore the Double Jeopardy Clause does not apply at all.
We do agree with this contention. It is true that the same theft of property was charged in both indictments. However, a conviction under 18 U.S.C. § 641 for theft of Government property requires proof that the property taken belonged to the Government. On the other hand, a conviction under 18 U.S.C. § 659 for theft of an interstate shipment requires proof of movement of the property in interstate commerce. Thus each statute requires proof of an ultimate fact in addition to the theft, which the other does not, and double jeopardy principles are not infringed. See Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 40, 76 L.Ed. 520; Gavieres v. United States, supra, 220 U.S. at 342, 31 S.Ct. 421; Cox v. Gaffney, 459 F.2d 50 (10th Cir.), cert. denied, 409 U.S. 863, 93 S.Ct. 153, 34 L.Ed.2d 110; Bell v. Kansas, 452 F.2d 783, 792 (10th Cir.).
There remains the contention of defendant that we should adopt the same transaction test and the views on double jeopardy expressed by some Justices of the Supreme Court. See Abbate v. United States, supra, 359 U.S. at 196-201, 79 S.Ct. 666 (Brennan, J., concurring); Ashe v. Swenson, supra, 397 U.S. at 448-460, 90 S.Ct. 1189 (Brennan, J., concurring). The instant case does present directly problems such as have been addressed in these concurring opinions. However, the test of a single transaction or the same criminal episode has not been adopted by the Supreme Court and we have declined to apply it. See United States v. Addington, 471 F.2d 560, 568 (10th Cir.); Birch v. United States, 451 F.2d 165, 167 (10th Cir.).
In sum, since we agree that the charge of theft of Government property under § 641 is separate and distinct from that of theft of an interstate shipment under § 659, we conclude that the judgment for defendant on the former charge does not bar prosecution on the latter.
II
Defendant’s second major argument is that in multiple prosecutions the Government should be collaterally estopped in a later trial from introducing evidence on issues decided against it in a first trial. Defendant says that here the Government at the first trial failed to present evidence on any issue and therefore a judgment of acquittal was granted. More specifically, he argues that the issues of intent, identity, taking and the like were necessarily found for the defendant at the first trial and hence the Government was collaterally es-topped from introducing evidence on those elements of the charge of theft from the interstate shipment at the second trial. (Brief for Appellant, 7).
It is clear that principles of collateral estoppel are available in proper circumstances in criminal trials. See Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469; Sealfon v. United States, 322 U.S. 575, 68 S.Ct. 237, 92 L.Ed. 180; United States v. Oppenheimer, 242 U.S. 85, 37 S.Ct. 68, 61 L.Ed. 161. The rule is not applied with a hypertechnical and archaic approach, but with realism and rationality. This approach requires examination of the record in the prior proceeding, including the pleadings, evidence, charge and other relevant matters. Ashe, supra, 397 U.S. at 444, 90 S.Ct. 1189. The inquiry must be set in a practical frame with an eye to all the circumstances of the proceedings. Sealfon, supra, 322 U.S. at 579, 68 S.Ct. 237.
Following this approach, we must focus particularly on the proceeding when the trial court granted the “judgment of acquittal” on the first charge, theft of Government property. On that occasion on November 12, 1975, the case was called on a calendar where it had apparently been set for trial. (II Supp. R. 1, 4). An array of jurors was available.
When the case was called Government counsel advised the court of his pending motion to dismiss which had been filed October 28. The Assistant United States Attorney told the court that a supplemental complaint for theft of an interstate shipment had been filed, that the Government had been misinformed as to ownership of the property, and that the Government could not prove the charge originally made for theft of Government property. (Id. at 1-5). The defendant objected to dismissal. His counsel said that the Government had had five months to determine if the property was that of the Government. At this point the court had a jury impanelled and sworn.
The Government attorney then said further that the Government did not “have witnesses to prove the essential elements of the crime. They are non-existent.” (II Supp. R. 3). The attorney explained that the F.B.I. had advised that the hams were Government property, that when the case was set for trial witnesses were re-interviewed, that it was discovered for the first time that there was an ownership question, that ownership had not passed to the Government, and that a supplemental charge had been filed.
The defendant objected again to dismissal. His attorney said the Government had been advised of these facts earlier, that the defendant was ready for trial, that he was from California and had had great expense and inconvenience, and that he was unable to work. (Id. at 5).
The trial judge then stated that he agreed with defendant’s position, that it sounded as though there was a belated attempt by the Government to get a postponement, and that defendant “has been in jeopardy.” The jury was excused and the court then directed preparation of an order, stating:
All right. Dismissed. That is, not dismissed. Judgment of acquittal. Motion for judgment of acquittal is granted.
There were thus two apparent grounds for the trial court’s action — failure of the Government to offer any evidence and the Government’s announcement that it could not prove the elements of the charge of theft of Government property under 18 U.S.C. § 641. More specifically, it is clear that what the Government confessed was that it could not prove Government ownership of the property in question.
From these circumstances we cannot agree that the Government is collaterally estopped from proving the elements of the second charge of theft of an interstate shipment under 18 U.S.C. § 659. If the judgment is viewed as a sanction imposed for failure to prosecute the charge of theft of Government property, no particular issues were decided which are pertinent to the subsequent charge of theft from an interstate shipment. And if the whole record and the judgment adverse to the Government are considered, as Ashe requires, the only ultimate fact determined clearly seems to be lack of proof of Government ownership of the property, which defect the Government confessed in court. From this record that is the only ultimate issue of fact determined by the prior judgment for collateral estoppel purposes. Ashe, supra, 397 U.S. at 443, 445, 90 S.Ct. 1189.
Thus we conclude that the Government was not collaterally estopped to prove the elements of the second offense charged, theft of an interstate shipment.
Ill
Finally, defendant strenuously argues that his Sixth Amendment right to a speedy trial has been violated so that the case should be dismissed as required by Strunk v. United States, 412 U.S. 434, 93 S.Ct. 2260, 37 L.Ed.2d 56. He maintains that this conclusion is clear when the four factors for judging the speedy trial claim identified in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101, are considered.
First, we turn to the factor of the length of the delay. The theft allegedly occurred on May 27, 1975. Defendant was arrested and taken into custody on May 30, 1975. (Brief of Appellant, 8). It may be that we should view protection of the speedy trial provision as applying from that date of initial restraint. See United States v. Marion, 404 U.S. 307, 313, 320-21, 92 S.Ct. 455, 30 L.Ed.2d 468. And, of course, the actual trial on the second charge did not occur until July 7, 1977. From this standpoint the delay, of course, is very considerable and disturbing.
The case, however, has unusual circumstances which we have outlined earlier. The Government found it was misinformed by the F.B.I. and moved to dismiss the first charge and also filed the second charge of theft from an interstate shipment on October 28, 1975. The case was called for trial on November 12 on the original charge of theft of Government property, the Government brought its motion to dismiss to the court’s attention, but the court instead granted a judgment of acquittal on the first charge that day.
The defendant claims that he vigorously objected at that time to any dismissal on the ground that resulting delays would seriously prejudice his interests and defense and argues that this was a strenuous assertion of his right to a speedy trial. We note that it was on this occasion that the trial judge said he agreed with defendant, and that it sounded as though this was a belated attempt to get a postponement. (II Supp. R. 6). In any event, the court then entered the “judgment of acquittal.”
The new complaint under § 659 remained on file, however. On January 16, 1976, defendant refused to waive indictment by a grand jury and he was indicted for theft of an interstate shipment on July 26, 1976. Defendant’s counsel filed his “Motion for Order of Acquittal” on December 15, 1976, directed to that charge, relying on collateral estoppel and double jeopardy grounds. As noted, trial actually commenced on July 7, 1977.
Thus, there was considerable delay until trial, and this was sufficient to be presumptively prejudicial, causing inquiry into the other factors.
Second, we consider the reasons for the delay. The charges made fall far short of being a “serious, complex conspiracy charge,” Barker, supra, 407 U.S. at 531, 92 S.Ct. 2182, so as to justify some delay. Moreover the delay caused by the need to dismiss and file the new charge resulted from a Government error. We see nothing in the record suggesting any intentional harassment or oppression on the part of the Government; nevertheless, the error is not a plus for the Government and the delay it caused is a factor of some weight against the Government.
The Government says that the defendant contributed to the delay by his refusal to waive indictment by a grand jury. We do not agree. Defendant’s reliance on his Fifth Amendment right to indictment by a grand jury should not be charged against him. This is a neutral factor we feel.
For the most part the delay is not explained. Perhaps crowded dockets and responsibilities of the court and prosecutors contributed to the delay. However, even such unintentional delay must be considered since the ultimate responsibility for such circumstances rests with the Government and not the defendant. Strunk v. United States, supra, 412 U.S. at 436, 93 S.Ct. 2260.
Third, we come to the defendant’s assertion of his right to a speedy trial. As noted, he claims he asserted the right when he objected to dismissal of the first charge on November 12, 1975. This objection was made when the case was called for trial, the Government sought to dismiss, and the judgment of acquittal was granted. The defendant did then object on grounds relevant to his right to a speedy trial, asserting his readiness for trial, hardship to him and expense since he was from out of state, the difficulty of finding work and the like. The trial judge said that he agreed with defendant that the Government’s action looked like a belated effort to obtain a continuance. While we see no real basis for this conclusion by the court, we do agree that defendant’s objections did have the clear effect of demanding a speedy trial — at that time.
However, after the judgment of acquittal was granted that day, the story changed. The defendant did not thereafter reassert his right to a speedy trial by motion or otherwise until he orally moved for dismissal on July 5, 1977, two days before actual trial. (I R. 3-4). Failure to assert the right makes it difficult for a defendant to prove that he was denied a speedy trial. Barker, supra, 407 U.S. at 532, 92 S.Ct. 2182. In view of defendant’s long silence until his oral motion, we feel that his position is seriously weakened in claiming a Sixth Amendment infringement.
Fourth, we must weigh possible prejudice to the defendant. There is no claim of prejudice from pretrial incarceration. Anxiety and concern of defendant regarding the charges must be presumed, and they were endured for some time. In this connection we note that defendant’s counsel referred to his great expense and great inconvenience and inability to work when he objected on November 12, 1975, to dismissal of the first charge and filing of a new charge. (II Supp. R. 5).
The most significant element of possible prejudice is impairment of the defense. Barker, supra, at 532, 92 S.Ct. 2182. In this regard defendant’s claim is that by the time of trial three witnesses had “become unavailable, leading to impairment of the defense.” (Brief of Appellant, 10). Defendant’s attorney stated the day the trial began that they would support the defendant’s motion to suppress his statements made to the F.B.I. on the basis that he was intoxicated when he spoke to the agents.
It is true that defendant’s statements to the F.B.I. were damaging evidence against him. However, the three witnesses were not identified, and there was merely a conclusory statement that they had “become unavailable . . . ” In the circumstances we feel that the basis for the claim in this respect is not overly persuasive. See United States v. Gibson, 513 F.2d 978, 981 (6th Cir.).
While there is some force to the Sixth Amendment claim, particularly because of the length of delay, weighing all of the Barker factors, we conclude that the defendant’s constitutional right to a speedy trial was not infringed.
In sum, we find no reversible error and the judgment is accordingly
AFFIRMED.
. Conviction under 18 U.S.C. § 659 carries a maximum penalty of ten years of imprisonment or a fine of up to five thousand dollars ($5,000), or both. Appellant was sentenced to a term of imprisonment of five years, which sentence was suspended. He has been placed on probation for five years subject to the condition that he participate in an alcohol treatment program to be designated by his probation officer.
. On July 5, 1977, the case was called, some motions were presented and disposed of, and a jury was impanelled. The defendant requested that the case go to the end of the calendar for trial preparation. After the jury was impanelled the trial judge granted a two-day continuance and the case was tried on July 7, 1977.
. The delay until trial on July 7, 1977, might be viewed as running from the first arrest on May 30, 1975, or from the filing of the complaint on October 28, 1975, on the second charge. In United States v. Merrick, 464 F.2d 1087, 1090 (10th Cir.), cert, denied, 409 U.S. 1023, 93 S.Ct. 462, 34 L.Ed.2d 314, the entire period was considered where a reindictment was necessary, but this was on the same charge. Since the first charge here was disposed of by the judgment of acquittal, arguably we should only count the delay from filing of the second complaint in October, 1975. In either event the delay was considerable and sufficient to be of serious concern, triggering a full analysis under Barker.
. As noted earlier, on January 16, 1976, defendant refused to waive grand jury indictment and on July 26, 1976, the indictment under 18 U.S.C. §§ 659 and 2 was filed.
. The statement of defendant’s attorney made on July 7, 1977, just before the taking of evidence, was as follows (I R. 8-9):
MR. BUCHER: I have one other motion, Your Honor. It’s a motion to suppress any statements made by the defendant and I have lost three of my witnesses, Your Honor, because of the age of the case and because they evidently perhaps felt that the defendant was acquitted in the first instance. I have lost three of my witnesses to support that but I believe I can use the defendant to show he-was intoxicated at the time he spoke to the FBI.
THE COURT: Well, you are going to have to put on proof of that. The motion is denied at this time. Bring in the jury.
Question: What is the second most frequently cited provision of the U.S. Constitution in the headnotes to this case? If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment.
Answer:
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sc_certreason
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M
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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.
LAMBERT, GALLATIN COUNTY ATTORNEY v. WICKLUND et al.
No. 96-858.
Decided March 31, 1997
Per Curiam.
Before a minor has an abortion in Montana, one of her parents must be notified. A waiver, or “judicial bypass,” of the notification requirement is allowed if the minor can convince a court that notification would not be in her best interests. The Court of Appeals for the Ninth Circuit struck down Montana’s parental notification law as unconstitutional, holding that the judicial bypass did not sufficiently protect the right of minors to have an abortion. Because the Ninth Circuit’s holding is in direct conflict with our precedents, we grant the petition for a writ of certiorari and reverse.
In 1995, Montana enacted the Parental Notice of Abortion Act. The Act prohibits a physician from performing an abortion on a minor unless the physician has notified one of the minor’s parents or the minor’s legal guardian 48 hours in advance. Mont. Code Ann. §50-20-204 (1995). However, an “unemancipated” minor may petition the state youth court to waive the notification requirement, pursuant to the statute’s “judicial bypass” provision. § 50-20-212 (quoted in full in an appendix to this opinion). The provision gives the minor a right to court-appointed counsel, and guarantees expeditious handling of the minor’s petition (since the petition is automatically granted if the youth court fails to rule on the petition within 48 hours from the time it is filed). §§ 50-20-212(2)(a), (3). The minor’s identity remains anonymous, and the proceedings and related documents are kept confidential. §50-20-212(3).
If the court finds by clear and convincing evidence that any of the following three conditions are met, it must grant the petition and waive the notice requirement: (i) the minor is “sufficiently mature to decide whether to have an abortion”; (ii) “there is evidence of a pattern of physical, sexual, or emotional abuse” of the minor by one of her parents, a guardian, or a custodian; or (iii) “the notification of a parent or guardian is not in the best interests of the [minor].” §§ 50-20-212(4), (5) (emphasis added). It is this third condition which is at issue here.
Before the Act’s effective date, respondents — several physicians who perform abortions, and other medical personnel — filed a complaint seeking a declaration that the Act was unconstitutional and an order enjoining its enforcement. The District Court for the District of Montana, addressing only one of respondents’ arguments, held that the Act was unconstitutional because the third condition set out above was too narrow. According to the District Court, our precedents require that judicial bypass mechanisms authorize waiver of the notice requirement whenever “the abortion would be in [the minor’s] best interests,” not just when “notification would not be in the minor’s best interests.” App. to Pet. for Cert. 17a (emphasis in original) (citing Bellotti v. Baird, 443 U. S. 622, 640-642 (1979) (plurality opinion)). Three days before the Act was to go into effect, the District Court enjoined its enforcement.
The Court of Appeals affirmed, stating that it was bound by its prior decision in Glick v. McKay, 937 F. 2d 434 (CA9 1991). See Wicklund v. Salvagni, 93 F. 3d 567, 571-572 (CA9 1996). Glick struck down Nevada’s parental notification statute which, like Montana’s statute here, allowed a minor to bypass the notification requirement if a court determined that the notification would not be in the minor’s best interests. The court’s conclusion was based on its analysis of our decisions in Bellotti v. Baird, supra, and Ohio v. Akron Center for Reproductive Health, 497 U. S. 502 (1990).
In Bellotti, we struck down a statute requiring a minor to obtain the consent of both parents before having an abortion, subject to a judicial bypass provision, because the judicial bypass provision was too restrictive, unconstitutionally burdening a minor’s right to an abortion. 443 U. S., at 647 (plurality opinion); id., at 655-656 (Stevens, J., concurring in judgment). The Court’s principal opinion explained that a constitutional parental consent statute must contain a bypass provision that meets four criteria: (i) allow the minor to bypass the consent requirement if she establishes that she is mature enough and well enough informed to make the abortion decision independently; (ii) allow the minor to bypass the consent requirement if she establishes that the abortion would be in her best interests; (iii) ensure the minor’s anonymity; and (iv) provide for expeditious bypass procedures. Id., at 643-644 (plurality opinion). See also Akron, 497 U. S., at 511-513 (restating the four requirements).
In Akron, we upheld a statute requiring a minor to notify one parent before having an. abortion, subject to a judicial bypass provision. We declined to decide whether a parental notification statute must include some sort of bypass provision to be constitutional. Id., at 510. Instead, we held that this bypass provision satisfied the four Bellotti criteria required for bypass provisions in parental consent statutes, and that a fortiori it satisfied any criteria that might be required for bypass provisions in parental notification statutes. Critically for the case now before us, the judicial bypass provision we examined in Akron was substantively indistinguishable from both the Montana judicial bypass provision at issue here and the Nevada provision at issue in Glick. See 497 U. S., at 508 (summarizing Ohio Rev. Code Ann. § 2151.85 (1995)). The judicial bypass provision in Akron allowed a court to waive the notification requirement if it determined by clear and convincing evidence “that notice is not in [the minor’s] best interests” (not that an abortion is in her best interests). 497 U. S., at 508 (emphasis added) (citing § 2151.85(A)(4)). And we explicitly held that this provision satisfied the second Bellotti requirement, that “the procedure must allow the minor to show that, even if she cannot make the abortion decision by herself, ‘the desired abortion would be in her best interests.’” 497 U. S., at 511 (quoting Bellotti, supra, at 644).
Despite the fact that Akron involved a parental notification statute, and Bellotti involved a parental consent statute; despite the fact that Akron involved a statute virtually identical to the Nevada statute at issue in Glick; and despite the fact that Akron explicitly held that the statute met all of the Bellotti requirements, the Ninth Circuit in Glick struck down Nevada’s parental notification statute as inconsistent with Bellotti:
“Rather than requiring the reviewing court to consider the minor’s ‘best interests’ generally, the Nevada statute requires the consideration of “best interests” only with respect to the possible consequences of parental notification. The best interests of a minor female in obtaining an abortion may encompass far more than her interests in not notifying a parent of the abortion decision. Furthermore, in Bellotti, the court expressly stated, ‘[i]f, all things considered, the court determines that an abortion is in the minor’s best interests, she is entitled to court authorization without any parental involvement.’ Bellotti, 443 U. S. at 648 (emphasis added). Therefore, the Nevada statute impermissibly narrows the Bellotti 'best interests’ criterion, and is unconstitutional.” 937 F. 2d, at 439.
Based entirely on Glide, the Ninth Circuit in this case affirmed the District Court’s ruling that the Montana statute is unconstitutional, since the statute allows waiver of the notification requirement only if the youth court determines that notification — not the abortion itself — is not in the minor’s best interests. 93 F. 3d, at 572.
As should be evident from the foregoing, this decision simply cannot be squared with our decision in Akron. The Ohio parental notification statute at issue there was indistinguishable in any relevant way from the Montana statute at issue here. Both allow for judicial bypass if the minor shows that parental notification is not in her best interests. We asked in Akron whether this met the Bellotti requirement that the minor be allowed to show that “the desired abortion would be in her best interests.” We explicitly held that it did. 497 U. S., at 511. Thus, the Montana statute meets this requirement, too. In concluding otherwise, the Ninth Circuit was mistaken.
Respondents (as did the Ninth Circuit in Glick) place great emphasis on our statement in Akron, that “[t]he statute requires the juvenile court to authorize the minor’s consent where the court determines that the abortion is in the minor’s best interest.” 497 U. S., at 511 (emphasis added) (citing Ohio Rev. Code Ann. § 2151.85(C)(2) (Supp. 1988)). But since we had clearly stated that the statute actually required such authorization only when the court determined that notification would not be in the minor’s best interests, it is wrong to take our statement to imply that the statute said otherwise. Rather, underlying our statement was an assumption that a judicial bypass procedure requiring a minor to show that parental notification is not in her best interests is equivalent to a judicial bypass procedure requiring a minor to show that abortion without notification is in her best interests, as the context of the opinion, the statutory language, and the concurring opinion all make clear.
Respondents, echoing the Ninth Circuit in Glick, claim that there is a constitutionally significant distinction between requiring a minor to show that parental notification is not in her best interests, and requiring a minor to show that an abortion (without such notification) is in her best interests. See Brief in Opposition 12-13; 937 F. 2d, at 438-439. But the Montana statute draws no such distinction, and respondents cite no Montana state-court decision suggesting that the statute permits a court to separate the question whether parental notification is not in a minor’s best interest from an inquiry into whether abortion (without notification) is in the minor’s best interest. As with the Ohio statute in Akron, the challenge to the Montana statute here is a facial one. Under these circumstances, the Ninth Circuit was incorrect to assume that Montana’s statute “narrow[edj” the Bellotti test, 937 F. 2d, at 439, as interpreted in Akron.
Because the reasons given by the District Court and the Ninth Circuit for striking down the Act are inconsistent with our precedents, we grant the petition for a writ of certiorari and reverse the judgment of the Ninth Circuit.
It is so ordered.
APPENDIX TO PER CURIAM OPINION
Mont. Code Ann. §50-20-212 (1995):
“(1) The requirements and procedures under this section are available to minors and incompetent persons whether or not they are residents of this state.
“(2) (a) The minor or incompetent person may petition the youth court for a waiver of the notice requirement and may participate in the proceedings on the person’s own behalf. The petition must include a statement that the petitioner is pregnant and is not emancipated. The court may appoint a guardian ad litem for the petitioner. A guardian ad litem is required to maintain the confidentiality of the proceedings. The youth court shall advise the petitioner of the right to court-appointed counsel and shall provide the petitioner with counsel upon request.
“(b) If the petition filed under subsection (2)(a) alleges abuse as a basis for waiver of notice, the youth court shall treat the petition as a report under 41-3-202. The provisions of Title 41, chapter 3, part 2, apply to an investigation conducted pursuant to this subsection.
“(3) Proceedings under this section are confidential and must ensure the anonymity of the petitioner. All proceedings under this section must be sealed. The petitioner may file the petition using a pseudonym or using the petitioner’s initials. All documents related to the petition are confidential and are not available to the public. The proceedings on the petition must be given preference over other pending matters to the extent necessary to ensure that the court reaches a prompt decision. The court shall issue written findings of fact and conclusions of law and rule within 48 hours of the time that the petition is filed unless the time is extended at the request of the petitioner. If the court fails to rule within 48 hours and the time is not extended, the petition is granted and the notice requirement is waived.
“(4) If the court finds by clear and convincing evidence that the petitioner is sufficiently mature to decide whether to have an abortion, the court shall issue an order authorizing the minor to consent to the performance or inducement of an abortion without the notification of a parent or guardian.
“(5) The court shall issue an order authorizing the petitioner to consent to an abortion without the notification of a parent or guardian if the court finds, by clear and convincing evidence, that:
“(a) there is evidence of a pattern of physical, sexual, or emotional abuse of the petitioner by one or both parents, a guardian, or a custodian; or
“(b) the notification of a parent or guardian is not in the best interests of the petitioner.
“(6) If the court does not make a finding specified in subsection (4) or (5), the court shall dismiss the petition.
“(7) A court that conducts proceedings under this section shall issue written and specific findings of fact and conclusions of law supporting its decision and shall order that a confidential record of the evidence, findings, and conclusions be maintained.
“(8) The supreme court may adopt rules providing an expedited confidential appeal by a petitioner if the youth court denies a petition. An order authorizing an abortion without notice is not subject to appeal.
“(9) Filing fees may not be required of a pregnant minor who petitions a court for a waiver of parental notification or appeals a denial of a petition.”
Section 50-20-204 provides in relevant part: “A physician may not perform an abortion upon a minor or an incompetent person unless the physician has given at least 48 hours’ actual notice to one parent or to the legal guardian of the pregnant minor or incompetent person of the physician’s intention to perform the abortion.... If actual notice is not possible after a reasonable effort, the physician or the physician’s agent shall give alternate notice as provided in 50-20-205.” Section 50-20-205 provides for notice by certified mail. The notice requirement does not apply if “a medical emergency exists and there is insufficient time to provide notice.” §50-20-208(1).
“ ‘Emancipated minor’ means a person under 18 years of age who is or has been married or who has been granted an order of limited emancipation by a court... .” § 50-20-203(3).
See Bellotti, 443 U. S., at 654, n. 1 (Stevens, J., concurring in judgment) (“[T]his case [does not] determin[e] the constitutionality of a statute which does no more than require notice to the parents, without affording them or any other third party an absolute veto”).
See 497 U. S., at 517 (“if she can demonstrate that her maturity or best interests favor abortion without notifying one of her parents”); id.., at 522 (Stevens, J., concurring in part and concurring in judgment) (“Although it need not take the form of a judicial bypass, the State must provide an adequate mechanism for cases in which the minor is mature or notice would not be in her best interests” (emphasis added)); Ohio Rev. Code Aim. § 2151.85(C)(2) (1994) (“[I]f the court finds, by clear and convincing evidence,... that the notification of the parents, guardian, or custodian of the [minor] otherwise is not in the best interest of [the minor], the court shall issue an order authorizing the [minor] to consent to the performance or inducement of an abortion without the notification of her parents, guardian, or custodian”). See also Hodgson v. Minnesota, 497 U. S. 417, 497 (1990) (Kennedy, J., concurring in judgment in part and dissenting in part) (interpreting Minnesota judicial bypass procedure which requires minor to show that “an abortion . . . without notification of her parents, guardian, or conservator would be in her best interests,” Minn. Stat. § 144.343(6) (1988) (emphasis added), as authorizing exemption from strictures of parental notification scheme in “those cases in which ... notification of the minor’s parents is not in the minor’s best interests” (emphasis added)).
Question: What reason, if any, does the court give for granting the petition for certiorari?
A. case did not arise on cert or cert not granted
B. federal court conflict
C. federal court conflict and to resolve important or significant question
D. putative conflict
E. conflict between federal court and state court
F. state court conflict
G. federal court confusion or uncertainty
H. state court confusion or uncertainty
I. federal court and state court confusion or uncertainty
J. to resolve important or significant question
K. to resolve question presented
L. no reason given
M. other reason
Answer:
|
songer_opinstat
|
B
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify whether the opinion writter is identified in the opinion or whether the opinion was per curiam.
Mrs. Sallie M. DURHAM, Appellant, v. John W. GARDNER, Secretary of Health, Education, and Welfare, Appellee.
No. 11839.
United States Court of Appeals Fourth Circuit.
Submitted on Briefs Without Argument March 6, 1968.
Decided March 19, 1968.
John Bolt Culbertson, Greenville, S. C., on brief, for appellant.
Edwin L. Weisl, Jr., Asst. Atty. Gen., Morton Hollander, Howard J. Kashner, Attorneys, Department of Justice, and John C. Williams, U. S. Atty., on brief, for appellee.
Before BOREMAN, CRAVEN and BUTZNER, Circuit Judges.
PER CURIAM:
The final decision of the Secretary of Health, Education and Welfare denied claimant’s application for the establishment of a period of disability and an award of disability insurance benefits. Claimant then brought an action for review by the district court of the Secretary’s decision pursuant to section 205 (g) of the Social Security Act. 42 U.S.C.A. § 405(g).
Upon review of the record, considered as a whole, the district court found that the decision of the Secretary was supported by substantial evidence and granted the Secretary’s motion for summary judgment.
The medical testimony as to the claimant’s physical condition was conflicting. Her personal physician, who was a general practitioner, expressed his opinion that she was unable to work due to an osteo-arthritic condition, but an objective examination made by an orthopedic surgeon resulted in a diagnosis of mild, generalized, degenerative arthritis with essentially full range of motion in claimant’s cervical spine and full range of motion in all other joints. All of the medical evidence was reviewed by another orthopedic surgeon who testified as a medical advisor and he stated his conclusion that claimant had mild, generalized osteo-arthritis and that her condition was usual for a person of her age. Claimant testified in her own behalf as to her asserted physical disabilities.
The trial examiner concluded that the evidence did not establish that claimant’s impairment was so severe as to disable her from gainful employment, that she should be able to return to her regular job in a textile plant and that she could also do other and lighter work which was readily available. This became the final decision of the Secretary.
Upon review of the record as a whole, we find substantial evidence to support the determinations of the Secretary and the decision below will be
Affirmed.
Question: Is the opinion writer identified in the opinion, or was the opinion per curiam?
A. Signed, with reasons
B. Per curiam, with reasons
C. Not ascertained
Answer:
|
songer_direct1
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal in suits against management, for union, individual worker, or government in suit against management; in government enforcement of labor laws, for the federal government or the validity of federal regulations; in Executive branch vs union or workers, for executive branch; in worker vs union (non-civil rights), for union; in conflicts between rival union, for union which opposed by management and "not ascertained" if neither union supported by management or if unclear; in injured workers or consumers vs management, against management; in other labor issues, for economic underdog if no civil rights issue is present; for support of person claiming denial of civil rights. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards.
NATIONAL TREASURY EMPLOYEES UNION, Petitioner, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent.
No. 84-1493.
United States Court of Appeals, District of Columbia Circuit.
Argued Sept. 6, 1985.
Decided Oct. 11, 1985.
Elaine D. Kaplan, with whom Lois G. Williams, Washington, D.C., was on brief, for petitioner. Sharyn Danch and Greg O’Duden, Washington, D.C., also entered appearances for petitioner.
Jill A. Griffin, Atty. Federal Labor Relations Authority, Washington, D.C., with whom Ruth E. Peters, Sol. and Steven H. Svartz, Deputy Sol., Federal Labor Relations Authority, Washington, D.C., were on brief, for respondent.
Before WALD, EDWARDS and STARR, Circuit Judges.
Opinion for the Court filed by Circuit Judge WALD.
WALD, Circuit Judge.
National Treasury Employees Union (NTEU) seeks reversal of a decision of the Federal Labor Relations Authority (FLRA) dismissing an unfair labor practice complaint filed against the Bureau of Government Financial Operations of the Department of Treasury (the Bureau). The FLRA found that the Bureau did not commit an unfair labor practice when it failed to provide NTEU with notice and an opportunity to be present at an interview by the Bureau of a bargaining unit employee scheduled to testify on behalf of another employee at a hearing before the Merit Systems Protection Board (MSPB). For the reasons set forth herein, we find the FLRA’s conclusion arbitrary, capricious and contrary to law.
I. Background
NTEU’s complaint arises out of the following facts. On December 20, 1980, James Lewis, an employee of the Bureau of Government Financial Operations, witnessed an altercation between Philip Murphy, a second Bureau employee, and his supervisor. Murphy lost his job as the result of this altercation and appealed this removal to the MSPB. Murphy designated NTEU to represent him at the MSPB hearing. NTEU also served as the exclusive representative of the bargaining unit to which Lewis and Murphy belonged.
In preparation for the MSPB hearing, John Maus, the attorney representing the Bureau of Government Financial Operations, interviewed Lewis, who was to appear at the MSPB hearing as a witness for Murphy. Also present at the interview were Robert Johnson and Harold Howard, two labor relations specialists who were serving as co-counsel to the Bureau at the MSPB hearing. Prior to the interview, Maus directed Johnson to contact Lewis and tell him to report to Johnson’s office where Maus, Johnson and Howard had already assembled. Lewis left his work area and reported to the office of the labor relations specialist. Then, in a twenty to thirty minute interview, Maus questioned Lewis extensively about the incident between Murphy and his supervisor. Maus took notes of Lewis’ responses and later typed up these notes. The Bureau did not notify NTEU of the interview or give NTEU an opportunity to be present at the interview.
NTEU filed an unfair labor practice charge asserting that as the exclusive representative of the bargaining unit employees, it had a statutory right under § 7114(a)(2)(A) of the Federal Service Labor-Management Relations Statute to be present at the Bureau’s interview of Lewis. Section 7114(a)(2)(A) provides:
An exclusive representative of an appropriate unit in an agency shall be given the opportunity to be represented at—
(A) any formal discussion between one or more representatives of the agency and one or more employees in the unit or their representatives concerning any grievance or any personnel policy or practices or other general condition of employment____
5 U.S.C. § 7114(a)(2)(A). The Administrative Law Judge (ALJ) concluded that the interview of Lewis constituted a formal discussion under 5 U.S.C. § 7114(a)(2)(A) because the meeting was called by management, held away from Lewis’ work area in the office of a labor relations specialist, and marked by the taking of notes by a high level agency representative. Accordingly, the AU found that NTEU did have a statutory right to be represented at the interview. The FLRA reversed the ALJ’s determination, finding that NTEU had no right to representation because the discussion was neither “formal” nor concerned “any grievance or any personnel policy or practices or other general condition of employment.”
The FLRA first determined that the subject matter of the interview did not concern a “grievance” as that term is used in § 7114(a)(2)(A), reasoning that the term grievance did not encompass Murphy’s appeal to the MSPB. It next concluded that the interview did not concern any “personnel policy or practices” because this phrase in § 7114(a)(2)(A) refers only to general rules applicable to all agency personnel, not to individualized applications of such rules. Finally, the FLRA found that the interview was not “formal” because the three interviewers were not in Lewis’ chain of supervision and had no direct supervisory or managerial responsibilities over Lewis.
NTEU filed a petition for review in this court, arguing that the interview concerned both a grievance and a personnel policy or practice and that the interview was sufficiently “formal.” We agree that the FLRA's interpretation of “grievance” misconstrues the statute. We also find that the FLRA’s determination that the discussion was not a formal one lacks substantial evidence on the record and is contrary to the FLRA’s own precedent. These conclusions mandate a reversal of the FLRA’s decision not to find an unfair labor practice. Accordingly, we remand the case to the FLRA so that it may issue an appropriate remedial order directing the Bureau to cease and desist from its unfair labor practice.
jj Analysis
A. The Meaning of “Grievance”
The Federal Service Labor-Management Relations Statute (FLMR), 5 U.S.C. §§ 7101-7135 (1982), regulates the methods by which an employee member of a bargaining unit represented by an exclusive union representative may challenge adverse personnel decisions by his federal employer. If the challenged matter falls within the coverage of a “negotiated grievance procedure” provided for by the collective bargaining agreement between the agency and the union, that grievance procedure provides the sole mechanism for resolving the disputed matter with two exceptions. See 5 U.S.C. § 7121. Where the action complained of falls within the coverage of the negotiated grievance procedure but also constitutes a complaint of discrimination on the basis of race, color, religion, sex, national origin, age, handicapping condition, marital status or political affiliation, the employee may elect to pursue the matter through either the collective grievance procedure or the statutory procedures for employment discrimination suits. See 5 U.S.C. § 7121(d). Similarly, where the employee challenges a permanent or temporary reduction in grade or removal for unacceptable performance governed by 5 U.S.C. § 4303 or 5 U.S.C. § 7512, then the matter may, in the discretion of the employee, be raised either under the procedures of 5 U.S.C. § 7701 providing for an appeal to the MSPB or under the negotiated grievance procedure. See 5 U.S.C. § 7121(e).
Philip Murphy contested his removal from his job through the appellate procedure of 5 U.S.C. § 7701. The FLRA concluded that Murphy’s dispute did not constitute a “grievance” as that term is used in the FLMR because Murphy pursued the dispute under 5 U.S.C. § 7701 rather than under a negotiated grievance procedure. Thus, in the FLRA’s view, the Bureau’s interview of James Lewis concerned a statutory appeal rather than a “grievance” and NTEU, as the exclusive representative, had no right under § 7114(a)(2)(A) to be represented at the interview.
We find the FLRA’s construction of “grievance” to be contrary to the plain language of the statute. Section 7103 of the FLMR defines a grievance as follows:
(a) For the purpose of this chapter—
(9) “grievance” means any complaint—
(A) by any employee concerning any matter relating to the employment of the employee____
Nothing in this definition restricts a “grievance” to matters raised through a negotiated procedure. Murphy appealed to the MSPB contending that the Bureau improperly fired him because his conduct did not rise to a level of unacceptable job performance as required for removal of a federal employee by 5 U.S.C. § 4303. Murphy’s appeal to the MSPB thus meets the statutory definition of a grievance as an employee “complaint” concerning a “matter relating to [his] employment.”
Section 7114 guarantees NTEU, as the exclusive representative, the right to be represented at any formal discussion between an employee and an agency representative concerning Murphy’s grievance. That Murphy’s grievance challenges an individualized discharge for alleged insubordination does not alter NTEU’s right of representation. While the FLRA may be correct in its assertion that the phrase “any personnel policy or practices” in § 7114 is limited to those discussions which concern conditions of employment affecting unit employees generally, the term “grievance” in § 7114 is not similarly restricted. In the sectional analysis of the “Udall Substitute” which eventually became the present § 7114, Representative Udall explained:
By inserting the word “general” before “conditions of employment,” the substitute limits the right of representation to those formal discussions (other than grievance discussions) which concern conditions of employment affecting employees in the unit generally.
A grievance discussion, unlike a discussion of a personnel policy or practice, may involve a particularized application of a personnel policy to an employee.
The FLRA points to § 7121 of the FLMR and to its legislative history to support its contention that the term grievance in § 7114(a)(2)(A) refers only to grievances actually pursued under a negotiated grievance procedure and not to complaints pursued through other statutory procedures. The FLRA’s argument, as we understand it, is as follows. In the FLMR, Congress has provided that a negotiated grievance procedure generally will be the exclusive procedure for resolving those disputes which fall within its coverage. 5 U.S.C. § 7121(a). However, in § 7121(d) and (e) of the FLMR, Congress created two exceptions to this exclusive coverage. Congress thereby ensured that any employee suffering a prohibited form of discrimination under 5 U.S.C. § 2302(b)(1) or challenging serious disciplinary measures imposed for unacceptable job performance could avoid the collective grievance procedure and seek relief under certain alternative statutory procedures, including an appeal to the MSPB. While § 7121(b)(3) of the FLMR requires that an employee must either be his own representative or select the union as his representative when pursuing a negotiated grievance procedure, § 7114(a)(5)(A) of the FLMR guarantees that an employee seeking relief through a procedure other than the negotiated grievance procedure need not be represented by the union. By permitting an employee to select his own representative when pursuing relief outside the negotiated grievance procedures, Congress must have intended to exclude the union from any right of inclusion in the statutory alternatives to the negotiated grievance procedure guaranteed in § 7121(d) and (e). Consequently, the union on its own behalf should have no right of representation when an employee and an agency representative discuss the subject matter of a dispute pursued through these alternative statutory procedures. To support this reading of the FLMR, the FLRA relies on a statement in the House Report that
It should be noted that, although this subsection [§ 7103(a)(9)] is virtually all-inclusive in defining “grievance,” section 7121 excludes certain grievances from being processed under a negotiated grievance procedure, thereby limiting the net effect of the term.
In light of the structure of § 7121, which requires an employee to choose between two overlapping remedies, we read this sentence from the House Report not as a statement scaling back the rights of an exclusive representative to be represented at formal discussions concerning grievances but rather as a guarantee that an agency employer will not be forced to defend its challenged conduct in both a statutory procedure and a negotiated grievance procedure. Absent some more positive indication that Congress in fact meant in all circumstances to exclude the union from any formal discussion of matters raised in the alternative statutory procedures guaranteed in § 7121(d) and (e), we reject the FLRA’s attempt to read the distinctions drawn in § 7121 back into the original definition of grievance provided in § 7103(a)(9). Such a reading of “grievance” strains the language of the statute at every turn. For example, if the term “grievance” referred only to disputes pursued through negotiated grievance procedures, § 7121(d) and (e) would not be worded to require an “aggrieved employee” (emphasis supplied) to elect to pursue a remedy under either a negotiated procedure or a statutory procedure. An “aggrieved employee” — i.e., one with a grievance — -would by definition necessarily pursue his grievance under a negotiated procedure. Likewise, to read “grievance” as the FLRA attempts to do would render self-contradictory § 7121(a)(1) which provides that “Except as provided in subsections (d) and (e) of this section, the procedures [provided by a collective bargaining agreement] shall be the exclusive procedures for resolving grievances which fall within its coverage” (emphasis supplied). Section 7121(a)(1) says that the statutory procedures referred to in § 7121(d) and (e) are also procedures for resolving grievances.
Nor can the FLRA rely on legislative history to pare down the definition of grievance contained in § 7103(a)(9). The only plausible reading of the sentence in the House Report quoted above is that § 7121 ensures that some grievances cannot be processed under a negotiated procedure. The House Report merely indicates that the “all-inclusive” definition of “grievance” in § 7103(a)(9) and § 7114(a)(2)(A) is broader than the “effect” of the term under § 7121. Congress was compelled to limit the “effect” of the term grievance in § 7121 precisely because the broad definition of the term would otherwise include grievances brought under a statutory procedure as well as those brought under a negotiated grievance procedure.
Our interpretation of the term “grievance” may differ from that of the Ninth Circuit in Internal Revenue Service, Fresno Service Center, Fresno, California v. Federal Labor Relations Authority, 706 F.2d 1019 (9th Cir.1983). There the Court of Appeals held that 5 U.S.C. § 7114(a)(2)(A) does not guarantee a union the right to representation at an Equal Employment Opportunity precomplaint conciliation conference. The Ninth Circuit’s decision appears to us to be based primarily on its conclusion that the precomplaint conference did not constitute a “formal” discussion. See 706 F.2d at 1023-24. To the extent, however, that the Ninth Circuit may have construed the term “grievance” to include only disputes governed by a negotiated procedure, we must disagree with its interpretation for the reasons already discussed. The language and structure of the statute lead us to a different result. We also disagree with the Ninth Circuit’s assumption that the union, as the exclusive bargaining representative of unit employees, has no cognizable interest in being represented when a dispute being pursued under a statutory procedure is the subject of a discussion between an employee and an agency representative. See 706 F.2d at 1024-25. The Ninth Circuit suggests that the union’s only interest in being present at a formal discussion of a grievance stems from the fact that it negotiates and plays an institutional role in the collective grievance procedure. Id.
We view the interest of unions under the FLMR as potentially far broader. Section 7121 recognizes that employee complaints challenging alleged discrimination or a permanent or temporary removal for allegedly unacceptable performance will often be covered by a collective bargaining agreement as well as by statutory procedures. Double coverage is to be expected: resolution of such episodes can potentially affect all bargaining unit employees in important ways. Decisions about what constitutes an unjust dismissal or an unacceptable basis for preferring or rejecting a single employee spills over to the rights and expectations of all unit employees. Remedies for improper employer conduct, such as reinstatement or retroactive seniority, also may affect other bargaining unit employees, since a benefit or opportunity granted to one employee can mean the loss of the same benefit or opportunity for another employee. The impact of these individual complaints on the bargaining unit will be felt regardless of whether the aggrieved employee opts to pursue a negotiated grievance procedure or an alternative statutory procedure. We are therefore reluctant to follow the Ninth Circuit’s suggestion in IRS, Fresno Service Center that the union’s role in protecting the interest of the bargaining unit is inherently restricted to those situations in which an employee pursues a grievance through a negotiated grievance procedure.
Of course, recognition of a union’s interest, as the representative of the bargaining unit, in the alternative statutory procedures guaranteed in § 7121(d) and (e) does not answer the question of the union’s statutory role in such procedures. Under the FLMR, the union’s institutional role in these statutory grievance procedures is obviously more restricted than its role in a negotiated grievance procedure. The FLMR provides that only the union may represent an employee in a negotiated grievance procedure if the employee elects not to present the grievance himself; the statute does not similarly restrict an employee’s choice of a representative outside the negotiated grievance procedure. See 5 U.S.C. § 7114(a)(5). Nonetheless, although the union’s institutional role may be restricted, we do not think it necessarily is nonexistent. In the absence of congressional intent to the contrary or any plausible alternative interpretation of the statute by the FLRA, we find that the words of § 7114(a)(2)(A), which provide that an exclusive representative has the right to be present at any formal discussion of a grievance between management and a bargaining unit employee, assure the union a role in the alternative procedures so long as the statutory criteria of § 7114(a)(2)(A) are met.
B. The Formality of the Discussion
1. Lack of Substantial Evidence on the Record
Because we find that the interview of Lewis concerned a grievance, the only remaining question is the formality of the discussion. In determining whether a discussion should be considered formal, the FLRA examines the totality of facts and circumstances presented. We find that in the present case, the FLRA’s reversal of the AU’s finding that the interview was formal is not supported by substantial evidence on the record and constitutes an unexplained departure from agency precedent.
The FLRA’s conclusion that the interview was not formal runs counter to the undisputed evidence. The ALJ found, and the FLRA does not dispute, that the meeting was initiated by management; it was held away from Lewis’ normal work area, lasted twenty to thirty minutes, and was marked by the taking of notes by a “high level” management representative. The FLRA concluded that these undisputed indicia of formality were outweighed by the fact that none of the interviewers were in Lewis’ chain of supervision. The FLRA also cites as support for its conclusion the lack of a “clear” finding that Lewis’ presence was mandatory and the lack of evidence on the record of any advance notice of the meeting or any formal agenda distributed in advance of the meeting.
Previous FLRA cases have relied on lack of advance notice and distributed agenda as indications that a meeting was spontaneous and therefore unlikely to be “formal.” These factors, however, do not always correlate with spontaneity and thus mere absence of notice or an agenda will not necessarily indicate that a meeting is not “formal.” In fact, the available evidence in this record indicates the contrary conclusion: that the interview of Lewis was planned in advance. For an attorney and two labor relations specialists to meet at the office of one of the labor relations specialists and in a single day interview all of the witnesses to be called at an MSPB hearing surely indicates some advance preparation. Cf. Office of Program Operations, Field Operations, Social Security Administration, 9 F.L.R.A. at 50 (refusing to find formal meeting where district manager was at the office on other business and not as a consequence of any advance arrangements). Lack of notice and formal agenda, therefore, offer negligible evidence of informality, since the inference that these factors are sufficient to support, i.e., that the interview might have been an impromptu gathering, is directly contradicted by more powerful evidence.
The lack of a clear finding that Lewis’ continued presence at the interview was mandatory is similarly not controlling as to informality. The evidence concerning what the interviewers told Lewis at the start of the interview is contradictory, and the AU never resolved the question of the compulsory nature of the interview. Cf. 13 F.L.R.A. 27, 31 n. 1. Where an employee interview is characterized by strong indicators of formality, such as the fact that an employee was summoned to a meeting initiated by three management representatives and held on management’s terrain, an asserted lack of clear evidence on a single disputed point such as whether the “continued” presence of the employee was compulsory cannot carry the day for the agency. This is especially true where the FLRA has declined to offer its own assessment of the credibility of the witnesses or to find that Lewis’ presence was in fact not compulsory.
Finally, the FLRA does not explain why the fact that the interviewers were not in Lewis’ direct chain of supervision outweighs the fact that the interviewers were nonetheless management representatives. The focus of prior FLRA decisions has been on whether management representatives attended a discussion. Thus, personnel specialists who addressed employees at an orientation session were considered representatives of the agency and the FLRA found the meeting to be a formal one. See Department of HEW, Region IV, Atlanta, Ga. and National Treasury Employees Union, 5 F.L.R.A. 458, 460 (1981). Prior FLRA cases have not required a showing that the agency representatives were within the employee’s chain of supervision. See Internal Revenue Service and National Treasury Employees Union, 11 F.L.R.A. 69, 71 (1983) (finding a formal discussion between employees and members of a task force composed of managerial and supervisory officials where “No task force member interviewed any employee from his own district.”), aff'd mem. sub nom. National Treasury Employees Union v. Federal Labor Relations Authority, 725 F.2d 126 (D.C.Cir.1984).
The Authority considered the totality of facts and circumstances and concluded that the interview of Lewis was not formal in nature. We find this conclusion unsupported by substantial evidence on the record as a whole. Where a discussion to which management summoned an employee is attended by three management representatives, at least one of whom has some responsibilities in the disciplinary process, is held away from the employee’s work station in the office of that management representative, lasts for twenty to thirty minutes, and is marked by the taking of notes, the fact that the management representatives are not in an employee’s direct chain of supervision does not outweigh or sufficiently negate the other evidence of formality. Therefore, we find the record as a whole does not support the FLRA’s conclusion to the contrary.
2. Departure From Agency Precedent
The FLRA’s conclusion that the Bureau’s interview of Lewis was not a formal discussion is also contrary to decisions of the Assistant Secretary for Labor-Management Relations interpreting Section 10(e) of Executive Order 11491, the predecessor to § 7114(a)(2)(A). Section 10(e) of Executive Order 11491 was carried over into § 7114(a)(2)(A) with no significant changes. In United States Air Force, McClellan Air Force Base, California, A/SLMR No. 830, 7 A/SLMR 350 (1977), and again in Internal Revenue Service, South Carolina District, A/SLMR No. 1172, 8 A/SLMR 1370 (1978), the Assistant Secretary for Labor-Management Relations concluded that an interview by the agency of bargaining unit employees expected to appear as witnesses for a grievant at an arbitration hearing constituted a formal discussion at which the union had a right to be represented under § 10(e). Both decisions turned on a determination that an interview of a witness was a “formal” discussion. The other indicia of formality in these two cases also resembled those of the present case, except that only in the present case did more than one management representative attend the interview. In McClellan, the attorney representing the agency asked the personnel office to request the employee witnesses to come to his office the next morning. The attorney interviewed the employees at 8 a.m., a few hours before the scheduled arbitration hearing. In IRS, South Carolina District, the employee witness was told by his group manager that the attorney representing the agency would like to talk with him; the interview between the employee and the attorney took place later in the month.
The decisions of the Assistant Secretary construing § 10(e) were incorporated into the Federal Service Labor-Management Relations Statute by the grandfather provision of § 7135(b). Section 7135(b) of the FLMR provides that
Policies, regulations, and procedures established under and decisions issued under Executive Order[ ] 11491 ... shall remain in full force and effect until revised or revoked by the President, or unless superseded by specific provisions of this chapter or by regulations or decisions issued pursuant to this chapter.
While § 7135(b) does not bar the FLRA from reevaluating the decisions of the Assistant Secretary, § 7135(b) requires the FLRA to treat those decisions as being in full force until it undertakes such a reevaluation. Where, as here, the Congress adopted the provision in the Executive Order in virtually unchanged form and nothing in the legislative history suggests any congressional dissatisfaction with the prior application or interpretation of the provision, we would assume § 7135(b) requires the FLRA to treat the administrative precedent with the same deference as it would treat its own prior FLRA decisions. At a minimum, the FLRA must acknowledge the precedent and provide a reason for departure, just as it must when it reappraises its own precedent. Cf. Baltimore and Annapolis Railroad Co. v. Washington Metropolitan Area Transit Commission, 642 F.2d 1365, 1370 (D.C.Cir.1980) (agency must justify a departure from its prior determinations); Greater Boston Television Corp. v. FCC, 444 F.2d 841, 852 (D.C.Cir.1970) (“agency changing its course must supply a reasoned analysis indicating that prior policies and standards are being deliberately changed, not casually ignored”), cert. denied, 403 U.S. 923, 91 S.Ct. 2233, 29 L.Ed.2d 701 (1971).
The reference in the FLRA’s decision to Internal Revenue Service and Brookha-ven Service Center and National Treasury Employees Union, Chapter 99 (Brookhaven), 9 F.L.R.A. 930 (1982), does not constitute the reasoned analysis which the law requires for the FLRA’s departure from the policy set forth in the Assistant Secretary's decisions in McClellan Air Force Base and IRS, South Carolina District. In the first place, Brookhaven never discusses McClellan Air Force Base or IRS, South Carolina District or provides any reason for departing from them. More importantly, however, we do not find Brookhaven inconsistent with these two prior cases. In Brookhaven, the FLRA found that an agency interview of two bargaining unit employees whom the agency intended to call as its own “major witnesses” in an upcoming arbitration hearing was not a “formal” discussion. The FLRA also determined that the agency’s interview of a bargaining unit employee in preparation for an upcoming unfair labor practice proceeding where that employee was not to appear as a witness did not constitute a “formal” discussion. Brookhaven, when read in conjunction with McClellan and IRS, South Carolina District, suggests that a formal discussion is more likely to be found where an agency interviews the witnesses of its opponent than when it interviews its own witnesses or conducts background fact gathering, even if other indicia of formality are similar.
When an employer interviews an adverse witness rather than his own or even a neutral witness, common sense suggests that the situation carries a greater potential for intimidation or coercion. In assessing formality under § 7114(a)(2)(A), the FLRA has always considered the potential coerciveness of the encounter. Factors frequently cited by the FLRA as militating toward a finding of formality, such as mandatory attendance or the number of supervisors present, .focus on the confrontational potential of the interview, or at least the perception thereof. Brookhaven, along with McClellan Air Force Base and IRS, South Carolina District, are thus relevant in assessing the coerciveness component of formality. In the present case, the FLRA disregarded its own precedent bearing on the important element of formality supplied by the fact that the Bureau interviewed an adverse witness. Such a departure from precedent, and apparent refusal to consider a relevant factor, requires some word of justification.
III. Conclusion
We conclude that an appeal to the MSPB challenging a dismissal for unacceptable job performance constitutes a grievance as that term is used in the Federal Service Labor-Management Relations Statute. We also find that the FLRA’s determination that the interview of Lewis was not formal represents an unexplained departure from administrative precedent and is not supported by substantial evidence on the record as a whole. We therefore reverse the FLRA’s decision to dismiss NTEU’s unfair labor practice complaint and remand this case to the FLRA so that it may issue an appropriate order directing the Bureau of Government Financial Operations of the Department of Treasury to cease and desist from its unfair labor practice.
Reversed and Remanded,
. Bureau of Gov’t Fin. Operations, Headquarters and National Treasury Employees Union, 15 F.L.R.A. 423 (1984). The FLRA issued an earlier decision in this case in 13 F.L.R.A. 27 (1983). NTEU sought review of that decision in this court in National Treasury Employees Union v. Federal Labor Relations Auth., No. 83-2180. On July 27, 1984, this court granted the FLRA’s unopposed motion to remand the case to permit the FLRA to issue a supplemental decision and order. NTEU now appeals the FLRA’s supplemental decision.
. 5 U.S.C. § 7116(a)(8) makes it an unfair labor practice for an agency to "fail or refuse to comply with any provision of this chapter.” NTEU contends that the Bureau committed an unfair labor practice when it refused to comply with § 7114(a)(2)(A) of the Federal Service Labor-Management Relations Statute, 5 U.S.C. § 7114(a)(2)(A).
. For an exclusive representative to have the right to be represented at a discussion between a representative of the agency and a bargaining unit employee, each of the elements set forth in § 7114(a)(2)(A) must be found to exist. There must be a discussion, which is formal in nature, between one or more agency representatives and one or more bargaining unit employees, and that discussion must concern a grievance or a personnel policy or practice or other general condition of employment.
. 5 U.S.C. § 7121 provides:
(a)(1) Except as provided in paragraph (2) of this subsection, any collective bargaining agreement shall provide procedures for the settlement of grievances, including questions of arbitrability. Except as provided in subsections (d) and (e) of this section, the procedures shall be the exclusive procedures for resolving grievances which fall within its coverage-
(2) Any collective bargaining agreement may exclude any matter from the application of the grievance procedures which are provided for in the agreement.
(b) Any negotiated grievance procedure referred to in subsection (a) of this section shall—
(1) be fair and simple,
(2) provide for expeditious processing, and
(3) include procedures that—
W assure an exclusive representative the right, in its own behalf or on behalf of any employee in the unit represented by the exclusive representative, to present and process grievances;
(B) assure such an employee the right to present a grievance on the employees own behalf, and assure the exclusive representative the right to be present during the grievance proceeding; and
(C) provide that any grievance not satisfactorily settled under the negotiated grievance procedure shall be subject to binding arbitration which may be invoked by either the exclusive representative or the agency.
(d) An aggrieved employee affected by a prohibited personnel practice under section 2302(b)(1) of this title which also falls under the coverage of the negotiated grievance procedure may raise the matter under a statutory procedure or the negotiated procedure, but not both____ Selection of the negotiated procedure in no manner prejudices the right of an aggrieved employee to request the Merit Systems Protection Board to review the final decision pursuant to section 7702 of this title in the case of any personnel action that could have been appealed to the Board, or, where applicable, to request the Equal Employment Opportunity Commission to review a final decision in any other matter involving a complaint of discrimination of the type prohibited by any law administered by the Equal Employment Opportunity Commission.
(e) (1) Matters covered under sections 4303 and 7512 of this title which also fall within the coverage of the negotiated grievance procedure may, in the discretion of the aggrieved employee, be raised either under the appellate procedures of section 7701 of this title or under the negotiated grievance procedure, but not both. Similar matters which arise under other personnel systems applicable to employees covered by this chapter may, in the discretion of the aggrieved employee, be raised either under the appellate procedures, if any, applicable to those matters, or under the negotiated grievance procedure, but not both____
(2) In matters covered under sections 4303 and 7512 of this title which have been raised under the negotiated grievance procedure in accordance with this section, an arbitrator shall be governed by section 7701(c)(1) of this title, as applicable.
(f) In matters covered under sections 4303 and 7512 of this title which have been raised under the negotiated grievance procedure in accordance with this section, section 7703 of this title pertaining to judicial review shall apply to the award of an arbitrator in the same manner and under the same conditions as if the matter had been decided by the Board. In matters similar to those covered under sections 4303 and 7512 of this title which arise under other personnel systems and which an aggrieved employee has raised under the negotiated grievance procedure, judicial review of an arbitrator’s award may be obtained in the same manner and on the same basis as could be obtained of a final decision in such matters raised under applicable appellate procedures.
. The FLRA did not consider, and the record does not reveal, whether Murphy had the option to raise his claim under a negotiated grievance procedure. 5 U.S.C. § 7121(b) permits a union and an agency employer to exclude any matter from the scope of a negotiated grievance procedure. Nothing in the record tells whether the NTEU-Bureau collective bargaining agreement provided for just cause terminations.
. It has not been argued that a management representative can engage in a formal discussion concerning a "grievance” under § 7114(a)(2)(A) only with the employee who has suffered the grievance. The FLRA has never restricted the term "grievance” in § 7114(a)(2)(A) to a discussion with the particular employee who has the grievance.
. Because § 7114(a)(2)(A
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer:
|
songer_appel2_8_2
|
B
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second listed appellant. The nature of this litigant falls into the category "miscellaneous". Your task is to determine which of the following categories best describes the litigant.
Captain Henry BECK, Superintendent of the Pulaski County Penal Farm; and Clint Cavin, Surety, Appellants, v. Robert WINTERS, Appellee.
No. 19278.
United States Court of Appeals Eighth Circuit.
Feb. 25, 1969.
Certiorari Denied June 16, 1969.
See 89 S.Ct. 2104.
H. Clay Robinson, Deputy Pros. Atty., and Don Langston, Asst. Atty. Gen., Little Rock, Ark., for appellants, Joe Purcell, Atty. Gen., and Richard B. Atkisson, Pros. Atty., Little Rock, Ark., on the brief.
Michael Meltsner, New York City, for appellee, Jack Greenberg, New York City, John W. Walker and Norman Chachkin, Little Rock, Ark., and Anthony G. Amsterdam, Philadelphia, Pa., on the brief.
Before MATTHES, GIBSON and LAY, Circuit Judges.
MATTHES, Circuit Judge.
Captain Henry Beck, Superintendent of the Pulaski County Penal Farm and Clint Cavin, surety, have appealed from the order of the United States district court granting Robert Winters relief in this habeas corpus proceeding. The history of the litigation giving rise to this appeal is fully and accurately reported in the district court’s opinion in Winters v. Beck, 281 F.Supp. 793 (E.D.Ark. 1968). A brief resume of the relevant facts will suffice for the purpose of this opinion.
Winters, appellee, was tried and convicted without the assistance of counsel in the Municipal Court of Little Rock, Arkansas, for obscene and lascivious conduct proscribed by Little Rock City Ordinance No. 25-121. He received the maximum punishment of 30 days in jail and a fine of $250, to which was added $4 costs. Being an indigent and unable to pay the fine, he was sentenced to the Pulaski County Penal Farm for a total of 284 days as provided by Ark.Stat.Ann. § 19-2416 (1968 Repl. Vol.).
After appellee had exhausted his state remedies through habeas corpus proceedings, Winters v. Beck, 239 Ark. 1151, 397 S.W.2d 364 (1965), cert. denied, 385 U.S. 907, 87 S.Ct. 207, 17 L.Ed.2d 137 (1966) (Mr. Justice Stewart dissenting), he filed a petition for habeas relief in the United States district court on November 8, 1966.- Judge Young initially dismissed appellee’s petition on the ground that petitioner was at liberty on bail and not under such restraint as was necessary to require consideration of the petition. On appeal we remanded for a rehearing on the merits in conformity with the teachings of the Supreme Court in Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963). On remand, Judge Young held a hearing and in a soundly-reasoned opinion found that “the interaction of the ‘dollar-a-day’ statute of Arkansas with a $254 fine plus a 30-day jail sentence constituted a ‘serious offense,’ and the failure of the trial court to notify petitioner of his right to the assistance of counsel and offer him counsel if he was unable financially to retain counsel rendered the judgment of conviction and sentence constitutionally invalid.” 281 F.Supp. at 801-802.
On this appeal, appellants in their brief again questioned appellee’s standing to seek habeas relief, their position being that since he was at liberty on bond when he filed his petition in the United States district court, he was not in custody within the meaning of 28 U.S.C. § 2241, and consequently the writ was not available to him. Our remand of the district court’s first order, motivated by Jones v. Cunningham, supra, disposed of this issue. In oral argument the Assistant Attorney General of Akansas with candor conceded there was no merit to the lack of standing issue and expressly abandoned this contention.
The clear-cut question we must decide is whether the district court was correct in holding that appellee was deprived of his Sixth Amendment right to assistance of counsel as applied to the states through the due process clause of the Fourteenth Amendment. We subscribe to Judge Young’s conclusion and affirm.
The Attorney General of Arkansas argues. for a reversal on the premise that the question of whether an indigent state defendant is entitled to the assistance of counsel is one “which traditionally in the American system of government belongs to the Legislatures, not to the courts.” We are reminded that Arkansas has recognized its responsibility by enacting legislation providing “free counsel” for indigent defendants in felony cases, Ark. Stat.Ann. § 43-1203 (1964 Repl. Yol.); that the Supreme Court of Arkansas has held not only that appellee Winters was not entitled to counsel, but has expressly rejected the concept that an indigent defendant charged with a misdemeanor should have the assistance of counsel. Cableton v. State, 243 Ark. 351, 420 S.W. 2d 534 (1967). The Cableton Court was obviously influenced by practical considerations, stating in part: “[T]here are more justices of the peace in Arkansas than there are resident practicing lawyers and that there are counties in which there are no practicing lawyers. The impact of such a rule would seriously impair the administration of justice in Arkansas and impose an intolerable burden upon the legal profession.” Id. at 538-539.
We are fully cognizant of and appreciate appellants’ concern over the federal government intruding into problems which are primarily relegated to the states for resolution. The Supreme Court recognized the importance of comity between the federal and state courts in Ker v. California, 374 U.S. 23, 31, 83 S.Ct. 1623, 1629, 10 L.Ed.2d 726 (1963):
“Mapp sounded no death knell for our federalism; rather, it echoed the sentiment of Elkins v. United States, [364 U.S. 206, 221, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1961)] that ‘a healthy federalism depends upon the avoidance of needless conflict between state and federal courts’ by itself urging that ‘ [¶] ederal-state cooperation in the solution of crime under constitutional standards will be promoted, if only by recognition of their now mutual obligation to respect the same fundamental criteria in their approaches.’ ”
Accord, Jackson v. Bishop, 404 F.2d 571 (8th Cir. 1968).
The sum of appellants’ argument is predicated on the pronouncement of the Supreme Court of Arkansas that “[a]ny change in the law of Arkansas, after certiorari was denied in the Winters case should either come through legislative enactment or by an express decision of the United States Supreme Court.” 420 S.W.2d at 537-538.
Appellants are correct in suggesting that the Supreme Court of the United States has not expressly extended the Sixth Amendment right to assistance of counsel to misdemeanor cases. We are firmly convinced, however, from the rationale of the decisions of the Supreme Court that the fundamental right to counsel extends to a situation where, as here, the accused has been found guilty of an offense, which has resulted in imprisonment for approximately nine and one-half months.
The Supreme Court in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), in holding that the Sixth Amendment guarantee of the right to assistance of counsel is applicable to the states through the Fourteenth Amendment, proclaimed: “[I]n our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.” Id. at 344, 83 S.Ct. at 796.
Appellants seem to regard the Gideon opinion as limiting the application of the Sixth Amendment to offenses which are characterized as felonies. We are not persuaded that the Gideon Court intended to circumscribe the application of its decision to such narrow confines. The Court did not draw a line between felonies and any and all misdemeanors. Indeed, consideration of the opinion in context leads us to conclude that the right to counsel must be recognized regardless of the label of the offense if, as here, the accused may be or is subjected to deprivation of his liberty for a substantial period of time.
It should be remembered that the Sixth Amendment makes no differentiation between misdemeanors and felonies. The right to counsel is not contingent upon the length of the sentence or the gravity of the punishment. Rather, it provides that the guarantee extends to “all criminal prosecutions.” Furthermore, we note that the phrase “all criminal prosecutions” applies not only to the right to counsel but also to the right to a jury trial. Logically the phrase should be accorded the same meaning as applied to both protections. Thus we believe significant the Supreme Court’s pronouncements in cases involving the jury trial guarantee.
In Duncan v. Louisiana, 391 U.S. 145, 149, 88 S.Ct. 1444, 1447, 20 L.Ed. 491 (1968), the Supreme Court held that “trial by jury in criminal cases is fundamental to the American scheme of justice,” and that the Fourteenth Amendment guarantees a right of jury trial in all state criminal cases “which — were they tried in a federal court — would come within the Sixth Amendment’s guarantee.” The Court concluded that a jury trial is guaranteed in all “serious offenses” but does not extend to “petty crimes.” The Duncan Court, however, declined to settle the exact location of the line between petty offenses and serious crimes. It did hold that on the facts before it, where appellant had been sentenced to 60 days in jail and fined $300 for commission of simple battery, a misdemeanor punishable up to two years, he was entitled to a jury trial.
In Bloom v. Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed. 522 (1968), the Court reiterated its holding in Duncan and held that the right to jury trial extends to serious criminal contempts and that denial of a jury trial to appellant, who was sentenced to imprisonment for two years, was constitutional error. Conversely, in Dyke v. Taylor Implement Mfg. Co., 391 U.S. 216, 88 S.Ct. 1472, 20 L.Ed.2d 538 (1968), the Court did not extend the right to an offense it found petty. Dyke involved contemnors who were sentenced under a Tennessee criminal contempt statute that provided for a maximum penalty of 10 days in jail and a fine of $50. Relying on its earlier decision in Cheff v. Schnackenberg, 384 U.S. 373, 86 S.Ct. 1537, 16 L.Ed.2d 629 (1966), where it held that a six-month sentence is short enough to be “petty,” the Court reasoned that the petitioners in this case were charged with a “petty offense” and had no federal constitutional right to jury trial.
Equally significant, we believe, is the Court’s recent declaration that the right to assistance of counsel extends to juvenile proceedings “which may result in commitment to an institution in which the juvenile’s freedom is curtailed.” In re Gault, 387 U.S. 1, 41, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967).
The Fifth Circuit also has been faced with the question of how far the right to counsel extends and has refused to formulate a rigid rule which would either extend the protection to all criminal cases or limit it only to felonies. Rather, in adopting a broad view it expressly ruled that the safeguard extends to misdemeanor cases, but also recognized that there are some offenses where one would not be entitled to the services of an attorney at the expense of the state.
In Harvey v. Mississippi, 340 F.2d 263 (5th Cir. 1965), the defendant, without being advised that he was entitled to assistance of counsel, pled guilty to, was convicted of and sentenced to the maximum punishment of a $500 fine and 90 days in jail for possession of whiskey, a misdemeanor in Mississippi. Noting that such a plea had “grievous consequences,” the court held that under the facts of the case, defendant was unconstitutionally convicted because of the failure to advise him that he was entitled to be furnished counsel.
In MacDonald v. Moore, 353 F.2d 106 (1965) the Fifth Circuit reaffirmed its position in Harvey. There appellant was charged (1) with illegal sale of gin, and (2) with illegal possession of whiskey and gin, both misdemeanors under Florida law. She pled guilty and was sentenced to 6 months in jail or $250 fine on each charge. Because the facts in the case were so similar to those in Harvey, the court stated that it was required to hold that appellant was entitled to assistance of counsel.
Recently, the Fifth Circuit again dealt with the question and expressly held that under the Sixth and Fourteenth Amendments, right to counsel extends to misdemeanor cases. Goslin v. Thomas, 400 F.2d 594 (1968). Defendant asserted that he had been denied counsel in four Louisiana misdemeanor proceedings. In the last proceeding, defendant had been sentenced to jail for one year.
Based on the rationale of the foregoing authorities, we conclude that the right to counsel cannot be dependent upon the mere arbitrary label that á state legislature attaches to an offense.
We find it unnecessary to decide that all indigents have the right to assistance of counsel in all misdemeanor prosecutions, no matter how trivial may be the consequences. Whether a person accused of an offense labeled as a misdemeanor is entitled to counsel must be resolved upon proper consideration of all circumstances relative to the question. In addition to the financial status of the accused, the punishment that may be imposed if he is found guilty is certainly a vital factor. The trial court should fully explore all of the relevant circumstances, and if it is determined that counsel should be provided, the accused must be so informed. Unless he intelligently and knowingly waives the right, counsel should be furnished. We go no further in attempting to delineate the guidelines.
In summary, it is abundantly clear that the district court correctly decided the question at issue. The order vacating the judgment and sentence is affirmed..
. Appellant Clint Cavin is surety on Winters’ appearance bond, and apparently was named as a respondent in the habeas corpus proceeding on the theory that Winters is in the technical custody of Cavin. He did not file a responsive pleading in the district court.
. The statute under which appellee was committed provides in effect that prisoners confined in the county jail or city prison, by sentence of the mayor or police court, for a violation of a city ordinance may, by ordinance, be required to work out the amount of all fines, penalties, forfeitures and costs at the rate of $1 per day. Little Rock Ordinance No. 25-121, and § 19-2416, Ark. Stat.Ann., are reproduced in the district court’s opinion.
. Apparently, the legal profession in Arkansas recognizes the need for more effective legislation in this area. The Arkansas Bar Association’s Special Committee on the Defense of Criminal Indigents is preparing proposed legislation that would establish a public defender— appointed counsel system in Arkansas not limited to felony cases. See Sizemore, Defense of Accused Indigents in Arkansas : New Hope or More of the Same, Arkansas Lawyer, Oct., 1968, at 6.
. Appellants have placed undue reliance upon denial of certiorari in Winters v. Beck, supra. The sole significance of a denial of a petition for writ of certiorari is discussed at some length in Maryland v. Baltimore Radio Show, 338 U.S. 912, 917-918, 70 S.Ct. 252, 94 L.Ed. 562 (1950). “[S]uch a denial carries with it no implication whatever regarding the Court’s views on the merits of a case which it has declined to review.” Id. at 919, 70 S.Ct. at 255.
. Gideon expressly overruled Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595 (1942), in which the Supreme Court refused to hold that the Sixth Amendment right to counsel extended to the states through the Fourteenth Amendment. Betts did recognize, however, that where there existed special circumstances, the right to counsel became fundamental and essential so as to require applicability of the Sixth Amendment to the state through the due process clause of the Fourteenth Amendment.
. Although there is no limitation on the right to appointed counsel in the majority opinion, Mr. Justice Harlan, in a concurring opinion, comments: “Whether the rule should extend to all criminal cases need not now be decided.” Id. at 351, 83 S.Ct. 792, at 801. That the reach of Gideon is not altogether clear is evidenced by two dissenting opinions of Justices in denials of certiorari in Winters v. Beck, 385 U.S. 907, 87 S.Ct. 207 (1966) and DeJoseph v. Connecticut, 385 U.S. 982, 87 S.Ct. 526, 17 L.Ed.2d 443 (1966). In those opinions the Justices call for the Court to clarify its holding in Gideon.
. The Court stated:
“The juvenile needs the assistance of counsel to cope with problems of law, to make skilled inquiry into the facts, to insist upon regularity of the proceedings, and to ascertain whether he has a defense and to prepare and submit it.” Id. at 36, 87 S.Ct. 1428, at 1448.
. In MacDonald v. Moore, infra, the court commented:
“It seems unlikely that a person in a municipal court charged with being drunk and disorderly, would be entitled to the services of an attorney at the expense of the state or the municipality. Still less likely is it that a person given a ticket for a traffic violation would have the right to counsel at the expense of the state.”
. The court quoted from Evans v. Rives, 75 U.S.App.D.C. 242, 126 F.2d 633, 638 (1942) approvingly:
“It is * * * suggested * * * that the constitutional guaranty of the right to the assistance of counsel in a criminal case does not apply except in the event of ‘serious offenses.’ No such differentiation is made in the wording of the guaranty itself, and we are cited to no authority, and know of none, making this distinction. * * * And so far as the right to the assistance of counsel is concerned, the Constitution draws no distinction between loss of liberty for a short period and such loss for a long one.”
. The lower court’s opinion, Petition of Thomas, 261 F.Supp. 263 (W.D.La.1966), held that under Harvey and MacDonald, Gideon must be applied to all criminal cases. The Court of Appeals for the Fifth Circuit stopped short of this holding, stating that the only question was whether the right to counsel under the Sixth and Fourteenth Amendments extends to state misdemeanor cases.
. Other federal cases rejecting the misdemeanor-felony dichotomy and holding that the Sixth Amendment right to assistance of counsel extends to misdemeanor prosecutions are: Brinson v. Florida, 273 F.Supp. 840 (S.D.Fla.1967) ; Rutledge v. City of Miami, 267 F.Supp. 885 (S.D.Fla.1967) ; Arbo v. Hegstrom, 261 F.Supp. 397 (D.Conn.1966). See Stubblefield v. Beto, 399 F.2d 424, 425 (5th Cir. 1968) (dissenting opinion) ; Wilson v. Blabon, 370 F.2d 997 (9th Cir. 1967). See also the following articles: Carlson, Appointed Counsel in Criminal Prosecutions : A Study of Indigent Defense, 50 Iowa L.Rev. 1073 (1965) ; Kamisar, Betts v. Brady Twenty Years Later: The Right to Counsel and Due Process Values, 61 Mich.L.Rev. 219 (1962) ; Kamisar and Choper, The Right to Counsel in Minnesota: Some Field Findings and Legal-Policy Observations, 48 Minn.L.Rev. 1 (1963) ; Milroy, Court Appointed Counsel for Indigent Misdemeanants, 6 Ariz.L.Rev. 280 (1965) ; Comment, The Right to Counsel for Misdemeanants in State Courts, 20 Ark.L. Rev. 156 (1966).
. As Mr. Justice Stewart pointed out in his dissent in the Court’s denial of certiorari in Winters v. Beck, supra, some misdemeanors in Arkansas are punishable by up to three years’ imprisonment. Ark. S tat. Ann. § 41-805 (1964 Repl. Vol.).
. While we do not formulate and lay down an arbitrary, mechanical rule which could automatically and simply be applied in every case to determine whether the right to assistance of counsel attaches, we do point out some of the various approaches and suggestions promulgated by courts, commissions and statutes. In Brinson v. Florida, 273 F.Supp. 840 (S.D.Fla.1967), the court constructed what it believed to be the proper test: “The right to assistance of counsel is determined by the seriousness of the offense, measured by the gravity of the penalty to which the defendant is exposed on any given violation.’’ Id. at 843. The court further stated: “I hold that the minimum offense for which counsel must be provided is one which carries a possible penalty of more than six months imprisonment, which is the line of demarcation drawn in federal practice.” Id. at 845. The Criminal Justice Act of 1964, 18 U.S.C. § 3006A, provides that appointed counsel in federal courts shall be afforded to indigents in all felony and misdemeanor cases other than petty offenses. The Act defines petty offenses as those punishable by not more than six months imprisonment or $500 fine or both. 18 U.S.C. § 1. The ABA’s project on Minimum Standards for Criminal Justice in its tentative draft on Standards Relating to Providing Defense Services § 4.1 (1967) has recommended the following rule:
“Counsel should be provided in all criminal proceedings for offenses punishable by loss of liberty, except those types of offenses for which such punishment is not likely to be imposed, regardless of their denomination as felonies, misdemeanors or otherwise.”
In the Challenge of Crime in a Free Society : A Report by the President’s Commission on Law Enforcement and Administration of Justice (1967), the commission recommended:
“The objective to be met as quickly as possible is to provide counsel to every criminal defendant who faces a significant penalty, if he cannot afford to provide counsel himself. This should apply to cases classified as misdemeanors as well as to those classified as felonies.” Id. at 150.
In its summary, however, the commission stated that “traffic and similar petty charges” are excluded from this recommendation. Id. at viii.
Question: This question concerns the second listed appellant. The nature of this litigant falls into the category "miscellaneous". Which of the following categories best describes the litigant?
A. fiduciary, executor, or trustee
B. other
C. nature of the litigant not ascertained
Answer:
|
songer_numappel
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Your specific task is to determine the total number of appellants in the case. If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
UNITED STATES of America, Plaintiff-Appellee, v. Calvin D. RAHN, Defendant-Appellant.
No. 74-1324.
United States Court of Appeals, Tenth Circuit.
Argued Jan. 21, 1975.
Decided Feb. 28, 1975.
Rehearing Denied March 25, 1975.
Robert A. Wagner, Denver, Colo. (Marshall A. Fogel, Denver, Colo., on the brief), for defendant-appellant.
J. Terry Wiggins, Asst. U. S. Atty. (James L. Treece, U. S. Atty., on the brief), Denver, Colo., for plaintiff-appellee.
Before BREITENSTEIN, HILL and DOYLE, Circuit Judges.
HILL, Circuit Judge.
This is a direct appeal from a conviction for violations of 18 U.S.C. §§ 641 and 2.
The issues presented in this appeal involve only the denial of suppression of evidence due to an allegedly unlawful search and seizure.
On July 10, 1973, Inspector Neal of the Alcohol, Tobacco & Firearms Bureau (ATF), Office of Inspection, submitted an Affidavit for Search Warrant to a United States Magistrate seeking a warrant to search appellant’s residence. The affidavit resulted from an investigation by the ATF inspection service into alleged misuse of seized property by ATF agents. Appellant was an ATF special investigator stationed in Denver.
Based upon the affidavit, the magistrate issued the requested search warrant on July 10. The warrant was executed on July 13; searchers discovered and seized six weapons and a written list of firearms from appellant’s home. Appellant and his family were on vacation during this time period. On July 13 the ATF regional director, Billy Gaunt, telephoned appellant and ordered him to return to Denver to meet with the inspection service.
The next day appellant flew into Stapleton International Airport and was met by Jim Duff, appellant’s immediate supervisor and friend. Appellant had with him seven firearms which had been certified as destroyed. Appellant was taken to the ATF office in Denver; he made a lengthy incriminating statement and turned over the seven weapons to the ATF investigators.
Appellant and his former supervisor, Karl Terlau, were indicted for one count of violating 18 U.S.C. §§ 1001 and 2, and one count of violating 18 U.S.C. §§ 641 and 2. Terlau pled guilty to one count and testified at appellant’s trial. The weapons and list seized in the residence search, the seven firearms appellant brought back to Denver, and appellant’s July 14 statement were admitted as evidence. The jury found appellant guilty as to the second count, conversion of government property to his own use.
Appellant raises three issues. (1) The affidavit was based on observations of alleged unlawful activity made more than a year and a half before the application for a search warrant; consequently, the information in the affidavit was not recent enough to establish probable cause for the search warrant to issue. The residence search was unlawful and the evidence seized should have been suppressed. (2) The affidavit failed to give the magistrate probable cause to believe the weapons were, in fact, located in appellant’s residence. (3) The evidence obtained from appellant on July 14, 1973, was the direct result and product of the unlawful residence search.
We are guided by several general principles in our review of this affidavit. Affidavits for search warrants are to be tested and interpreted in a common sense and realistic manner. United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965). Reviewing courts should give deference to determinations of probable cause by issuing magistrates. United States v. Neal, 500 F.2d 305 (10th Cir. 1974); United States v. DePugh, 452 F.2d 915 (10th Cir. 1971), cert. den’d, 407 U.S. 920, 92 S.Ct. 2452, 32 L.Ed.2d 805 (1972); United States v. Berry, 423 F.2d 142 (10th Cir. 1970). Doubtful cases should be largely resolved by the preference to be given warrants. United States v. Ventresca, supra.
Appellant’s first attack on the affidavit’s sufficiency deals with the timeliness of the information. Time is a crucial element of probable cause. United States v. Holliday, 474 F.2d 320 (10th Cir. 1973); United States v. Johnson, 461 F.2d 285 (10th Cir. 1972). The Supreme Court has discussed this element of probable cause:
“. . . the proof must be of facts so closely related to the time of the issue of the warrant as to justify a finding of probable cause at that time.” Sgro v. United States, 287 U.S. 206, 53 S.Ct. 138, 77 L.Ed. 260 (1932).
In Neal, this Court stated that “[p]roba-' ble cause existing at some time in the past will not suffice unless circumstances exist from which it may be inferred that the grounds continued to the time the affidavit was filed.” However, probable cause is not determined by merely counting the number of days between the time of the facts relied upon and the warrant’s issuance. United States v. Johnson, supra.
The search warrant here was issued on July 10, 1973; the affidavit detailed several occurrences involving the property sought. Terlau, in an interview the day before the warrant issued, stated that in 1971 he and appellant each had agreed to take several of the weapons. Terlau also said that appellant had commented when they took the weapons that several of the weapons were too nice to destroy and would be worth more money if kept for several years. The affidavit recounted Special Agent Carl Newton’s statement in which he remembered seeing appellant in the fall of 1971 using a Browning over/under 12 gauge shotgun identical to one Newton had seen in the ATF vault. That weapon was one subject to the destruction order according to the affidavit. The affidavit indicated Terlau had sold his weapons to Lakewood Pawnbrokers; the affiant had investigated two pawnbrokers in Lakewood and had checked the Denver Police pawn shop records. This search had not revealed any sales of weapons by appellant.
The affidavit clearly would give a magistrate probable cause to believe appellant had taken some of the weapons. Because of the unique facts of this case, we believe the affidavit also gave the magistrate probable cause to believe appellant still possessed the weapons in spite of the lapse of time between the facts relied on and the warrant’s issuance. Newton’s account indicates appellant had appropriated at least one of the weapons for his personal use. This appropriation combined with the comment Terlau remembered that appellant believed the weapons would appreciate in value would give more than a suspicion appellant still possessed the weapons. The investigation, although far from extensive, disclosed appellant apparently had not disposed of the weapons in the manner Terlau had utilized. Furthermore, the magistrate, employing the common sense interpretation of affidavits approach, may have recognized appellant’s awareness, as an ATF agent, that in selling the guns he would be taking a real risk of detection. Consequently, we believe the affidavit provided circumstances from which it could be inferred that the probable cause clearly existing in the past continued to the time the affidavit was filed. The affidavit information was recent enough to establish probable cause in this case.
Appellant also attacks the sufficiency of the affidavit by contending it did not show probable cause to believe the articles listed in it would be found in the residence. Both parties cite United States v. Lucarz, 480 F.2d 1051 (9th Cir. 1970), where the Ninth Circuit upheld the search of a residence and said:
“The situation here does not differ markedly from other cases wherein this court and others, albeit usually without discussion, have upheld searches although the nexus between the items to be seized and the place to be searched rested not on direct observation . . but on the type of crime, the nature of the missing items, the extent of the suspect’s opportunity for concealment, and normal inferences as to where a criminal would be likely to hide stolen property.”
Lucarz and the other cases cited by appellant and the government state the general rules in this area; those cases, however, are persuasive only to the degree they present facts similar to those now before the court. The issue for our determination is whether the facts and circumstances described in the affidavit would warrant a man of reasonable caution to believe that the articles' sought were located at appellant’s residence. Lucarz v. United States, supra. The affidavit need not contain information providing “. . . certainty that the objects sought will be found as a result of the search.” Porter v. United States, 335 F.2d 602 (9th Cir. 1964), cert. den’d, 379 U.S. 983, 85 S.Ct. 695, 13 L.Ed.2d 574 (1965).
As appellant points out, the affidavit does not contain anyone’s observation of the property at the residence; that missing information, however, is not fatal to a determination that probable cause existed to search the residence. See United States v. Mulligan, 488 F.2d 732 (9th Cir. 1973), cert. den’d, 417 U.S. 930, 94 S.Ct. 2640, 41 L.Ed.2d 233 (1974); United' States v. Lucarz, supra. The affidavit, as we have determined, gave probable cause to believe appellant still possessed the weapons. The affidavit contained the report indicating appellant had used one of the weapons for hunting purposes. The statement concerning the guns’ appreciation potential indicates appellant would have given some care to their storage. As Chief Judge Arraj stated, in denying the original motion to suppress: “It is reasonable to assume that his house was where he kept things and it is pretty normal I believe for individuals to keep weapons in their homes, particularly hunting weapons and weapons which may be kept for the safety of the family.” Here an ATF agent was believed to possess the weapons; certainly, he would not have had the weapons at his office. Admittedly there are other places where the guns might have been stored; yet, we believe these facts and circumstances gave the magistrate probable cause to believe the weapons would be found as a result of the search of appellant’s present residence.
In making these decisions concerning the affidavit’s sufficiency, we have given deference to the issuing magistrate’s determination and have remembered that even doubtful cases are to be resolved largely by the preference to be given warrants. Having determined that the affidavit provided probable cause for the search warrant to issue, we hold the search was proper. Consequently, we do not reach appellant’s third contention concerning “fruit of the poisonous tree”.
Affirmed.
. 18 U.S.C. § 641 provides:
“Whoever embezzles, steals, purloins, or knowingly converts to his use or the use of another, or without authority, sells, conveys or disposes of any record, voucher, money, or thing of value of the United States or of any department or agency thereof, or any property made or being made under contract for the United States or any department or agency thereof; or
“Whoever receives, conceals, or retains the same with intent to convert it to his use or gain, knowing it to have been embezzled, stolen, purloined or converted—
“Shall be fined not more than $10,000 or imprisoned not more than ten years, or both; but if the value of such property does not exceed the sum of $100, he shall be fined not more than $1,000 or imprisoned not more than one year, or both.
“The word ‘value’ means face, par, or market value, or cost price, either wholesale or retail, whichever is greater.”
18 U.S.C. § 2 provides:
“(a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.
“(b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.”
It is generally recognized that probable cause is one of probabilities and a valid warrant may issue when the circumstances before a proper officer are such that a person of reasonable prudence would believe that a crime was being committed on the premises to be searched or evidence of a crime was being concealed there. United States v. Neal, supra.
Probable cause is not determined by hindsight but as of the time the affidavits were presented to the magistrate. Schoeneman v. United States, 115 U.S. App.D.C. 110, 317 F.2d 173 (1963).
Question: What is the total number of appellants in the case? 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.
SUN-MAID RAISIN GROWERS OF CALIFORNIA, a Corporation, Appellant, v. CALIFORNIA PACKING CORPORATION, a Corporation, Appellee.
No. 16223.
United States Court of Appeals Ninth Circuit.
Dec. 14, 1959.
Boyken, Mohler & Wood, Gordon Wood, San Francisco, Cal., for appellant.
Pillsbury, Madison & Sutro, George A. Sears, James Michael, Marshall P. Madison, San Francisco, Cal., for appel-lee.
Before BARNES and MERRILL, Circuit Judges, and ROSS, District Judge.
MERRILL, Circuit Judge.
Sun-Maid seeks relief from an injunction issued by the District Court on June 15, 1936, enjoining it from using the trademark “Sun-Maid” otherwise than upon packages containing raisins or raisin products. It has taken this appeal from an order of the District Court denying its motion to dissolve the injunction. The motion was opposed by appellee. Appellant contends that appellee has parted with all interest in the subject matter of the suit; that it had no standing to oppose the motion to dissolve; that under these circumstances denial of the motion was error.
On June 15, 1915, the predecessor of appellee instituted an action in the United States District Court for the Southern District of New York against the predecessor of appellant, complaining that the mark “Sun-Maid” was an infringement of its mark “Sun-Kist.” The action was settled by an agreement by which the predecessor of appellant covenanted to limit the use of the mark “Sun-Maid” to raisins and raisin products.
In 1929, appellee instituted an action in the District Court below, claiming that appellant had violated the agreement by which the former suit had been settled. This action culminated in the injunction now sought to be dissolved.
On September 20, 1950, appellee sold all of its right, title and interest in its trademark “Sun-Kist” to California Fruit Growers Exchange, now called Sunkist Growers, Inc.
Appellant contends that the purpose of the injunction was to protect the trademark “Sun-Kist”; that, since appellee has parted with that trademark, it has no right to continue to enforce the injunction; that to permit such enforcement would amount to an illegal restraint on trade. Its motion to the District Court was in the alternative: to dissolve the injunction or to join Sunkist Growers as a party.
The District Court ruled that no grounds for dissolution had been shown; that it would be inequitable, in the absence of valid grounds for dissolution, to relieve appellant from the restraint of the injunction; that it would not be fair to substitute a new party plaintiff and expose that new party to the possible necessity for re-litigation of a judgment which had stood as final for over twenty years.
We find no error or abuse of discretion in this ruling.
The assignment of the trademark did not in and of itself cause all rights under the contract and injunction to vanish magically as in a puff of smoke. Cf. Griffith v. Bronaugh, 1829, 1 Bland, Md., 547; Hawley v. Bennett, 1833, 4 Paige, N.Y., 163; Collier v. Newbern Bank, 1836, 21 N.C. 328. Unless some further ground for dissolution be shown to exist, those rights remain somewhere: either in appellee or in Sunkist Growers or in both. No matter where they may be, denial of the motion to dissolve the injunction upon this sole ground was proper.
As to the motion for joinder, we are again faced with the proposition that no ground for dissolution other than the mere fact of assignment has been asserted.
Substitution or joinder is not mandatory where a transfer of interest has occurred. Rule 25(c), Federal Rules of Civil Procedure, 28 U.S.C.A.; Virginia Land Co. v. Miami Shipbuilding Co., 5 Cir., 1953, 201 F.2d 506, 508; cf. Liberty Broadcasting System v. Albertson, D.C.W.D.N.Y.1953, 15 F.R.D. 121. Since appellant has failed to state facts showing any basis for a dissolution of the injunction as against Sunkist Growers, we find no error or abuse of discretion in the refusal of the District Court to grant substitution or joinder.
While it is required (Rule 17(a), Federal Rules of Civil Procedure) that every action be prosecuted in the name of the real party in interest, this action has already proceeded to final judgment. Until valid grounds for dissolution are asserted, appellant’s attack upon the finality of the judgment must fail, no unresolved dispute can be said to exist, and the necessity for substitution or joinder has not been established.
Affirmed.
. Issued pursuant to opinion of this Court in California Packing Corporation v. Sun-Maid Raisin Growers of California, 9 Cir., 81 F.2d 674.
. Permission to proceed in a matter affecting a final judgment having been granted by this Court in Sun-Maid Raisin Growers of California v. California Packing Corporation, 9 Cir., 244 F.2d 895.
. 165 F.Supp. 245, 255-256.
Question: What is the nature of the first listed respondent?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
sc_respondentstate
|
57
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state associated with the respondent. If the respondent is a federal court or federal judge, note the "state" as the United States. The same holds for other federal employees or officials.
WEST VIRGINIA ex rel. DYER et al. v. SIMS, STATE AUDITOR.
No. 147.
Argued December 5, 1950.
Decided April 9, 1951.
John B. Hollister argued the cause for petitioners. With him on the brief were William C. Marland, Attorney General of West Virginia, Thomas J. Gillooly, Assistant Attorney General, and Leonard A. Weakley.
Charles C. Wise, Jr. argued the cause and filed a brief for respondent.
Briefs of amici curiae supporting petitioners were filed on behalf of the United States by Solicitor General Perl-man, Oscar H. Davis, Alanson W. Willcox and Gladys A. Harrison; on behalf of the States of Illinois by Ivan A. Elliott, Attorney General, and Luden S. Field and William C. Wines, Assistant Attorneys General, Indiana by J. Emmett McManamon, Attorney General, Kentucky by A. E. Funk, Attorney General, and Squire N. Williams, Jr., Assistant Attorney General, New York by Nathaniel L. Goldstein, Attorney General, Ohio by Herbert S. Duffy, Attorney General, William C. Bryant, Chief Counsel to the Attorney General, and W. H. Annat and Hugh A. Sherer, Assistant Attorneys General, and Pennsylvania by Charles J. Margiotti, then Attorney General, M. Vashti Burr, Deputy Attorney General, and Harry F. Stam-baugh; and on behalf of the State of Pennsylvania by Charles J. Margiotti, then Attorney General, M. Vashti Burr, Deputy Attorney General, and Harry F. Stambaugh.
Mr. Justice Frankfurter
delivered the opinion of the Court.
After extended negotiations eight States entered into a Compact to control pollution in the Ohio River system. See Ohio River Valley Water Sanitation Compact, 54 Stat. 752. Illinois, Indiana, Kentucky, New York, Ohio, Pennsylvania, Virginia and West Virginia recognized that they were faced with one of the problems of government that are defined by natural rather than political boundaries. Accordingly, they pledged themselves to cooperate in maintaining waters in the Ohio River basin in a sanitary condition through the administrative mechanism of the Ohio River Valley Water Sanitation Commission, consisting of three members from each State and three representing the United States.
The heart of the Compact is Article VI. This provides that sewage discharged into boundary streams or streams flowing from one State into another “shall be so treated, within a time reasonable for the construction of the necessary works, as to provide for substantially complete removal of settleable solids, and the removal of not less than forty-five per cent (45%) of the total suspended solids; provided that, in order to protect the public health or to preserve the waters for other legitimate purposes, ... in specific instances such higher degree of treatment shall be used as may be determined to be necessary by the Commission after investigation, due notice and hearing.” Industrial wastes are to be treated “to such degree as may be determined to be necessary by the Commission after investigation, due notice and hearing.” Sewage and industrial wastes discharged into streams located wholly within one State are to be treated “to that extent, if any, which may be necessary to maintain such waters in a sanitary and satisfactory condition at least equal to the condition of the waters of the interstate stream immediately above the confluence.”
Article IX provides that the Commission may, after notice and hearing, issue orders for compliance enforceable in the State and federal courts. It further provides: “No such order shall go into effect unless and until it receives the assent of at least a majority of the commissioners from each of not less than a majority of the signatory States; and no such order upon a municipality, corporation, person or entity in any State shall go into effect unless and until it receives the assent of not less than a majority of the commissioners from such state.”
By Article X the States also agree “to appropriate for the salaries, office and other administrative expenses, their proper proportion of the annual budget as determined by the Commission and approved by the Governors of the signatory States . . . .”
The present controversy arose because of conflicting views between officials of West Virginia regarding the responsibility of West Virginia under the Compact.
The Legislature of that State ratified and approved the Compact on March 11, 1939. W. Va. Acts 1939, c. 38. Congress gave its consent on July 11, 1940, 54 Stat. 752, and upon adoption by all the signatory States the Compact was formally executed by the Governor of West Virginia on June 30, 1948. At its 1949 session the West Virginia Legislature appropriated $12,250 as the State’s contribution to the expenses of the Commission for the fiscal year beginning July 1, 1949. W. Va. Acts 1949, c. 9, Item 93. Respondent Sims, the'auditor of the State, refused to issue a warrant upon its treasury for payment of this appropriation. To compel him to issue it, the West Virginia Commissioners to the Compact Commission and the members of the West Virginia. State Water Commission instituted this original mandamus proceeding in the Supreme Court of Appeals of West Virginia. The court denied relief on the merits, 134 W. Va.-, 58 S. E. 2d 766, and we brought the case here, 340 U. S. 807, because questions of obviously important public interest are raised.
The West Virginia court found that the “sole question” before it was the validity of the Act of 1939 approving West Virginia’s adherence to the Compact. It found that Act invalid in that (1) the Compact was deemed to delegate West Virginia’s police power to other States and to the Federal Government, and (2) it was deemed to bind future legislatures to make appropriations for the continued activities of the Sanitation Commission and thus to violate Art. X, § 4 of the West Virginia Constitution.
Briefs filed on behalf of the United States and other States, as amid, invite the Court to consider far-reaching issues relating to the Compact Clause of the United States Constitution. Art. I, § 10, cl. 3. The United States urges that the Compact be so read as to allow any signatory State to withdraw from its obligations at any time. Pennsylvania, Ohio, Indiana, Illinois, Kentucky and New York contend that the Compact Clause precludes any State from limiting its power to enter into a compact to which Congress has consented. We must not be tempted by these inviting vistas. We need not go beyond the issues on which the West Virginia court found the Compact not binding on that State. That these are issues which give this Court jurisdiction to review the State court proceeding, 28 U. S. C. § 1257, needs no discussion after Delaware River Comm’n v. Colburn, 310 U. S. 419, 427.
Control of pollution in interstate streams might, on occasion, be an appropriate subject for national legislation. Compare Oklahoma v. Atkinson Co., 313 U. S. 508. But, with prescience, the Framers left the States free to settle regional controversies in diverse ways. Solution of the problem underlying this case may be attempted directly by the affected States through contentious litigation before this Court. Missouri v. Illinois, 180 U. S. 208, 200 U. S. 496; New York v. New Jersey, 256 U. S. 296. Adjudication here of conflicting State interests affecting stream pollution does not rest upon the law of a particular State. This Court decides such controversies according to “principles it must have power to declare.” Missouri v. Illinois, supra, 200 U. S. at 519. But the delicacy of interstate relationships and the inherent limitations upon this Court’s ability to deal with multifarious local problems have naturally led to exacting standards of judicial intervention and have inhibited the formulation of a code for dealing with such controversies. As Mr. Justice Holmes put it: “Before this court ought to intervene the case should be of serious magnitude, clearly and fully proved, and the principle to be applied should be one which the court is prepared deliberately to maintain against all considerations on the other side.” Missouri v. Illinois, supra, 200 U. S. at 521.
Indeed, so awkward and unsatisfactory is the available litigious solution for these problems that this Court deemed it appropriate to emphasize the practical constitutional alternative provided by the Compact Clause. Experience led us to suggest that a problem such as that involved here is “more likely to be wisely solved by cooperative study and by conference and mutual concession on the part of representatives of the States so vitally interested in it than by proceedings in any court however constituted.” New York v. New Jersey, supra, at 313. The suggestion has had fruitful response.
The growing interdependence of regional interests, calling for regional adjustments, has brought extensive use of compacts. A compact is more than a supple device for dealing with interests confined within a region. That it is also a means of safeguarding the national interest is well illustrated in the Compact now under review. Not only was congressional consent required, as for all compacts; direct participation by the Federal Government was provided in the President’s appointment of three members of the Compact Commission. Art. IV; Art. XI, § 3.
But a compact is after all a legal document. Though the circumstances of its drafting are likely to assure great care and deliberation, all avoidance of disputes as to scope and meaning is not within human gift. Just as this Court has power to settle disputes between States where there is no compact, it must have final power to pass upon the meaning and validity of compacts. It requires no elaborate argument to reject the suggestion that an agreement solemnly entered into between States by those who alone have political authority to speak for a State can be unilaterally nullified, or given final meaning by an organ of one of the contracting States. A State cannot be its own ultimate judge in a controversy with a sister State. To determine the nature and scope of obligations as between States, whether they arise through the legislative means of compact or the “federal common law” governing interstate controversies (Hinderlider v. La Plata Co., 304 U. S. 92, 110), is the function and duty of the Supreme Court of the Nation. Of course every deference will be shown to what the highest court of a State deems to be the law and policy of its State, particularly when recondite or unique features of local law are urged. Deference is one thing; submission to a State’s own determination of whether it has undertaken an obligation, what that obligation is, and whether it conflicts with a disability of the State to undertake it is quite another.
The Supreme Court of Appeals of the State of West Yirginia is, for exclusively State purposes, the ultimate tribunal in construing the meaning of her Constitution. Two prior decisions of this Court make clear, however, that we are free to examine determinations of law by State courts in the limited field where a compact brings in issue the rights of other States and the United States.
Kentucky v. Indiana, 281 U. S. 163, dealt with a compact to build a bridge across the Ohio River. In an original action brought before this Court, Indiana defended on the ground that she should not be compelled to perform until the Indiana courts decided, in a pending case, whether her officials had been authorized to enter into the compact. Mr. Chief Justice Hughes, speaking for a unanimous Court, dismissed the argument: “Where the States themselves are before this Court for the determination of a controversy between them, neither can determine their rights inter ‘sese, and this Court must pass upon every question essential to such a determination, although local legislation and questions of state authorization may be involved. Virginia v. West Virginia, 11 Wall. 39, 56; 220 U. S. 1, 28. A decision in the present instance by the state court would not determine the controversy here.” 281 U. S. at 176-177.
In reaching this conclusion the Chief Justice could hardly avoid analogizing the situation to that where a question is raised whether a State has impaired the obligation of a contract. “It has frequently been held that when a question is suitably raised whether the law of a State has impaired the obligation of a contract, in violation of the constitutional provision, this Court must determine for itself whether a contract exists, what are its obligations, and whether they have been impaired by the legislation of the State. ■ While this Court always examines with appropriate respect the decisions of state courts bearing upon such questions, such decisions do not detract from the responsibility of this Court in reaching its own conclusions as to the contract, its obligations and impairment, for otherwise the constitutional guaranty could not properly be enforced. Larson v. South Dakota, 278 U. S. 429, 433, and cases there cited.” 281 U. S. at 176. And see Indiana ex rel. Anderson v. Brand, 303 U. S. 95, 100.
Hinderlider v. La Plata Co., supra, is the second of these cases. It also makes clear, if authority be needed, that the fact the compact questions reach us on a writ of certiorari rather than by way of an original action brought by a State does not affect the power of this Court. In the Hinderlider case, an action was brought in the Colorado courts to enjoin performance of a compact between Colorado and New Mexico concerning water rights in the La Plata River. The State court held that the compact was invalid because it affected appropriation rights guaranteed by the Colorado State Constitution. 101 Colo. 73, 70 P. 2d 849; see also 93 Colo. 128, 25 P. 2d 187. Mr. Justice Brandéis, likewise speaking for a unanimous Court, held that the relative claims of New Mexico and Colorado citizens could be determined by compact and reversed the decision of the State court.
The issue in the Hinderlider case was whether the Colorado Legislature had authority, under the State Constitution, to enter into a compact which affected the water rights of her citizens. The issue before us is whether the West Virginia Legislature had authority, under her Constitution, to enter into a compact which involves delegation of power to an interstate agency and an agreement to appropriate funds for the administrative expenses of the agency.
That a legislature may delegate to an administrative body the power to make rules and decide particular cases is one of the axioms of modern government. The West Virginia court does not challenge the general proposition but objects to the delegation here involved because it is to a body outside the State and because its Legislature may not be free, at any time, to withdraw the power delegated. We are not here concerned, and so need not deal, with specific language in a State constitution requiring that the State settle its problems with other States without delegating power to an interstate agency. What is involved is the conventional grant of legislative power. We find nothing in that to indicate that West Virginia may not.solve a problem such as the control of river pollution by compact and by the delegation, if such it be, necessary to effectuate such solution by compact. If this Court, in the exercise of its original jurisdiction, were to enter a decree requiring West Virginia to abate pollution of interstate streams, that decree would bind the State. The West Virginia Legislature would have no part in determining the State’s obligation. The State Legislature could not alter it; it could not disregard it, as West Virginia on another occasion so creditably recognized. The obligation would be fixed by this Court on the basis of a master’s report. Here, the State has bound itself to control pollution by the more effective means of an agreement with other States. The Compact involves a reasonable and carefully limited delegation of power to an interstate agency. Nothing in its Constitution suggests that, in dealing with the problem dealt with by the Compact, West Virginia must wait for the answer to be dictated by this Court after harassing and unsatisfactory litigation.’
What Mr. Justice Brandéis said of the Colorado court decision in Hinderlider v. La Plata Co., supra, applies to the decision of the West Virginia court: “It ignores the history and order of development of the two means provided by the Constitution for adjusting interstate controversies. The compact — the legislative means — adapts to our Union of sovereign States the age-old treaty-making power of independent sovereign nations. Adjustment by compact without a judicial or quasi-judicial determination of existing rights had been practiced in the Colonies, was practiced by the States before the adoption of the Constitution, and had been extensively practiced in the United States for nearly half a century before this Court first applied the judicial means in settling the boundary dispute in Rhode Island v. Massachusetts, 12 Pet. 657, 723-25.” 304 U. S. at 104.
The State court also held that the Compact is in conflict with Art. X, § 4, of the State Constitution and for that reason is not binding on West Virginia. This section provides:
“No debt shall be contracted by this State, except to meet casual deficits in the revenue, to redeem a previous liability of the State, to suppress insurrection, repel invasion, or defend the State in time of war; but the payment of any liability, other than that for the ordinary expenses of the State, shall be equally distributed over a period of at least twenty years.”
The Compact was evidently drawn with great care to meet the problem of debt limitation in light of this section and similar restrictive provisions in the constitutions of other States. Although, under Art. X of the Compact, the States agree to appropriate funds for administrative expenses, the annual budget must be approved by the Governors of the signatory States. In addition, Article V provides: “The Commission shall not incur any obligations of any kind prior to the making of appropriations adequate to meet the same; nor shall the Commission pledge the credit of any of the signatory States, except by and with the authority of the legislature thereof.” In view of these provisions, we conclude that the obligation of the State under the Compact is not in conflict with Art. X, § 4 of the State Constitution.
Reversed and remanded.
Mr. Justice Black concurs in the result.
Question: What state is associated with the respondent?
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_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.
UNITED STATES of America, Plaintiff-Appellee, v. Edgar F. SMITH, Defendant-Appellant.
No. 14322.
United States Court of Appeals Seventh Circuit.
Aug. 14, 1964.
Rehearing Denied Sept. 10, 1964.
Mozart G. Ratner, Washington, D. C., Harold Gruenberg, Gruenberg, Schobel & Souders, St. Louis, Mo., for appellant.
Louis F. Oberdorfer, Asst. Atty. Gen., Joseph M. Howard, Atty., Tax Division, Dept, of Justice, Washington, D. C., Edward R. Phelps, U. S. Atty., Springfield, Ill., Lee A. Jackson, Norman Sepenuk, Attys., Dept, of Justice, Washington, D. C., for appellee.
Before DUFFY, KILEY and SWY-GERT, Circuit Judges.
KILEY, Circuit Judge.
Edgar Smith, a Vice-President of the International Hod Carriers' Building and Common Laborers’ Union of America, and a Regional Director for several midwest-ern states, appeals from his conviction for income tax evasion in the years 1951, 1952 and 1953. He was sentenced to four years imprisonment and fined $5,000 on each count of a three count indictment, the sentences to run concurrently. We affirm the conviction.
We must take the evidence most favorable to the Government in determining whether there is sufficient evidence to support the jury’s verdict, Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942), United States v. Accardo, 298 F.2d 133 (7th Cir. 1962), and resolve evidentiary conflicts in the Government’s favor. United States v. Carter, 326 F.2d 351, 352 (7th Cir. 1963).
There was testimony that Smith attended a meeting of contractors and labor leaders to discuss reducing payoffs, for labor peace, from 1 V%% to 1% of contract terms; that the discussion resulted in an agreement accordingly; and that thereafter pursuant to the agreement, and a previous agreement between Dale and Smith, twenty-three contractors made payments over the three years in question to either John Haywood or Evan Dale, both business representatives of autonomous district councils of the Union in southern Illinois.
Haywood testified that Smith told him in 1948 he was going to “revive a percentage deal * * * with the contractors ; ” that Smith instructed him to arrange a meeting with John Dippold, a contractor, and other contractors; that at the meeting the “percentage deal” was discussed and Smith took part in the discussion ; that Haywood was appointed to receive the payoffs; that one-third of the payoffs would go to the Hod Carriers’ and Laborers’ Union, split evenly between Smith and Haywood; and that he made payments to Smith of the payoffs he received from the contractors in 1951 and 1952.
Dale testified that he and Smith discussed the “mechanics of the collections, the whole procedure” including the division of the payoff to which Haywood testified; that they discussed the avoidance of reporting as income the amounts received from the contractors; and that he paid Smith “at least one third” of payoffs collected in 1951, 1952 and 1953.
We need not detail testimony of all payoffs and payments to Smith, since there is no claim that the amounts testified to were not the amounts charged in the indictment. We conclude there is substantial testimony to support a finding of Smith’s participation in, and approval of, the payoff plan and that he received money in 1952 and 1953 upon which he wilfully sought to evade taxes.
This conclusion disposes of Smith’s contention of violation of due process in the pre-trial Proceedings Befoi*e the Commissioner, Rule 5, Fed.R. Cr.P., because even if the contention is valid, which we do not decide, the result would affect only the 1951 tax evasion count. The pre-trial proceedings were based on a complaint filed February 21, 1958, to toll the six-year statute of limitations bar on February 26, 1958, against prosecution for the alleged 1951 offense. We do not see how Counts II and III of the indictment, which allege income tax evasion for the years 1952 and 1953, returned five months after the preliminary hearing, can be said to have been affected by what transpired before the Commissioner and the later events pertaining to that proceeding. We agree that the three counts might be said to pertain to a “continuing course of illegal conduct,” in the sense that the intention was to avoid taxes so long as payoffs continued, but in a criminal tax evasion case each year stands alone, and the failure to pay taxes in each of the years involved constitutes a separate offense. United States v. Johnson, 123 F.2d 111, 119 (7th Cir. 1941), reversed on other grounds, 319 U.S. 503, 63 S.Ct. 1233, 87 L.Ed. 1546 (1942). Since the sentences were concurrent, if the record sustains Smith’s conviction on either the 1952 or 1953 count, the judgment must be affirmed. United States v. Doran, 299 F.2d 511 (7th Cir. 1962), cert. denied, 370 U.S. 925, 82 S.Ct. 1563, 8 L.Ed.2d 504, United States v. Tenenbaum, 327 F.2d 210, 211 (7th Cir. 1964), cert. denied 377 U.S. 905, 84 S.Ct. 1165, 12 L.Ed.2d 177 (1964).
The claim that Smith was deprived of his right to prepare his defense because of the district court’s denial of his motion for a bill of particulars is without merit. The motion was addressed to the court’s discretion, and we have not been shown any abuse of discretion in the court’s ruling. United State v. Micele, 327 F.2d 222, 225 (7th Cir. 1964), cert. denied, 84 S.Ct. 1628 (June 1, 1964, No. 883, Oct. 1963 Term).
Smith argues that Haywood and Dale are tainted witnesses and “discredited * * * as a matter of law” because of previous “perjury”, and that the evidentiary foundation of the case is therefore removed. He relies upon Mesarosh v. United States, 352 U.S. 1, 77 S.Ct. 1, 1 L.Ed.2d 1 (1956), and Communist Party v. Subversive Activities Control Board, 351 U.S. 115, 76 S.Ct. 663, 100 L.Ed. 1003 (1956), to support his theory. The cases are not helpful to him. In these cases the issues of falsehoods were not before the triers of fact, and the cases were remanded. In the case at bar, the jury heard the, testimony of both Dale and Haywood-that they had denied previously that they had received payments from contractors, and heard their testimony at the trial that they had received the payments ; and the jury was instructed that “A witness may be discredited or impeached * * * by evidence that at another time the witness has made statements inconsistent with the witness’s present testimony.” Thus the issue was squarely before the jury. That is all the Supreme Court required in the Mesarosh and Communist Party cases.
The contractors’ testimony did not show direct payoffs to Smith. However, we cannot agree, as he argues, that the testimony of the contractors was immaterial. It was material to show that Dale and Haywood had already received the payoffs in the amounts charged, part of which they said they paid Smith pursuant to the agreement between them. And the testimony of Dippold was needed to show Smith’s knowledge of the “percentage deal” and his part in arranging the “mechanics.” So long as it was material, Smith can hardly claim it was inadmissible because he was prejudiced. And there is no merit to Smith’s claim that error has been confessed because the Government “concedes” that Smith was not “boss” of Dale and Haywood. The Government says only that the question of “control” by Smith is “academic” because the evidence directly tied in Smith as a participant in the 1% scheme. Finally, the court’s instruction was not on the “boss” theory. The result of the testimony was not to try Smith for conspiracy, and the rules of evidence peculiar to conspiracy have no relevance.
During trial, defense moved under the rule in Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103 (1957), for an order to produce Dale’s penitentiary medical records for use in cross-examination to show his alleged dope addiction. The trial court refused to extend the Jencks “rule” as requested and denied the motion. Testimony elicited by Smith showed only that thirteen years prior to the trial Dale would get “shots” from a doctor, after which he would act “rejuvenated.” Dale denied drug addiction on cross-examination. Even assuming the Jencks case is applicable to these medical records, which we do not decide, this evidence is an insufficient basis upon which to order these medical records turned over to defendant under the rule in the Jencks case or under Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957). We see no error in the court’s ruling.
The district court also denied Smith’s motion for production of grand jury minutes of the testimony of Dippold and other contractors, and Smith claims error in the ruling. Haywood’s grand jury testimony with respect to what contractors attended the initial meeting was voluntarily turned over to defendant. Then on the theory that by this voluntary action the Government had waived “any immunity” with respect to the balance, defendant moved for all of the grand jury minutes stating it had a “particularized need” because they were relevant to the defense. There was no showing or claim of any inconsistency or contrariety in the testimony of any witness which the minutes were needed to impeach, and thus the district court could infer there was no “particularized need”. Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 400, 79 S.Ct. 1237, 3 L.Ed.2d 1323 (1960). See also United States v. Micele, 327 F.2d 222 (7th Cir. 1964), cert. denied, 84 S.Ct. 1628 (June 1, 1964, No. 883, Oct. 1963 Term), United States v. Keegan, 331 F.2d 257 (7th Cir. 1964), pet. for cert. pending (U.S., No. 1228, Oct. 1963 Term). We see no error in the ruling.
Government rebuttal witness Freese testified to hearing Smith say on the telephone “about having Haywood killed”; and to hearing a similar statement by Smith in a later telephone conversation, “well, that’s the end of Haywood.” Smith contends, relying on United States v. Sweeney, 262 F.2d 272 (3d Cir. 1959), that the admission of this rebuttal testimony in his trial for tax evasion is obviously prejudicial. There was no objection to the original question in Smith’s cross-examination in answer to which he denied that he had ever threatened to kill Haywood if the latter did not “go along.” The testimony of Freese was admissible to meet the defense evidentiary theory, developed on direct examination, that the Union constitution gave no power to Smith to discipline Haywood or Dale, and to show that Smith had other persuasive means to force his will.
No objection at the time was made to a “dare” made by the prosecutor in argument to the jury, or to the prosecution’s reference to investigator’s “checking * * * stories” of Dale and Haywood to see “if it [sic] is believable” and saying “I think it is.” These points are waived.
The verdict against Smith was returned February 1, 1963, and Dale’s sentence was commuted by Presidential order February 25, 1963. Thereafter Smith moved in arrest of judgment on the ground that prosecutors had made misrepresentations to the jury that Dale had “nothing” to gain by “lying” and that the Government had not made a deal with him. Smith also moved for production of reports by Government agents who interviewed Dale in prison to show that deals had been offered Dale if he would testify against Smith. Smith’s motions were supported by affidavits. Opposing affidavits raised issues upon Smith’s claim that the prosecution “deliberately concealed” from the jury the prospect of a commutation to Dale. After hearing argument the court denied the motions, seeing no prejudice to the defendant.
The question of a “deal” for his testimony was suggested in Dale’s cross-examination, and denied on redirect by him. The jury had the “deal” issue, and the court presumably believed that the statements of the prosecutor were not misrepresentations and that there was no prejudice. We are not persuaded the ruling on the motion was error. The same is true of the motion to produce the “reports” to show offers of deals. If the court was satisfied there was no prejudice, there was no need of a showing at that time that agents may have made offers of deals with Dale. We cannot say there was, or could have been, prejudice in the circumstances.
Petit juror Malmberg sat on the grand jury which in 1954 and 1955, seven and one-half years before Smith’s trial, indicted Dale and Haywood and heard contractors testify again upon some of the same transactions that were subject of their testimony before the grand jury. Neither the prosecution nor the defense was aware of this fact until after the verdict against Smith was returned. Then Smith filed a motion in arrest of judgment. In support of his motion Smith filed an attorney’s affidavit which, as the Government notes, shows that jur- or Malmberg did not even recall that she had participated in the indictments of Dale and Haywood. No affidavit of juror Malmberg was submitted. The court, after arguments, upon briefs, filed a written opinion overruling the motion. Smith contends that this was reversible error because he was denied, as a matter of law, his Sixth Amendment right to an “impartial” jury.
The court concluded that “grossest speculation and conjecture” would be needed for a conclusion of Malmberg’s bias toward Smith because of her grand jury experience; and that an unwarranted assumption would be required that she was “less than candid” during the voir dire examination when she stated under oath that she could give Smith “a fair and impartial” trial. The court refused to indulge the “assumption” that the contractors’ testimony before the grand jury gave an impression of Smith’s guilt of tax evasion; and thought even if it did, the impression would not last seven and a half years; and decided that proof of prejudice was wanting. It distinguished two categories of cases cited; where a grand juror voted to return the indictment and sat on the trial of that indictment, as the “one-man judge-grand jury” in In re Murchison, 349 U.S. 133, 137, 75 S.Ct. 623, 99 L.Ed. 942 (1955); and where jurors, at the same term of court, sit in trial of one offense after having found a guilty verdict against another for a related offense, as in Casias v. United States, 315 F.2d 614, 616 (10th Cir. 1962), cert. denied, 374 U.S. 845, 10 L.Ed.2d 1065 (1963). We agree with the court’s conclusion that in either category there is a strong presumption of prejudgment not present in the Malmberg incident. In the absence of a showing otherwise, we must presume juror Malmberg was true to her voir dire oath.
Leonard v. United States, 84 S.Ct. 1696 (June 22,1964), decided after argument in the case at bar, in which the Solicitor General confessed error, is easily distinguishable. There, the panel from which the Leonard petit jury was to be selected, was present in court when another petit jury returned a guilty ver-diet against Leonard in another case. The prejudice to Leonard is obvious.
For the reasons given, we see no reversible error in the Smith trial, and we think the record supports his conviction for wilful income tax evasion in 1952 and 1953.
We have considered all the other points raised by defendant but we find no reversible error in them.
Judgment affirmed.
. The district court denied Smith’s motion to dismiss the indictment on the due process daim. Smith sought mandamus, in this court, to compel granting of the motion. We denied the petition, and the Supreme Court denied certiorari. Smith v. Mercer, 372 U.S. 914, 83 S.Ct. 727, 9 L.Ed.2d 721 (1963).
. Defendant argues ineffectually that the Government’s ease rests on the assumption, instead of evidence, that simply because he was “boss” of Haywood and Dale, he received part of the payoffs from them. His theory is that, because as an International vice-president he had no power under the Union constitution to discipline elected business representatives of autonomous district councils, he was not “boss” of Dale and Haywood and there would be no reason for them to include him in any payoff scheme.
. In Rosenberg v. United States, 360 U.S. 367, 369, 79 S.Ct. 1231, 3 L.Ed.2d 1304 (1959), the Court said that since its enactment the Jencks Act, 18 U.S.C. § 3500, and not the Jencks decision, governs what must be produced for defendant’s inspection at trial.
. The attorney’s affidavit indicated that Mrs. Malmberg told an interviewer that she had served on a grand jury “approximately in the year 1954” and that “the grand jury * * * did consider some matters involving road construction, contractors, and labor leaders.”
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_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).
E. C. SCHROEDER CO., Inc., v. CLARK et al.
No. 3578.
Circuit Court of Appeals, Tenth Circuit.
April 24, 1948.
PHILLIPS, Circuit Judge, dissenting.
James C. Hamill and Reuel W. Little, both of Madill, Okl., for appellant.
Thos. W. Champion and Louis A. Fischl, both of Ardmore, Okl., for appellees.
Before PHILLIPS, BRATTON, and HUXMAN, Circuit Judges.
BRATTON, Circuit Judge.
This was an action instituted by Virgil Clark, for himself and others similarly situated, against The E. C. Schroeder Company, a corporation, to recover overtime compensation, liquidated damages, and attorney’s fees, under the Fair Labor Standards Act, 52 Stat. 1060, 29 U.S.C.A. § 201 et seq. The defendant joined issue. The court entered judgment for plaintiffs; and defendant appealed.
In E. C. Schroeder Co. v. Clifton, 10 Cir., 153 F.2d 385, certiorari denied 328 U.S. 858, 66 S.Ct. 1351, 90 L.Ed. 1629, it was held that employees of the company engaged in the quarrying and processing of stone for gravel cushion and riprap and in the hauling of some of the finished product to the dyke being constructed around the Cumberland Oil Field where crude oil was produced for commerce were entitled to overtime compensation, liquidated damages, and attorney’s fees, under the Act, supra. The plaintiffs here were co-workers with such employees there, all being engaged in performing like duties. On the authority of that case, the judgment is
Affirmed.
Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)?
A. Trial (either jury or bench trial)
B. Injunction or denial of injunction or stay of injunction
C. Summary judgment or denial of summary judgment
D. Guilty plea or denial of motion to withdraw plea
E. Dismissal (include dismissal of petition for habeas corpus)
F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict)
G. Appeal of post settlement orders
H. Not a final judgment: interlocutory appeal
I. Not a final judgment: mandamus
J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment
K. Does not fit any of the above categories, but opinion mentions a "trial judge"
L. Not applicable (e.g., decision below was by a federal administrative agency, tax court)
Answer:
|
songer_appnonp
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "groups and associations". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Jose LLACH, Appellant, v. UNITED STATES of America, Appellee.
No. 83-2444.
United States Court of Appeals, Eighth Circuit.
Submitted April 10, 1984.
Decided July 23, 1984.
Rehearing Denied Aug. 23, 1984.
Law Offices of Penzell & Diamond, P.A., Miami, Fla., for appellant.
Rodney S. Webb, U.S. Atty., Gary An-near, First Asst. U.S. Atty., Fargo, N.D., for appellee.
• Before LAY, Chief Judge, and McMILLIAN and JOHN R. GIBSON, Circuit Judges.
McMILLIAN, Circuit Judge.
Jose Llach appeals from a final judgment entered in the District Court for the District of North Dakota after a jury trial finding him guilty of conspiracy, two counts of aiding and abetting distribution of cocaine and use of the telephone in connection with drug trafficking. Llach was sentenced to a total of twelve years imprisonment followed by three years of special parole. For reversal Llach argues that the district court erred in (1) admitting evidence of other crimes, (2) admitting out-of-court declarations of coconspirators, (3) refusing to declare a mistrial because of judicial and prosecutorial misconduct, (4) failing to conduct proper voir dire, and (5) denying Llach’s motion for acquittal. For the reasons discussed below, we affirm.
In mid-November 1981, Fargo, North Dakota, Drug Enforcement Administration (DEA) agent Charles Lee received a confidential tip that a man named Fred John McConeghy was interested in transporting illegal drugs to Fargo. Shortly thereafter, agent Lee telephoned McConeghy in Florida to discuss the purchase of marijuana and cocaine. Lee recorded this and subsequent telephone conversations he had with McConeghy. McConeghy contacted his companions, Alex Tindall and Buford Levin Higgs, to discuss the acquisition of three kilos of cocaine. Higgs then contacted Llach to see if he could acquire the necessary cocaine. Higgs had previously associated with Llach in connection with other drug transactions. Llach, a naturalized United States citizen originally from Colombia, served as middleman for deals between Colombian sources of narcotics and distributors in the United States. Llach informed Higgs that he would be able to obtain the cocaine.
Higgs chartered a plane on December 18, 1981, which flew McConeghy and Tindall from Sanford, Florida, to Fort Lauderdale, Florida, to meet with Higgs. Driving Llach’s car, Higgs picked them up at the airport and they spent the night in a Holiday Inn. Higgs maintained constant telephone contact with Llach. The next day Higgs, Tindall and McConeghy drove in Llach’s car to an apartment complex in Miami. Llach came out of an apartment and was approached by Higgs and Tindall. Llach handed Higgs a plastic bag containing one-half kilo of cocaine, which Higgs placed in the trunk of Llach’s car.
Higgs, Tindall and McConeghy proceeded to the Fort Lauderdale airport where a chartered plane and pilot waited to fly them to Fargo. Higgs removed the cocaine from the car’s trunk, placed it in his suitcase and then boarded the plane with the others.
Because of bad weather, the men were forced to make an overnight stop in Nashville, Tennessee. McConeghy contacted Lee to inform him of the delay, thereby enabling Lee to arrange airport surveillance by federal, state, and local drug enforcement agencies. The men arrived in Fargo on the morning of December 20, 1981. ,
McConeghy telephoned Lee upon his arrival in Fargo. Lee instructed McConeghy to go to the Holiday Inn. Higgs and McConeghy took the cocaine to the designated Holiday Inn where McConeghy registered under an assumed name. McConeghy called Lee to arrange a meeting.
Around 1:30 p.m., Lee met with McConeghy at a Perkins Restaurant parking lot. The meeting was held in Lee’s car. McConeghy gave Lee a Holiday Inn envelope which contained a sample of cocaine and Lee showed McConeghy the money. At that time McConeghy informed Lee that he was only able to obtain one-half kilo of cocaine.
Lee placed the envelope in his glove compartment and drove McConeghy back to the hotel. Afterwards, Lee had the substance contained in the envelope tested and determined that cocaine was present. The remaining substance was sealed, marked as evidence, and left at the Fargo DEA office.
Around 3:00 p.m. on December 20, Lee phoned McConeghy and Higgs at the Holiday Inn to inform them that he wished to purchase the eighteen ounces of cocaine in their possession. Higgs told Lee he would get the rest of the three kilos for him.
Higgs gave McConeghy the cocaine. Higgs then called Tindall at the Fargo airport and made two calls to Llach in Florida to arrange for the delivery of the remainder of the cocaine.
McConeghy took a taxi to Perkins Restaurant to meet with Lee. He arrived around 4:30 p.m. and got into Lee's car. McConeghy gave Lee a shopping bag containing the cocaine. Lee went to the trunk of his car, presumably to get the money. Instead, Lee signaled onlooking officials and McConehgy was arrested. Higgs, Tindall and McConeghy were all convicted on various counts connected with this transaction. At Llach’s trial, these three men testified on behalf of the government. Their testimony described Llach’s participation in this and other drug transactions and traced the chronology of events in Florida and North Dakota.
Evidence of Other Crimes
Llach challenges the admission of evidence concerning his previous participation in the importation, distribution, and sale of methaqualone and marijuana, arguing that transactions involving substances other than cocaine are inadmissible and highly prejudicial.
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that his or her conduct on a particular occasion was in conformity with it: However, evidence of prior conduct which may constitute a separate crime may be offered to prove motive, intent, opportunity, knowledge, preparation, common scheme or plan, identity, or absence' of mistake or accident. Fed.R.Evid. 404(b).
In United States v. Miller, 725 F.2d 462 (8th Cir.1984), this court reiterated the well-established requirements for admission of other crimes evidence:
(1) the evidence of the other act must be relevant to a material issue; (2) the other act must be similar in kind and reasonably close in time to the crime charged; (3) the evidence of the other act must be clear and convincing; and (4) the probative value of the evidence must not be outweighed by its prejudice.
Id. at 466 (citations omitted). In addition, if the court finds the evidence admissible, a limiting instruction should be given. Id.
In the instant case, the evidence of the previous drug transactions was relevant to prove intent and common scheme or plan. The other acts were sufficiently similar because they involved drug transactions arranged by Llach, Tindall, Higgs, and others who participated in the cocaine transactions for which Llach was tried. In the present case, the previous transactions overlapped the negotiations for the charged violations; therefore, it was reasonable to conclude that the transactions were relatively close in time. Higgs, Tindall and another coconspirator testified at trial regarding Llach’s participation in the previous transactions. Direct testimony of the defendant’s participation in the prior transactions is sufficient to meet the clear and convincing standard. See United States v. Evans, 697 F.2d 240, 248 (8th Cir.), cert. denied, 460 U.S. 1086, 103 S.Ct. 1779, 76 L.Ed.2d 352 (1983). In determining whether the prejudicial impact of the challenged evidence outweighed its probative value, the district court is afforded broad discretion. See United States v. Miller, 725 F.2d at 466. Llach has not demonstrated that such discretion was abused in this case. Finally, the district court properly instructed the jury concerning the narrow purpose for which the evidence of other crimes was admitted. We hold, therefore, that the district court did not abuse its discretion in admitting the evidence of other crimes.
Coconspirators’Statements
Llach argues that the district court improperly admitted out-of-court declarations of coconspirators as evidence against him. The government urges that the statements were properly admitted under Fed.R.Evid. 801(d)(2)(E). We agree that the statements were properly admitted.
An out-of-court declaration of a co-conspirator is admissible against a defendant if the district court makes a preliminary determination that the government demonstrated that (1) a conspiracy existed, (2) the defendant and the declarant were members of the conspiracy, and (3) the declaration was made during the course and in furtherance of the conspiracy. Fed. R.Evid. 801(d)(2)(E). Admissibility of the evidence is conditioned upon the presentation of sufficient independent evidence to establish the existence of a conspiracy. United States v. Bentley, 706 F.2d 1498, 1506 (8th Cir.1983), cert. denied, — U.S. -, 104 S.Ct. 2397, 81 L.Ed.2d 354 (1984); United States v. Bell, 573 F.2d 1040, 1044 (8th Cir.1978). In United States v. Bell, this court set forth guidelines for the admissibility of such statements:
(1) If the prosecutor propounds a question which obviously requires a witness to recount an out-of-court declaration of an alleged coconspirator, the court, upon a timely and appropriate objection by the defendant, may conditionally admit the statement. At the same time, the court should, on the record, caution the parties (a) that the statement is being admitted subject to defendant’s objection; (b) that the government will be required to prove by a preponderance of the independent evidence that the statement was made by a coconspirator during the course and in furtherance of the conspiracy; (c) that at the conclusion of all the evidence the court will make an explicit determination for the record regarding the admissibility of the statement; and (d) that if the court determines that the government has failed to carry the burden delineated in (b) above, the court will, upon appropriate motion, declare a mistrial, unless a cautionary instruction to the jury to disregard the statement would suffice to cure any prejudice. The foregoing procedural steps should transpire out of the hearing of the jury.
(2) After a ruling on the record that the out-of-court declaration is admissible under Rule 801(d)(2)(E), the court may submit the case to the jury. The court should not charge the jury on the admissibility of the coconspirator’s statement, but should, of course, instruct that the government is required to prove the ultimate guilt of the defendant beyond a reasonable doubt. An appropriate instruction on credibility should be given, and the jury should be cautioned with regard to the weight and credibility to be accorded a coconspirator’s statement.
573 F.2d at 1044 (citations omitted).
Llach does not argue that the district court failed to adhere to this procedure. At trial the coconspirators’ out-of-court statements were conditionally admitted over Llach's objections. At the close of the government’s case the district court ruled that
[t]he government has established that a conspiracy existed and that the following, at least, were members of the conspiracy: Fred J. McConeghy, Alex Tindall, Buford Higgs, I’m not sure about Gary Hamilton, at least as to those charges. Lee, a government agent, of course, could not be a co-conspirator, but I find that McConeghy, Tindall, Higgs were members of the conspiracy and that the statements which have been received, the out-of-court statements which otherwise would have been hearsay by them as to what other people said, so forth, that all of those were subject to being received by this rule, that those statements were made during the course of and in furtherance of the conspiracy and so I find them to be admissible.
The court instructed the jury that the government was required to prove guilt beyond a reasonable doubt. The court also gave an appropriate instruction on credibility and cautioned the jury regarding the weight afforded a coconspirator’s testimony.
Llach asks this court not to adhere to the procedure enunciated in United States v. Bell and to adopt the procedure set forth in United States v. James, 590 F.2d 575 (5th Cir.) (banc), cert. denied, 442 U.S. 917, 99 S.Ct. 2836, 61 L.Ed.2d 283 (1979), requiring prior proof of conspiracy:
Both because of the “danger” to the defendant if the statement is not connected and because of the inevitable serious waste of time, energy and efficiency when a mistrial is required in order to' obviate such danger, we conclude that the present procedure warrants the statement of a preferred order of proof in such a case. The district court should, whenever reasonably practicable, require the showing of a conspiracy and of the connection^ of the defendant with it before admitting declarations of a coconspirator. If it determines it is not reasonably practical to require the showing to be made before admitting the evidence, the court may admit the statement subject to being connected up.
Id. at 582. This court has repeatedly declined to require prior proof of conspiracy and we choose not to depart from the procedure set forth in Bell.
Additionally, Llach argues that the government failed to present sufficient independent evidence of the conspiracy’s existence and Llach’s participation in it.
Sufficient independent evidence exists “if on the independent evidence the district court is satisfied that it is more likely than not that the statement was made during the course and in furtherance of an illegal association to which the declarant and the defendant were parties.” United States v. Bell, 573 F.2d at 1044. When making a preliminary determination of admissibility, “[t]he trial judge ... has wide discretion and must be satisfied only that there is independent evidence, credible and sufficient to support a finding of a joint undertaking. The independent evidence of illicit association may be completely circumstantial or may consist of the co-conspirator’s own conduct and admissions.” United States v. Sholle, 553 F.2d 1109, 1117 (8th Cir.1977), cert. denied, 434 U.S. 940, 98 S.Ct. 432, 54 L.Ed.2d 300 (1978). See also United States v. Bentley, 706 F.2d at 1506; United States v. Williams, 604 F.2d 1102, 1113 (8th Cir.1979); United States v. Bell, 573 F.2d at 1044.
We agree that the government proved by a preponderance of the evidence the existence of a conspiracy to distribute and possess with the intent to distribute cocaine between McConeghy, Higgs, Llach, and Tindall. McConeghy, Higgs, Tindall, and agent Lee testified about their negotiations, agreement, and preparation, and Llach’s role in the arrangement. Llach’s own conduct provided sufficient evidence under the prevailing standards to establish his participation in the conspiracy. Higgs testified that Llach provided him with his car for the purpose of picking up the drugs and transporting them to the Florida airport. In addition, Higgs and Tindall testified that Llach personally delivered the cocaine to them before they left for North Dakota. Thus, we hold that the district court properly admitted the coconspirators’ statements under Fed.R.Evid. 801(d)(2)(E).
Judicial and Prosecutorial Misconduct
Llach argues that on several occasions during the course of the trial the district court improperly injected itself on behalf of the government. Llach argues that this misconduct prejudiced him by depriving him of a fair trial and that he should be granted a new trial. These instances of judicial “misconduct” include “interruptions” by the court during defense counsel’s cross-examination of witnesses and a display of “sarcasm” and “impatience” by the court toward defense counsel.
This court has often stated that a “judge conducting a jury trial in a federal court is more than a ‘mere moderator;’ he is ‘the governor of the trial for the purpose of assuring its proper conduct.’ ” Dranow v. United States, 307 F.2d 545, 572 (8th Cir.1962), citing Quercia v. United States, 289 U.S. 466, 469, 53 S.Ct. 698, 698, 77 L.Ed. 1321 (1933). See also United States v. Woods, 696 F.2d 566, 570-71 (8th Cir. 1982). Generally “statements made by the trial judge are not cause for reversal unless prejudicial error is apparent ... [and] each record must speak for itself in determining if improper comments by the judge were prejudicially erroneous.” United States v. Woods, 696 F.2d at 571 (citations omitted).
[The trial judge] has the prerogative, and at times the duty, of eliciting facts he deems necessary to the clear presentation of the issues. To this end he may examine witnesses who testify, so long as he preserves an attitude of impartiality and guards against giving the jury an impression that the court believes the defendant is guilty.
Id., citing Dranow v. United States, 307 F.2d at 572.
We have carefully reviewed the record, paying particular attention to the portions of the transcript referred to by Llach and we find no prejudicial error. As in United States v. Woods, 696 F.2d at 570, most of the court’s comments in the present case were not made within the hearing of the jury. The other comments were either rulings on government objections or questions from the bench addressed to witnesses in an effort to clarify testimony. Throughout the trial the court remained impartial. We are satisfied that the jury was not influenced in any way by the conduct of the judge, and Llach, therefore, was not deprived of a fair and impartial trial.
We are, however, more disturbed by statements made by the prosecutor during his rebuttal closing argument:
MR. ANNEAR: In closing, I’d like to state that Mr. Higgs and Mr. Tindall and Mr. McConeghy have been brought to the bars of justice and have answered to their crimes and punished by the Court and I submit to.you now that it’s up to-you to decide what fate lies for the Defendant, Jose Llach. We ask he has to answer for his crimes charged or I submit to stand before this Court for punishment as Mr. Higgs, Mr. McConeghy and Mr. Tindall have done, or you are to decide whether or not he would be free to, I submit, to go out and conduct himself as he has in the past and I submit to you as a purveyor of drugs in the streets of this country.
MR. DIAMOND: Objection. Improper argument.
THE COURT: Overruled. Go ahead.
Llach contends that these remarks prejudiced his case before the jury in such a manner to warrant a new trial.
Improper statements made by prosecutors during closing arguments have been a persistent problem in this Circuit. We have repeatedly instructed prosecuting attorneys regarding their role in the adversary process and the proper bounds of closing arguments. See, e.g., United States v. Michaels, 726 F.2d 1307 (8th Cir.1984); United States v. Auerbach, 682 F.2d 735 (8th Cir.), cert. denied, 459 U.S. 911, 103 S.Ct. 219, 74 L.Ed.2d 174 (1982); United States v. Singer, 660 F.2d 1295 (8th Cir. 1981), cert. denied, 454 U.S. 1156, 102 S.Ct. 1030, 71 L.Ed.2d 314 (1982); United States v. Segal, 649 F.2d 599 (8th Cir.1981); United States v. Bohr, 581 F.2d 1294 (8th Cir.), cert. denied, 439 U.S. 958, 99 S.Ct. 361, 58 L.Ed.2d 351 (1978).
However," the district court has broad discretion in controlling closing arguments. United States v. Michaels, 726 F.2d at 1315. This court will not reverse absent a showing of abuse of discretion. Id. We must decide whether the objectionable comments were so offensive, when considered in the context of the entire trial, as to deprive Llach of a fair trial. Id.
The prosecutor’s reference to freeing Llach to commit more crimes was irrelevant, unnecessary and dangerously close to the line of demarcation between permissible and impermissible statements during closing arguments. However, the evidence in this case was substantial, and the court, in its general instructions to the jury, carefully cautioned the jury to consider only the evidence in arriving at their verdict. Thus, when viewed in light of the entire trial, the prosecutor’s remarks do not constitute reversible error. This court cautions the government, however, that
[t]he United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor— indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.
United States v. Berger, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314 (1934).
Voir Dire
Llach, a naturalized United States citizen of Colombian ancestry, maintains that his conviction should be reversed because the district court refused to ask prospective jurors whether Llach’s Latin ancestry would affect their ability to render an impartial decision. Following preliminary voir dire, the district court asked whether there were any other questions defense counsel wished to propose. Defense counsel responded, “Without waiving any of the requests I have, I’m most interested in whether or not it would prejudice them in any way the fact that the accused would come from south Florida.”
The district court refused Llach’s request explaining:
Let me say this: the Defendant’s name, I spelled it for them. Looking at it, they looked at him. I’m told that the basic population stock of this area, I read this in a magazine, from Canada, Germany, Scandinavia and possibly Russia. This is a nation of immigrants. My father was an immigrant and I don’t intent to ask if they are going to be fair to somebody, the background, I wouldn’t ask them to be fair to somebody German or Russian or anybody else. They are an American citizen and I am going to ask them each individually, I have not yet, but before you’re required to exercise your challenges I’ll ask each of the jurors if they could and will fairly and impartially try the issues of facts in this case with this defendant and the government so in effect I will include that, I won’t pinpoint that.
The district court did not ask any specific questions concerning ethic prejudice, but did ask general questions concerning prejudice and impartiality.
As the Supreme Court said in Rosales-Lopez v. United States, 451 U.S. 182, 101 S.Ct. 1629, 68 L.Ed.2d 22 (1981) (Rosales-Lopez),
[v ]oir dire plays a critical function in assuring the criminal defendant that his Sixth Amendment right to an impartial jury will be honored. Without an adequate voir dire the trial judge’s responsibility to remove prospective jurors who will not be able impartially to follow the court’s instructions and evaluate the evidence cannot be fulfilled. Similarly, lack of adequate voir dire impairs the defendant’s right to exercise peremptory challenges where provided by statute or rule, as it is in the federal courts.
Despite its importance, the adequacy of voir dire is not easily subject to appellate review. The trial judge’s function at this point in the trial is not unlike that of the jurors later on in the trial. Both must reach conclusions as to impartiality and credibility by relying on their own evaluations of demeanor evidence and of responses to questions. In neither instance can an appellate court easily second-guess the conclusions of the decisionmaker who heard and observed the witnesses.
Because the obligation to impanel an impartial jury lies in the first instance with the trial judge, and because he must rely largely on his immediate perceptions, federal judges have been accorded ample discretion in determining how best to conduct the voir dire.
Id. at 188-89, 101 S.Ct. at 1634 (citations and footnotes omitted). Failure to question the jury concerning ethnic or racial prejudice is constitutionally infirm only if ethnic or racial issues are “inextricably bound up with the conduct of the trial,” Ristaino v. Ross, 424 U.S. 589, 596, 96 5. Ct. 1017, 1021, 47 L.Ed.2d 258 (1976) (Ristaino), or the circumstances in the case “suggest a significant likelihood that racial prejudice might infect [the defendant's] trial.” Id. at 598, 96 S.Ct. at 1022. Ristaino, a habeas corpus case, involved a violent criminal confrontation between a black defendant and a white security guard. Those facts alone, however, did not create a constitutional obligation to question the jury about racial prejudice. Id. at 597, 96 S.Ct. at 1021. Accord United States v. Bell, 573 F.2d at 1042-43 (black defendant convicted by white jury for transferring sawed-off shotguns without paying required transfer tax).
In Rosales-Lopez, the defendant, of Mexican descent, was convicted of participating in a plan to smuggle illegal Mexican aliens into the United States. The Court said that “[t]here is no constitutional presumption of juror bias for or against members of any particular racial or ethnic groups,” 451 U.S. at 190, 101 S.Ct. at 1635, and failed to hold the federal district court’s refusal to inquire on voir dire into racial or ethnic prejudice as constitutional error. Id. Similarly, such inquiry is not constitutionally mandated in the present case.
Based on its supervisory authority over the federal courts, the Supreme Court, in Rosales-Lopez, noted that there is a non-constitutional duty on the part of the federal district courts to propound such questions in certain circumstances. 451 U.S. at 190, 101 S.Ct. at 1635. The purpose of this duty is to assure that the “appearance of justice in the federal court” is maintained. Id. The Court noted:
In our judgment, it is usually best to allow the defendant to resolve this conflict by making the determination of whether or not he would prefer to have the inquiry into racial or ethnic prejudice pursued. Failure to honor his request, however, will be reversible error only where the circumstances of the case indicate that there is a reasonable possibility that racial or ethnic prejudice might have influenced the jury.
Id. at 191, 101 S.Ct. at 1635. Providing some guidance. as to what constitutes a “reasonable possibility” that a jury might be so influenced, the Supreme Court noted:
[F]ederal trial courts must make such an inquiry when requested by a defendant accused of a violent crime and where the defendant and the victim are members of different racial or ethnic groups. This supervisory rule is based upon and consistent with the “reasonable possibility standard” articulated above. It remains an unfortunate fact in our society that violent crimes perpetrated against members of other racial or ethnic groups often raise such a possibility. There may be other circumstances that suggest the need for such an inquiry, but the decision as to whether the total circumstances suggest a reasonable possibility that racial or ethnic prejudice will affect the jury remains primarily with the trial court, subject to case-by-case review by the appellate courts.
Id. at 192, 101 S.Ct. at 1636. Where, as in the present case, the defendant is charged with a non-violent victimless crime, such inquiry is not mandated and the reviewing court should consider the “effectiveness of the trial court in reasonably assuring that the prejudice would be discovered if present.” United States v. Groce, 682 F.2d 1359, 1362-63 (11th Cir.1982) (citations omitted). If voir dire was conducted in such a manner to eliminate a reasonable possibility that racial or ethnic prejudice might influence the jury’s evaluation of the evidence, then there is no reversible error. Rosales-Lopez, 451 U.S. at 192-93, 101 S.Ct. at 1636.
In the present case, although the district court refused to inquire specifically about the prospective jurors’ possible ethnic prejudice, the district court did try to assure impartiality. With Llach present in the courtroom, the court spelled and pronounced his name. The prospective jurors were asked as a group and individually whether they could serve fairly and impartially. See United States v. Groce, 682 F.2d at 1363. The court also considered the extent of pretrial publicity surrounding this case and the ethnic sentiment in Fargo towards Latins and concluded that there was no unusual potential for ethnic prejudice. Certainly the trial judge did not ignore the issue of prejudice. Llach does not point to any specific ethnic factors that would infect the trial.
Although the better practice would have been to honor Llach’s request, we cannot say that the trial court abused its discretion or that its refusal to ask the question caused a reasonable possibility that the jury’s decision might be influenced by prejudice. United States v. Groce, 682 F.2d at 1363.
Sufficiency of the Evidence
Finally, Llach argues that the evidence was insufficient to establish his guilt beyond a reasonable doubt. The jury verdict “must be sustained if there is substantial evidence in the record to support it, taking the view of the evidence most favorable to the government.” United States v. Segal, 649 F.2d at 600 (citations omitted). We have carefully examined the record in the light most favorable to the government and conclude that there was ample evidence to support the jury verdicts.
Accordingly, we affirm the judgment of the district court.
. The Honorable Ben Krentzman, United States Senior District Judge for the Middle District of Florida, sitting by designation in the District of North Dakota.
. The author believes the better procedure would be to conduct pretrial hearings on the admissibility of the statements or require the government to prove the existence of a conspiracy during its case-in-chief prior to the admission of the coconspirator’s statements. United States v. Howard, 706 F.2d 267, 270-71 (8th Cir.) (McMillian, J., concurring), cert. denied, — U.S.-, 104 S.Ct. 341, 7
Question: What is the total number of appellants in the case that fall into the category "groups and associations"? Answer with a number.
Answer:
|
songer_treat
|
B
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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.
UNITED STATES of America v. Francis LABATE, Joseph P. Ballard, Francis Jack Kesting, Harry Deering, Harry H. Nonnemacker, Jr., Aaron Sussman, Harry Nassau, Maurice Herbert Chamberland, Harry Chorney, Charles F. Spalazzo, Aaron Sussman, Appellant. UNITED STATES of America v. Francis LABATE, Joseph P. Ballard, Francis Jack Kesting, Harry Deering, Harry H. Nonnemacker, Jr., Aaron Sussman, Harry Nassau, Maurice Herbert Chamberland, Harry Chorney, Charles F. Spalazzo, Harry D. Nassau, Appellant.
Nos. 12818, 12819.
United States Court of Appeals Third Circuit.
Argued May 26, 1959.
Decided Aug. 21, 1959.
Certiorari Denied Nov. 23, 1959.
See 80 S.Ct. 211.
Daniel H. Greenberg, New York City, for appellants.
Joseph L. McGlynn, Jr., Asst. U. S. Atty., Philadelphia, Pa. (Harold K. Wood, U. S. Atty., Norman C. Henss, Asst. U. S. Atty., Philadelphia, Pa., on the brief), for appellee.
Before BIGGS, Chief Judge, and KA-LODNER and STALEY, Circuit Judges..
BIGGS, Chief Judge.
These appeals can be disposed of in one-opinion since they involved the same criminal proceedings in the court below. The defendants-appellants have raised six issues, any one of which they assert,, furnishes an adequate basis for a new trial. Five of these issues were dealt with most competently and disposed of correctly contrary to the appellants’ assertions, in the thoughtful opinion of Judge Lord in the court below, D.C.,. 1958, 168 F.Supp. 531, and need not be discussed here.
The appellants as their sixth point for reversal allege that there was a failure to record and transcribe the grand jury proceedings resulting in the indictment and that this was prejudicial to the appellants’ rights under the Fifth Amendment in the light of a further allegation made by them that none of the witnesses for the United States at the trial gave evidence against the appellants before the grand jury. The indictment charged the appellants and others with stealing and receiving property stolen from the United States. The appellants’ position in this regard is best set out by quoting from their brief. The brief states: “Since the government witnesses testifying in this case as to the direct knowledge by Sussman and Nassau that the goods they were purchasing were stolen, Martin Weiner and Lichtman, each stated he did not testify before the grand jury, except to claim his privilege against self-incrimation, then it was imperative for counsel to determine what, if any, proof there was before the grand jury returning this indictment. When the prosecutor stated ‘no notes of testimony’ were taken before this grand jury, this defense inquiry was thwarted and forestalled.”
We will accept as a “fact”, for the purposes of these appeals only, that there was no reporter present at the proceedings before the grand jury and that there is and can be no stenographic transcription of those proceedings.
Rule 12(b) (2), Fed.R.Crim. Proc., 18 U.S.C., provides that defenses and objections based on defects in the institution of the prosecution or in the indictment, other than that the indictment fails to show jurisdiction in the court or fails to charge an offense, may be raised only by motion before trial, and also that the failure to make such motion constitutes a waiver of the defense. The same rule provides as well that the trial court may grant relief from the waiver for cause shown. The appellants failed to make any motion pursuant to Rule 12(b) (2). Cf. Costello v. United States, 1956, 350 U.S. 359, 360, 76 S.Ct. 406, 100 L.Ed. 397. Had they done so, the trial judge could have inquired into this issue and an adequate record could have been made. Absent such a record the appellants seek to have us reach the question of inadequate evidence as a basis for the grand jury presentment against them with no proof in the record that such was indeed the case.
The absence of grand jury testimony is attempted to be employed by the appellants as an auxiliary, as a kind of oblique lever, to endeavour to demonstrate in the present proceedings that they were indicted on insufficient or incompetent evidence. This they cannot do. In Costello, supra, 350 U.S. 363, 364, 76 S.Ct. 408-409, the Supreme Court held that an indictment based on hearsay evidence was valid and that it would not establish a rule permitting defendants in criminal cases to challenge indictments on the ground that they are not supported by adequate or competent evidence. We would not change this salutary ruling even if we could do so.
There is no showing or even allegation that the grand jury was not constituted properly or had no evidence before it.
No constitutional issue lurks in the present record. The judgments of conviction will be affirmed.
. There is no evidence in the record that the testimony before the grand jury was not taken or transcribed. The appellants rely on statements made by the Assistant United States Attorney during the trial as set out in the transcript of the proceedings. In respect to the question as to whether any witnesses who appeared before the grand jury also testified at the trial, the Assistant United States Attorney stated: “Of my own knowledge I •can’t say whether any of them appeared. I can say that no record was made of their testimony if they did appear. So I doubt very much if any of them did.” The Assistant United States Attorney also stated: “1 do not believe they testified at all, Tour Honor, but I am sure there were people who testified whose testimony was not taken down. I am not sure, but I certainly assume there were, because ordinarily we do not bother the court reporters for every little bit of testimony before the grand jury. They would never get their work done in court.” The Assistant United States Attorney also stated: “There were, as to my knowledge, no notes of testimony of the present indictment.”
It is not clear from the foregoing whether the Assistant United States Attorney was speaking of his own personal knowledge as to what transpired before the grand jury.
. This extent, if any, that Rule 12(b) (2) is modified by the Costello opinion is not before us.
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:
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songer_typeiss
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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 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.
M & M LEASING CORPORATION, Goodway Leasing, Inc., Bill Pierre Leasing, Inc., Budget Rent-a-Car of Washington-Oregon, Plaintiffs-Appellants, v. SEATTLE FIRST NATIONAL BANK, a National Bank, Firstbank Leasing Corporation, a Washington Corporation, James E. Smith, Comptroller of the Currency of the United States, Defendants-Appellees. M & M LEASING CORPORATION, Goodway Leasing, Inc., Bill Pierre Leasing, Inc., Budget Rent-a-Car of Washington-Oregon, Plaintiffs-Appellees, v. PEOPLES NATIONAL BANK OF WASHINGTON, a National Bank, Peoples Leasing Company, a Washington Corporation, James E. Smith, Comptroller of the Currency of the United States, Defendants-Appellants, James E. Smith, Comptroller of the Currency of the United States, Defendant-Cross-Appellant.
Nos. 75-2576 and 75-2577.
United States Court of Appeals, Ninth Circuit.
Nov. 4, 1977.
Rehearing and Rehearing En Banc Denied Dec. 23, 1977.
John P. Lycette, Lycette, Diamond & Sylvester, Seattle, Wash., for plaintiffs-appellants.
Anthony J. Steinmeyer, Atty., Appellate Section, Civil Division, Dept. of Justice, Washington, D. C., Bradley C. Diggs, Seattle, Wash., for Seattle First National.
Before KOELSCH and SNEED, Circuit Judges, and RICHEY, District Judge.
Honorable Mary Anne Richey, United States District Judge, for the District of Arizona, sitting by designation.
SNEED, Circuit Judge:
Appellees, Seattle First National Bank (Seafirst) and Peoples National Bank of Washington, are engaged in the leasing of motor vehicles and other personal property. Appellants, M & M Leasing Corporation, Goodway Leasing, Inc., Bill Pierre Leasing, Inc., and Budget Rent-a-Car of Washington-Oregon, Inc., are independent corporations engaged principally in motor vehicle leasing. Defendant-cross-appellant is the Comptroller of Currency of the United States.
Appellants, plaintiffs in the trial court, sought a declaration that the appellees’ leasing of motor vehicles and other personal property was not authorized by 12 U.S.C. § 24 (Seventh), despite the fact that it is sanctioned by the Comptroller of the Currency. Appellants also requested an injunction barring appellees and their subsidiaries from further motor vehicle leasing activities. Moreover, appellants asserted that, even if the Comptroller’s rulings relied upon to sanction appellees’ activities are valid, such activities exceeded the authorization the rulings provided and should be enjoined to that extent.
The trial court in an able opinion distinguished between motor vehicle lease transactions in which the banks do not assume the risk of residual value fluctuation upon termination of the lease (so-called “open end” leases) and those in which the banks do assume such risk (so-called “closed end” leases). In its initial judgment the trial court enjoined the appellees “from engaging in motor vehicle lease transactions in which the banks assume the risk of residual value fluctuation upon termination of the lease” (II C.R. 575) and declared the Comptroller’s interpretive rulings, 12 C.F.R. §§ 7.3400 and 7.7376, invalid to the extent they authorized such leases.
None of the parties was entirely satisfied by this disposition of their dispute. The appellee banks moved to clarify the opinion and judgment to remove “closed end” leases in which there is to be a “full payout” prior to termination of the lease from the scope of the trial court’s injunction and to delete the words “motor vehicle” from the language of the injunction. The appellants thought the court’s injunction should embrace all leasing and the Comptroller of Currency indicated displeasure with the restrictiveness of the trial court’s opinion and injunction.
The trial court in due course amended its injunction to delete the words “motor vehicle” so that it currently reads “from engaging in lease transactions in which the banks assume the risk of residual value fluctuation upon termination of the lease.” (II C.R. 598). Also, by order, the trial court construed its opinion and judgment as follows:
“Lease transactions in which the lessor bank, during the initial lease term, is repaid the cost of the property leased, plus the cost of financing the transaction, in the form of rentals, tax benefits and/or the guarantee of a financially responsible guarantor, are neither disapproved in the Court’s opinion nor enjoined by the judgment entered herein.” (II C.R. 596).
These modifications satisfied the appel-lees but, of course, neither the appellants nor the Comptroller. Hence, this appeal was taken by them. We affirm in part and reverse in part.
In essence, we view the trial court’s holding as correct, so far as it goes, but somewhat more restrictive than the law requires. As we see it, the “business of banking,” which 12 U.S.C. § 24 (Seventh), authorizes the appellees to conduct, includes leases of personal property when, in the light of all relevant circumstances, the transactions constitute the loan of money secured by the properties leased. A transaction may be so characterized, in our opinion, even if it is designed so that the lessor bank does not recover during the initial lease term every penny of the cost of the leased property plus its financing costs. A lease ceases to be a secured loan when the lessor assumes material burdens other than those of a lender of money and is subject to significant risks not ordinarily incident to a secured loan. The bright line traced by the trial court provides a sound guide by which leases can be kept within the scope of the “business of banking.” We are not, however, prepared to say that the trial court’s bright line constitutes the precise outer limit of the “business of banking.”
To support our holding, we first will describe the nature and scope of national banks’ involvement in the leasing of personal property, we will next analyze the term “business of banking” and apply the analysis to such leasing, and, finally, we will identify some of the characteristics of leases which lie beyond the outer limits of the “business of banking.”
I
Leasing By National Banks.
The record of this case indicates that the role of national banks, such as Seafirst and Peoples, in personal property leasing generally is essentially that of a financing agency. To illustrate this it is useful to divide personal property leases into motor vehicle leases and leases of aircraft, ships and other so-called “big ticket” items.
Motor vehicle leases usually, but not invariably, are generated by automobile dealers. Particular dealers will enter into an agreement with a bank under which dealers will lease automobiles to their customers. The major terms of a lease, i. e., make, model, accessories, term, and payment schedule, are fashioned by the dealer in a manner that fits his and the customer’s interests and conforms to the lease design envisioned by the dealer’s arrangement with the bank. To protect itself against improvident leases the bank possesses the right to review both the substantive terms of a lease and the credit-worthiness of the lessee before accepting the lease. The crucial items reviewed are the credit rating of the customer and the vehicle’s residual value. Upon accepting the lease the lessee-customer is notified and instructed to make lease payments to the bank. The title of the vehicle shows the bank as the legal owner, while the customer is listed as registered owner and lessee. Customers who approach the bank initially are usually referred to dealers with whom the bank has leasing arrangements.
The bank functions somewhat differently with respect to “big ticket” items. With respect to them, generally the customer calls the bank directly and expresses an interest in leasing particular personal property. This contact essentially is to inquire about the availability of credit. The bank performs no procurement function. The customer chooses the property he wishes to lease, selects a vendor and negotiates with him the terms of the purchase. Assuming the bank finds the customer an acceptable credit risk, it then purchases the property and leases it to the customer. Delivery by the seller is made directly to the customer-lessee who makes the lease payments to the bank.
Both motor vehicle leases and “big ticket” leases provide that the burdens of operating costs and risks are borne by the lessee. Thus, the lessee agrees to purchase insurance sufficient to cover the bank’s interest, to pay all repairs and maintenance, and to assume the risk of loss or damage.
Motor vehicle leases and “big ticket” leases frequently differ, however, in certain important respects. Foremost is the difference in the lessee’s responsibility at the expiration of the initial term of the lease. Motor vehicle leases, for example, include a guarantee by the lessee that the vehicle will have a certain residual value at the expiration of the usual two or three year term.
This residual value is simply the anticipated resale value of the vehicle at the lease’s termination. Should resale value in fact be less than the guaranteed residual value, the lessee must pay the difference. Should it be more, the excess when realized is refunded to the lessee. “Big ticket” item leases, on the other hand, normally impose no residual value guarantee on the lessees. The need for such guarantees is reduced, if not eliminated, by the fact that such leases typically are for a term which approximates the economic life of the properties. Leases in which there is a residual value guarantee are designated, in the language of commerce, as “open end” leases, while those in which no such guarantee exists are designated “closed end” leases.
Closed end leases, therefore, do impose on the lessor bank a risk not borne in the case of open end leases. In the former the lessor bank must absorb any difference between the estimated residual value at the end of the lease and a lesser actual resale price. In the open end lease, on the other hand, any such difference is guaranteed by the lessee. It is this distinction between the two types of lease that, as already noted, strongly influenced the trial court’s disposition of this case.
Notwithstanding this difference between open end and closed end leases, the lessor bank under each type of lease realizes on the property at the expiration of the lease in a substantially similar manner. Thus, at the lease’s end the lessor bank will dispose of the property in the simplest possible manner. Should the lessee not purchase the item, either for the estimated residual value or for a mutually agreeable price, the lessor bank will dispose of it by sale or by way of a new léase. Motor vehicles not sold to the lessee, for example, are either resold to the dealer, sold in the wholesale market, or leased to another customer. Moreover, the record of this case does not reveal that closed end leases as a class impose significantly more onerous economic burdens on banks than do open end leases. This is not surprising because leases of “big ticket” items, leased under closed end terms, generally provide for the bank’s investment plus interest to be returned by way of lease payments prior to the expiration of the lease.
From the standpoint of a bank the advantages of leasing, as opposed to traditional lending on chattel security, are said to be numerous. Certain tax benefits pertaining to depreciation and the investment tax credit are said to be available under leasing but not under lending. Leasing, it is pointed out in the record of this case, permits the avoidance of usury laws and increases the demand for credit by eliminating the need for down payments by the customer.
Lessees also may derive advantages from leasing not available when conventional borrowing is employed. A lease obligation may be reflected on the balance sheet more favorably than an indebtedness, and leasing may permit avoidance of limitations on the lessee’s ability to borrow. See Stiles & Walker, Leveraged Lease Financing of Capital Equipment, 28 Bus. Lawyer 161 (1972).
In any event, leasing yields to the banks a rate of return that compares favorably to that of lending. A portfolio of prudently-arranged leases imposes no greater risks than one of equally prudently-arranged loans. It is small wonder, therefore, that today over 1000 national banks are engaged in the leasing of personal property which has an aggregate value in excess of $2 billion. Thus, although much of this growth has occurred in the 1970’s and resulted from the entrance of national banks into the field of motor vehicle leasing, it is clear that leasing at present is a significant part of the business of national banks.
II.
The “Business of Banking.”
While the importance of leasing to the business of national banks is relevant to determining the extent to which such activity is useful and convenient, it does not alone establish that leasing is within the “business of banking” as authorized by 12 U.S.C. § 24 (Seventh). In construing the scope of the authority established by this statutory provision, we adopt the approach employed by the First Circuit in Arnold Tours, Inc. v. Camp, 472 F.2d 427, 431-32 (1st Cir. 1972). That is, for an activity to be pursuant to an incidental power “necessary to carry on the business of banking” it must be “convenient or useful in connection with the performance of one of the bank’s established activities pursuant to its express powers under the National Bank Act.” Id. at 432. Thus, leasing must be convenient or useful to business expressly authorized by 12 U.S.C. § 24 (Seventh). As indicated above, we hold that leasing, when in the light of all relevant circumstances the transaction constitutes a loan of money secured by the leased property, see p. 1379, is incidental to the “loan of money on personal security,” an activity expressly authorized by the National Bank Act.
In reaching this conclusion we draw comfort from the fact that commentators uniformly have recognized that the National Bank Act did not freeze the practices of national banks in their nineteenth century forms. Indeed, many contend that the powers of national banks “are not confined to the powers specified in the National Bank Act and those necessary to carry out those specific powers.” Trimble, The Implied Power of National Banks to Issue Letters of Credit and Accept Bills, 58 Yale L.J. 713, 721 (1949). See Huck, What Is the Banking Business? 21 Bus. Lawyer 537, 541 (1966); Note, Diversification by National Banks, 21 Stan.L.Rev. 650, 651-53 (1969). We prefer, however, the Arnold Tours, Inc. formulation of the scope of “incidental” powers; but, whatever the scope of such powers may be, we believe the powers of national banks must be construed so as to permit the use of new ways of conducting the very old business of banking. Those who would reject such new ways should recall that Chief Justice Holt’s efforts in Clerke v. Martin, 2 Ld.Raym. 757 (1702) to deny the negotiability of promissory notes payable to a named payee or order was overturned by statute several years later. 3,4 Anne c. 9 (1704). As Holdsworth put it, Chief Justice Holt’s mistake was to believe that “the most correct technical reasoning could stop the development of the new machinery rendered necessary by the new needs of an expanding trade.” Holdsworth, History of the English Law VIII, 175-76 (1926). Unless compelled by higher authority, which we would then believe to be misguided, we do not wish in the context of this case to repeat Chief Justice Holt’s mistake.
Appellants would have us follow in Holt’s footsteps by emphasizing that secured lending to permit the acquisition of property (can be accomplished through traditional forms. A loan secured by a chattel mortgage or a conditional sales contract provides the proper means, they insist, by which a “loan of money on personal security” ought to be accomplished. A lease which serves the same purpose is impermissible. Particularly is this true, they assert, when both the lessor bank and the lessee customer distinguish the lease from a loan, and third parties, including various government agencies, treat the two quite differently.
Appellants are correct in stating that functionally interchangeable leases and secured loans are regarded as distinct in both the rhetoric and regulation of this form of commerce. However, it is their functional interchangeability that is the touchstone of our decision. To ignore that in the interpretation of 12 U.S.C. § 24 (Seventh), is figuratively to reject, as did Chief Justice Holt, something “invented in Lombard Street.” Clerke v. Martin, supra. Whether third parties in other contexts should treat leases that are equivalent to loans as nonetheless distinct and separate is not at present before us. Whatever might be the proper dispositions of such issues, they should not influence our opinion in this case.
III.
The Limits of the “Business of Banking.”
It should be clear that our holding is not without limits. It does not embrace the^ view that national banks may compete with i appellants in the daily or short-term cari rental business. Nor does it permit nation-} al banks to become self-financing automobile dealers, utilizing their unique position to acquire an inventory of automobiles at advantageous prices to lease at going market rates to customers. Neither activity is a means by which a bank makes a “loan of money on personal security.” Each is a business distinct from banking.
A national bank also leaves the business of banking when it undertakes, as a “service” to its customers, to pass on to them any price reductions which its marketing power can extract from sellers of automobiles or other personal property. There may be a place for a “buyer’s cooperative” in automobile marketing, but that place is not in a national bank. Such a cooperative, whether in substance or in form, is not the business of banking.
It is also clear that national banks cannot provide operational services such as repairs, maintenance, spare parts, insurance coverage, license renewals, etc. Such services are not those of a bank. This proscription shapes the duration of a lease that a national bank properly can employ. Short term leases which inescapably thrust upon the bank significant service responsibilities impose non-banking responsibilities. As previously indicated, leases of automobiles for two or three years do not necessarily entail nonbanking responsibilities; and, of course, a lease for the economic life of the property also does not.
Proscribed operational services, also, do not include the functions incident to the disposal of the property at the expiration of the lease as described at p. 1381 of this opinion. So long as these activities constitute only the orderly liquidation of the bank’s security they remain within the business of banking.
Finally, our holding manifestly is not intended to authorize leases which impose significant financial risks on national banks more onerous than those incident to loans. Therefore, it is necessary that the lessor bank look primarily to the obligations of the lessee for the entire return of its advances. It is the lessee’s credit worthiness, not primarily the market value of the leased property, to which the bank must look for its return. No banker, however, ignores the borrower’s collateral; nor must he when the loan is cast in lease form. Our point, put differently, is that a lease, which from its inception inevitably must be repeated or extended to enable the bank to recover its advances plus profit, is not a of money on personal security.” Such leases indicate a rental business, not the business of banking. To engage in the business of renting personal property would permit the assumption of risks not permitted national banks. An impermissible assumption of risks is not indicated, however, either by an open end lease, in which the bank’s entire advance is guaranteed by the lessee, or a closed end lease, in which the residual value of the leased property at the expiration of the lease contributes insubstantially to the bank’s recovery of its advances plus interest.
IV.
Role of the Comptrollers.
We recognize our observations do not provide a comprehensive charter by which the appellee banks may guide their steps. For example, we have not dealt with the type of advertising that is compatible with leasing activities of national banks that are within their statutory authority. Nor do we comment on the appropriateness of a subsidiary of a national bank acquiring a dealer’s license from the state and maintaining a garage for storing previously leased automobiles.
Preparation of a comprehensive charter is a function that belongs to the Comptroller. It is his duty to promulgate reasonably detailed regulations which will confine leasing within the channels of the “business of banking.” We do not believe that 12 C.F.R. §§ 7.3400 and 7.7376 adequately perform this duty.
Our present contribution merely sketches the boundaries of the business of banking and resolves the particular controversy before us.
We affirm in part and reverse in part and remand for such modifications of the trial court’s judgment as is required by this opinion.
Costs shall be borne by the appellants.
Affirmed in part, Reversed in part.
. The pertinent portion of 12 U.S.C. § 24 (Seventh) is as follows:
“To exercise by its board of directors or duly authorized officers or agents, subject to law, all such incidental powers as shall be necessary to carry on the business of banking; by discounting and negotiating promissory notes, bills of exchange, and other evidence of debt; by receiving deposits; by buying and selling exchange, coin, and bullion; by loaning money on personal property; and by obtaining, issuing, and circulating notes according to the provisions of this chapter.
. The authorization appears in 12 C.F.R. § 7.3400 and is as follows:
“A national bank may become the owner or lessor of personal property acquired upon the specific request and for the use of a customer and may incur such additional obligations as may be incident to becoming an owner and lessor of such property. Lease transactions do not result in obligations for the purpose of 12 U.S.C. 84. Since the lease payments are in the nature of rent rather than interest, 12 U.S.C. 85 and 86 are not applicable.”
12 C.F.R. § 7.7376 authorizes an operating subsidiary of a national bank to “lease property.”
. These figures appear in the appellee banks’ brief p. 46 and are derived from a survey introduced at the trial made by the Comptroller of Currency.
. See, Automobile Leasing as an Activity for Bank Holding Companies, Fed. Reserve Bull., Nov. 1976, 930, 935.
. In describing leases which are equivalent to secured loans, it has been said:
In each case there is a sum certain in amount. This sum includes the acquisition cost of the vehicle and the cost of financing and is recovered through a series of noncan-cellable deferred payments. The term of the payment period in both cases is 24 to 36, or recently to 48 months. The vehicle serves as a type of collateral to guarantee payment on both the installment loan and the lease. Both forms of financing are applied to a specific automobile that is chosen prior to preparation of the document . . . . All attributes of ownership pass to the lessee who is responsible for servicing, insurance, and depreciation.
[The banks] use the same skills in leasing a vehicle as they do in financing it through an installment loan.
Automobile Leasing as an Activity for Bank Holding Companies, supra n. 4.
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_r_natpr
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
UNITED STATES of America, Appellee, v. Joey Lee MOON, Appellant.
No. 73-1334.
United States Court of Appeals, Eighth Circuit.
Submitted Oct. 17, 1973.
Decided March 6, 1974.
Ralph Edwards and John J. Bahnak, Jr., St. Louis, Mo., for appellant.
Donald J. Stohr, U. S. Atty., and Thomas Earl Loraine, Asst. U. S. Atty., St. Louis, Mo., for appellee.
Before LAY and BRIGHT, Circuit Judges, and EISELE, District Judge.
G. THOMAS EISELE, District Judge, Eastern District of Arkansas, sitting by designation.
PER CURIAM.
The defendant, Joey Lee Moon, was charged by juvenile information with possession of a firearm which had not been registered to him pursuant to the relevant provision of 26 U.S.C. § 5861 (d), which reads:
It shall be unlawful for any person—
******
(d) to receive or possess a firearm which is not registered to him in the National Firearms Registration and Transfer Record.
The district court convicted him of violating such provision following a bench trial. Moon brings this timely appeal contending that § 5861(d), as applied, violated his Fifth Amendment right to due process. We reject this contention and affirm.
The facts disclose that the police, while investigating a motor vehicle accident, observed and removed a sawed-off shotgun from Moon’s automobile. Moon claimed that he found the gun and that he kept it for two weeks to “show off.” On these facts, the trial court rendered a guilty verdict.
. On appeal, Moon argues that since he had found an abandoned weapon, any prosecution against him for possession of the weapon would be unreasonable and, therefore, a denial of due process. We disagree.
In order to convict Moon, the government had to establish the following elements: (1) that defendant knowingly possessed the firearm; (2) that the object possessed was in fact a firearm; and (3) that such firearm was unregistered. United States v. Freed, 401 U.S. 601, 612, 91 S.Ct. 1112, 28 L.Ed.2d 356 (1971) (Brennan, J., concurring). The government made such showing here. The prosecution needed to prove no more.
In United States v. Johnson, 441 F.2d 1134, 1136 (5th Cir. 1971), the court stated, in response to a charge that the statute was unconstitutionally vague, that “possession of such firearm, if unregistered, whether abandoned or not, is prohibited.” Moreover, in Milentz v. United States, 446 F.2d 111 (8th Cir. 1971), we said that “specific intent to violate the law [§ 5861(d)] is not a necessary element of the crime,” but we stressed that the act of possession of the weapon must be “willing and knowing.” Id. at 113, 114. The prosecution made a showing that Moon was not merely an innocent finder but rather a possessor of the weapon who kept the shotgun in his automobile for two weeks for “kicks” and to “show off” to his friends.
Thus, we hold the conviction proper and the appeal without merit.
Affirmed.
EISELE, District Judge, concurs in the result.
Question: What is the total number of respondents in the case that fall into the category "natural persons"? Answer with a number.
Answer:
|
songer_applfrom
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court).
DUNCAN SHAW CORP. et al. v. STANDARD MACHINERY CO. et al.
No. 4615.
United States Court of Appeals First Circuit.
April 22, 1952.
William H. Edwards, Providence, R. I. (John L. Clark and Edwards & Angelí, all of Providence, R. I., on brief), for appellants.
Fred B. Perkins, Providence, R. I. (James A. Higgins, Perkins, Higgins & McCabe and Elisha C. • Mowry, Providence, R. I., on brief), for appellees.
Before MAGRUDER, 'Chief Judge, WOODBURY, Circuit' Judge, and WYZANSKI, District Judge.
WOODBURY, Circuit Judge.
This is an appeal from a final judgment for the defendants, entered after a trial without a jury, in a suit by two New York corporations against a Rhode Island corporation and an individual citizen of that State. Three causes of action are alleged. Each of the two plaintiffs alleges that the corporate defendant failed to perform its obligations under a certain tripartite contract under seal to be described presently, and the plaintiff, Shaw Standard Corporation, alleges that the individual defendant, Robert F. Moyer, failed to perform his fiduciary duty as one of its directors. As relief the plaintiffs seek damages totaling well over $3,000 exclusive of interest and costs, and also an injunction restraining the defendant Moyer from continuing his alleged violations of fiduciary duty.
Federal jurisdiction based upon diversity of citizenship and amount in controversy under 28 U.S.C. § 1332(a)(1) is clearly established, and this court’s appellate jurisdiction under 28 U.S.C. § 1291 is obvious.
The following facts are undisputed.
The plaintiff, Duncan Shaw Corporation, which for simplicity we shall call Shaw hereinafter, was organized under the laws of New York in 1946 primarily to engage in the business of designing, selling and distributing builders’ hardware; locks, latches, hinges and the like. The business associates who formed the corporation had in mind, designing and marketing a line of hardware which they thought could 'be manufactured by new and economical techniques, and in the spring or early summer of 1947 they were actively in search for someone interested in manufacturing their products for them. Their search ended when they met the defendant Moyer, who was the president, a director, and a substantial stockholder in the defendant, Standard Machinery Company, a Rhode Island corporation, which apparently for a number of years had been in the business of manufacturing machine tools of one kind or another, and which at that time was interested in embarking upon the manufacture of a line of consumer goods but reluctant to develop a selling organization of its own for such wares.
During the summer of 1947, the leading officials of the two corporations held several conferences, sometimes in New York and sometimes in Rhode Island, and eventually reached agreement on the basic terms of a contract which they thought would be advantageous to both corporations. Had the two corporations merely entered into a contract, and proceeded with their transaction, this case would be a simple one. Instead, however, Moyer proposed, and the officers of Shaw agreed, that the stockholders of Shaw and Standard should organize a third corporation as an intermediary through which the other two corporations would transact their business with one another. It appears from the evidence that it was thought that a third intermediate corporation would provide a means of raising new capital for the venture, and for equitably distributing anticipated profits between the stockholders of Shaw and Standard, and perhaps that it would also achieve certain income tax advantages.
This, and numerous other contractual details which had already been orally agreed upon were embodied in a letter from one Gillmore, vice president of Shaw, to one McCabe, a director of and counsel for Standard, dated August 20, 1947, which Moyer, as president of Standard, “accepted” toy endorsement on August 29, 1947. Thereupon in conformity with the agreement already reached the plaintiff Shaw Standard Corporation, to be referred to sometimes hereafter as S.S., was organized under the laws of New York. The stock in this latter corporation, also in accordance with prior agreement, was to be privately issued to the stockholders of the two other corporations— the stockholders of Standard taking half of the stock in the new corporation, and the stockholders of Shaw taking the remaining half, so that ownership of the new corporation would be equally divided between the two groups. In fact, however, although the Standard group of stockholders took and paid for their half of the S.S. stock, not all of the Shaw group paid for the S.S. stock allotted to them, so some of their stock remained unissued. Nevertheless actual control of S.S., also as previously agreed upon, was placed in the Shaw group by means of an assignment by Moyer of 10% of his personal stock in S.S. to Gillmore, the vice president of Shaw, under a voting trust. At Shaw Standard’s initial stockholders’ meeting five directors were elected. The Standard group elected two directors, Moyer afrd another, both of whom were also directors of Standard. Thus the defendant Moyer was the president, a director, and a stockholder of Standard, and also a director and a stockholder of Shaw Standard. The Shaw group elected three directors, two of whom were also directors of Shaw. As a result, although the two end corporations, Shaw and Standard, had no common directors, the new middle corporation, Shaw Standard, had two directors in common with Standard and two directors in common with Shaw.
Early in September 1947 officials of the three corporations signed the tripartite written contract under seal upon which this suit was brought. It clearly appears that the contract was executed on behalf of the two New York corporations, Shaw and Shaw Standard, in New York. The evidence does not clearly establish whether it was executed on behalf of the Rhode Island corporation, Standard, in New York or in Rhode Island. The place of execution, however, is of no consequence in the view we take of the Rhode Island law as will appear hereafter. The separate notarized acknowledgments appended to the contract recite that the seal of each -corporation was “affixed by order of the Board of Directors of said corporation,” and that the official who signed on behalf of each corporation “signed his name thereto by like order.” It was stipulated by the parties, however, that as a matter of fact this was not so with respect to Standard, but that actually “there was no vote or resolution a-t any meeting of directors or stockholders of Standard Machinery Company that specifically had reference to the execution of the subject contract or had to do with the ratification of that contract.”
It is not necessary to recite the terms of the contract in detail, because the breach of contract issue which was tried in the court below is not before us on this appeal. In its essence, however, the contract provided that Standard would manufacture Shaw’s hardware line, and sell exclusively to the intermediate corporation, Shaw Standard, at prices fixed by application of an agreed formula, and that the latter would sell, also according to an agreed price formula, exclusively to Shaw which in turn would sell the line on the open market. To accomplish this Shaw agreed to grant Shaw Standard a license under all of its (Shaw’s) patents, issued and pending, with the power to sub-license Standard, and Shaw also agreed to disclose all of its unpatented models and plans to Shaw Standard provided that they would not be disclosed to any one else without Shaw’s consent. Standard obligated itself to make deliveries within ten weeks after receipt of purchase orders, plans and models, and to employ its resources to the fullest extent in various specified ways so that Shaw’s line of hardware could be rapidly expanded.
It appears from the unchallenged findings of the District Court that by December 1947 the plaintiffs had begun to deliver models and plans to Standard and to place production orders with Standard, and that from December on Moyer repeatedly promised imminent production but that it was not until June, 1948, that workable samples were developed by Standard. It further appears from the findings that late in May or early in June Moyer can-celled or held up orders for materials, dies and tools for the hardware project having decided at that time to liquidate Standard and dispose of all its property and business of every kind. Moyer informed Gill-more on June 18 of Standard’s decision not to go on with the hardware project, but did not tell Gillmore of the plan to liquidate Standard, although on the same day Moyer conferred with counsel and an auditor and laid plans for stockholder action with respect to liquidation. On June 23, Moyer told Gillmore that Standard intended to drop the hardware project altogether unless modifications were made in the contract, but even then he did not tell Gillmore that he was not only considering, but also had actually taken steps to liquidate Standard. At this point, hardware production being at a standstill, without waiting for a reply from Gillmore tp Moyer’s proposal for altering the contract, Standard’s stockholders met and formally adopted a plan of liquidation whereby all of Standard’s assets would be distributed to its stockholders in exchange for surrender of all outstanding stock, which, the court below found, would “result in a net financial gain to said stockholders, including Moyer, the holder of over 24% of the total shares outstanding, both voting and non-voting, and approximately 42% of the voting stock alone.” Moyer at no time notified either of the plaintiffs, or told his co-directors on the board of S.S., that liquidation of Standard was contemplated, planned, voted, or actually in process. Indeed the plaintiffs only learned of Standard’s pending liquidation from a newspaper announcement in August, 1948, and soon thereafter they brought this suit. On March 12, 1949, six months after the plaintiffs brought this suit and more than eighteen months after the contract was signed, Standard’s stockholders formally voted that the contract be “disaffirmed, disapproved and voided.”
The District Court found that although the plaintiffs had substantially performed their part of the bargain, the defendant, Standard, had committed breaches of contract by refusing to proceed with manufacturing and failing to deliver according to schedule, by disclosing Shaw’s models and plans to competitors without permission to do so, and by failing to employ its resources to the promised extent. Moreover the court below found that the defendant Moyer had violated his fiduciary duty as a director of the plaintiff Shaw Standard Corporation by making false representations of imminent hardware production while simultaneously acting to liquidate Standard and discontinue the hardware project, and by disclosing the hardware models and plans to competitors and offering them for sale without the knowledge or consent of Shaw Standard.
After making these findings the District Court stated that “The foregoing findings of facts would lead me to award substantial damages to the plaintiffs if it were not for the fact that Standard is a Rhode Island corporation and that there has been a failure to show compliance with the provisions of Chapter 116, Art. II, § 21, General Laws of Rhode Island, 1938,” which reads:
“§ 21. Any corporation may contract for any lawful purpose with one or more of its directors or with any corporation having with it a common director or directors, if the contract is entered into in good faith and is approved or ratified by a majority vote at any meeting of its board of directors: Provided, that the contracting or common director or directors shall not vote on the question and shall not be counted in ascertaining whether or not a quorum is present for this purpose at the meeting. A contract made in compliance with the foregoing provisions shall be voidable by the corporation complying with said provisions only in case it would be voidable if made with a stranger.”
This section is part of the General Corporation Law of Rhode Island. It would seem clear, therefore, that the section is part of Standard’s charter, and as such imposes a limitation upon Standard’s power to make contracts not only in Rhode Island, but in any other state into which it might go to transact business. We therefore agree with the reasoning of the Supreme Court of Errors of Connecticut in Sundlun v. Noank Shipbuilding Company, 1948, 135 Conn. 108, 112, 113, 61 A.2d 665, wherein it was held that the section under consideration limited the power of a Rhode Island corporation to mortgage its personal property in Connecticut to one of its directors. No Rhode Island case in point has been cited to us and we have found none ourselves, and obviously Rhode Island law controls, but the above 'Connecticut case seems to us correct in principle, and furthermore the Supreme Court of Rhode Island did not take occasion to criticize the holding of the Connecticut court on the point when in Goldberg v. Peltier, 1949, 75 R.I. 314, 320, 66 A.2d 107, 110, it said that the court in the Sundlun case had quite correctly applied the Rhode Island statute “following the reasoning” in Matteson v. Wm. S. Sweet & Son, Inc., 1937, 58 R.I. 411, 193 A. 171, 114 A.L.R. 293, which we shall consider in more detail presently. Thus we hold that the above quoted section of the general corporation law of Rhode Island is not a limitation on the power of corporations generally to contract in Rhode Island, but on the contrary is a limitation on the power of corporations organized under the law of Rhode Island to contract anywhere. Hence we are not concerned with the question whether the situs of the contract in suit was New York or Rhode Island.
We turn, therefore, to the question of the applicability of the statute to the facts in the case at bar.
The language of the statute is broad and sweeping, and in Matteson v. Wm. S. Sweet & Son, Inc., supra, which the court below felt constrained to follow and upon which the appellees heavily rely, the Supreme Court of Rhode Island construed that language strictly. In that case the corporate owner, of a building leased part of its premises to another corporation having a director in common with the lessor. Indeed the common director signed the lease on behalf of both the lessor and the lessee corporations. The lease contained a provision to the effect that all of the lessee’s fixtures and stock in trade stood pledged for the fulfillment of the covenants of the lease, and, default having occurred, a receiver appointed for the benefit of the lessee’s creditors sold the lessee’s stock and fixtures and the lessor attempted to impose an equitable lien on the proceeds of the sale. The receiver rested his defense on the statute under consideration, and, it appearing that the requirement of the statute had not been complied with, the court sustained the defense.
The Supreme Court of Errors of Connecticut in the Sundlun case, supra, summarized the holding of the Supreme Court of Rhode Island in the Matteson case in the statement that “It was there held that the general assembly had definitely legislated on the matter (58 R.I. page 415, 193 A. page 173); that the provisions of the statute must be complied with to make a valid contract (58 R.I. page 416, 193 A. page 173); that no question of good faith was involved (58 R.I. page 417, 193 A. page 173); and that the burden was upon the one claiming on the contract to prove that the provisions of the statute had been met (58 R.I. page 418, 193 A. page 174).” [61 A.2d 667.]. And, as already appears, the Supreme Court of Rhode Island in Goldberg v. Peltier, supra, said that in the Sundlun case the statute was “quite correctly applied” by the Connecticut court in accordance with the reasoning in Matteson v. Sweet. However, the court in the Matteson case did not make its view of the effect of non-compliance with the statute entirely clear, for although the court unmistakably indicated that the contract under consideration having been made without conformity to the statutory procedure was “invalid,” it nowhere used the more technically definite term “void,” and moreover in 58 R.I. on page 419, 193 A. 171, on page 174, it said: “Under our construction of the statute, the contract, in this, instance the lease and the renewal thereof, is at least voidable, if the provisions of the statute have not been complied with by both parties, and the receiver has elected to avoid it. Under these circumstances, we perceive no reason why he is not entitled to question the validity of the contract, in spite of the fact that the lessee may have received certain benefits thereunder.” Furthermore in the Goldberg case the Court after distinguishing the Matteson case said: “The statute simply means that where the vote of a director with whom the corporation is dealing is necessary to constitute a majority in favor of the transaction or to make a quorum at the meeting, the transaction between the corporation and such director shall be voidable; but where the statute has been complied with it shall be voidable by the corporation only in case it would be voidable if made with a stran-' ger.”
The above language from the Matteson and Goldberg cases leaves some doubt in our minds as to whether the Rhode Island Supreme Court has in fact construed the statute so strictly as to mean that a contract not executed according to the statutory provision is an absolute nullity, void from the beginning, in which event it would be impossible for two Rhode Island corporations having a majority of their directors in common ever to contract with one another, or whether such a contract is only voidable at the option of a corporation which has failed to act in the manner prescribed.
However, we think the Matteson case distinguishable. It may perhaps be distinguished on the ground that whereas there was no question of good faith therein, in the case at bar the good faith of the corporation sought to be charged on the contract, Standard, may be open to question on the ground that its president after signing the contract acknowledged before a notary public that he did so, and also affixed the corporate seal, pursuant to order of the board of directors when in fact that was not the case.
There is also a broader ground for distinction. The’ statute was obviously enacted for the protection of stockholders, and it is established law in Rhode Island that provisions in a corporate charter designed to protect stockholders from ill considered or self-serving actions of their directors can be waived by stockholders, and indeed are waived by them when they knowingly accept the benefits of a transaction within the corporate powers entered into in violation of a charter provision designed for stockholder protection. Thus in John W. Bishop & Co. v. Kent & Stanley Company, 1898, 20 R.I. 680, 41 A. 255, it was held that a mortgage of corporate property authorized by vote of the holders of a majority of the corporate stock, but not by the holders of 'record of 75% of the stock as required by charter provision to authorize such a transaction, was only voidable, and hence not only could be ratified by the beneficiary class but also was ratified by them when they knowingly accepted the benefits of the mortgage. Omitting citation of cases the court in that case, 20 R.I. on page 684, 41 A. on page 257, said:
“Even if the charter had expressly provided that a mortgage given without the consent of the holders of the requisite amount of -stock ‘should be void and of no effect/ there is abundance of authority to the effect that then it would be only voidable. [’Cases cited.] The reason upon which these and other similar cases are based is that where the evident intention of the statute is to furnish protection to certain determinate individuals, and no question of public policy is involved, the purpose of the statute is sufficiently accomplished if such persons are given the liberty of avoiding it. The statute in the case at bar was manifestly passed for the protection of the stockholders of the defendant corporation only. The corporate property, represented by both the preferred and common stock was not to be incumbered without the consent of stockholders holding at least three-fourths of said stock. Hasty and ill-considered action would thus be avoided, and the will of the large majority of the stockholders only would control. But, while it was clearly the right of the stockholders to insist upon the strict observance of said provision, . yet, as it was made solely for their benefit, they could undoubtedly waive their right to such observance, and thereby make valid and binding what otherwise, would not have been binding upon them.”
Now in the Matteson case no mention is made of the participation, if any, of the lessee corporation’s stockholders in the contract of lease involved therein, perhaps for the reason that because of the receivership their interest in the corporation had been supplanted by the interest of the corporation’s general creditors. At any rate the rule of the Bishop & Co. case was not mentioned. In our case, however, there can be no doubt that all of Standard’s stockholders were fully aware of the existence of Shaw Standard, for they subscribed and paid for all of the S.S. stock allotted to them by the letter agreement, and it is inconceivable that they did not know the purpose for which S.S. was organized and the role it was designed to play in the transaction pending between Standard and Shaw.
Moreover, the role of S.S. was in reality that of an intermediary in an arms-length transaction ¡between Shaw and Standard, two corporations which had no common directors and so could contract without reference to the statute. While it is true that Shaw Standard was a separate corporate entity, it was nevertheless organized only to serve as a contractual device in the transaction between the two end corporations and it is only when the contract is broken down into its triple parts and each part viewed separately that the statute becomes important in view of the purpose it was meant to serve. Looking at the contract as a whole, and in the light of its overall purpose, it was actually one designed for the mutual benefit and advantage of Shaw and Standard, and S.S. had no reason for existence but to serve their ends. This is not to suggest that S.S. 'be ignored as a corporate entity. It is only to say that its separate corporate existence is not relevant in view of the purpose of the statute to protect stockholders in Rhode Island corporations, for Standard’s stockholders were entitled to no protection in Standard’s dealings with Shaw, and S.S. was but an incident to those dealings. While it may be that other contracts between Standard and S.S. with respect to matters not covered by the original letter agreement between Shaw and Standard would have to be executed in conformity with the statutory procedure, we are loath to conclude that the Supreme Court of Rhode Island would hold that the general terms of the statute make it applicable in the circumstances here disclosed.
Putting ourselves as best we may in the place of the Supreme Court of Rhode Island, we think that Court would take either one of two courses. We think it would either clarify its decision in the Matteson case in view of the language of other decisions cited herein, and hold categorically that non-compliance with the statute makes a contract only voidable, and hence subject to ratification by knowing acceptance of its benefits by stockholders as was the case here, in which event the subsequent vote of Standard’s stockholders disaffirming the contract is of no moment, or else that the Rhode Island Court would distinguish the Matteson case on some or all of the grounds we have suggested. Thus we feel justified in the conclusion that were this case before it, the Rhode Island Court would hold the statute inapplicable.
The judgment of the District Court is vacated and set aside and the case is remanded to that Court for further- consistent proceedings; the appellants recover costs on appeal.
. Apparently the acknowledgment was regarded by Duncan Shaw Corporation as pretty much a formality also, for it appears that the execution of the contract on behalf of that corporation was not in fact authorized by a vote of its directors until a month after the contract was signed and acknowledged.
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_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
UNITED STATES of America, Plaintiff-Appellee, v. Ricky W. GORDON, Defendant-Appellant.
No. 89-2889
Summary Calendar.
United States Court of Appeals, Fifth Circuit.
April 26, 1990.
Rehearing and Rehearing En Banc Denied June 4, 1990.
Greg Gladden, Houston, Tex., for defendant-appellant.
Kathlyn G. Snyder and Paula Offenhau-ser, Asst. Attys. Gen., Henry K. Oncken, U.S. Atty., Houston, Tex., for plaintiff-ap-pellee.
Before POLITZ, GARWOOD and JOLLY, Circuit Judges.
GARWOOD, Circuit Judge:
Defendant-appellant Ricky W. Gordon (Gordon) appeals his conviction, following a guilty plea pursuant to Fed.R.Crim.P. 11(a)(2), of possessing methamphetamine with intent to distribute it and a related firearms offense. Gordon challenges only the district court’s denial of his pretrial motion to suppress evidence, contending that the search warrant used to obtain the evidence violated the particularity requirement of the Fourth Amendment. We affirm.
Facts and Proceedings Below
On September 16, 1988, an undercover police officer showed Drug Enforcement Administration (DEA) Agent Wayne Hoffman (Hoffman) a residence that the officer identified as one of the locations at which Gordon was believed to be manufacturing methamphetamine. The same undercover officer had been involved with Gordon in the manufacture of methamphetamine. Believing that the address of the residence was 18003 Tenth Street, in Magnolia Gardens Subdivision, Harris County, Texas, Hoffman on September 22, 1988, appeared before a United States Magistrate and obtained a search warrant for premises at “18003 10th Street, Magnolia Gardens, Harris County, Texas.”
Upon executing the warrant, Hoffman discovered a methamphetamine laboratory at the residence that the undercover officer had shown him. About a week or two later, when routinely examining tax records to determine the identity of the owner of the residence searched, Hoffman learned for the first time that the address contained in the search warrant did not exist.
Gordon testified at a suppression hearing that the residence’s correct address was 18003 Riverside Drive in Riverglen Subdivision, Harris County. Apparently, Tenth Street is almost perpendicular to Riverside and is marked with a dead end sign near the intersection of the two streets. The street sign at the intersection reads only “10th St.” Hoffman testified that the residence was located three blocks past the intersection after turning right and was marked with a sign that read “18003.”
Hoffman further testified regarding the basis for his error. He explained that as he entered the area on Garrett Street, which eventually turns into Tenth Street, he saw a sign reading “Magnolia Gardens.” Hoffman asserted that he did not see a sign indicating that Riverside was not a continuation of Tenth Street.
Gordon was indicted on October 19, 1988, in the United States District Court for the Southern District of Texas, Houston Division, on four counts: distributing amphetamines on September 16, 1988, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(D) (count one); carrying a firearm during and in relation to the commission of a drug trafficking offense on September 16, 1988, in violation of 18 U.S.C. § 924(c)(1) (count two); possessing methamphetamine with the intent to distribute it on September 23, 1988, in violation of §§ 21 U.S.C. 841(a)(1) and 841(b)(1)(C) (count three); and carrying a firearm during and in relation to the commission of a drug trafficking offense on September 23, 1988, in violation of 18 U.S.C. § 924 (count four). Gordon originally entered a plea of not guilty and filed numerous pretrial motions, including a motion to suppress evidence seized from 18003 Riverside Drive. Following a hearing on the suppression issue, the court denied the motion in a written order and a jury was selected.
Gordon subsequently entered into a plea bargain agreement with the government and pleaded guilty to the third and fourth counts in the indictment. His plea, pursuant to Fed.R.Crim.P. 11(a)(2), was conditioned upon appellate review of the court’s suppression ruling. The court sentenced Gordon to one hundred twenty-one months as to the third count and to sixty months as to the fourth count, the two sentences to be served consecutively. The court also imposed two consecutive three-year terms of supervised release and assessed a special assessment of $100. This appeal followed.
Discussion
Gordon maintains on appeal that the district court erred by finding the search warrant to be valid and consequently not suppressing the evidence seized in the search of the Riverside residence, contending that the warrant used violated the particularity clause of the Fourth Amendment because it contained the wrong address. We need not reach this issue, however, because the evidence is admissible under the good faith exception to the exclusionary rule of United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). See 2 W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment 207 (1987) (Because of Leon, “whether the description in the warrant in fact was constitutionally adequate is no longer determinative on the suppression issue.”) (emphasis in original).
The Leon Court ruled that suppression “cannot logically contribute to the deterrence of Fourth Amendment violations” if an officer acted in objectively reasonable belief that the warrant had been properly issued. Leon, 104 S.Ct. at 3418-19 (footnote omitted). However, as one exception to that rule, the Court stated: “depending on the circumstances of the particular case, a warrant may be so facially deficient — i.e., in failing to particularize the place to be searched or the things to be seized — that the executing officers cannot reasonably presume it to be valid.” Id. at 3421 (citation omitted).
Here, one who looked simply at the warrant, or at both the warrant and the supporting affidavit, would not suspect that it was invalid; any defect would appear only if one knew that Tenth Street did not have an “18003” address. It is obvious that such was not common knowledge throughout Harris County. The asserted defect in the warrant was not facial in the sense used in Leon.
To rule in these circumstances that this warrant was “so facially deficient” that its executing officers could not “reasonably presume it to be valid,” would egregiously elevate form over substance. Hoffman had sufficient probable cause to search Gordon’s residence and was able to obtain a warrant from a magistrate. Further, Hoffman searched only the location intended to be searched — the residence he had seen with the undercover officer on September 16, 1988. Because Hoffman was both the affiant and the executing officer and had recently viewed the location in question, "there was no possibility the wrong premises would be searched.” United States v. Burke, 784 F.2d 1090, 1093 (11th Cir.), cert. denied, 476 U.S. 1174, 106 S.Ct. 2901, 90 L.Ed.2d 987 (1986).
In Burke, supra, the Eleventh Circuit upheld the validity of a warrant even though it contained an incorrect address because, among other things, the affiant accompanied the executing officers on the search and was able to point out the proper location. Burke, 784 F.2d at 1093; accord United States v. Gahagan, 865 F.2d 1490 (6th Cir.1989); United States v. Turner, 770 F.2d 1508 (9th Cir.1985); United States v. Clement, 747 F.2d 460 (8th Cir.1984). Here, despite the error in description, Hoffman “could still ascertain with reasonable effort the place intended” to be searched. 2 W. LaFave, supra, at 215 n. 34.
Under the circumstances of this case, we cannot conclude, as Gordon argues, that the good faith exception to the exclusionary rule is inapplicable. United States v. Mahoney, 712 F.2d 956, 960-62 (5th Cir.1983). Hoffman entertained the objectively reasonable belief that the warrant had been properly issued and that it comported with the Fourth Amendment. Nothing indicates that Hoffman acted in bad faith. See 2 W. LaFave, supra, at 214-15. It obviously could not serve any law enforcement, or other, purpose to intentionally state a nonexistent address on a warrant plainly intended to be executed at the specific place it was executed and for which there was probable cause to search. Any Fourth Amendment violation here was purely technical in terms of the interests that the amendment was designed to protect. As excluding the evidence here would not serve as a meaningful deterrent to future Fourth Amendment violations, and any marginal increment in deterrence that application of the rule would achieve is outweighed by the societal costs of suppression, we rule that the district court correctly denied Gordon’s motion to suppress. Mahoney, 712 F.2d at 962.
Gordon also seeks a remand to present evidence demonstrating that one who was unfamiliar with the subject location would not be able to find it with the warrant in question. Given the preceding authority, such an inquiry is unnecessary since Hoffman was both the affiant and the executing officer. Consequently, a remand is not called for.
Conclusion
For the foregoing reasons, the order of the district court denying Gordon’s suppression motion is
AFFIRMED.
. As one approaches the intersection from Tenth Street, Riverside is to the right and what Hoffman explained appeared to be a little driveway is to the left. Tenth Street apparently curves into Riverside Drive.
. Gordon moved for a mistrial as to the remaining counts, the government moved to dismiss those counts after Gordon waived any double jeopardy rights that could arise if the convictions were reversed on appeal, and the remaining counts were dismissed.
. We note that the erroneous address contained in the warrant did not actually exist. Consequently, there was no possibility that the wrongly-noted location could have been searched.
Question: What is the nature of the counsel for the appellant?
A. none (pro se)
B. court appointed
C. legal aid or public defender
D. private
E. government - US
F. government - state or local
G. interest group, union, professional group
H. other or not ascertained
Answer:
|
songer_genresp1
|
C
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed respondent.
UNITED STATES of America, Plaintiff-Appellee, v. Arthur Wesley RACHELS, Defendant-Appellant.
Nos. 86-5076, 86-5135.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Feb. 2, 1987.
Decided June 22, 1987.
Joyce Karlin, Los Angeles, Cal., for plaintiff-appellee.
Darrell Brown, Little Rock, Ark., for defendant-appellant.
Before BROWNING, TANG and REINHARDT, Circuit Judges.
Judge Browning was unable to be present at oral argument. He has had the benefit of listening to the tapes.
PER CURIAM:
Defendant Arthur Wesley Rachels appeals from sentence imposed by the district court following Rachels’ plea of guilty to counts involving unlawful distribution of a controlled substance. Rachels raises three issues: (1) denial of his Sixth Amendment guarantee of effective assistance of counsel; (2) violation of Fed.R.Crim.P. 32 and denial of procedural due process flowing from the district court’s consideration of certain representations made by the government prior to sentencing; and (3) disparate sentencing. We reject each of his contentions and affirm.
FACTS AND PROCEEDINGS:
A federal grand jury charged Rachels, a licensed medical doctor, with thirty-six counts of knowing and intentional distribution of a controlled substance outside the usual course of professional practice and not for a legitimate medical purpose in violation of 21 U.S.C. § 841(a)(1). Rachels pleaded guilty to five counts.
Before sentencing, the government submitted various documents to the court. Among them was a copy of a log book, maintained by Rachels, which reflected prescriptions of controlled substances to patients. The court also had before it the presentence report prepared by the probation department. At Rachels’ sentencing hearing, the court asked Rachels’ counsel if he wished to suggest changes in the presentence report. Rachels’ counsel suggested several changes, all of which were accepted by the court. The court then asked Rachels if he had any other suggested changes. Rachels replied that he did not. Subsequently, the prosecutor addressed the court and referred to the log book. She stated that the patients listed therein were accomplices who would fill the prescriptions and then give the drugs to Rachels, who then sold the drugs to drug dealers and kept the log in order to cover his unlawful activity. Rachels’ counsel did not respond to this characterization. Rachels himself, however, took issue with the prosecutor’s characterization of the log book. He stated that the log in fact reflected legitimate dispensing of drugs to patients. In reply, the prosecutor argued that Rachels’ characterization of the log book could not be believed in light of the sworn testimony of persons listed in the log who testified that they had never received the drugs.
The court then sentenced Rachels. In doing so, it emphasized, inter alia, the “falsification and creation of phony patient records,” and the fact that it found Rachels’ statements “quite self-serving.” Rachels received an initial sentence of ten years in prison, a $25,000 fine, ten years’ special parole, and five years’ probation. Following imposition of this sentence, Rachels moved the court to correct and reduce his sentence pursuant to Fed.R.Crim.P. 35 because the court had sentenced him to a term of imprisonment exceeding the statutory maximum. On this occasion, Rachels’ counsel and Rachels both had a second opportunity to address the court. Both did so, but neither referred to the prosecution’s characterization of the log book at the initial hearing, or to any corrections they wished in the presentence report. The court granted Rachels’ motion and reduced his sentence to conform to the statutory maximum of five years’ imprisonment, a $15,000 fine and two years’ special parole. Rachels timely appealed.
DISCUSSION:
1. The district court did not err in considering certain comments made by the prosecutor at the sentencing hearing
Rachels challenges on this appeal the district court’s consideration of the prosecutor’s allegations regarding the log book.
At the sentencing hearing, the prosecutor referred to Rachels’ log book and asserted that it was fraudulent. The prosecutor stated that Rachels used the falsified log to cover up his illegal drug transactions. Although Rachels’ counsel did not object to the prosecutor’s statements, Rachels himself did and argued that the logbook was the actual record of his lawful dispensing of controlled substances. The prosecutor countered by stating that his characterization of the logbook was based upon sworn affidavits. Prior to sentencing, the government submitted affidavits by witnesses who stated that Rachels paid them for filling prescriptions and returning the drugs to him. No further inquiry was made by the court as to the alleged fraudulent nature of the logbook and neither Rachels nor his counsel requested a further hearing or a continuance. Cf. United States v. Hickok, 481 F.2d 377, 379 (9th Cir.1973) (in his motion to suppress, appellant did not “allege any facts to substantiate his general, conclusory allegation”). When imposing sentence, the trial judge mentioned the defendant’s falsification of records as a factor militating in favor of harsh punishment.
Rachels argues that the district court violated Fed.R.Crim.P. 32(c)(3)(D). According to this rule, where a defendant challenges information in the presentence report, the court must either make written findings or state that no findings are necessary because the court will not rely on the disputed information. We have held that Rule 32(c)(3)(D) helps to implement the due process requirement that judges determine sentences only on the basis of accurate information. See United States v. Ibarra, 737 F.2d 825, 827 (9th Cir.1984). Where the rule has been violated, we remand for resentencing. See United States v. Edwards, 800 F.2d 878, 880-83 (9th Cir.1986); United States v. Petitto, 767 F.2d 607, 611 (9th Cir.1985); United States v. Velasquez, 748 F.2d 972 (5th Cir.1984). Here, however, the defendant only challenges statements made by the prosecutor at the sentencing hearing, and not information in the presentence report. Accordingly, Rule 32(c)(3)(D) is not applicable.
The proper approach to analyzing Rachels’ claim is set forth in our decision in Farrow v. United States, 580 F.2d 1339 (9th Cir.1978) (en banc). See also United States v. Ibarra, 737 F.2d 825 (9th Cir.1985). Farrow was decided before the adoption of Fed.R.Crim.P. 32(c)(3)(D) in 1983. The question involved there was whether the defendant’s due process rights had been violated when the sentencing judge allegedly relied on untrue material information. We there announced a two-part test to evaluate such due process claims: A defendant challenging information used in his sentencing must show 1) that the information is false or unreliable and 2) that the sentencing judge relied, at least in part, on this information. Farrow, 580 F.2d at 1359. Where the court does not rely on the challenged information, the sentence will be affirmed regardless of the accuracy of the challenged information. United States v. Gonzales, 765 F.2d 1393 (9th Cir.1985), cert. denied, — U.S.-, 106 S.Ct. 826, 88 L.Ed.2d 798 (1986).
Here, the judge did consider that Rachels had falsified records in determining the severity of the sentence imposed. See supra n. 2. Cf. United States v. Alverson, 666 F.2d 341, 349 (9th Cir.1982) (vacating sentence and “declinpng] to speculate whether [ex parte] communication had any effect on the judge”). However, Rachels has not demonstrated either the falsity or the unreliability of the government’s oral representations about the log book. He has simply alleged that the prosecutor's statements are incorrect. See Jones v. United States, 783 F.2d 1477, 1480 (9th Cir.1986). Rachels has offered no evidence that the affidavits submitted by the government attesting to the fraudulent nature of Rachels’ dispensing of drugs were either false or unreliable. See Ibarra, 737 F.2d at 827; United States v. Weston, 448 F.2d 626 (9th Cir.1971), cert. denied, 404 U.S. 1061, 92 S.Ct. 748, 30 L.Ed.2d 749 (1972). Accordingly, we do not find a sufficient basis to remand for resentencing. See United States v. Petitto, 767 F.2d 607 (9th Cir.1985).
2. Counsel’s alleged failure to review the presentence report with Rachels prior to sentencing, and counsel’s representation in general of Rachels during sentencing, did not violate Rachels’ guarantee under the Sixth Amendment of effective assistance of counsel
A claim of ineffective assistance of counsel in violation of the Sixth Amendment is a mixed question of law and fact which merits de novo review by this Court. United States v. Birtle, 792 F.2d 846, 847 (9th Cir.1986) (citing Strickland v. Washington, 466 U.S. 668, 698, 104 S.Ct. 2052, 2070, 80 L.Ed.2d 674 (1984)).
The record offers no support for Rachels' contention that his counsel failed to review the presentence report with him before trial. The proper avenue for such a contention of ineffective assistance of counsel would appear to be a collateral attack of his sentence which would then provide some record upon which this Court could base its review. See United States v. Kazni, 576 F.2d 238, 242 (9th Cir.1978), and citations therein. The existing record indicates that defense counsel brought several errors in the presentence report to the court’s attention at the sentencing hearing, and he otherwise appears to have vigorously and competently represented Rachels. See generally Strickland, 466 U.S. at 698, 104 S.Ct. at 2070 (successful ineffective assistance claim requires both objectively unreasonable performance and reasonable probability of prejudice).
3. The district court assessed Rachels individually in sentencing, thus properly exercising its discretion
Sentencing which falls within statutory limits is not subject to appellate review absent an abuse or abdication of discretion. Chiago, 699 F.2d 1012 at 1014; Barker, 771 F.2d 1362 at 1365.
Rachels’ contention that the district court abused its discretion by imposing a “disparate sentence” lacks merit. Rachels’ argument, made without citing authority, is that the district court had a duty to sentence him to the same punishment meted out by other judges to other doctors convicted of unlawfully distributing drugs. This argument borders on frivolity. The record amply indicates the district court’s consideration of both mitigating and aggravating factors in sentencing Rachels. See Barker, 771 F.2d at 1365; United States v. Lopez-Gonzales, 688 F.2d 1275, 1277 (9th Cir.1982). The record fails to indicate that the district court was aware of what other sentences were imposed on similar defendants. There appears no abuse of discretion to warrant reversal.See Chiago, 699 F.2d , at 1014.
AFFIRMED.
. Among these were changing references to "cocaine” to "codeine,” and altering upward the number of hours Rachels was devoting to community service.
. Factors mentioned by the court as its basis for sentencing included endangering the lives of people Rachels had sworn to protect under the Hippocratic oath; committing the crimes over a number of years, indicating that this was no momentary lapse of judgment; deliberation, as shown by the recruitment and payment of other individuals and falsification of records; misuse of a medical license; failure to express remorse; and deterrence. The court also favorably considered Rachels’ guilty plea,
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_opinstat
|
B
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify whether the opinion writter is identified in the opinion or whether the opinion was per curiam.
Eli M. SPARK, Appellant, v. The CATHOLIC UNIVERSITY OF AMERICA et al.
No. 74-1336.
United States Court of Appeals, District of Columbia Circuit.
Argued Feb. 20, 1975.
Decided April 7, 1975.
Edwin Yourman, Washington, D. C., for appellant; Robert Sheriffs Moss & Associates, Washington, D. C., was on the brief, for appellant.
Nicholas D. Ward, Washington, D. C., with whom Stephen A. Trimble, Richard W. Turner and Richard W. Galiher, Washington, D. C., were on the briefs, for appellees.
Before LEVENTHAL, ROBINSON and MacKINNON, Circuit Judges.
Circuit Judge LEVENTHAL did not participate in the decision of this case.
PER CURIAM:
This is an appeal from a summary judgment dismissing a complaint for lack of federal jurisdiction. Appellant Spark was a Professor of Law employed by appellee Catholic University of America, a private institution. The complaint alleged that he engaged in his first amendment rights to protest certain actions of the Dean of the Law School which lowered admission standards and modified course requirements. It was claimed that as a result of his protests he was denied a pay raise of $1,750 granted to all Professors of Law of equal seniority for the school year 1970-71, that he received a pay raise of only $1,250 for 1971 — 72 while others of the same seniority received $2,000, and that he was forced into retirement at age 65 in 1972 although it was customary to allow continued employment until age 70.
Federal jurisdiction was alleged to lie in the fact that the University receives approximately 25% (about $5,000,000 per year) of its revenues from the Federal Government in the form of (1) Government sponsored instruction and research, (2) grants and payments on contracts for Federal Government sponsored programs, (3) scholarships for students attending the University, and (4) student aid. The amended complaint asserted that “the United States of America . has by reason thereof become so involved in the conduct of the University that its activities are also those of the Federal Government and are performed under the aegis of the Federal Government.” (J.A. 91.) This supposedly converted the University into a quasi-public agency and subjected its personnel decisions to the requirements of the first and fifth amendments.
In response to the University’s motion for summary judgment, the District Court dismissed the complaint for lack of federal jurisdiction, without holding a hearing on the motion. In support of its motion for summary judgment, the University, by affidavit of C. Joseph Nuesse, Executive Vice-President and Provost, admitted that the Government funds various programs but denied that it exercises any control over curriculum or personnel as a result of this funding. (J.A. 126-27.) The court in its order dismissing the amended complaint with prejudice specifically found that “the Catholic University of America is a private institution of higher learning over which the Federal Government exercises no direction, supervision or control with respect to its curriculum, program of instruction, administration or personnel and that said Catholic University is not an arm of the United States Government . . . (J.A. 150-51.) Appellant’s motion for reconsideration was denied and this appeal followed.
Appellant argues that the trial court was required to afford him an oral hearing before ruling on the motion for summary judgment and that his complaint alleged a “federal question” sufficient to confer subject matter jurisdiction under 28 U.S.C. § 1331(a).
1. Need for a Prior Hearing: In acting on the motion for summary judgment without affording appellant a hearing and the opportunity to present oral argument, the court relied on D.C. District Court Rule 1 — 9(e) which places the decision to allow an oral hearing in the sole discretion of the court. Appellant argues that this procedure violates Rule 56(c), Fed.R.Civ.P., which provides that a motion for summary judgment “shall be served at least 10 days before the time fixed for the hearing.” However, Rule 78 provides:
To expedite its business, the court may make provision by rule or order for the submission and determination of motions without oral hearing upon brief written statements of reasons in support and opposition,
and Rule 83 provides:
Each district court by action of a majority of the judges thereof may from time to time make and amend rules governing its practice, not inconsistent with these rules.
While it is clear that due process does not include the right to oral argument on a motion, see e. g., Morrow v. Topping, 437 F.2d 1155 (9th Cir. 1971), there is a division of authority among the circuits on the issue of whether a motion for summary judgment may ever be granted without affording a hearing to the adverse party. The Fifth and Ninth Circuits have held that a hearing is required; the Fourth, Seventh, Eighth and Tenth Circuits have held that oral argument may be avoided in appropriate circumstances, although some of these latter decisions indicate that a hearing should be held in most instances. We believe that the decisions permitting the trial court to dispense with oral argument state the sounder rule of law.
We find that the denial of the oral hearing was proper in this case. Appellant was given an ample opportunity to demonstrate subject matter jurisdiction through his affidavits in opposition to summary judgment. Furthermore, he was allowed to amend his complaint one time before it was dismissed. No showing has been made that an oral hearing would have produced any further evidence to enable the District Court to find federal jurisdiction. We therefore adopt the construction of the Rules which permits the District Court to dispense with oral arguments in appropriate circumstances in the interest of judicial economy, find that this case presented such circumstances and accordingly affirm that aspect of the District Court’s decision.
2. Federal Jurisdiction: In his opposition to the motion fot summary judgment, appellant argued that he had raised two genuine issues of material fact: (1) Whether the Government furnishes substantial sums of money to the University, and (2) Whether as a result of this financial assistance the Government has become so involved in the conduct of the University that its activities have become governmental action. Regarding the first issue, the University did not contradict appellant’s description of the types and amounts of funds it received from the Government. However, its affidavit did assert that the Government does not exercise any direction, supervision or control over its curriculum, program of instruction, administration or personnel. \JA. 127). Appellant did not contradict the accuracy of that statement by alleging any examples of Government control but merely continued to assert that the Government had become involved in the conduct of the University “by reason of its financial assistance.” (J.A. 148.) Furthermore, his statement of genuine issues (J.A. 149-50) only referred to Government involvement in terms of federal funding. Thus the extent of the governmental involvement was no longer in dispute.
Appellant’s second “issue” is the legal question of whether the receipt of federal funds to the extent shown in the affidavits converts a private institution into an agency of the Government sufficient to establish federal question jurisdiction. Such an issue of law should be no barrier to a summary judgment. Appellant’s contention that summary judgment can not be used to resolve a dispute over the existence of a federal question is simply erroneous. The decision of the District Court was merely a determination that the allegations in the complaint and the uncontroverted affidavits were legally not sufficient to establish federal jurisdiction. The need to “sift facts and weigh circumstances” to determine “State involvement” described in Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (1969), was satisfied in this case by an analysis of the extent of the federal involvement as set out in the complaint and the affidavits.
The only remaining question is the validity of the District Court’s finding that it did not have jurisdiction over the complaint because the Government exercises no control over the University’s activities. Each party cites numerous cases dealing with the amount of governmental involvement which is necessary before a private entity becomes sufficiently entangled with governmental functions that federal jurisdiction attaches. If any principle emerges from these cases, it would appear to be that, at least where the question of race is not involved, it is necessary to show that the Government exercises some form of control over the actions of the private party. In the present case, the statutes under which the University received the funds specifically prohibit the Federal Government and its agents from exercising any supervision or control over or participating in the activities of the University. Appellant neither alleged that the Government was not complying with these statutes nor claimed that any connection existed between the funding activities of the Government and the various decisions by University officials concerning his employment status.
The fact that the Federal Government contributes funds to the University, by itself, is insufficient to show the exercise of influence on University decision-making or the encouragement of specific policies. In Grossner v. Columbia University, 287 F.Supp. 535 (S.D.N.Y.1968), the court responded to a similar situation as follows:
A more fundamental point against plaintiffs is that receipt of money from the State is not, without a good deal more, enough to make the recipient an agency or instrumentality of the Government. Otherwise, all kinds of contractors and enterprises, increasingly dependent upon government business for much larger proportions of income than those here in question, would find themselves charged with “state action” in the performance of all kinds of functions we still consider and treat as essentially “private” for all presently relevant purposes. See Simkins v. Moses H. Cone Memorial Hospital, supra, 323 F.2d [959] at 967 (4th Cir. 1963), cert. denied, 376 U.S. 938, 84 S.Ct. 793, 11 L.Ed.2d 659 (1964).
287 F.Supp. at 547-48. Although Grossner dealt with the use of state funds by a private university, its language is equally applicable to the instant case. It has also been held that governmental penetration into the affairs of a private university sufficient to establish federal jurisdiction will not arise from government chartering, from the granting of tax exempt status, or from the requirement that the university comply with federal anti-discrimination statutes as a condition for receiving the funds. Since appellant did not allege any additional federal involvement in the affairs of Catholic University beyond the contribution of federal funds, we conclude that federal jurisdiction does not exist in this case.
We also note that appellant is contemporaneously pursuing a contract action in the Superior Court for the District of Columbia. While we have not relied upon that fact in the disposition of the instant appeal, it appears that appellant is not without a forum for his claims.
The order of the District Court dismissing with prejudice appellant’s Amended Complaint for lack of federal question jurisdiction is accordingly
Affirmed.
. D.C. District Court Rule l-9(e) provides: A party may in his motion or his opposition specifically request an oral hearing, but the allowance of an oral hearing shall be within the sole discretion of the court.
. Georgia Southern & F. Ry. Co. v. Atlantic Coast Line R. Co., 373 F.2d 493, 496-98 (5th Cir.), cert. denied, 389 U.S. 851, 88 S.Ct. 69, 19 L.Ed.2d 120 (1967); Dredge Corp. v. Penny, 338 F.2d 456, 461-62 (9th Cir. 1964).
. Parish v. Howard, 459 F.2d 616 (8th Cir. 1972); Hazen v. Southern Hills Nat’l Bank, 414 F.2d 778, 780 (10th Cir. 1969); United States Fidelity & Guaranty Co. v. Lawrenson, 334 F.2d 464, 466-67 (4th Cir.), cert. denied, 379 U.S. 869, 85 S.Ct. 141, 13 L.Ed.2d 71 (1964); Sarelas v. Porikos, 320 F.2d 827 (7th Cir. 1963), cert. denied, 375 U.S. 985, 84 S.Ct. 519, 11 L.Ed.2d 473 (1964). See also Season-all Industries, Inc. v. Turkiye, etc., 425 F.2d 34 (3d Cir. 1970).
. Cf. Jackson v. Metropolitan Edison Co., 419 U.S. 345, 95 S.Ct. 449, 42 L.Ed.2d. 477 (1974) (regulated utility); Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972) (state liquor license); Wahba v. New York University, 492 F.2d 96 (2d Cir.), cert. denied, 419 U.S. 874, 95 S.Ct. 135, 42 L.Ed.2d 113 (1974) (private university receiving research grants); Junior Chamber of Commerce of Rochester, Inc. v. United States Jaycees, 495 F.2d 883 (10th Cir.), cert. denied, 419 U.S. 1026, 95 S.Ct. 505, 42 L.Ed.2d 301 (1974) (private organization receiving federal funds); Blackburn v. Fisk University, 443 F.2d 121 (6th Cir. 1971) (state chartered private university); and Grossner v. Trustees of Columbia University, 287 F.Supp. 585 (S.D.N. Y.1968) (state funding of private university), all finding insufficient governmental involvement, with Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961) (restaurant leased from government-owned parking facility); Sams v. Ohio Valley General Hospital Assn., 413 F.2d 826 (4th Cir. 1969) (private hospitals); Powe v. Miles, 407 F.2d 73 (2d Cir. 1968); Hammond v. University of Tampa, 444 F.2d 951 (5th Cir. 1965) (private university using municipal property); Simkin v. Moses H. Cone Memorial Hospital, 323 F.2d 959 (4th Cir. 1963) (private hospital receiving Hill-Burton funds); and Kerr v. Enoch Pratt Free Library, 149 F.2d 212 (4th Cir.), cert. denied, 326 U.S. 721, 66 S.Ct. 26, 90 L.Ed. 427 (1945) (privately endowed library), each finding that federal jurisdiction existed.
. See Bright v. Isenbarger, 314 F.Supp. 1382, 1392-94 (N.D.Ind.1970), aff'd, 445 F.2d 412 (7th Cir. 1971); Coleman v. Wagner College, 429 F.2d 1120, 1127 (2d Cir. 1970) (Friendly, J., concurring).
. 20 U.S.C. § 1232a provides:
§ 1232a. Prohibition against Federal control of education.
No provision of the Act of September 30, 1950, Public Law 874, Eighty-first Congress; the National Defense Education Act of 1958; the Act of September 23, 1950, Public Law 815, Eighty-first Congress; the Higher Education Facilities Act of 1963; the Elementary and Secondary Education Act of 1965; the Higher Education Act of 1965; the International Education Act of 1966; or the Vocational Education Act of 1963 shall be construed to authorize any department, agency, officer, or employee of the United States to exercise any direction, supervision, or control over the curriculum, program of instruction, administration, or personnel of any educational institution, school, or school system, or over the selection of library resources, textbooks, or other printed or published instructional materials by any educational institution or school system, or to require the assignment or transportation of students or teachers in order to overcome racial imbalance. (Pub.L. 90-247, title IV, § 422, as added Pub.L. 91-230, title IV, § 401(a)(10), Apr. 13, 1970, 84 Stat. 169.)
This statute superseded 20 U.S.C. §§ 402, 757 and 1144 which contained similar restrictions.
. Blackburn v. Fisk University, 443 F.2d 121 (6th Cir. 1971).
. Browns v. Mitchell, 409 F.2d 593 (10th Cir. 1969).
. Wahba v. New York University, 492 F.2d 96 (2d Cir.), cert. denied, 419 U.S. 874, 95 S.Ct. 135, 42 L.Ed.2d 113 (1974):
Congress has specified one constitutional command, a prohibition of racial discrimination, which those engaging in federally financed projects must respect. This very specification affords some indication that the Government did not mean to require compliance with other constitutional guarantees; we do not think the Constitution imposes them proprio vigore.
492 F.2d at 102.
Question: Is the opinion writer identified in the opinion, or was the opinion per curiam?
A. Signed, with reasons
B. Per curiam, with reasons
C. Not ascertained
Answer:
|
songer_usc1sect
|
2000
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 42. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".
Alfred D. WHITE, Plaintiff-Appellant, v. Frank C. CARLUCCI, Secretary, Department of Defense, and James Webb, Secretary, Department of the Navy, Defendants-Appellees.
No. 88-3269
Summary Calendar.
United States Court of Appeals, Fifth Circuit.
Jan. 12, 1989.
Joseph W. Thomas, New Orleans, La., for plaintiff-appellant.
Glenn K. Schreiber, Asst. U.S. Atty., John Volz, U.S. Atty., New Orleans, La., for defendants-appellees.
Before POLITZ, KING, and SMITH, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
In this case, we must determine whether and to what extent a Title VII plaintiff must show a likelihood of irreparable harm for a preliminary injunction to issue. Plaintiff Alfred White is a civilian employee of the United States Navy who worked as a Deputy Equal Employment Officer before filing this lawsuit. On December 18, 1987, he brought this action alleging racial discrimination in violation of, inter alia, Title VII of the Civil Rights Act of 1964. By letter dated February 11, 1988, plaintiff was reassigned to a new position as a program analyst at the same command post. This new job involved skills similar to those of the old job and provided identical compensation and benefits. Plaintiff moved to enjoin preliminarily the reassignment pending the resolution of his claims. A magistrate held a lengthy hearing and explicitly found that plaintiff had not established a likelihood of irreparable injury and therefore denied the injunction. This interlocutory appeal followed. The government, asserting that the appeal is frivolous, asks us to impose sanctions.
I. Standard of Review.
We will reverse the denial of a preliminary injunction only under extraordinary circumstances. “The decision to grant or deny a preliminary injunction lies within the sound discretion of the trial court and may be reversed on appeal only by a showing of abuse of discretion.” Apple Barrel, 730 F.2d at 386. Furthermore, we may “not simply ... substitute [our] judgment for the trial court’s, else that court’s announced discretion would be meaningless.” Enterprise Int’l, Inc. v. Corporacion Estatal Petrolera Ecuatoriana, 762 F.2d 464, 472 (5th Cir.1985).
Each element of the injunction analysis typically involves questions of fact and of law. Apple Barrel, 730 F.2d at 386. The factual components of the decision are subject to a clearly-erroneous standard of review. Id.; Fed.R.Civ.P. 52(a). Legal conclusions, of course, “are subject to broad review and will be reversed if incorrect.” Commonwealth Life Ins. Co. v. Neal, 669 F.2d 300, 304 (5th Cir.1982).
II. Irreparable Harm.
A preliminary injunction “is an extraordinary and drastic remedy, not to be granted routinely, but only when the movant, by a clear showing, carries the burden of persuasion.” Holland Am. Ins. Co. v. Succession of Roy, 777 F.2d 992, 997 (5th Cir.1985). Without question, the irreparable harm element must be satisfied by independent proof, or no injunction may issue. See Enterprise, 762 F.2d at 472.
The ultimate thrust of plaintiff’s argument, to the extent that one can be discerned from his brief, is that irreparable harm need not be established independently in a Title VII case in order for an injunction to issue. The cases cited in behalf of this proposition are all inapposite. Both United States v. Hayes Int’l Corp., 415 F.2d 1038, 1045 (5th Cir.1969), and EEOC v. Cosmair, Inc., 821 F.2d 1085, 1090 (5th Cir.1987), held only that irreparable harm need not be proven if (1) the injunctive relief is sought pursuant to statute by the appropriate government officer or agency and (2) all of the statutory prerequisites are met. The exception also applies only after all administrative remedies have been exhausted. Cosmair, 821 F.2d at 1091. There is no way to read these eases as eliminating generally the irreparable harm requirement for all Title VII plaintiffs.
In the alternative, plaintiff summarily asserts that since he filed his complaint pursuant to 42 U.S.C. § 2000e-16, which incorporates 42 U.S.C. § 2000e-5(g), authorizing injunctive relief, this injunction is being sought pursuant to statute and therefore comes under the exception recognized by Hayes and Cosmair. This argument is unconvincing.
Although 42 U.S.C. § 2000e-5(g) authorizes injunctive relief, it speaks only to post-trial remedies after a plaintiff has actually prevailed on the merits of his or her claim. The comparable provision treating preliminary relief is 42 U.S.C. § 2000e-5(f)(2), which is also incorporated by 42 U.S.C. § 2000e-16. However, in a government-employment case this provision authorizes only the Attorney General, not private plaintiffs, to seek an injunction.
Accordingly, plaintiff is not seeking this injunction pursuant to statute. In any event, even if we were to read § 2000e-5(f)(2) as authorizing this injunction, plaintiff still has not exhausted his administrative remedies so as to come within the exception recognized by Hayes and Cosmair.
In Porter v. Adams, 639 F.2d 273, 278 (6th Cir. Unit A Mar. 1981), we held explicitly that “the traditional considerations that inform decisions concerning preliminary injunctive relief—irreparable harm, the likelihood of success on the merits, balancing of the equities, and the public interest—still apply” in Title VII cases involving federal employees. The authorities that govern this inquiry are Sampson v. Murray, 415 U.S. 61, 94 S.Ct. 937, 39 L.Ed.2d 166 (1974), and its progeny. Porter, 639 F.2d at 278 n. 8.
Remarkably, in plaintiffs brief his counsel does not even address Porter, even though that same counsel represented the Porter plaintiff in that case. However, there is simply no reasonable way to avoid Porter and conclude that irreparable harm need not be established in a Title VII case not coming squarely under Hayes and Cos-mair. “[Ijrreparable injury is an essential prerequisite to preliminary injunctive relief for federal employees under Title VII.” Porter, id. (citing Garza v. Texas Educ. Found., Inc., 565 F.2d 909 (5th Cir.1978); Morgan v. Fletcher, 518 F.2d 236 (5th Cir.1975); Parks v. Dunlop, 517 F.2d 785 (5th Cir.1975)).
In Sampson, the Supreme Court overturned a finding that irreparable harm was established where a federal employee was discharged and sought reinstatement pending her appeal to the Civil Service Commission. The Court instructs that “[mjere injuries, however substantial, in terms of money, time, and energy necessarily expended in the absence of a stay, are not enough.” 415 U.S. at 90, 94 S.Ct. at 953.
Sampson also explicitly mandates that courts must consider the disruptive effect on the administrative process of the federal government of granting preliminary injunctions in government-employment-related cases. Without even considering the merits of her underlying claims, the court held that the hapless plaintiff in Sampson could not establish irreparable harm despite the fact that she had lost her livelihood. Id. at 92-93, 94 S.Ct. at 954. By contrast, the instant plaintiff, White, has merely been reassigned to a new position at the same location and salary. It is difficult to see what irreparable harm White is likely to suffer in light of the fact that the Supreme Court has squarely held that even complete loss of employment is not cognizable.
Sampson also patently stands for the proposition that there is no nexus between the strength and nature of the underlying claim and the element of irreparable harm. Such irreparable harm must be proven separately and convincingly. The burden of proof is not reduced by either the existence of an extremely strong likelihood of success or the egregiousness of the alleged wrong upon which the underlying claim is based.
We have held similarly in a number of cases. In Parks v. Dunlop, the district court granted a preliminary injunction preventing the Department of Labor from filling a vacant position pending plaintiffs administrative appeal asserting that he had been passed over for promotion to this position because of reverse discrimination actionable under Title VII. We took the unusual step of reversing this decision based upon the absence of a showing of irreparable harm, noting that “[mjaintenance of the status quo is only sometimes a concomitant of preventing irreparable harm—never the touchstone for such injunctive relief.” Id. at 787.
Likewise, in Morgan v. Fletcher, a NASA employee was notified of her probable removal two months after she had filed an administrative sex discrimination complaint. She sought and received preliminary injunctive relief pending a full agency hearing. The district court noted the percentage of her family’s income which plaintiffs salary provided and that dismissal could lead to foreclosure on her home and possible health problems because of the removal of her medical benefits. We acknowledged the potential magnitude of these injuries, and that the underlying claim might be meritorious, but still found that injuries of this nature are not the type of irreparable harm justifying injunctive relief. Id. at 240. The injuries all could be made whole by money damages or other subsequent relief.
Thus, according to Porter, White must establish irreparable harm. Under the appropriate standards imposed by Sampson, Parks, and Morgan, he cannot claim in good faith that such harm will be caused because of his reassignment. In fact, plaintiff does not, and cannot, make any fact-specific argument as to how he will be irreparably harmed. He relies completely upon the untenable assertion that the nature of his claim eliminates the need for such a showing. In conclusion, the magistrate performed the proper analysis in finding no irreparable harm and denying the preliminary injunction.
III. Sanctions.
Citing our recent decision in Coghlan v. Starkey, 852 F.2d 806, 809 (5th Cir.1988), the government has asked us to impose double costs and attorneys’ fees on plaintiff pursuant to Fed.R.App.P. 38 for bringing a frivolous appeal and for non-disclosure of controlling authority. We cannot agree that this appeal is totally frivolous, as there is language from Hayes and Cosmair arguably supporting plaintiffs position. White’s counsel could have argued in good faith, albeit unsuccessfully, that Porter is either distinguishable or wrongly decided and that these other cases control.
We are, however, troubled by the failure of plaintiff’s counsel even to mention Porter, much less make a good faith argument as to why it should not control. Moreover, we may infer that this omission was not inadvertent, given that the same attorney had also represented the plaintiff in Porter. Accordingly, we think it appropriate to admonish White’s counsel even though we do not impose sanctions.
AFFIRMED.
. For a preliminary injunction to issue, the party seeking such relief must also establish (1) a substantial likelihood of success on the merits, (2) a favorable balance of hardships, and (3) no adverse effect on the public interest. See Apple Barrel Productions, Inc. v. Beard, 730 F.2d 384, 386 (5th Cir.1984); Dallas Cowboys Cheerleaders, Inc. v. Scoreboard Posters, Inc., 600 F.2d 1184, 1187 (5th Cir.1979). The magistrate did not address these other elements. Plaintiff would have us accept them as satisfied and order the injunction to issue if we find that irreparable injury was either established or need not be. Such a result would be inappropriate.
Where a magistrate or trial judge has not entered findings and conclusions on the elements of an injunction pursuant to Fed.R.Civ.P. 52(a), the proper solution is to remand so that such findings and conclusions may be entered, to give us a basis for review. Although the existence of such findings is not a jurisdictional requirement, we will review an injunction decision in their absence only when the record is exceptionally clear and remand would serve no useful purpose. See Davis v. United States, 422 F.2d 1139, 1142 (5th Cir.1970). This is simply not such a case. In any event, upon cursory review of the record, we doubt seriously whether plaintiff can establish any of these other elements. Yet he will certainly have to do so upon remand should we reverse on the issue of irreparable harm.
. We fail to see how the third case cited by plaintiff, Wilson v. Thompson, 593 F.2d 1375 (5th Cir.1979), involving the Younger v. Harris prohibition on federal courts’ enjoining state proceedings, bears any relationship to the instant facts.
. In Jorgenson v. County of Volusia, 846 F.2d 1350 (11th Cir.1988), the Eleventh Circuit recently upheld Fed.R.Civ.P. 11 sanctions imposed by a district court where plaintiffs counsel sought a temporary restraining order and a preliminary injunction without disclosing a contrary controlling case in which he had been involved personally. The court held that counsel was not “redeemed by the fact that opposing counsel subsequently cited the controlling precedent.” Id. at 1352 (emphasis in original).
Question: What is the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 42? Answer with a number.
Answer:
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sc_precedentalteration
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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 whether the opinion effectively says that the decision in this case "overruled" one or more of the Court's own precedents. Alteration also extends to language in the majority opinion that states that a precedent of the Supreme Court has been "disapproved," or is "no longer good law". Note, however, that alteration does not apply to cases in which the Court "distinguishes" a precedent.
LEEGIN CREATIVE LEATHER PRODUCTS, INC. v. PSKS, INC., dba KAY’S KLOSET . . . KAY’S SHOES
No. 06-480.
Argued March 26, 2007
Decided June 28, 2007
Kennedy, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Thomas, and Auto, JJ., joined. Breyer, J., filed a dissenting opinion, in which Stevens, Souter, and Ginsburg, JJ., joined, post, p. 908.
Theodore B. Olson argued the cause for petitioner. With him on the briefs were Michael L. Denger, Joshua Lipton, Amir C. Tayrani, Tyler A. Baker, Jeffrey S. Levinger, and Gary Freedman.
Deputy Solicitor General Hungar argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Clement, Assistant Attorney General Barnett, Deputy Assistant Attorney General Masoudi, Lisa S. Blatt, Catherine G. O'Sullivan, and David Seidman.
Robert W. Coykendall argued the cause for respondent. With him on the brief were Ken M. Peterson, Tim J. Moore, Nelson J. Roach, D. Neil Smith, and Stephen R. McAllister.
Barbara D. Underwood, Solicitor General of New York, argued the cause for the State of New York et al. as amici curiae urging affirmance. With her on the brief were Andrew M. Cuomo, Attorney General of New York, Benjamin N. Gutman, Acting Deputy Solicitor General, Daniel J. Chepaitis, Assistant Solicitor General, and Jay L. Himes and Robert L. Hubbard, Assistant Attorneys General, and the Attorneys General for their respective States as follows: Talis J. Colberg of Alaska, Dustin McDaniel of Arkansas, Richard Blumenthal of Connecticut, Joseph R. Biden III of Delaware, Bill McCollum of Florida, Mark J. Bennett of Hawaii, Lawrence G. Wasden of Idaho, Lisa Madigan of Illinois, Thomas Miller of Iowa, Paul Morrison of Kansas, Greg Stumbo of Kentucky, Charles C. Foti, Jr., of Louisiana, G. Steven Rowe of Maine, Douglas F. Gansler of Maryland, Martha Coakley of Massachusetts, Mike Cox of Michigan, Lori Swanson of Minnesota, Jim Hood of Mississippi, Jeremiah W. (Jay) Nixon of Missouri, Mike McGrath of Montana, Catherine Cortez Masto of Nevada, Kelly A. Ayotte of New Hampshire, Stuart Rabner of New Jersey, Gary King of New Mexico, Roy Cooper of North Carolina, Marc Dann of Ohio, W. A. Drew Edmondson of Oklahoma, Hardy Myers of Oregon, Thomas W. Corbett, Jr., of Pennsylvania, Henry McMaster of South Carolina, Larry Long of South Dakota, Mark L. Shurtleff of Utah, William H. Sorrell of Vermont, Robert M. McKenna of Washington, Darrell V. McGraw, Jr., of West Virginia, and Patrick J. Crank of Wyoming.
Briefs of amici curiae urging reversal were filed for the American Petroleum Institute by Robert A Long, Harry M. Ng, and Douglas W. Morris; for CTIA—The Wireless Association by Roy T. Englert, Jr., Donald J. Russell, and Michael Field Altshul; for Economists by Joseph Angland and Stephen V. Bomse; and for PING, Inc., by Thomas C. Walsh, Lawrence G. Scarborough, Aaron S. Bayer, and Robert M. Larger.
Briefs of amici curiae urging affirmance were filed for the American Antitrust Institute by Albert Foer; for the Anderson Economic Group, LLC, by Theodore R. Bolema; for the Burlington Coat Factory Warehouse Corp. by Jonathan W. Cuneo, Matthew Wiener, and Robert J. Cynkar; and for the Consumer Federation of America-by Peter A. Barile III.
Eugene Crew filed a brief for William S. Comanor et al. as amici curiae.
Justice Kennedy
delivered the opinion of the Court.
In Dr. Miles Medical Co. v. John D. Park & Sons Co., 220 U. S. 373 (1911), the Court established the rule that it is per se illegal under § 1 of the Sherman Act, 15 U. S. C. § 1, for a manufacturer to agree with its distributor to set the minimum price the distributor can charge for the manufacturer’s goods. The question presented by the instant case is whether the Court should overrule the per se rule and allow resale price maintenance agreements to be judged by the rule of reason, the usual standard applied to determine if there is a violation of § 1. The Court has abandoned the rule of per se illegality for other vertical restraints a manufacturer imposes on its distributors. Respected economic analysts, furthermore, conclude that vertical price restraints can have procompetitive effects. We now hold that Dr. Miles should be overruled and that vertical price restraints are to be judged by the rule of reason.
I
Petitioner, Leegin Creative Leather Products, Inc. (Lee-gin), designs, manufactures, and distributes leather goods and accessories. In 1991, Leegin began to sell belts under the brand name “Brighton.” The Brighton brand has now expanded into a variety of women’s fashion accessories. It is sold across the United States in over 5,000 retail establishments, for the most part independent, small boutiques and specialty stores. Leegin’s president, Jerry Kohl, also has an interest in about 70 stores that sell Brighton products. Lee-gin asserts that, at least for its products, small retailers treat customers better, provide customers more services, and make their shopping experience more satisfactory than do larger, often impersonal retailers. Kohl explained: “[W]e want the consumers to get a different experience than they get in Sam’s Club or in Wal-Mart. And you can’t get that kind of experience or support or customer service from a store like Wal-Mart.” 5 Record 127.
Respondent, PSKS, Inc. (PSKS), operates Kay’s Kloset, a women’s apparel store in Lewisville, Texas. Kay’s Kloset buys from about 75 different manufacturers and at one time sold the Brighton brand. It first started purchasing Brighton goods from Leegin in 1995. Once it began selling the brand, the store promoted Brighton. For example, it ran Brighton advertisements and had Brighton days in the store. Kay’s Kloset became the destination retailer in the area to buy Brighton products. Brighton was the store’s most important brand and once accounted for 40 to 50 percent of its profits.
In 1997, Leegin instituted the “Brighton Retail Pricing and Promotion Policy.” 4 id., at 939. Following the policy, Leegin refused to sell to retailers that discounted Brighton goods below suggested prices. The policy contained an exception for products not selling well that the retailer did not plan on reordering. In the letter to retailers establishing the policy, Leegin stated:
“In this age of mega stores like Macy’s, Bloomingdales, May Co. and others, consumers are perplexed by promises of product quality and support of product which we believe is lacking in these large stores. Consumers are further confused by the ever popular sale, sale, sale, etc.
“We, at Leegin, choose to break away from the pack by selling [at] specialty stores; specialty stores that can offer the customer great quality merchandise, superb service, and support the Brighton product 365 days a year on a consistent basis.
“We realize that half the equation is Leegin producing great Brighton product and the other half is you, our retailer, creating great looking stores selling our products in a quality manner.” Ibid.
Leegin adopted the policy to give its retailers sufficient margins to provide customers the service central to its distribution strategy. It also expressed concern that discounting harmed Brighton’s brand image and reputation.
A year after instituting the pricing policy Leegin introduced a marketing strategy known as the “Heart Store Program.” See id., at 962-972. It offered retailers incentives to become Heart Stores, and, in exchange, retailers pledged, among other things, to sell at Leegin’s suggested prices. Kay’s Kloset became a Heart Store soon after Leegin created the program. After a Leegin employee visited the store and found it unattractive, the parties appear to have agreed that Kay’s Kloset would not be a Heart Store beyond 1998. Despite losing this status, Kay’s Kloset continued to increase its Brighton sales.
In December 2002, Leegin discovered Kay’s Kloset had been marking down Brighton’s entire line by 20 percent. Kay’s Kloset contended it placed Brighton products on sale to compete with nearby retailers who also were undercutting Leegin’s suggested prices. Leegin, nonetheless, requested that Kay’s Kloset cease discounting. Its request refused, Leegin stopped selling to the store. The loss of the Brighton brand had a considerable negative impact on the store’s revenue from sales.
PSKS sued Leegin in the United States District Court for the Eastern District of Texas. It alleged, among other claims, that Leegin had violated the antitrust laws by “enter-ting] into agreements with retailers to charge only those prices fixed by Leegin.” Id., at 1236. Leegin planned to introduce expert testimony describing the procompetitive effects of its pricing policy. The District Court excluded the testimony, relying on the per se rule established by Dr. Miles. At trial PSKS argued that the Heart Store program, among other things, demonstrated Leegin and its retailers had agreed to fix prices. Leegin responded that it had established a unilateral pricing policy lawful under § 1, which applies only to concerted action. See United States v. Colgate & Co., 250 U. S. 300, 307 (1919). The jury agreed with PSKS and awarded it $1.2 million. Pursuant to 15 U. S. C. § 15(a), the District Court trebled the damages and reimbursed PSKS for its attorney’s fees and costs. It entered judgment against Leegin in the amount of $3,975,000.80.
The Court of Appeals for the Fifth Circuit affirmed. 171 Fed. Appx. 464 (2006) (per curiam). On appeal Leegin did not dispute that it had entered into vertical price-fixing agreements with its retailers. Rather, it contended that the rule of reason should have applied to those agreements. The Court of Appeals rejected this argument. Id., at 466-467. It was correct to explain that it remained bound by Dr. Miles “[b]ecause [the Supreme] Court has consistently applied the per se rule to [vertical minimum price-fixing] agreements.” 171 Fed. Appx., at 466. On this premise the Court of Appeals held that the District Court did not abuse its discretion in excluding the testimony of Leegin’s economic expert, for the per se rule rendered irrelevant any procompetitive justifications for Leegin’s pricing policy. Id., at 467. We granted certiorari to determine whether vertical minimum resale price maintenance agreements should continue to be treated as per se unlawful. 549 U. S. 1092 (2006).
II
Section 1 of the Sherman Act prohibits “[e]very contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States.” Ch. 647, 26 Stat. 209, as amended, 15 U. S. C. § 1. While § 1 could be interpreted to proscribe all contracts, see, e. g., Board of Trade of Chicago v. United States, 246 U. S. 231, 238 (1918), the Court has never “taken a literal approach to [its] language,” Texaco Inc. v. Dagher, 547 U. S. 1, 5 (2006). Rather, the Court has repeated time and again that § 1 “outlaw[s] only unreasonable restraints.” State Oil Co. v. Khan, 522 U. S. 3, 10 (1997).
The rule of reason is the accepted standard for testing whether a practice restrains trade in violation of § 1. See Texaco, supra, at 5. “Under this rule, the factfinder weighs all of the circumstances of a case in deciding whether a restrictive practice should be prohibited as imposing an unreasonable restraint on competition.” Continental T. V., Inc. v. GTE Sylvania Inc., 433 U. S. 36, 49 (1977). Appropriate factors to take into account include “specific information about the relevant business” and “the restraint’s history, nature, and effect.” Khan, supra, at 10. Whether the businesses involved have market power is a further, significant consideration. See, e. g., Copperweld Corp. v. Independence Tube Corp., 467 U. S. 752, 768 (1984) (equating the rule of reason with “an inquiry into market power and market structure designed to assess [a restraint’s] actual effect”); see also Illinois Tool Works Inc. v. Independent Ink, Inc., 547 U. S. 28, 45-46 (2006). In its design and function the rule distinguishes between restraints with anticompetitive effect that are harmful to the consumer and restraints stimulating competition that are in the consumer’s best interest.
The rule of reason does not govern all restraints. Some types “are deemed unlawful per se.” Khan, supra, at 10. The per se rule, treating categories of restraints as necessarily illegal, eliminates the need to study the reasonableness of an individual restraint in light of the real market forces at work, Business Electronics Corp. v. Sharp Electronics Corp., 485 U. S. 717, 723 (1988); and, it must be acknowledged, the per se rule can give clear guidance for certain conduct. Restraints that are per se unlawful include horizontal agreements among competitors to fix prices, see Texaco, supra, at 5, or to divide markets, see Palmer v. BRG of Ga., Inc., 498 U. S. 46, 49-50 (1990) (per curiam).
Resort to per se rules is confined to restraints, like those mentioned, “that would always or almost always tend to restrict competition and decrease output.” Business Electronics, supra, at 723 (internal quotation marks omitted). To justify a per se prohibition a restraint must have “manifestly anticompetitive” effects, GTE Sylvania, supra, at 50, and “lack .. . any redeeming virtue,” Northwest Wholesale Stationers, Inc. v. Pacific Stationery & Printing Co., 472 U. S. 284, 289 (1985) (internal quotation marks omitted).
As a consequence, the per se rule is appropriate only after courts have had considerable experience with the type of restraint at issue, see Broadcast Music, Inc. v. Columbia Broadcasting System, Inc., 441 U. S. 1, 9 (1979), and only if courts can predict with confidence that it would be invalidated in all or almost all instances under the rule of reason, see Arizona v. Maricopa County Medical Soc., 457 U. S. 332, 344 (1982). It should come as no surprise, then, that “we have expressed reluctance to adopt per se rules with regard to restraints imposed in the context of business relationships where the economic impact of certain practices is not immediately obvious.” Khan, supra, at 10 (internal quotation marks omitted); see also White Motor Co. v. United States, 372 U. S. 253, 263 (1963) (refusing to adopt a per se rule for a vertical nonprice restraint because of the uncertainty concerning whether this type of restraint satisfied the demanding standards necessary to apply a per se rule). And, as we have stated, a “departure from the rule-of-reason standard must be based upon demonstrable economic effect rather than . . . upon formalistic line drawing.” GTE Sylvania, supra, at 58-59.
Ill
The Court has interpreted Dr. Miles Medical Co. v. John D. Park & Sons Co., 220 U. S. 373, as establishing a per se rule against a vertical agreement between a manufacturer and its distributor to set minimum resale prices. See, e. g., Monsanto Co. v. Spray-Rite Service Corp., 465 U. S. 752, 761 (1984). In Dr. Miles the plaintiff, a manufacturer of medicines, sold its products only to distributors who agreed to resell them at set prices. The Court found the manufacturer’s control of resale prices to be unlawful. It relied on the common-law rule that “a general restraint upon alienation is ordinarily invalid." 220 U. S., at 404-405. The Court then explained that the agreements would advantage the distributors, not the manufacturer, and were analogous to a combination among competing distributors, which the law treated as void. Id., at 407-408.
The reasoning of the Court’s more recent jurisprudence has rejected the rationales on which Dr. Miles was based. By relying on the common-law rule against restraints on alienation, id., at 404-405, the Court justified its decision based on “formalistic” legal doctrine rather than “demonstrable economic effect,” GTE Sylvania, 433 U. S., at 58-59. The Court in Dr. Miles relied on a treatise published in 1628, but failed to discuss in detail the business reasons that would motivate a manufacturer situated in 1911 to make use of vertical price restraints. Yet the Sherman Act’s use of “restraint of trade” “invokes the common law itself, . . . not merely the static content that the common law had assigned to the term in 1890.” Business Electronics, supra, at 732. The general restraint on alienation, especially in the age when then-Justice Hughes used the term, tended to evoke policy concerns extraneous to the question that controls here. Usually associated with land, not chattels, the rule arose from restrictions removing real property from the stream of commerce for generations. The Court should be cautious about putting dispositive weight on doctrines from antiquity but of slight relevance. We reaffirm that “the state of the common law 400 or even 100 years ago is irrelevant to the issue before us: the effect of the antitrust laws upon vertical distributional restraints in the American economy today.” GTE Sylvania, supra, at 53, n. 21 (internal quotation marks omitted).
Dr. Miles, furthermore, treated vertical agreements a manufacturer makes with its distributors as analogous to a horizontal combination among competing distributors. See 220 U. S., at 407-408. In later cases, however, the Court rejected the approach of reliance on rules governing horizontal restraints when defining rules applicable to vertical ones. See, e.g., Business Electronics, supra, at 734 (disclaiming, the “notion of equivalence between the scope of horizontal per se illegality and that of vertical per se illegality”); Maricopa County, supra, at 348, n. 18 (noting that “horizontal restraints are generally less defensible than vertical restraints”). Our recent cases formulate antitrust principles in accordance with the appreciated differences in economic effect between vertical and horizontal agreements, differences the Dr. Miles Court failed to consider.
The reasons upon which Dr. Miles relied do not justify a per se rule. As a consequence, it is necessary to examine, in the first instance, the economic effects of vertical agreements to fix minimum resale prices, and to determine whether the per se rule is nonetheless appropriate. See Business Electronics, 485 U. S., at 726.
A
Though each side of the debate can find sources to support its position, it suffices to say here that economics literature is replete with procompetitive justifications for a manufacturer’s use of resale price maintenance. See, e. g., Brief for Economists as Amici Curiae 16 (“In the theoretical literature, it is essentially undisputed that minimum [resale price maintenance] can have procompetitive effects and that under a variety of market conditions it is unlikely to have anticompetitive effects”); Brief for United States as Amicus Curiae 9 (“[T]here is a widespread consensus that permitting a manufacturer to control the price at which its goods are sold may promote mferbrand competition and consumer welfare in a variety of ways”); ABA Section of Antitrust Law, Antitrust Law and Economics of Product Distribution 76 (2006) (“[T]he bulk of the economic literature on [resale price maintenance] suggests that [it] is more likely to be used to enhance efficiency than for anticompetitive purposes”); see also H. Hovenkamp, The Antitrust Enterprise: Principle and Execution 184-191 (2005) (hereinafter Hovenkamp); R. Bork, The Antitrust Paradox 288-291 (1978) (hereinafter Bork). Even those more skeptical of resale price maintenance acknowledge it can have procompetitive effects. See, e. g., Brief for William S. Comanor et al. as Amici Curiae 3 (“[G]iven [the] diversity of effects [of resale price maintenance], one could reasonably take the position that a rule of reason rather than a per se approach is warranted”); F. Scherer & D. Ross, Industrial Market Structure and Economic Performance 558 (3d ed. 1990) (hereinafter Scherer & Ross) (“The overall balanee between benefits and costs [of resale price maintenance] is probably close”).
The few recent studies documenting the competitive effects of resale price maintenance also cast doubt on the conclusion that the practice meets the criteria for a per se rule. See Bureau of Economics Staff Report to the FTC, T. Overstreet, Resale Price Maintenance: Economic Theories and Empirical Evidence 170 (1983) (hereinafter Overstreet) (noting that “[e]fficient uses of [resale price maintenance] are evidently not unusual or rare”); see also Ippolito, Resale Price Maintenance: Empirical Evidence From Litigation, 34 J. Law & Econ. 263,292-293 (1991) (hereinafter Ippolito).
The justifications for vertical price restraints are similar to those for other vertical, restraints. See GTE Sylvania, 433 U. S., at 54-57. Minimum resale price maintenance can stimulate interbrand competition — the competition among manufacturers selling different brands of the same type of product — by reducing intrabrand competition — the competition among retailers selling the same brand. See id., at 51-52. The promotion of interbrand competition is important because “the primary purpose of the antitrust laws is to protect [this type of] competition.” Khan, 522 U. S., at 15. A single manufacturer’s use of vertical price restraints tends to eliminate intrabrand price competition; this in turn encourages retailers to invest in tangible or intangible services or promotional efforts that aid the manufacturer’s position as against rival manufacturers. Resale price maintenance also has the potential to give consumers more options so that they can choose among low-price, low-service brands; high-price, high-service brands; and brands that fall in between.
Absent vertical price, restraints, the retail services that enhance interbrand competition might be underprovided. This is because discounting retailers can free ride on retailers who furnish services and then capture some of the increased demand those services generate. GTE Sylvania, supra, at 55. Consumers might learn, for example, about the benefits of a manufacturer’s product from a retailer that invests in fine showrooms, offers product demonstrations, or hires and trains knowledgeable employees. R. Posner, Antitrust Law 172-173 (2d ed. 2001) (hereinafter Posner). Or consumers might decide to buy the product because they see it in a retail establishment that has a reputation for selling high-quality merchandise. Marvel & McCafferty, Resale Price Maintenance and Quality Certification, 15 Rand J. Econ. 346,347-349 (1984) (hereinafter Marvel & McCafferty). If the consumer can then buy the product from a retailer that discounts because it has not spent capital providing services or developing a quality reputation, the high-service retailer will lose sales to the discounter, forcing it to cut back its services to a level lower than consumers would otherwise prefer. Minimum resale price maintenance alleviates the problem because it prevents the discounter from undercutting the service provider. With price competition decreased, the manufacturer’s retailers compete among themselves over services.
Resale price maintenance, in addition, can increase inter-brand competition by facilitating market entry for new firms and brands. “[N]ew manufacturers and manufacturers entering new markets can use the restrictions in order to induce competent and aggressive retailers to make the kind of investment of capital and labor that is often required in the distribution of products unknown to the consumer.” GTE Sylvania, supra, at 55; see Marvel & McCafferty 349 (noting that reliance on a retailer’s reputation “will decline as the manufacturer’s brand becomes better known, so that [resale price maintenance] may be particularly important as a competitive device for new entrants”). New products and new brands are essential to a dynamic economy, and if markets can be penetrated by using resale price maintenance there is a procompetitive effect.
Resale price maintenance can also increase interbrand competition by encouraging retailer services that would not be provided even absent free riding. It may be difficult and inefficient for a manufacturer to make and enforce a contract with a retailer specifying the different services the retailer must perform. Offering the retailer a guaranteed margin and threatening termination if it does not live up to expectations may be the most efficient way to expand the manufacturer’s market share by inducing the retailer’s performance and allowing it to use its own initiative and experience in providing valuable services. See Mathewson & Winter, The Law and Economics of Resale Price Maintenance, 13 Rev. Indus. Org. 57,74-75 (1998) (hereinafter Mathewson & Winter); Klein & Murphy, Vertical Restraints as Contract Enforcement Mechanisms, 31 J. Law & Econ. 265, 295 (1988); see also Deneckere, Marvel, & Peck, Demand Uncertainty, Inventories, and Resale Price Maintenance, 111 Q. J. Econ. 885, 911 (1996) (noting that resale price maintenance may be beneficial to motivate retailers to stock adequate inventories of a manufacturer’s goods in the face of uncertain consumer demand).
B
While vertical agreements setting minimum resale prices can have procompetitive justifications, they may have anti-competitive effects in other cases; and unlawful price fixing, designed solely to obtain monopoly profits, is an ever-present temptation. Resale price maintenance may, for example, facilitate a manufacturer cartel. See Business Electronics, 485 U. S., at 725. An unlawful cartel will seek to discover if some manufacturers are undercutting the cartel’s fixed prices. Resale price maintenance could assist the cartel in identifying price-cutting manufacturers who benefit from the lower prices they offer. Resale price maintenance, furthermore, could discourage a manufacturer from cutting prices to retailers with the concomitant benefit of cheaper prices to consumers. See ibid,.; see also Posner 172; Overstreet 19-23.
Vertical price restraints also “might be used to organize cartels at the retailer level.” Business Electronics, supra, at 725-726. A group of retailers might collude to fix prices to consumers and then compel a manufacturer to aid the unlawful arrangement with resale price maintenance. In that instance the manufacturer does not establish the practice to stimulate services or to promote its brand but to give inefficient retailers higher profits. Retailers with better distribution systems and lower cost structures would be prevented from charging lower prices by the agreement. See Posner 172; Overstreet 13-19. Historical examples suggest this possibility is a legitimate concern. See, e. g., Marvel & McCafferty, The Welfare Effects of Resale Price Maintenance, 28 J. Law & Econ. 363, 373 (1985) (hereinafter Marvel) (providing an example of the power of the National Association of Retail Druggists to compel manufacturers to use resale price maintenance); Hovenkamp 186 (suggesting that the retail druggists in Dr. Miles formed a cartel and used manufacturers to enforce it).
A horizontal cartel among competing manufacturers or competing retailers that decreases output or reduces competition in order to increase price is, and ought to be, per se unlawful. See Texaco, 547 U. S., at 5; GTE Sylvania, 433 U. S., at 58, n. 28. To the extent a vertical agreement setting minimum resale prices is entered upon to facilitate either type of cartel, it, too, would need to be held unlawful under the rule of reason. This type of agreement may also be useful evidence for a plaintiff attempting to prove the existence of a horizontal cartel.
Resale price maintenance, furthermore, can be abused by a powerful manufacturer or retailer. A dominant retailer, for example, might request resale price maintenance to forestall innovation in distribution that decreases costs. A manufacturer might consider it has little choice but to accommodate the retailer’s demands for vertical price restraints if the manufacturer believes it needs access to the retailer’s distribution network. See Overstreet 31; 8 P. Areeda & H. Hovenkamp, Antitrust Law 47 (2d ed. 2004) (hereinafter Areeda & Hovenkamp); cf. Toys “R” Us, Inc. v. FTC, 221 F. 3d 928, 937-938 (CA7 2000). A manufacturer with market power, by comparison, might use resale price maintenance to give retailers an incentive not to sell the products of smaller rivals or new entrants. See, e.g., Marvel 366-368. As should be evident, the potential anticompetitive consequences of vertical price restraints must not be ignored or underestimated.
C
Notwithstanding the risks of unlawful conduct, it cannot be stated with any degree of confidence that resale price maintenance “always or almost always tend[s] to restrict competition and decrease output.” Business Electronics, supra, at 723 (internal quotation marks omitted). Vertical agreements establishing minimum resale prices can have either procompetitive or anticompetitive effects, depending upon the circumstances in which they are formed. And although the empirical evidence on the topic is limited, it does not suggest efficient uses of the agreements are infrequent or hypothetical. See Overstreet 170; see also id., at 80 (noting that for the majority of enforcement actions brought by the Federal Trade Commission between 1965 and 1982, “the use of [resale price maintenance] was not likely motivated by collusive dealers who had successfully coerced their suppliers”); Ippolito 292 (reaching a similar conclusion). As the rule would proscribe a significant amount of procompetitive conduct, these agreements appear ill suited for per se condemnation.
Respondent contends, nonetheless, that vertical price restraints should be per se unlawful because of the administrative convenience of per se rules. See, e. g., GTE Sylvania, supra, at 50, n. 16 (noting “per se rules tend to provide guidance to the business community and to minimize the burdens on litigants and the judicial system”). That argument suggests per se illegality is the rule rather than the exception. This misinterprets our antitrust law. Per se rules may decrease administrative costs, but that is only part of the equation. Those rules can be counterproductive. They can increase the total cost of the antitrust system by prohibiting procompetitive conduct the antitrust laws should encourage. See Easterbrook, Vertical Arrangements and the Rule of Reason, 53 Antitrust L. J. 135, 158 (1984) (hereinafter Easterbrook). They also may increase litigation costs by promoting frivolous suits against legitimate practices. The Court has thus explained that administrative “advantages are not sufficient in themselves to justify the creation of per se rules,” GTE Sylvania, 433 U. S., at 50, n. 16, and has relegated their use to restraints that are “manifestly anticompetitive,” id., at 49-50. Were the Court now to conclude that vertical price restraints should be per se illegal based on administrative costs, we would undermine, if not overrule, the traditional “demanding standards” for adopting per se rules. Id., at 50. Any possible reduction in administrative costs cannot alone justify the Dr. Miles rule.
Respondent also argues the per se rule is justified because a vertical price restraint can lead to higher prices for the manufacturer’s goods. See also Overstreet 160 (noting that “price surveys indicate that [resale price maintenance] in most cases increased the prices of products sold”). Respondent is mistaken in relying on pricing effects absent a further showing of anticompetitive conduct. Cf. id., at 106 (explaining that price surveys “do not necessarily tell us anything conclusive about the welfare effects of [resale price maintenance] because the results are generally consistent with both procompetitive and anticompetitive theories”). For, as has been indicated already, the antitrust laws are designed primarily to protect interbrand competition, from which lower prices can later result. See Khan, 522 U. S., at 15. The Court, moreover, has evaluated other vertical restraints under the rule of reason even though prices can be increased in the course of promoting procompetitive effects. See, e. g., Business Electronics, 485 U. S., at 728. And resale price maintenance may reduce prices if manufacturers have resorted to costlier alternatives of controlling resale prices that are not per se unlawful. See infra, at 902-904; see also Marvel 371.
Respondent’s argument, furthermore, overlooks that, in general, the interests of manufacturers and consumers are aligned with respect to retailer profit margins. The difference between the price a manufacturer charges retailers and the price retailers charge consumers represents part of the manufacturer’s cost of distribution, which, like any other cost, the manufacturer usually desires to minimize. See GTE Sylvania, 433 U. S., at 56, n. 24; see also id., at 56 (“Economists . . . have argued that manufacturers have an economic interest in maintaining as much intrabrand competition as is consistent with the efficient distribution of their products”). A manufacturer has no incentive to over compensate retailers with unjustified margins. The retailers, not the manufacturer, gain from higher retail prices. The manufacturer often loses; interbrand competition reduces its competitiveness and market share because consumers will “substitute a different brand of the same product.” Id., at 52, n. 19; see Business Electronics, supra, at 725. As a general matter, therefore, a single manufacturer will desire to set minimum resale prices only if the “increase in demand resulting from enhanced service . . . will more than offset a negative impact on demand of a higher retail price.” Mathewson & Winter 67.
The implications of respondent’s position are far reaching. Many decisions a manufacturer makes and carries out through concerted action can lead to higher prices. A manufacturer might, for example, contract with different suppliers to obtain better inputs that improve product quality. Or it might hire an advertising agency to promote awareness of its goods. Yet no one would think these actions violate the Sherman Act because they lead to higher prices. The antitrust laws do not require manufacturers to produce generic goods that consumers do not know about or want. The manufacturer strives to improve its product quality or to promote its brand because it believes this conduct will lead to increased demand despite higher prices. The same can hold true for resale price maintenance.
Resale price maintenance, it is true, does have economic dangers. If the rule of reason were to apply to vertical price restraints, courts would have to be diligent in eliminating their anticompetitive uses from, the market. This is a realistic objective, and certain factors are relevant to the inquiry. For example, the number of manufacturers that make use of the practice in a given industry can provide important instruction. When only a few manufacturers lacking market power adopt the practice, there is little likelihood it is facilitating a manufacturer cartel, for a cartel then can be undercut by rival manufacturers. See Overstreet 22; Bork 294. Likewise, a retailer cartel is unlikely when only a single manufacturer in a competitive market uses resale price maintenance. Interbrand competition would divert consumers to lower priced substitutes and eliminate any gains to
Question: Did the the decision of the court overrule one or more of the Court's own precedents?
A. Yes
B. No
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.
O’CALLAHAN v. PARKER, WARDEN.
No. 646.
Argued January 23, 1969.
Decided June 2, 1969.
Victor Rabinowitz argued the cause and filed briefs for petitioner.
James vanR. Springer argued the cause for respondent. With him on the brief were Solicitor General Griswold, Assistant Attorney General Vinson, Beatrice Rosenberg, and Roger A. Pauley.
Mr. Justice Douglas
delivered the opinion of the Court.
Petitioner, then a sergeant in the United States Army, was stationed in July 1956, at Fort Shafter, Oahu, in the Territory of Hawaii. On the night of July 20, while on an evening pass, petitioner and a friend left the post dressed in civilian clothes and went into Honolulu. After a few beers in the bar of a hotel, petitioner entered the residential part of the hotel where he broke into the room of a young girl and assaulted and attempted to rape her. While fleeing from her room onto Waikiki Beach, he was apprehended by a hotel security officer who delivered him to the Honolulu city police for questioning. After determining that he was a member of the Armed Forces, the city police delivered petitioner to the military police. After extensive interrogation, petitioner confessed and was placed in military confinement.
Petitioner was charged with attempted rape, housebreaking, and assault with intent to rape, in violation of Articles 80, 130, and 134 of the Uniform Code of Military Justice. He was tried by court-martial, convicted on all counts, and given a sentence of 10 years' imprisonment at hard labor, forfeiture of all pay and allowances, and dishonorable discharge. His conviction was affirmed by the Army Board of Review and, subsequently, by the United States Court of Military Appeals.
Under confinement at the United States Penitentiary at Lewisburg, Pennsylvania, petitioner filed a petition for writ of habeas corpus in the United States District Court for the Middle District of Pennsylvania, alleging, inter alia, that the court-martial was without jurisdiction to try him for nonmilitary offenses committed off-post while on an evening pass. The District Court denied relief without considering the issue on the merits, and the Court of Appeals for the Third Circuit affirmed. This Court granted certiorari limited to the question:
“Does a court-martial, held under the Articles of War, Tit. 10, U. S. C. § 801 et seg., have jurisdiction to try a member of the Armed Forces who is charged with commission of a crime cognizable in a civilian court and having no military significance, alleged to have been committed off-post and while on leave, thus depriving him of his constitutional rights to indictment by a grand jury and trial by a petit jury in a civilian court?” 393 U. S. 822.
The Constitution gives Congress power to “make Rules for the Government and Regulation of the land and naval Forces,” Art. I, § 8, cl. 14, and it recognizes that the exigencies of military discipline require the existence of a special system of military courts in which not all of the specific procedural protections deemed essential in Art. Ill trials need apply. The Fifth Amendment specifically exempts “cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger” from the requirement of prosecution by indictment and, inferentially, from the right to trial by jury. (Emphasis supplied.) See Ex parte Quirin, 317 U. S. 1, 40. The result has been the estab-
lishment and development of a system of military justice with fundamental differences from the practices in the civilian courts.
If the case does not arise “in the land or naval forces,” then the accused gets first, the benefit of an indictment by a grand jury and second, a trial by jury before a civilian court as guaranteed by the Sixth Amendment and by Art. Ill, § 2, of the Constitution which provides in part:
“The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.”
Those civil rights are the constitutional stakes in the present litigation. What we wrote in Toth v. Quarles, 350 U. S. 11, 17-18, is worth emphasis:
“We find nothing in the history or constitutional treatment of military tribunals which entitles them to rank along with Article III courts as adjudicators of the guilt or innocence of people charged with offenses for which they can be deprived of their life, liberty or property. Unlike courts, it is the primary business of armies and navies to fight or be ready to fight wars should the occasion arise. But trial of soldiers to maintain discipline is merely incidental to an army’s primary fighting function. To the extent that those responsible for performance of this primary function are diverted from it by the necessity of trying cases, the basic fighting purpose of armies is not served. And conceding to military personnel that high degree of honesty and sense of justice which nearly all of them undoubtedly have, it still remains true that military tribunals have not been and probably never can be constituted in such way that they can have the same kind of qualifications that the Constitution has deemed essential to fair trials of civilians in federal courts. For instance, the Constitution does not provide life tenure for those performing judicial functions in military trials. They are appointed by military commanders and may be removed at will. Nor does the Constitution protect their salaries as it does judicial salaries. Strides have been made toward making courts-martial less subject to the will of the executive department which appoints, supervises and ultimately controls them. But from the very nature of things, courts have more independence in passing on the life and liberty of people than do military tribunals.
“Moreover, there is a great difference between trial by jury and trial by selected members of the military forces. It is true that military personnel because of their training and experience may be especially competent to try soldiers for infractions of military rules. Such training is no doubt particularly important where an offense charged against a soldier is purely military, such as disobedience of an order, leaving post, etc. But whether right or wrong, the premise underlying the constitutional method for determining guilt or innocence in federal courts is that laymen are better than specialists to perform this task. This idea is inherent in the institution of trial by jury.”
A court-martial is tried, not by a jury of the defendant’s peers which must decide unanimously, but by a panel of officers empowered to act by a two-thirds vote. The presiding officer at a court-martial is not a judge whose objectivity and independence are protected by tenure and undiminishable salary and nurtured by the judicial tradition, but is a military law officer. Substantially different rules of evidence and procedure apply in military trials. Apart from those differences, the suggestion of the possibility of influence on the actions of the court-martial by the officer who convenes it, selects its members and the counsel on both sides, and who usually has direct command authority over its members is a pervasive one in military law, despite strenuous efforts to eliminate the danger.
A court-martial is not yet an independent instrument of justice but remains to a significant degree a specialized part of the overall mechanism by which military discipline is preserved.
That a system of specialized military courts, proceeding by practices different from those obtaining in the regular courts and in general less favorable to defendants, is necessary to an effective national defense establishment, few would deny. But the justification for such a system rests on the special needs of the military, and history teaches that expansion of military discipline beyond its proper domain carries with it a threat to liberty. This Court, mindful of the genuine need for special military courts, has recognized their propriety in their appropriate sphere, e. g., Burns v. Wilson, 346 U. S. 137, but in examining the reach of their jurisdiction, it has recognized that
“There are dangers lurking in military trials which were sought to be avoided by the Bill of Rights and Article III of our Constitution. Free countries of the world have tried to restrict military tribunals to the narrowest jurisdiction deemed absolutely essential to maintaining discipline among troops in active service. . . .
“Determining the scope of the constitutional power of Congress to authorize trial by court-martial presents another instance calling for limitation to ‘the least possible power adequate to the end proposed.’ ” Toth v. Quarles, 350 U. S. 11, 22-23.
While the Court of Military Appeals takes cognizance of some constitutional rights of the accused who are court-martialed, courts-martial as an institution are singularly inept in dealing with the nice subtleties of constitutional law. Article 134, already quoted, punishes as a crime “all disorders and neglects to the prejudice of good order and discipline in the armed forces.” Does this satisfy the standards of vagueness as developed by the civil courts? It is not enough to say that a court-martial may be reversed on appeal. One of the benefits of a civilian trial is that the trap of Article 134 may be avoided by a declaratory judgment proceeding or otherwise. See Dombrowski v. Pfister, 380 U. S. 479. A civilian trial, in other words, is held in an atmosphere conducive to the protection of individual rights, while a military trial is marked by the age-old manifest destiny of retributive justice.
As recently stated: “None of the travesties of justice perpetrated under the UCMJ is really very surprising, for military law has always been and continues to be primarily an instrument of discipline, not justice.” Glasser, Justice and Captain Levy, 12 Columbia Forum 46, 49 (1969).
The mere fact that petitioner was at the time of his offense and of his court-martial on active duty in the Armed Forces does not automatically dispose of this case under our prior decisions.
We have held in á series of decisions that court-martial jurisdiction cannot be extended to reach any person not a member of the Armed Forces at the times of both the offense and the trial. Thus, discharged soldiers cannot be court-martialed for offenses committed while in service. Toth v. Quarles, 350 U. S. 11. Similarly, neither civilian employees of the Armed Forces overseas, McElroy v. Guagliardo, 361 U. S. 281; Grisham v. Hagan, 361 U. S. 278; nor civilian dependents of military personnel accompanying them overseas, Kinsella v. Singleton, 361 U. S. 234; Reid v. Covert, 354 U. S. 1, may be tried by court-martial.
These cases decide that courts-martial have no jurisdiction to try those who are not members of the Armed Forces, no matter how intimate the connection between their offense and the concerns of military discipline. From these cases, the Government invites us to draw the conclusion that once it is established that the accused is a member of the Armed Forces, lack of relationship between the offense and identifiable military interests is irrelevant to the jurisdiction of a court-martial.
The fact that courts-martial have no jurisdiction over nonsoldiers, whatever their offense, does not necessarily imply that they have unlimited jurisdiction over soldiers, regardless of the nature of the offenses charged. Nor do the cases of this Court suggest any such interpretation. The Government emphasizes that these decisions — especially Kinsella v. Singleton — establish that liability to trial by court-martial is a question of “status” — “whether the accused in the court-martial proceeding is a person who can be regarded as falling within the term ‘land and naval Forces.’ ” 361 U. S., at 241. But that is merely the beginning of the inquiry, not its end. “Status” is necessary for jurisdiction; but it does not follow that ascertainment of “status” completes the inquiry, regardless of the nature, time, and place of the offense.
Both in England prior to the American Revolution and in our own national history military trial of soldiers committing civilian offenses has been viewed with suspicion. Abuses of the court-martial power were an important grievance of the parliamentary forces in the English constitutional crises of the 17th century. The resolution of that conflict came with the acceptance by William and Mary of the Bill of Rights in 1689 which established that in the future, Parliament, not the Crown, would have the power to define the jurisdiction of courts-martial. 1 W. & M., Sess. 2, c. 2. The 17th century conflict over the proper role of courts-martial in the enforcement of the domestic criminal law was not, however, merely a dispute over what organ of government had jurisdiction. It also involved substantive disapproval of the general use of military courts for trial of ordinary crimes.
Parliament, possessed at last of final power in the matter, was quick to authorize, subject to annual renewal, maintenance of a standing army and to give authority for trial by court-martial of certain crimes closely related to military discipline. But Parliament’s new power over courts-martial was exercised only very sparingly to ordain military jurisdiction over acts which were also offenses at common law. The first of the annual mutiny acts, 1 W. & M., c. 5, set the tone. It established the general rule that
“noe Man may be forejudged of Life or Limbe, or subjected to any kinde of punishment by Martiall Law or in any other manner than by the Judgement of his Peeres and according to the knowne and Established Laws of this Realme.”
And it proceeded to grant courts-martial jurisdiction only over mutiny, sedition, and desertion. In all other respects, military personnel were to be subject to the “Ordinary Processe of Law.”
The jurisdiction of British courts-martial over military offenses which were also common-law felonies was from time to time extended, but, with the exception of one year, there was never any general military jurisdiction to try soldiers for ordinary crimes committed in the British Isles. It was, therefore, the rule in Britain at the time of the American Revolution that a soldier could not be tried by court-martial for a civilian offense committed in Britain; instead military officers were required to use their energies and office to insure that the accused soldier would be tried before a civil court. Evasion and erosion of the principle that crimes committed by soldiers should be tried according to regular judicial procedure in civil, not military, courts, if any were available, were among the grievances protested by the American Colonists.
Early American practice followed the British model. The Continental Congress, in enacting articles of war in 1776, emphasized the importance of military authority cooperating to insure that soldiers who committed crimes were brought to justice. But it is clear from the context of the provision it enacted that it expected the trials would be in civil courts. The “general article,” which punished “[a] 11 crimes not capital, and all disorders and neglects, which officers and soldiers may be guilty of, to the prejudice of good order and military discipline, though not mentioned in the foregoing articles of war,” was interpreted to embrace only crimes the commission of which had some direct impact on military discipline. Winthrop *1123. While practice was not altogether consistent, during the 19th century court-martial convictions for ordinary civil crimes were from time to time set aside by the reviewing authority on the ground that the charges recited only a violation of the general criminal law and failed to state a military offense. Id., *1124, nn. 82, 88.
During the Civil War, Congress provided for military trial of certain civil offenses without regard to their effect on order and discipline, but the act applied only “in time of war, insurrection, or rebellion.” Act of Mar. 3, 1863, c. 75, § 30, 12 Stat. 736; Rev. Stat. § 1342, Art. 58 (1874). In 1916, on the eve of World War I, the Articles of War were revised, 39 Stat. 650, to provide for military trial, even in peacetime, of certain specific civilian crimes committed by persons “subject to military law” and the general article, Art. 96, was modified to provide for military trial of “all crimes or offenses not capital.” In 1950, the Uniform Code of Military Justice extended military jurisdiction to capital crimes as well.
We have concluded that the crime to be under military jurisdiction must be service connected, lest “cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger,” as used in the Fifth Amendment, be expanded to deprive every member of the armed services of the benefits of an indictment by a grand jury and a trial by a jury of his peers. The power of Congress to make “Rules for the Government and Regulation of the land and naval Forces,” Art. I, § 8, cl. 14, need not be sparingly read in order to preserve those two important constitutional guarantees. For it is assumed that an express grant of general power to Congress is to be exercised in harmony with express guarantees of the Bill of Rights. We were advised on oral argument that Art. 134 is construed by the military to give it power to try a member of the armed services for income tax evasion. This article has been called “a catch-all” that “incorporates almost every Federal penal statute into the Uniform Code.” R. Everett, Military Justice in the Armed Forces of the United States 68-69 (1956). The catalogue of cases put within reach of the military is indeed long; and we see no way of saving to servicemen and servicewomen in any case the benefits of indictment and of trial by jury, if we conclude that this petitioner was properly tried by court-martial.
In the present case petitioner was properly absent from his military base when he committed the crimes with which he is charged. There was no connection— not even the remotest one — between his military duties and the crimes in question. The crimes were not committed on a military post or enclave; nor was the person whom he attacked performing any duties relating to the military. Moreover, Hawaii, the situs of the crime, is not an armed camp under military control, as are some of our far-flung outposts.
Finally, we deal with peacetime offenses, not with authority stemming from the war power. Civil courts were open. The offenses were committed within our territorial limits, not in the occupied zone of a foreign country. The offenses did not involve any question of the flouting of military authority, the security of a military post, or the integrity of military property.
We have accordingly decided that since petitioner’s crimes were not service connected, he could not be tried by court-martial but rather was entitled to trial by the civilian courts.
Reversed.
Article 80 of the Uniform Code of Military Justice (10 U. S. C. § 880) provides in part:
“(a) An act, done with specific intent to commit an offense under this chapter, amounting to more than mere preparation and tending, even though failing, to effect its commission, is an attempt to commit that offense.
“(b) Any person subject to this chapter who attempts to commit any offense punishable by this chapter shall be punished as a court-martial may direct, unless otherwise specifically prescribed.”
Article 130 (10 U. S. C. § 930) provides:
“Any person subject to this chapter who unlawfully enters the building or structure of another with intent to commit a criminal offense therein is guilty of housebreaking and shall be punished as a court-martial may direct.”
Article 134 (10 U. S. C. § 934) provides:
“Though not specifically mentioned in this chapter, all disorders and neglects to the prejudice of good order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces, and crimes and offenses not capital, of which persons subject to this chapter may be guilty, shall be taken cognizance of by a general, special, or summary court-martial, according to the nature and degree of the offense, and shall be punished at the discretion of that court.”
Under Art. 25 (c) of the Uniform. Code of Military Justice, 10 U. S. C. § 825 (c), at least one-third of the members of the court-martial trying an enlisted man are required to be enlisted men if the accused requests that enlisted personnel be included in the court-martial. In practice usually only senior enlisted personnel, i. e., noncommissioned officers, are selected. See United States v. Crawford, 15 U. S. C. M. A. 31, 35 C. M. R. 3, motion for leave to file petition for certiorari denied, 380 U. S. 970. See generally Schiesser, Trial by Peers: Enlisted Members on Courts-Martial, 15 Catholic ü. L. Rev. 171 (1966).
At the time petitioner was tried, a general court-martial was presided over by a “law officer,” who was required to be a member of the bar and certified by the Judge Advocate General for duty as a law officer. U. C. M. J. Art. 26 (a). The “law officer” could be a direct subordinate of the convening authority. Manual for Courts-Martial, United States, 1951, ¶4g (1). The Military Justice Act of 1968, 82 Stat. 1335, establishes a system of “military judges” intended to insure that where possible the presiding officer of a court-martial will be a professional military judge, not directly subordinate to the convening authority.
For example, in a court-martial, the access of the defense to compulsory process for obtaining evidence and witnesses is, to a significant extent, dependent on the approval of the prosecution. United States v. Harvey, 8 U. S. C. M. A. 538, 25 C. M. R. 42, approving Manual for Courts-Martial, United States, 1951, ¶ 115a. See Melnick, The Defendant’s Right to Obtain Evidence: An Examination of the Military Viewpoint, 29 Mil. L. Rev. 1 (1965).
See, e. g., the cases listed in Hearings on Constitutional Rights of Military Personnel before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary pursuant to S. Res. No. 260, 87th Cong., 2d Sess., 780-781 (1962), in each of which the Court of Military Appeals reversed court-martial convictions on the ground of excessive command influence.
See Reid v. Covert, 354 U. S. 1, 36.
For sobering accounts of the impact of so-called military justice on civil rights of members of the Armed Services see Hearings on Constitutional Rights of Military Personnel before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary pursuant to S. Res. No. 260, 87th Cong., 2d Sess., Feb. 20 and 21, March 1, 2, 6, 9, and 12, 1962; Joint Hearings before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary and a Special Subcommittee of the Senate Armed Services Committee, 89th Cong., 2d Sess., on S. 745 et al., Pt. 1, Jan. 18, 19, 25, and 26, March 1, 2, and 3, 1966, and Pt. 2. For a newly enacted Military Justice Act see 82 Stat. 1335. And see Summary-Report of Hearings on Constitutional Rights of Military Personnel, by the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary, pursuant to S. Res. No. 58, 88th Cong., 1st Sess. (1963) (Comm. Print).
The record of historical concern over the scope of court-martial jurisdiction is extensively reviewed in Mr. Justice Black’s opinion for a plurality of the Court in Reid v. Covert, 354 U. S. 1, 23-30. See also, Duke & Vogel, The Constitution and the Standing Army: Another Problem of Court-Martial Jurisdiction, 13 Vand. L. Rev. 435, 441-449 (1960); F. Wiener, Civilians Under Military Justice (1967) (hereinafter cited as Wiener).
See Reid v. Covert, 354 U. S. 1, 23-26.
See Wiener c. 1.
The Mutiny Act of 1720, 7 Geo. 1, c. 6, provided that a soldier could be court-martialed for “any Capital Crime, or . . . any Violence or Offence against the Person, Estate, or Property of any of the Subjects of this Kingdom, which is punishable by the known Laws of the Land” unless the civil authorities within eight days of the offense demanded that the accused soldier be turned over to them for trial. In November 1720, the law officers of the Army relied on this new provision of the Mutiny Act to give an opinion that it was proper to try a soldier in Scotland — where ordinary civil courts were functioning — by court-martial for an offense which would have been murder if prosecuted in the civil courts. See Wiener 245-246. The very next year — perhaps in response to that ruling, Wiener 14— the provision was eliminated and did not reappear. The 1721 Act and its successors provided for military trial of common-law crimes only where ordinary civil courts were unavailable. See Prichard, The Army Act and Murder Abroad, 1954 Camb. L. J. 232; Wiener 14, 24r-2S.
Failure to produce a soldier for civil trial was a military offense by the officer concerned. E. g., British Articles of War of 1765, § 11, Art. 1, reprinted in W. Winthrop, Military Law and Precedents *1448, *1456 (2d ed. 1896, 1920 reprint) (hereinafter cited as Winthrop).
See Reid v. Covert, 354 U. S. 1, 27-28 and n. 49.
In its brief the Government lists a large number of courts-martial in the very early days of the Nation which it claims indicate that military trial for civil offenses was common in that period. The facts of the cases, as reflected in the brief summaries which are available to us, suggest no such conclusion. In almost every case summarized, it appears that some special military interest existed. Many are peculiarly military crimes — desertions, assaults on and thefts from other soldiers, and stealing government property. While those acts might also be felonies, by the time of the Revolutionary War offenses such as these long had been defined as distinctively military crimes in the Mutiny Acts. Many of the remainder are identifiably prosecutions for abusing military position by plundering the civil population or abusing its women while on duty. Many of the other cases in which the offense is stealing or assault on an individual were perhaps of this sort also, especially where the victim is referred to as “inhabitant.” Most of the rest simply recite the offender and the offense and give no basis for judging the relationship of the offense to military discipline. Those few which do appear to involve civilian crimes in clearly civilian settings appear also to have been committed by officers. In the 18th century at least the “honor” of an officer was thought to give a specific military connection to a crime otherwise without military significance. Moreover, all those courts-martial held between 1773 and 1783 were for the trial of acts committed in wartime and, given the pattern of fighting in those days, in the immediate theater of operations.
1776 Articles of War, § 10, Art. 1, reprinted in Winthrop *1494.
Cf. Ex parte Mason, 105 U. S. 696, 698, in which the Court, sustaining a court-martial conviction, under the general article, of a military guard who killed a prisoner, said, “[s] hooting with intent to kill is a civil crime, but shooting by a soldier of the army standing guard over a prison, with intent to kill a prisoner confined therein, is not only a crime against society, but an atrocious breach of military discipline.”
Larceny, robbery, burglary, arson, mayhem, manslaughter, murder, assault and battery with intent to kill, wounding by shooting or stabbing with an intent to commit murder, rape, or assault and battery with an intent to commit rape. Rev. Stat. § 1342, Art. 58 (1874).
It has been suggested, at various times, that the phrase “when in actual service in time of War or public danger” should be read to require a grand jury indictment in all cases “arising in the land or naval forces, or in the Militia,” except when the defendant is in “service in time of War or public danger.” It was decided at a very early date, however, that the above clause modifies only “Militia.” Thus, the generally accepted rule is that indictment by grand jury is never necessary “in cases arising in the land or naval forces” but is necessary for members of the militia, except when they have been “called into the actual Service of the United States” (Art. II, §2, U. S. Const.) “to execute the Laws of the Union, suppress Insurrections and repel Invasions.” Art. I, §8, U. S. Const.
“The limitation as to 'actual service in time of war or public danger’ relates only to the militia.” Ex parte Mason, 105 U. S. 696, 701. See also Smith v. Whitney, 116 U. S. 167, 186; Kurtz v. Moffitt, 115 U. S. 487, 500; Dynes v. Hoover, 20 How. 65.
Johnson v. Sayre, 158 U. S. 109, was a case in which a Navy paymaster sought habeas corpus from his court-martial conviction for embezzlement in time of peace by arguing that he was entitled to indictment by grand jury:
“The decision below is based upon the construction that the words 'when in actual service in time of war or public danger’ refer, not merely to the last antecedent, ‘or in the militia,’ but also to the previous clause, 'in the land or naval forces.’ That construction is grammatically possible. But it is opposed to the evident meaning of the provision, taken by itself, and still more so, when it is considered together with the other provisions of the Constitution.” Id., at 114. And see Thompson v. Willingham, 217 F. Supp. 901 (D. C. M. D. Pa.), aff’d, 318 F. 2d 657 (C. A. 3d Cir.).
Winthrop in commenting on the phrase “to the prejudice of good order and military discipline” in a predecessor article to Article 134 said:
“A crime, therefore, to be cognizable by a court-martial under this Article, must have been committed under such circumstances as to have directly offended against the government and discipline of the military state. Thus such crimes as theft from or robbery of an officer, soldier, post trader, or camp-follower; forgery of the name of an officer, and manslaughter, assault with intent to kill, mayhem, or battery, committed upon a military person; inasmuch as they directly affect military relations and prejudice military discipline, may properly be — as they frequently have been — the subject of charges under the present Article. On the other hand, where such crimes are committed upon or against civilians, and not at or near a military camp or post, or in breach or violation of a military duty or order, they are not in general to be regarded as within the description of the Article, but are to be treated as civil rather than military offenses.” Pp. *1124-*1125.
Question: What reason, if any, does the court give for granting the petition for certiorari?
A. case did not arise on cert or cert not granted
B. federal court conflict
C. federal court conflict and to resolve important or significant question
D. putative conflict
E. conflict between federal court and state court
F. state court conflict
G. federal court confusion or uncertainty
H. state court confusion or uncertainty
I. federal court and state court confusion or uncertainty
J. to resolve important or significant question
K. to resolve question presented
L. no reason given
M. other reason
Answer:
|
songer_origin
|
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.
CHAMPLIN REFINING CO. v. COMMISSIONER OF INTERNAL REVENUE. COMMISSIONER OF INTERNAL REVENUE v. CHAMPLIN REFINING CO.
Nos. 2259, 2287.
Circuit Court of Appeals, Tenth Circuit.
Oct. 29, 1941.
Harry O. Glasser, of Enid, Okl., for petitioner Champlin Refining Co.
Harry Marselli, Sp. Asst, to Atty. Gen. (Samuel O. Clark, Jr., Asst. Atty. Gen., and Sewall Key and Arthur A. Armstrong, Sp. Assts. to Atty. Gen., on the brief), for respondent Commissioner of Internal Revenue.
Before PHILLIPS, BRATTON, and HUXMAN, Circuit Judges.
HUXMAN, Circuit Judge.
Both petitioner and respondent have appealed from the decree of the Board of Tax Appeals finding deficiencies in income taxes assessed against petitioner, the Champlin Refining Company, a corporation, for the years 1923, 1924, 1925 and 1926. The sole question presented for consideration is the basis to be used in computing deductions for depletion allowances on an oil and gas lease known as the Beggs Lease.
H. II. Champlin bought the Beggs Lease for a consideration of $12,000. He and his wife developed the lease and operated it for a number of years. In 1920 they incorporated the Champlin Refining Company and transferred the lease to it, taking in consideration therefor all of the stock of the company except four qualifying shares.
Petitioner is not a discoverer of an oil and gas well, but the purchaser of a proven lease and its base for depletion allowance under § 234(a) (9) of the Revenue Act of 1921, 42 Stat. 256, § 204(a)' (8) of the Act of 1924, 26 U.S.C.A. Int.Rev.Acts, page 9, and § 204(a) (8) of the Act of 1926, 26 U.S.C.A. Int.Rev.Acts, page 153, is the cost of the lease to it.
Where property is given in exchange for other property, the cost of the property acquired is the value of the property given in exchange therefor. Commissioner v. Schumacher Wallboard Corp., 9 Cir., 93 F.2d 79; Hazeltine Corp. v. Commissioner, 3 Cir., 89 F.2d 513; Rice v. Commissioner, 1 Cir., 47 F.2d 99; Hershey Mfg. Co. v. Commissioner, 10 Cir., 43 F.2d 298; Law v. McLaughlin, D.C., 2 F.Supp. 601; Volker v. United States, D.C.Mo., 40 F.2d 697. The stock of the Champlin Refining Company given in exchange for the lease had no established market value because it was all owned by Champlin and his wife and none of it was for sale and none had been sold to the public. But it nevertheless had value. In such a case we look to the value of the assets exchanged for the stock — in this case, the Beggs lease —to determine the value of the stock. Commissioner v. Swenson, 5 Cir., 56 F.2d 544; Hunt v. Commissioner, 5 Cir., 82 F.2d 668; Commissioner v. McKinney, 10 Cir., 87 F.2d 811.
The Beggs Lease was what is known as a “top lease”. Champlin’s title to the lease was bitterly contested in the courts in litigation extending over many years. This litigation was in full progress at the time of the creation of the corporation and the transfer of the lease to it. It is conceded that the value of the Beggs Lease free from title hazard was $1,530,000. The Board rightfully took into consideration the pending litigation in evaluating the lease, for it is obvious that a questionable title is less valuable than a clear one. It fixed the value of the Beggs Lease at $1,-147,500. This valuation is not challenged by either party as being unsupported by substantial evidence. The attack upon it by both sides is that in reaching its conclusion as to the value of the lease the Board applied erroneous principles of law. Both sides rely on former decisions of this court involving this lease to sustain their contentions. Respondent relies on the decision in Champlin v. Commissioner, 10 Cir., 71 F.2d 23, and petitioner upon Champlin v. Commissioner, 10 Cir., 78 F.2d 905.
In Champlin v. Commissioner, 71 F.2d 23, the question was whether the exchange of the lease for the stock of the corporation resulted in taxable gain to Champlin. The Board held that the clouded lease had a value of $1,147,500; that this established the value of the stock that Champlin received for the lease, and that he therefore realized as taxable gain the difference between the $12,000 he paid for the lease and the $1,147,500 that he received for it. This court reversed the Board, holding that on account of the litigation over the title, there was no market value for the stock given in exchange for the lease and therefore no realized taxable gain had accrued to Champlin from the exchange.
The second appeal, Champlin v. Commissioner, 10 Cir., 78 F.2d 905, involved the basis to be used for computing deduction for depletion allowances to Champlin. In determining the value of the lease for depletion purposes, the Board took into account the cloud on the title and fixed the value at $1,147,500 rather than at the full value of the lease, free from clouds on the title. This court, on appeal, reversed, holding that Champlin as discoverer was entitled to the full discovery value of the property for depletion purposes.
Respondent contended before the Board that the decision of this court in Champlin v. Commissioner, 10 Cir., 71 F.2d 23, was the law of the case. He argued in effect that there this court held that the stock had no market value and that therefore, if the corporation exchanged something that had no market value, or at best only a nominal value, the lease cost nothing and ■ therefore .petitioner is entitled to no depletion, .or at most to $6,578.27, the unrealized portion of the cost of the lease to Champlin. Petitioner, on the other hand, contended that the holding of this court in Champlin v. Commissioner, 10 Cir., 78 F.2d 905, that Champlin was entitled to depletion on the full value of $1,530,000 without . taking into account the cloud on the title, established the value of the lease for depletion purposes and was the law of this cases and that therefore the Board was wrong as a matter of law in finding a value of $1,147,500 for depletion deduction purposes, to the corporation.
Neither the parties nor the issues herein are the same as in the former cases. There the litigation was between Champlin and the government. Here it is between, the corporation and ■ the government. There Champlin was allowed depletion as the discoverer and developer of the prop-, erty, while here petitioner is entitled to depletion as purchaser of a developed lease. Neither of .the former, decisions constitutes the law of. this case.
On the hearing before the Board, the records in the two former cases were introduced, other factors were considered, the Board took into account the litigation and the cloud- on the title to the lease that was transferred. -In his opening statement before the- Board, the attorney for petitioner stated: ■ ' , ■ •
■'“One of the' considerations here will be whether our depletion should be computed and allowed on the depleted cost to its prior owners, H. -H. Champlin and A. ■ D. N. Champlin, in the stipulated - stim of $6,-578.27, or whether the depletion-■ shall be on $1,147,500, which represented- the. stipulated value of-the lease with a.hazard ’allowed at 25 percent on the title, or whether; the depletion shall be on $1,530,000, which represents - the agreed value of the lease without 'any litigation ■ on it.”
' He further stated: “If the Government’s’ position is correct the depletion allowance wdidd be ori' the basis of $6,578.27. If the' Board should conclude that the depletion allowance should be the stipulated fair market value of the property subject to the hazard in its title, then it would be on $1,147,500. And if, ori the contrary, it should be on the $1,530,000, thén that would be upon the basis of title clear.”
This statement was acquiesced in by counsel. for respondent. It therefore appears that the parties -stipulated the value of the lease- both- in the evept -the .title hazard should be taken into account and in the event'that the title should be considered fre.e from hazard.
Respondent apparently has shifted his position on this appeal. Before the Board he contended that the sum of $6,-' 578.27, the unrealized portion of the cost of the lease to Champlin, was the-base for computing depletion allowance to petitioner. He now contends that the case should be remanded to the Board with directions to redetermine the fair market value of the lease in the light of the evidence before it, in order to determine the cost of the lease to petitioner. But this is. exactly what the Board did. It considered the title hazard, the evidence before it, and placed a valuation on the lease. What Petitioner in 2287 really means is that the decision of this court in Champlin v. Commissioner, 10 Cir., 71 F.2d 23, compels a holding that in light of the title hazard the lease had only a nominal value and that therefore the cost to the company of acquiring the lease was nominal, and that this nominal cost was the base for computing depletion allowances to petitioner. With this we cannot agree.
The Board properly took into account the title hazard in determining the value of the lease, .and .from a consideration of áll'of the evidence before it, concluded that the fair value of the lease was $1,147,500.
Its conclusion and decision find support in the record, and the decision is therefore 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:
|
sc_decisiondirection
|
B
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the ideological "direction" of the decision ("liberal", "conservative", or "unspecifiable"). Use "unspecifiable" if the issue does not lend itself to a liberal or conservative description (e.g., a boundary dispute between two states, real property, wills and estates), or because no convention exists as to which is the liberal side and which is the conservative side (e.g., the legislative veto). Specification of the ideological direction comports with conventional usage. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. In interstate relations and private law issues, consider unspecifiable in all cases.
ANIMAL SCIENCE PRODUCTS, INC., et al., Petitioners
v.
HEBEI WELCOME PHARMACEUTICAL CO. LTD., et al.
No. 16-1220.
Supreme Court of the United States
Argued April 24, 2018.
Decided June 14, 2018.
Michael J. Gottlieb, Washington, DC, for Petitioners.
Brian H. Fletcher, for the United States, as amicus curiae, by special leave of the Court, supporting the petitioners.
Carter G. Phillips, for the Ministry of Commerce of the People's Republic of China, as amicus curiae, by special leave of the Court, supporting the respondents.
Jonathan M. Jacobson, New York, NY, for Respondents.
James T. Southwick, Shawn L. Raymond, Susman Godfrey LLP, Houston, TX, Michael D. Hausfeld, Brian A. Ratner, Melinda R. Coolidge, Hausfeld LLP, Michael J. Gottlieb, Karen L. Dunn, William A. Isaacson, Aaron E. Nathan, Boies Schiller Flexner LLP, Washington, DC, David Boies, Boies Schiller Flexner LLP, Armonk, NY, Brent W. Landau, Hausfeld LLP, Philadelphia, PA, for Petitioners.
Jonathan M. Jacobson, Daniel P. Weick, Justin A. Cohen, Wilson Sonsini Goodrich & Rosati, P.C., New York, NY, Susan A. Creighton, Scott A. Sher, Bradley T. Tennis, Elyse Dorsey, Wilson Sonsini Goodrich & Rosati, P.C., Washington, D.C., for Respondents.
Justice GINSBURG delivered the opinion of the Court.
When foreign law is relevant to a case instituted in a federal court, and the foreign government whose law is in contention submits an official statement on the meaning and interpretation of its domestic law, may the federal court look beyond that official statement? The Court of Appeals for the Second Circuit answered generally "no," ruling that federal courts are "bound to defer" to a foreign government's construction of its own law, whenever that construction is "reasonable." In re Vitamin C Antitrust Litigation, 837 F.3d 175, 189 (2016).
We hold otherwise. A federal court should accord respectful consideration to a foreign government's submission, but is not bound to accord conclusive effect to the foreign government's statements. Instead, Federal Rule of Civil Procedure 44.1 instructs that, in determining foreign law, "the court may consider any relevant material or source ... whether or not submitted by a party." As "[t]he court's determination must be treated as a ruling on a question of law," Fed. Rule Civ. Proc. 44.1, the court "may engage in its own research and consider any relevant material thus found," Advisory Committee's 1966 Note on Fed. Rule Civ. Proc. 44.1, 28 U.S.C. App., p. 892 (hereinafter Advisory Committee's Note). Because the Second Circuit ordered dismissal of this case on the ground that the foreign government's statements could not be gainsaid, we vacate that court's judgment and remand the case for further consideration.
I
Petitioners, U.S.-based purchasers of vitamin C (hereinafter U.S. purchasers), filed a class-action suit against four Chinese corporations that manufacture and export the nutrient (hereinafter Chinese sellers). The U.S. purchasers alleged that the Chinese sellers, two of whom are respondents here, had agreed to fix the price and quantity of vitamin C exported to the United States from China, in violation of § 1 of the Sherman Act, 15 U.S.C. § 1. More particularly, the U.S. purchasers stated that the Chinese sellers had formed a cartel "facilitated by the efforts of their trade association," the Chamber of Commerce of Medicines and Health Products Importers and Exporters (Chamber). Complaint in No. 1:05-CV-453, Docket No. 1, ¶ 43. The Judicial Panel on Multidistrict Litigation consolidated the instant case and related suits for pretrial proceedings in the United States District Court for the Eastern District of New York.
The Chinese sellers moved to dismiss the U.S. purchasers' complaint on the ground that Chinese law required them to fix the price and quantity of vitamin C exports. Therefore, the Chinese sellers urged, they are shielded from liability under U.S. antitrust law by the act of state doctrine, the foreign sovereign compulsion doctrine, and principles of international comity. The Ministry of Commerce of the People's Republic of China (Ministry) filed a brief as amicus curiae in support of the Chinese sellers' motion. The Ministry's brief stated that the Ministry is "the highest administrative authority in China authorized to regulate foreign trade," App. to Pet. for Cert. 190a; that the Chamber is "an entity under the Ministry's direct and active supervision" and is authorized to regulate vitamin C exports, id., at 196a; and that the conspiracy in restraint of trade alleged by the U.S. purchasers was in fact "a regulatory pricing regime mandated by the government of China," id., at 197a.
In response, the U.S. purchasers disputed that Chinese law required the Chinese sellers to engage in price fixing. Among other things, the U.S. purchasers noted that the Ministry had not identified any written law or regulation expressly ordering the Chinese sellers' price agreement. They also highlighted a Chamber announcement that the manufacturers "were able to reach a self-regulated agreement ... whereby they would voluntarily control the quantity and pace of exports ... without any government intervention." App. 109. In addition, the U.S. purchasers presented expert testimony that the Chinese Government's authorization of a Vitamin C Subcommittee within the Chamber did not necessarily mean that the subcommittee's price fixing was mandated by law.
The District Court denied the Chinese sellers' motion to dismiss the complaint in relevant part. In re Vitamin C Antitrust Litigation, 584 F.Supp.2d 546, 559 (E.D.N.Y.2008). That court acknowledged that the Ministry's amicus brief was "entitled to substantial deference." Id., at 557. The court, however, did not regard the Ministry's statements as "conclusive," emphasizing particularly that the U.S. purchasers had submitted evidence suggesting that the price fixing was voluntary. Ibid. The record, the District Court determined, was "too ambiguous to foreclose further inquiry into the voluntariness of [the Chinese sellers'] actions." Id., at 559.
After further discovery, focused on whether Chinese law compelled the Chinese sellers to enter into a price-fixing agreement, the Chinese sellers moved for summary judgment. See In re Vitamin C Antitrust Litigation, 810 F.Supp.2d 522, 525-526 (E.D.N.Y.2011). The Ministry submitted an additional statement, reiterating that "the Ministry specifically charged the Chamber ... with the authority and responsibility ... for regulating, through consultation, the price of vitamin C manufactured for export." App. 133. The Chinese sellers tendered expert testimony in accord with the Ministry's account, which stressed that the Ministry's "interpretation of its own regulations and policies carries decisive weight under Chinese law." Id., at 142. The U.S. purchasers, in response, cited further materials supporting their opposing view, including China's statement to the World Trade Organization (WTO) that it "gave up export administration of ... vitamin C" in 2002. 810 F.Supp.2d, at 532 (internal quotation marks omitted). Denying the Chinese sellers' motion for summary judgment, the District Court held that Chinese law did not require the sellers to fix the price or quantity of vitamin C exports. Id., at 525.
The case was then tried to a jury, which returned a verdict for the U.S. purchasers. The jury found that the Chinese sellers had agreed to fix the prices and quantities of vitamin C exports, see App. to Pet. for Cert. 276a-279a, and further found that the Chinese sellers were not "actually compelled" by China to enter into those agreements, id., at 278a. In accord with the jury's verdict, the District Court entered judgment for the U.S. purchasers, awarding some $147 million in treble damages and enjoining the Chinese sellers from further violations of the Sherman Act.
The Court of Appeals for the Second Circuit reversed, holding that the District Court erred in denying the Chinese sellers' motion to dismiss the complaint. In re Vitamin C Antitrust Litigation, 837 F.3d 175, 178, 195 (2016). The Court of Appeals determined that the propriety of dismissal hinged on whether the Chinese sellers could adhere to both Chinese law and U.S. antitrust law. See id., at 186. That question, in turn, depended on "the amount of deference" owed to the Ministry's characterization of Chinese law. Ibid . Cognizant of "competing authority" on this question, ibid., the Court of Appeals settled on a highly deferential rule: "[W]hen a foreign government, acting through counsel or otherwise, directly participates in U.S. court proceedings by providing a [statement] regarding the construction and effect of [the foreign government's] laws and regulations, which is reasonable under the circumstances presented, a U.S. court is bound to defer to those statements," id., at 189. The appeals court "note[d] that[,] if the Chinese Government had not appeared in this litigation, the [D]istrict [C]ourt's careful and thorough treatment of the evidence before it in analyzing what Chinese law required at both the motion to dismiss and summary judgment stages would have been entirely appropriate." Id., at 191, n. 10.
Applying its highly deferential rule, the Court of Appeals concluded that the Ministry's account of Chinese law was "reasonable." In so concluding, the Court of Appeals inspected only the Ministry's brief and sources cited therein. Id., at 189-190. Because it thought that "a U.S. court [must] not embark on a challenge to a foreign government's official representation," id., at 189, the Court of Appeals disregarded the submissions made by the U.S. purchasers casting doubt on the Ministry's account of Chinese law, id., at 189-190. Based solely on the Ministry's statements, the Court of Appeals held that "Chinese law required [the Chinese sellers] to engage in activities in China that constituted antitrust violations here in the United States." Ibid.
We granted certiorari to resolve a Circuit conflict over this question: Is a federal court determining foreign law under Rule 44.1 required to treat as conclusive a submission from the foreign government describing its own law? 583 U.S. ----, 138 S.Ct. 734, 199 L.Ed.2d 601 (2018).
II
At common law, the content of foreign law relevant to a dispute was treated "as a question of fact." Miller, Federal Rule 44.1 and the "Fact" Approach to Determining Foreign Law: Death Knell for a Die-Hard Doctrine, 65 Mich. L. Rev. 613, 617-619 (1967) (Miller). In 1801, this Court endorsed the common-law rule, instructing that "the laws of a foreign nation" must be "proved as facts." Talbot v. Seeman, 1 Cranch 1, 38, 2 L.Ed. 15 (1801) ;
see, e.g., Church v. Hubbart, 2 Cranch 187, 236, 2 L.Ed. 249 (1804) ("Foreign laws are well understood to be facts."). Ranking questions of foreign law as questions of fact, however, "had a number of undesirable practical consequences." 9A C. Wright & A. Miller, Federal Practice and Procedure § 2441, p. 324 (3d ed. 2008) (Wright & Miller). Foreign law "had to be raised in the pleadings" and proved "in accordance with the rules of evidence." Ibid. Appellate review was deferential and limited to the record made in the trial court. Ibid. ; see also Miller 623.
Federal Rule of Civil Procedure 44.1, adopted in 1966, fundamentally changed the mode of determining foreign law in federal courts. The Rule specifies that a court's determination of foreign law "must be treated as a ruling on a question of law," rather than as a finding of fact. Correspondingly, in ascertaining foreign law, courts are not limited to materials submitted by the parties; instead, they "may consider any relevant material or source ..., whether or not ... admissible under the Federal Rules of Evidence." Ibid. Appellate review, as is true of domestic law determinations, is de novo . Advisory Committee's Note, at 892. Rule 44.1 frees courts "to reexamine and amplify material ... presented by counsel in partisan fashion or in insufficient detail." Ibid. The "obvious" purpose of the changes Rule 44.1 ordered was "to make the process of determining alien law identical with the method of ascertaining domestic law to the extent that it is possible to do so." Wright & Miller § 2444, at 338-342.
Federal courts deciding questions of foreign law under Rule 44.1 are sometimes provided with the views of the relevant foreign government, as they were in this case through the amicus brief of the Ministry. See supra, at 1866 - 1871. As the Court of Appeals correctly observed, Rule 44.1 does not address the weight a federal court determining foreign law should give to the views presented by the foreign government. See 837 F.3d, at 187. Nor does any other rule or statute. In the spirit of "international comity," Societe Nationale Industrielle Aerospatiale v. United States Dist. Court for Southern Dist. of Iowa, 482 U.S. 522, 543, and n. 27, 107 S.Ct. 2542, 96 L.Ed.2d 461 (1987), a federal court should carefully consider a foreign state's views about the meaning of its own laws. See United States v. McNab, 331 F.3d 1228, 1241 (C.A.11 2003) ; cf. Bodum USA, Inc. v. La Cafetiere, Inc., 621 F.3d 624, 638-639 (C.A.7 2010) (Wood, J., concurring). But the appropriate weight in each case will depend upon the circumstances; a federal court is neither bound to adopt the foreign government's characterization nor required to ignore other relevant materials. When a foreign government makes conflicting statements, see supra, at 1871 - 1872, or, as here, offers an account in the context of litigation, there may be cause for caution in evaluating the foreign government's submission.
Given the world's many and diverse legal systems, and the range of circumstances in which a foreign government's views may be presented, no single formula or rule will fit all cases in which a foreign government describes its own law. Relevant considerations include the statement's clarity, thoroughness, and support; its context and purpose; the transparency of the foreign legal system; the role and authority of the entity or official offering the statement; and the statement's consistency with the foreign government's past positions.
Judged in this light, the Court of Appeals erred in deeming the Ministry's submission binding, so long as facially reasonable. That unyielding rule is inconsistent with Rule 44.1 (determination of an issue of foreign law "must be treated as a ruling on a question of law"; court may consider "any relevant material or source") and, tellingly, with this Court's treatment of analogous submissions from States of the United States. If the relevant state law is established by a decision of "the State's highest court," that decision is "binding on the federal courts." Wainwright v. Goode, 464 U.S. 78, 84, 104 S.Ct. 378, 78 L.Ed.2d 187 (1983) (per curiam ); see Mullaney v. Wilbur, 421 U.S. 684, 691, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975). But views of the State's attorney general, while attracting "respectful consideration," do not garner controlling weight. Arizonans for Official English v. Arizona, 520 U.S. 43, 76-77, n. 30, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997) ; see, e.g., Virginia v. American Booksellers Assn., Inc., 484 U.S. 383, 393-396, 108 S.Ct. 636, 98 L.Ed.2d 782 (1988). Furthermore, because the Court of Appeals riveted its attention on the Ministry's submission, it did not address other evidence, including, for example, China's statement to the WTO that China had "g[i]ve[n] up export administration ... of vitamin C" at the end of 2001. 810 F.Supp.2d, at 532 (internal quotation marks omitted).
The Court of Appeals also misperceived this Court's decision in United States v. Pink, 315 U.S. 203, 62 S.Ct. 552, 86 L.Ed. 796 (1942). See 837 F.3d, at 186-187, 189. Pink, properly comprehended, is not compelling authority for the attribution of controlling weight to the Ministry's brief. We note, first, that Pink was a pre- Rule 44.1 decision. Second, Pink arose in unusual circumstances. Pink was an action brought by the United States to recover assets of the U.S. branch of a Russian insurance company that had been nationalized in 1918, after the Russian revolution. 315 U.S., at 210-211, 62 S.Ct. 552. In 1933, the Soviet Government assigned the nationalized assets located in this country to the United States. Id., at 211-212, 62 S.Ct. 552. The disposition of the case turned on the extraterritorial effect of the nationalization decree-specifically, whether the decree reached assets of the Russian insurance company located in the United States, or was instead limited to property in Russia. Id., at 213-215, 217, 62 S.Ct. 552. To support the position that the decree reached all of the company's assets, the United States obtained an "official declaration of the Commissariat for Justice" of the Russian Socialist Federal Soviet Republic. Id., at 218, 62 S.Ct. 552. The declaration certified that the nationalization decree reached "the funds and property of former insurance companies ... irrespective of whether [they were] situated within the territorial limits of [Russia] or abroad." Id., at 220, 62 S.Ct. 552 (internal quotation marks omitted). This Court determined that "the evidence supported [a] finding" that "the Commissariat for Justice ha[d] power to interpret existing Russian law." Ibid . "That being true," the Court concluded, the "official declaration [wa]s conclusive so far as the intended extraterritorial effect of the Russian decree [wa]s concerned." Ibid.
This Court's treatment of the Commissariat's submission as conclusive rested on a document obtained by the United States, through official "diplomatic channels." Id., at 218, 62 S.Ct. 552. There was no indication that the declaration was inconsistent with the Soviet Union's past statements. Indeed, the Court emphasized that the declaration was consistent with expert evidence in point. See ibid. That the Commissariat's declaration was deemed "conclusive" in the circumstances Pink presented scarcely suggests that all submissions by a foreign government are entitled to the same weight.
The Court of Appeals also reasoned that a foreign government's characterization of its own laws should be afforded "the same respect and treatment that we would expect our government to receive in comparable matters." 837 F.3d, at 189. The concern for reciprocity is sound, but it does not warrant the Court of Appeals' judgment. Indeed, the United States, historically, has not argued that foreign courts are bound to accept its characterizations or precluded from considering other relevant sources.
The understanding that a government's expressed view of its own law is ordinarily entitled to substantial but not conclusive weight is also consistent with two international treaties that establish formal mechanisms by which one government may obtain from another an official statement characterizing its laws. Those treaties specify that "[t]he information given in the reply shall not bind the judicial authority from which the request emanated." European Convention on Information on Foreign Law, Art. 8, June 7, 1968, 720 U.N.T.S. 154; see Inter-American Convention on Proof of and Information on Foreign Law, Art. 6, May 8, 1979, O.A.S.T.S. 1439 U.N.T.S. 111 (similar). Although the United States is not a party to those treaties, they reflect an international practice inconsistent with the Court of Appeals' "binding, if reasonable" resolution.
* * *
Because the Court of Appeals concluded that the District Court was bound to defer to the Ministry's brief, the court did not consider the shortcomings the District Court identified in the Ministry's position or other aspects of "the [D]istrict [C]ourt's careful and thorough treatment of the evidence before it." 837 F.3d, at 191, n. 10. The correct interpretation of Chinese law is not before this Court, and we take no position on it. But the materials identified by the District Court were at least relevant to the weight the Ministry's submissions should receive and to the question whether Chinese law required the Chinese sellers' conduct. We therefore vacate the judgment of the Court of Appeals and remand the case for renewed consideration consistent with this opinion.
It is so ordered.
The Ministry told the District Court: For much of the 20th century, China allowed only state-owned entities to export products. App. to Pet. for Cert. 198a. When China started to allow private enterprises to obtain export licenses, the Ministry established the Chamber to regulate exports under the Ministry's authority and direction. Ibid.
In 1997, the Ministry authorized the establishment of the Chamber's Vitamin C Subcommittee. Id., at 202a. That year, the Ministry promulgated a regulation authorizing and requiring the subcommittee to limit the production of vitamin C for export and to set export prices. Id., at 202a-204a. Under the regulation delineating this "Export Licensing System," the Ministry issued export licenses only to manufacturers whose export volume and price complied with the output quota and price coordinated by the Vitamin C Subcommittee. Id., at 204a.
In 2002, the Ministry replaced the Export Licensing System with a "Verification and Chop System." Id., at 208a. As set forth in a 2002 Ministry Notice, the Chamber itself-instead of the Ministry-would inspect each export contract and certify its compliance with the coordinated quotas and price by affixing a special seal, known as a "chop." Id., at 208a-209a. China's Customs would allow export only if the exporter presented its contract bearing the Chamber's "chop." Id., at 209a. According to the Ministry, it was implicit in this arrangement that vitamin C exporters would remain under an obligation to fix prices and volumes. Id., at 208a.
The effect of China's regime on the Chinese sellers' liability under the Sherman Act, we note, is not an issue before the Court today.
The complaint, the U.S. purchasers emphasized, was directed only at conduct occurring after December 2001. As they understood the Ministry's 2002 Notice, see supra, at 1870, n. 1, vitamin C exporters could have lawfully opted out of price fixing. Beyond that, the Vitamin C Subcommittee had replaced its 1997 Charter with a new 2002 Charter, App. 182-197, which eliminated the 1997 Charter's requirement that subcommittee members "[s]trictly execute" the "coordinated price" set by the Chamber, compare id., at 85, with id., at 185, and granted members an express "[r]igh[t]" to "freely resign from the Subcommittee," id., at 186.
Compare In re Vitamin C Antitrust Litigation, 837 F.3d 175 (C.A.2 2016) (case below), with In re Oil Spill by Amoco Cadiz, 954 F.2d 1279, 1311-1313 (C.A.7 1992) (adopting French Government's interpretation of French law, but only after considering all of the circumstances, including the French Government's statements in other contexts); United States v. McNab, 331 F.3d 1228, 1239-1242 (C.A.11 2003) (noting Honduran Government's shift in position on the question of Honduran law and determining that the original position stated the proper interpretation); McKesson HBOC, Inc. v. Islamic Republic of Iran, 271 F.3d 1101, 1108-1109 (C.A.D.C.2001), vacated in part on other grounds, 320 F.3d 280 (C.A.D.C.2003) (declining to adopt the view of Iranian law advanced by Iranian Government because it was not supported by the affidavits submitted by Iran's experts).
Federal Rule of Criminal Procedure 26.1 establishes "substantially the same" rule for criminal cases. Advisory Committee's 1966 Note on Fed. Rule Crim. Proc. 26.1, 18 U.S.C. App., p. 709.
The Court of Appeals additionally mischaracterized the Ministry's brief as a "sworn evidentiary proffer." 837 F.3d, at 189. In so describing the Ministry's submission, the Court of Appeals overlooked that a court's resolution of an issue of foreign law "must be treated as a ruling on a question of law." Fed. Rule Civ. Proc. 44.1. The Ministry's brief, while a probative source for resolving the legal question at hand, was not an attestation to facts.
The Chinese sellers assert, see Supp. Brief for Respondents 7-8, that the United States sought a greater degree of deference in a 2002 submission to a World Trade Organization panel. In fact, the submission acknowledged that "the Panel is not bound to accept the interpretation [of U.S. law] presented by the United States." Brief for United States as Amicus Curiae 29, n. 6 (quoting Second Written Submission of the United States of America, United States-Section 129(c)(1) of the Uruguay Round Agreements Act, WT/DS221 ¶ 11 (Mar. 8, 2002)).
Question: What is the ideological direction of the decision?
A. Conservative
B. Liberal
C. Unspecifiable
Answer:
|
songer_initiate
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify what party initiated the appeal. For cases with cross appeals or multiple docket numbers, if the opinion does not explicitly indicate which appeal was filed first, assumes that the first litigant listed as the "appellant" or "petitioner" was the first to file the appeal. In federal habeas corpus petitions, consider the prisoner to be the plaintiff.
Donald R. EGLOFF, Appellant, v. WILCOX ELECTRIC COMPANY, Northrop Corporation, American Standard, Inc., and Leroy Kaufold, Appellees.
No. 82-1214.
United States Court of Appeals, Eighth Circuit.
Submitted Oct. 11, 1982.
Decided Oct. 29, 1982.
Rehearing Denied Nov. 23, 1982.
Stinson, Mag & Fizzell, Robert L. Driscoll, Kirk T. May, Kansas City, Mo., for appellees.
Dennis J. C. Owens, Kansas City, Mo., for appellant.
Before BRIGHT and ARNOLD, Circuit Judges, and MEREDITH, Senior District Judge.
JAMES H. MEREDITH, United States Senior District Judge, Eastern District of Missouri, sitting by designation.
BRIGHT, Circuit Judge.
Donald R. Egloff brought this suit against Wilcox Electric Co., his former employer, following his termination as chief financial officer for Wilcox. Egloff’s complaint against Wilcox contained four counts. Count I alleged that Wilcox fired Egloff to prevent his rights to a pension from vesting, in violation of 29 U.S.C. § 1132(f) (ER-ISA). Count II alleged that Wilcox terminated Egloff because of his age, in violation of 29 U.S.C. § 626 (Age Discrimination in Employment Act of 1967). In count III, Egloff claimed that Wilcox’s letter to him on September 5,1975, stated untrue reasons for his termination, and violated the Missouri Service Letter Statute. Mo.Rev.Stat. § 290.140 (1978). Count IV, which stated a claim based on breach of contract, was dismissed.
The district court, 529 F.Supp. 190, separated counts I and II from the service letter claim and tried them before a jury. After the jury returned verdicts in favor of Wilcox on both counts I and II, the district court granted summary judgment in favor of Wilcox on the service letter claim. The court held, as a matter of law, that Egloff’s letter to Wilcox following his termination did not constitute a written request for a service letter as required by the statute. Consequently, Egloff could not bring a claim against Wilcox for violating the Service Letter Statute.
Under the Missouri Service Letter Statute, a discharged employee seeking a service letter must submit a written request to his former employer. Upon receiving the request, the employer must issue the employee a letter which states: “[1] the nature and character of service rendered * * *, [2] the duration thereof, and [3] [the] cause, if any, [for the discharge].” Mo.Rev.Stat. § 290.140 (Supp.1982). Egloff contends on appeal that his letter to Wilcox of August 19,1975, which stated, “since you terminated me without explanation, you may have some reason why I should not return to work,” should be considered a request for a service letter under the statute. Egloff argues that while his letter may not have met the precise requirements under the statute, it should be considered in context and in light of the surrounding circumstances.
The district court concluded that Egloff’s letter could not, under the circumstances, be considered a request for a service letter. It noted that under the Service Letter Statute, Egloff carried the burden of proving himself within the purview of the statute. After finding that Egloff did not specifically request a service letter in his letter to Wilcox, the court considered the letter in light of the surrounding circumstances, as Egloff had urged. The court found that Egloff’s August 19 letter was one in a series of letters Egloff wrote while attempting to obtain either an unpaid leave of absence or a new position in order to acquire his pension rights. Thus, the court held Egloff did not meet his burden under the statute.
From our examination of the record and the authorities cited by Egloff, we cannot say that the district court erred either legally or factually in determining that Egloff did not bring his claim within the terms of the Service Letter Statute. Accordingly, we affirm on the basis of the district court’s well-reasoned opinion. See 8th Cir.R. 14.
. The 1978 statute read, in pertinent part:
Whenever any employee of any corporation doing business in this state shall be discharged or voluntarily quit the service of such corporation, it shall be the duty of the superintendent or manager of said corporation, upon the written request of such employee to him, if such employee shall have been in the service of said corporation for a period of at least ninety days, to issue to such employee a letter, duly signed by such superintendent or manager, setting forth the nature and character of service rendered by such employee to such corporation and the duration thereof, and truly stating for what cause, if any, such employee has quit such service!.] [Mo.Rev.Stat. § 290.140 (1978).]
The statute has since been revised to read:
Whenever any employee of any corporation doing business in this state and which employs seven or more employees, who shall have been in the service of said corporation for a period of at least ninety days, shall be discharged or voluntarily quit the service of such corporation and who thereafter within a reasonable period of time, but not later than one year following the date the employee was discharged or voluntarily quit, requests in writing by certiGed mail to the superintendent, manager or registered agent of said corporation, with specific reference to the statute, it shall be the duty of the superintendent or manager of said corporation to issue to such employee, within forty-five days after the receipt of such request, a letter, duly signed by such superintendent or manager, setting forth the nature and character of service rendered by such employee to such corporation and the duration thereof, and truly stating for what cause, if any, such employee was discharged or voluntarily quit such service. [Mo.Rev.Stat. § 290.140 (Supp.1982) (emphasis added).]
. The Honorable John W. Oliver, United States Senior District Judge for the Western District of Missouri.
Question: What party initiated the appeal?
A. Original plaintiff
B. Original defendant
C. Federal agency representing plaintiff
D. Federal agency representing defendant
E. Intervenor
F. Not applicable
G. Not ascertained
Answer:
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songer_genapel1
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C
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed appellant.
PLANNED PARENTHOOD FEDERATION OF AMERICA, INC., et al. v. Margaret M. HECKLER, Secretary, U.S. Department of Health and Human Services, Appellant. NATIONAL FAMILY PLANNING AND REPRODUCTIVE HEALTH ASSOCIATION, Inc., et al. v. DEPARTMENT OF HEALTH AND HUMAN SERVICES et al., Appellants.
Nos. 83-1232, 83-1239.
United States Court of Appeals, District of Columbia Circuit.
Argued May 9, 1983.
Decided July 8, 1983.
Carolyn B. Kuhl, Deputy Asst. Atty. Gen., Washington, D.C., with whom J. Paul McGrath, Asst. Atty. Gen., Stanley S. Harris, U.S. Atty., and Leonard Schaitman and William G. Cole, Attys., Dept, of Justice, Washington, D.C., were on the brief, for appellants.
Nancy L. Buc, Washington, D.C., for appellees Planned Parenthood Federation of America, Inc., et al. Scott T. Maker, Washington, D.C., entered an appearance for appellees Planned Parenthood Federation of America, Inc., et al.
John W. Nields, Jr., Washington, D.C., with whom Deborah Y. Swirling, Washington, D.C., was on the brief, for appellees Nat. Family Planning and Reproductive Health Ass’n, Inc., et al.
William J. Olson and James E. Gates, Washington, D.C., were on the brief for amici curiae Jeremiah A. Denton et al., urging reversal.
Ruth J. Katz, Philadelphia, Pa., was on the brief for amicus curiae U.S. Congressman Henry A. Waxman, urging affirmance.
Sana F. Shtasel, Washington, D.C., was on the brief for amicus curiae U.S. Senator Bob Packwood, urging affirmance.
Elizabeth Symonds, Washington, D.C., was on the brief for amici curiae American Public Health Ass’n et al., urging affirmance.
Before WRIGHT, EDWARDS and BORK, Circuit Judges.
Opinion for the court filed by Circuit Judge J. SKELLY WRIGHT.
Opinion concurring in part and dissenting in part filed by Circuit Judge BORK.
J. SKELLY WRIGHT, Circuit Judge:
At issue in this case is the validity of regulations recently issued by the Secretary of the Department of Health and Human Services (HHS) requiring all providers of family planning services which receive funds under Title X of the Public Health Service Act (Title X) : (1) to notify parents or guardians within ten working days of prescribing contraceptives to unemancipated minors; (2) to comply with state laws requiring parental notice of, or consent to, the provision of any family planning services to minors; and (3) to consider minors who wish to receive services on the basis of their parents’ financial resources, rather than their own. Numerous organizations and individuals joined in a consolidated action in the District Court to enjoin the Secretary from enforcing these regulations. The lower court entered a preliminary, and then a final, injunction prohibiting enforcement of the new regulations on the ground that they constitute invalid agency action in excess of statutory authority. Because we agree that the regulations are fundamentally inconsistent with Congress’ intent and purpose in enacting Title X and are therefore beyond the limits of the Secretary’s delegated authority, we affirm the decision below.
I. Background
A. The Statute and Regulations
In 1970 Congress enacted Title X of the Public Health Service Act to establish a nationwide program with the express purpose of making “comprehensive family planning services readily available to all persons desiring such services.” Congress authorized the Department of Health, Education and Welfare (HEW) to make grants and enter into contracts with public or nonprofit entities to assist in the establishment of family planning projects that offer a broad range of family planning methods, including the provision of prescription and nonprescription contraceptive drugs and devices. See 42 U.S.C. § 300(a) (as amended). The Title X program was originally funded for three years, but has since been reauthorized and refunded continuously.
In light of the breadth of the statutory language and clear congressional intent that all persons receive such services, Title X grantees have served the teenage population from the inception of the program. Following enactment of Title X, however, Congress frequently expressed its increasing concern about the still unmet family planning needs of sexually active teenagers in this country. See, e.g., H.R.Rep. No. 1161, 93d Cong., 2d Sess. 14 (1974) (“certain population groups requiring these services are not being reached * * * includpng] teenagers”); S.Rep. No. 29, 94th Cong., 1st Sess. 55 (1975). Ultimately, Congress in 1978 amended the statute itself to require that Title X projects offer “a broad range of acceptable and effective family planning methods and services (including * * * services for adolescents).” See 42 U.S.C. § 300(a) (emphasis added). While this amendment simply codified accepted past practice, the added language clearly reflected Congress’ intent to place “a special emphasis on preventing unwanted pregnancies among sexually active adolescents.” S.Rep. No. 822, 95th Cong., 2d Sess. 24 (1978).
The Committee is committed to addressing the increased needs of adolescents and young adults. According to DHEW, approximately one million women under 20 years of age (10 percent of all teenage women) become pregnant annually. * * * Such pregnancies are often unwanted, and are likely to have adverse health, social, and economic consequences for the individuals involved. Clearly, the problems of teenage pregnancy have become critical.
In 1981 Congress again amended Title X, this time to require by statute that grantees encourage family participation in their Title X programs. With this additional language, Section 300(a) of the Act now reads:
The Secretary is authorized to make grants to and enter into contracts with public or nonprofit private entities to assist in the establishment and operation of voluntary family planning projects which shall offer a broad range of acceptable and effective family planning methods and services (including natural family planning methods, infertility services, and services for adolescents). To the extent practical, entities which receive grants or contracts under this subsection shall encourage family participation in projects assisted under this subsection.
42 U.S.C. § 300(a) (amendment emphasized).
On February 22, 1982 the Secretary published for public comment modifications of certain regulations governing Title X grants. Proposed as a means of implementing Congress’ 1981 amendment to Title X, the new regulations seek to mandate the encouragement of family participation in three basic ways. First, and most significantly, they require Title X grantees to notify a parent or guardian within 10 working days of initially prescribing contraceptives to an unemancipated minor. Without verification that such notice was received, no further prescriptions may be provided to the minor.
Second, the regulations require Title X recipients to comply with any state law that mandates notification or consent of parent or guardian upon provision of family planning services to a minor. Finally, the new regulations redefine the statutory phrase “low-income family” so as to require Title X grantees to consider the economic eligibility of minors on the basis of their parents’, rather than their own, financial resources.
As the Department itself acknowledged, public response to the proposed regulations was “overwhelming.” Over 120,000 individuals and organizations contributed to the public comment. Among those opposing the proposed regulations were 19 major medical associations, including the American Medical Association and the American Psychiatric Association, 40 states, and the District of Columbia. On January 26, 1983 HHS nevertheless promulgated the final regulations, virtually unchanged. They were accompanied by a 15-page preamble that generally discussed the comments submitted and the reasons for the new rules. The regulations were to take effect on February 25, 1983.
B. The Proceedings and Decisions Below
Even before the final regulations were published, however, two separate actions were brought in the District Court to enjoin the Secretary and the Department from enforcing the regulations. Plaintiffs in one action were the Planned Parenthood Federation of America, Inc., a national organization concerned with family planning, and three of its member affiliates who receive Title X grants to provide family planning services and are therefore subject to the new regulations. The second suit was brought by the National Family Planning and Reproductive Health Association, Inc. (NFPRHA), a national nonprofit organization whose members are predominantly family planning clinics receiving Title X funding, and numerous other organizations and individuals affected by the regulations. The District Court consolidated the two actions.
On February 18, 1983 the District Court granted plaintiffs’ consolidated motions for preliminary injunction, ordering the Secretary and the Department to cease enforcement of the challenged regulations pending further order of the court. See Planned Parenthood Federation of America, Inc. v. Schweiker, 559 F.Supp. 658 (D.D.C.1983) (hereinafter cited as Planned Parenthood). In addressing plaintiffs’ likelihood of success on the merits, the court reviewed the statutory language of the 1981 amendment to Title X, its legislative history, and the general structure of Title X. The court concluded that the regulations requiring parental notification “are outside the scope of the agency’s authorizing legislation, and are therefore invalid.” Id. at 669. The court also held that the other two requirements— compliance with state parental notification and consent laws and redefinition of adolescent financial eligibility — are similarly invalid for violating the intent of Title X. Id. Since the court found that the regulations were promulgated in excess of statutory authority, it did not rule on plaintiffs’ allegations that the regulations are arbitrary and capricious and abridge the constitutional privacy rights of mature minors. See id. at 669 n. 19. On March 2, 1983 the court found that plaintiffs were entitled to judgment as a matter of law and so filed a final order in the case, making its injunction permanent. See id. at 670 (final judgment on cross-motions for summary judgment).
III. Analysis
This appeal presents a straightforward issue of statutory construction. Urging reversal of the decision below, appellants, the Secretary and HHS, argue that the new regulations are perfectly consistent with the language and intent of the 1981 amendment to Title X and are therefore not in excess of statutory authority. Before addressing the merits of this assertion, we outline briefly this court’s scope of review.
A. Standard of Review
An essential function of the reviewing court is to guard against bureaucratic excesses by ensuring that administrative agencies remain within the bounds of their delegated authority. To that end, it falls within the province of this court to interpret the proper limits of Congress’ delegation of authority in Title X and to determine whether the challenged regulations traverse those limits. As appellants duly point out, the rulemaking authority that Congress has delegated to the Secretary is broad indeed:
Grants and contracts made under this subchapter [42 U.S.C. § 300 et seq.] shall be made in accordance with such regulations as the Secretary may promulgate. * * *
42 U.S.C. § 300a-4(a).
Yet, however sweeping this delegation of authority, it is not unlimited. We will declare regulations in excess of statutory authority if they “bear[ ] no relationship to any recognized concept of” the particular statutory terms at issue. Batterton v. Francis, 432 U.S. 416, 428, 97 S.Ct. 2399, 2407, 53 L.Ed.2d 448 (1977). Agency action must be found to be consistent with the congressional purposes underlying the authorizing statute. See id.; Morton v. Ruiz, 415 U.S. 199, 237, 94 S.Ct. 1055, 1075, 39 L.Ed.2d 270 (1974); Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 381, 89 S.Ct. 1794, 1802, 23 L.Ed.2d 371 (1966). In short, these regulations can be sustained only if this “reviewing court [is] reasonably able to conclude that the grant of authority contemplates the regulations issued.” Chrysler Corp. v. Brown, 441 U.S. 281, 308, 99 S.Ct. 1705, 1721, 60 L.Ed.2d 208 (1979).
Appellants further contend that, in construing the reaches of Title X, we must give great deference to the Secretary’s own interpretation of the statute. While courts frequently do give substantial deference to the administering agency’s interpretation of its statute, the deference accorded does vary from case to case and under certain circumstances can dissipate altogether:
[D]eference must have limits where, as here, application of the [agency’s statutory interpretation] would be inconsistent with an obvious congressional intent * *. Courts need not defer to an administrative construction of a statute where there are “compelling indications that it is wrong.”
Espinoza v. Farah Manufacturing Co., 414 U.S. 86, 94-95, 94 S.Ct. 334, 339-340, 38 L.Ed.2d 287 (1974) (quoting Red Lion Broadcasting Co. v. FCC, supra, 395 U.S. at 381, 89 S.Ct. at 1802).
In the present case there are indeed “compelling indications” that the Secretary has misconstrued Congress’ intent in enacting the 1981 amendment to Title X. Our own careful review of the language of the statute and its legislative history makes it clear that these regulations not only violate Congress’ specific intent as to the issue of parental notification, but also undermine the fundamental purposes of the Title X program. It is to this statutory analysis we now turn.
B. The 1981 Amendment to Title X and Parental Notification
1. Statutory language.
“[T]he starting point for interpreting a statute is the language of the statute itself.” CPSC v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct 2051, 2056, 64 L.Ed.2d 766 (1980). The 1981 amendment to Title X consists of just one simple sentence:
To the extent practical, entities which receive grants or contracts under this subsection shall encourage family participation in projects assisted under this subsection.
42 U.S.C. § 300(a) (Supp. Y 1981).
According to the Secretary, the statute’s use of the word “shall” imposes a nondiscretionary duty upon Title X grantees to communicate with the teenager’s parents so as to involve them in their child’s contraceptive decisions. We cannot agree. Certainly the use of the word “shall” presumptively implies some type of mandatory obligation on grantees. But the nature of that obligation is defined by the word “encourage.” As the District Court noted, Congress’ choice of this permissive and nonobligatory term is in itself revealing. Had Congress intended to mandate parental involvement, it could easily have done so with more appropriate and less ambiguous language such as “shall require family participation” or “shall notify the family.” Indeed, the very concept of encouragement is further weakened by the use of a qualifier “to the extent practical.” While no specific content may be given that phrase from the face of the statute, its use indicates Congress’ intent that the goal of encouraging family participation may well have to give way to other, more practical considerations. Contrary to appellant’s assertions, then, the express language of the statute certainly does not lend support to the Secretary’s interpretation of the amendment as “reasonably contemplating]” a parental notification requirement.
2. The legislative history.
Our inquiry into the congressional intent behind the 1981 amendment need not end with a simple parsing of the express terms of the statute. Although we find that the “plain meaning” of the statute is clear from its terms, we note that the legislative history is equally illuminating in this case. In particular, because appellants attach meaning to the fact that the statute- does not expressly indicate precisely how Title X entities “shall encourage” family participation, reference to the legislative history is essential.
a. The 1981 Conference Committee report.
The Conference Committee report accompanying the 1981 amendment specifically addressed the new sentence:
The conferees believe that, while family involvement is not mandated, it is important that families participate in the activities authorized by this title as much as possible. It is the intent of the conferees that grantees will encourage participants in Title X programs to include their families in counseling and involve them in decisions about services.
H.R.Conf.Rep. No. 208, 97th Cong., 1st Sess. 799 (1981) (emphasis added).
We find this Conference Report statement to be a crystal-clear and unequivocal expression of congressional intent — an intent that controls the Secretary in the exercise of her or his rulemaking authority. Several points emerge from the Conference Committee’s explanation of the amendment. In enacting the amendment to encourage family participation, Congress most definitely did not intend to mandate family involvement. It is impossible to conceive of a more intelligible way to convey that meaning than the comment made by the committee. Thus, to the extent that the parental notification requirement of the new regulations operates to require family involvement, it is inconsistent with Congress’ intent.
Furthermore, the conferees quite plainly explicate the manner by which they intend the Title X grantees to fulfill their statutory obligation to encourage family participation: “grantees will encourage participants * * * to include their families.” The Title X family planning projects are thereby directed to communicate with and encourage those seeking services to make their contraceptive choices with the assistance of their families. There is simply no way, in light of the conferees’ explanation, that the statute can be read as intending to permit the Title X projects to communicate directly with the parents as a means of fulfilling the statute’s “family participation” directive.
Yet this is precisely the reading of the statute and the Conference Committee report that the Secretary would urge upon this court. Appellants seek to avoid the clear import of the Conference Committee report by arjguing that enactment of the 1981 amendment represented a great change in Congress’ existing policy vis-á-vis parental notification and family involvement — a change in policy that would be furthered by the new regulations. They contend that the 1981 amendment “showed a clear shift in Congress’ thinking. * * * Congress indicated that grantees, themselves, were henceforth to encourage family involvement, and not simply to rely on their teenage clientele to involve their parents.” According to appellants, Congress’ shift in intent is supposedly manifest, not only in the express language of the statute, but in the Conference Committee report’s introductory statement about Title X:
Three changes were made in Title X by the conferees. The first was a statement added to section 1001 that “To the extent practical, recipients of grants shall encourage family participation.” * * *
H.R.Conf.Rep. No. 208, 97th Cong., 1st Sess. 799 (1981) (emphasis added).
Appellants’ argument simply does not withstand close scrutiny. The conferees’ use of this word “changes” certainly cannot stand alone as definitive proof of a fundamental shift in congressional intent. Assuredly, there was a “change” in Title X — an entirely new sentence was added to the section of the Act. Whether this change of statutory language evidences a change of congressional purpose, however, depends upon Congress’ prior expressions of policy as to the issues of family involvement and parental notification.
b. Congressional policy of encouraging family involvement.
Our detailed examination of Title X’s pre-1981 legislative history indicates that, far from signifying a shift in congressional opinion, the 1981 amendment simply raised to the statutory level pre-existing policy on this issue. For years earlier Congress had evinced its strong interest in encouraging family involvement in a teenager’s family planning decisions; the legislative history is replete with references to this goal. What is particularly striking is the extent to which the various committee report references to this policy track, almost verbatim, the language of the 1981 Conference Committee report.
In 1975, for example, the Senate report accompanying the Title X reauthorization bill stated:
[T]he Committee believes that unmarried teenagers, where feasible, should be encouraged to involve their family [sic] in their decision about use of contraceptives.
S.Rep. No. 29, 94th Cong., 1st Sess. 55 (1975) (emphasis added). The Senate report accompanying that chamber’s version of the 1978 Title X reauthorization bill also emphasized the encouragement of family involvement:
This policy * * * has been stressed in prior committee reports and is a re assertion of existing Federal policy. It is not intended to restrict or discourage the provision of voluntary family planning services to those adolescents who want them, but only to try to enhance communication within the family unit.
S.Rep. No. 822, 95th Cong., 2d Sess. 40 (1978) (emphasis added). Finally, the House report accompanying its version of the bill subsequently enacted as the 1981 amendment noted “past Committee concern that in the process of contraceptive counseling, unmarried teenagers, where feasible, should be encouraged to involve their families in their decision about use of contraceptives.” H.R.Rep. No. 158, 97th Cong., 1st Sess. 82 (1981) (emphasis added; footnote omitted).
In light of this consistent legislative history, we believe that the reasonable and correct interpretation of the 1981 amendment is that offered by appellees: the added statutory language merely served to emphasize existing congressional policy and thus provides no basis for the Secretary’s radical departure in the means by which such family involvement is to be effectuated.
c. Congressional policy of protecting confidentiality.
Congress, however, has long recognized not only the importance of family involvement, but the crucial importance as well of preserving patient confidentiality in the Title X program. In 1972 the Secretary first promulgated a regulation to ensure doctor-patient confidentiality in Title X programs. These regulations remain in effect unchanged. See 42 C.F.R. § 59.11 (1982). Congress was fully aware of this consistent administrative practice and in particular recognized the critical role played by the assurance of confidentiality in attracting adolescents to the clinics. For example, the Senate report accompanying the 1977 reauthorization of Title X expressly acknowledged that teenagers more readily seek family planning services at Title X facilities precisely because of the policy of patient confidentiality:
[T]he Committee believes HEW must not overlook the preference of many individuals, particularly the teenage target group, for family planning clinics as the initial entry point to family planning information and services. This preference is due partially to the greater degree of teenage confidence in the confidentiality which can be assured by a family planning clinic and in the proficiency of the family planning services provided in a clinic specializing in those and related services.^!
Thus Congress made clear that confidentiality was essential to attract adolescents to the Title X clinics; without such assurances, one of the primary purposes of Title X — to make family planning services readily available to teenagers — would be severely undermined.
Particularly noteworthy in the legislative history is the 1978 defeat in the House of Representatives of an amendment to Title X offered by Representative Harold L. Volkmer. The proposal would have expressly required Title X grantees to notify parents prior to prescribing contraceptives, thereby abandoning the policy of preserving teenagers’ confidences. In the debate on the Volkmer amendment, several congressmen expressed their belief that parental notification would sacrifice the policy of providing confidential services, deter teenagers from coming to Title X clinics, and so result in an increased number of teenage pregnancies. The Acting Secretary of HEW at that time echoed these concerns: “[Ejnactment of * * * [the Volkmer amendment] would undermine the national effort to alleviate the growing problem of teenage pregnancy in this country * *
It is beyond dispute that courts must be cautious in attributing great significance to legislative intent as expressed by legislative inaction. Nevertheless, we find that Congress’ obvious awareness of the administrative practice as to confidentiality as well as its failure to change this practice when presented with the opportunity provide sufficient support for the conclusion that Congress — at least prior to 1981 — had embraced the policy of maintaining teenage confidentiality in the Title X program.
As for the 1981 amendment, we see no evidence whatever that Congress intended to change its longstanding belief that confidentiality was a crucial factor in attracting teenagers to Title X clinics and thereby in stemming the epidemic increase in teenage pregnancies. In fact, we firmly believe that the express language of the statute, requiring Title X grantees to encourage family participation “to the extent practical,” refers to just such realistic concerns about deterring teenagers from seeking contraception if their confidences are not respected. Were the Secretary’s regulations permitted to stand, the goal of family involvement would undermine both Congress’ specific policy of confidentiality and its overriding concern about the escalating teenage pregnancy rate. In the absence of a clearly expressed intent to the contrary, we will not construe the 1981 amendment in a manner which would undermine Congress’ broad purposes for enacting Title X in the first place.
C. Title XX
Appellants seek support for their strained interpretation of the 1981 amendment to Title X in yet another, separate statute. Title XX of the Act, 42 U.S.C. § 300z et seq. (Supp. V 1981), was enacted as part of the same legislative package as the Title X amendment. It established a new grant program for demonstration projects to provide services and research related to adolescent sexuality and pregnancy. Title XX expressly requires family involvement by mandating parental notification and consent, 42 U.S.C. § 300z-5(a)(22)(A)(i), as well as by determining eligibility for the program on the basis of family income, id. § 300z-3(c). Indeed, Congress’ intent in Title XX is to make family involvement the centerpiece of this program designed explicitly to discourage adolescent sexual relations. See id. § 300z(a)(9).
Appellants contend that Congress’ philosophical intent in Title XX can and should be used to inform any interpretation of Title X. More specifically, Title XX’s explicit requirement of parental notification “demonstrated that [Congress] believed parental notification to be important policy in and of itself.” See brief for appellants at 22. On this view, if Congress approved of parental notification in one context, it should be presumed to intend its use in a related context as well.
This argument totally ignores the very different nature of the two programs. Title X is the largest of the Federal Government’s family planning programs, designed to serve the family planning needs of all persons in need of such services. Title XX, by contrast, is a limited and experimental program; it provides for “demonstration projects” with a special emphasis on serving the needs of already pregnant adolescents and the prevention of adolescent sexual relations, see 42 U.S.C. § 300z-l(a)(7) & (8). While some traditional family planning services may be provided under limited circumstances, see id. § 300z-3(b)(l), the primary thrust of Title XX clearly lies elsewhere.
The distinct differences in the scope and purposes of the two programs necessarily dictate different approaches to striking an appropriate balance between the need for confidentiality and the goal of parental involvement. The Senate report accompanying Title XX clearly delineated these differences and their consequences:
It must be stressed, however, that this [Title XX] program is to be a demonstration project in which the Federal Government attempts to promote family-centered approaches to serious social problems. Unlike contraceptive services or venereal disease treatments, adolescent pregnancy cannot be an indefinitely confidential affair. Furthermore, it should be noted that this [Title XX] program is a Federal demonstration project and not a far-ranging Government entitlement program. These requirements [e.g., parental notification and consent] are an attempt to determine the effect that such parental involvement requirements might have on a small scale!!
As an experimental demonstration project, then, Title XX provides a useful, but limited, context in which Congress may experiment and then evaluate the impact on teenagers of mandating family notification and involvement without irrevocably undermining its large-scale family planning program. Congress has, in fact, since indicated its intent to “monitor the progress of the projects involved very carefully” and to hold hearings to assess “the implementation and impact of the parental involvement requirement under this experimental program.”
It would therefore be both illogical and contrary to legislative intent to follow appedants’ suggestion and “import” the strong family involvement component of Title XX into Title X. In point of fact, one senator feared just such an inappropriate amalgamation of the two programs. To clarify the limited nature of Title XX’s requirements, Senator Mark Hatfield, chairman of the Appropriations Committee, raised the issue during the debate over HHS’s appropriations for 1982:
Mr. President, while we are in Labor-HHS matters, may I ask the Senator from New Mexico, the chairman of the Labor, Health and Human Services and Education Subcommittee, about language in the committee report concerning adolescent family life program? There has been some concern expressed that the report language could somehow be interpreted to apply the “parental consent and notification” provisions of the adloescent [sic] family life program to other programs under the jurisdiction of the Department of Health and Human Services. Can the Senator tell me whether the language does apply to Health and Human Services programs other than adolescent family life?
Whereupon Senator Schmitt, chairman of the Subcommittee on Labor, Health and Human Services, and Education, responded, “It does not.” See 128 Cong.Rec. S10067 (daily ed. Aug. 10, 1982).
Notwithstanding this insurmountable evidence that Title XX’s parental notification requirements were not intended to apply to Title X, appellants argue that the Secretary was properly guided by the philosophy of Title XX. They point to a review provision of Title XX as strong evidence of Congress’ intent to apply the family-centered philosophy of Title XX outside the narrow confines of its specified programs. Section 300z-6(a)(3) calls on the Secretary to:
review all programs administered by the Department of Health and Human Services which provide prevention services or care services to determine if the policies of such programs are consistent with the policies of this subchapter * * *.”
42 U.S.C. § 300z-6(a)(3). This language, however, merely calls for review of existing federal family programs to identify any inconsistencies in policy. It does not authorize the Secretary, on her own, to remedy any such inconsistencies by regulation. In fact, the Senate report accompanying Title XX makes clear the limits of the Secretary’s authority to act:
Remedial legislation or regulations to alter any Federal programs that the Secretary may identify as duplicative or inconsistent with the new Federal policy contained in this legislation should be formulated as quickly as possible.
S.Rep. No. 161, 97th Cong., 1st Sess. 16 (1981) (emphasis added). The use of the words “remedial legislation” clearly concedes that the Secretary may not be able to alter by regulation alone every program deemed “inconsistent” with Title XX. Given Congress’ express intent to limit Title XX’s parental notification and consent requirements to the confines of that experimental program, the Secretary has no authority deriving from this provision in Title XX to graft comparable parental notification requirements onto the structure of the completely separate Title X program.
D. State' Notification and Consent Requirement
Having determined that the new regulations’ parental notification requirement is inconsistent with Congress’ intent in Title X and finds no support in Title XX, we need not tarry long in disposing of appellants’ arguments as to the other two requirements.
The Secretary’s requirement that Title X grantees comply with prevailing state law as to parental notification or consent constitutes an invalid delegation of authority to the states. As the District Court found:
Although Congress is free to permit the states to establish eligibility requirements for recipients of Title X funds, Congress has not delegated that power to the states. Title X does not provide, or suggest, that states are permitted to determine eligibility criteria for participants in Title X programs. * * *
In the absence of Congress’ express authorization to HHS to in turn empower the states to set eligibility criteria, the Secretary has no power to do so. Therefore, in enacting such a regulation in this case the Secretary has exceeded the limits of Congress’ delegated authority. See Chrysler Corp. v. Brown, supra, 441 U.S. at 308, 99 S.Ct. at 1720.
Furthermore, even if Congress had authorized the Secretary to delegate to the states the power to set eligibility standards, the state laws would still have to conform with the existing requirements of Title X and its regulations.. It is elementary that under the Supremacy Clause of the Constitution states are not permitted to establish eligibility standards for federal assistance programs that conflict with the existing federal statutory or regulatory scheme. See Jones v. T.H., 425 U.S. 986, 96 S.Ct. 2195, 48 L.Ed.2d 811 (1976), aff’g mem. only on statutory grounds sub nom. T_H_v. Jones, 425 F.Supp. 873 (D.Utah 1975). See also Lascaris v. Shirley, 420 U.S. 730, 95 S.Ct. 1190, 43 L.Ed.2d 583 (1975); Carleson v. Remillard, 406 U.S. 598, 600-601, 92 S.Ct. 1932, 1934, 32 L.Ed.2d 352 (1972); Townsend v. Swank, 404 U.S. 282, 286, 92 S.Ct. 502, 505,30 L.Ed.2d 448 (1971); King v. Smith, 392 U.S. 309, 88 S.Ct. 2128, 20 L.Ed.2d 1118 (1968).
The only court to consider this issue in the context of Title X squarely concluded that West Virginia’s attempt to require parental consent as a condition to the provision of family planning services constituted the imposition of an additional eligibility requirement that clearly thwarted the goals of Title X. See Doe v. Pickett, 480 F.Supp. 1218, 1220-1221 (D.W.Va.1979). Since we have concluded that, even after the 1981 amendment, the continuing policies of Title X prohibit the Secretary from requiring parental notification, the states would likewise be precluded from imposing similar conditions.
E. Financial Eligibility Requirement
The elimination of the current regulation as to teenagers’ financial eligibility is clearly entailed by the Secretary’s imposition of the parental notification requirement. The new regulation deletes the following: “[U]nemancipated minors who wish to receive services on a confidential basis must be considered on the basis of their own resources.” If the confidentiality of adolescents is no longer to be respected, then the above requirement is logically unnecessary.
However, since the parental notification requirement is invalid, then so too is this change in determining financial eligibility. We thus agree with the reasoning of the District Court: the regulation requiring that an adolescent’s eligibility for services be based on her parents
Question: What is the nature of the first listed appellant?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_r_fed
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
UNITED STATES of America, Plaintiff-Appellee, v. John Lee BOWEN, Defendant-Appellant.
No. 72-1012.
United States Court of Appeals, Ninth Circuit.
May 9, 1974.
Wallace, Circuit Judge, dissented from that part of the decision dealing with the applicability of Almeida-San-chez to fixed-checkpoint searches and filed opinion in which Chambers, Koelsch, Eugene A. Wright, Choy and Sneed, Circuit Judges, concurred.
Alfred T. Goodwin, Circuit Judge, concurred in and dissented from that portion of the decision relating to retroactive application of Almeida-Sanchez and filed opinion in which Merrill, Browning and Duniway, Circuit Judges, joined.
Hufstedler, Circuit Judge, dissented from that part of the decision relating to retroactive application of Almeida-Sanchez and filed opinion in which Ely, Circuit Judge, joined.
Michael D. Nasatir (argued), Nasatir, Sherman & Hirsch, Beverly Hills, Cal., for defendant-appellant.
James W. Meyers, Shelby R. Gott, Asst. U. S. Attys. (argued), Harry D. Steward, U. S. Atty., Stephen G. Nelson, Asst. U. S. Atty., San Diego, Cal., for plaintiff-appellee.
Before CHAMBERS, MERRILL, KOELSCH, BROWNING, DUNIWAY, ELY, HUFSTEDLER, WRIGHT, TRASK, CHOY, GOODWIN, WALLACE and SNEED, Circuit Judges.
PER CURIAM:
This appeal is before the court upon the remand of the Supreme Court, Bowen v. United States, 413 U.S. 915, 93 S.Ct. 3069, 37 L.Ed.2d 1038 (1973), vacating, 462 F.2d 347 (9th Cir. 1972).
Bowen was convicted of smuggling and transporting marijuana and of possessing depressant and stimulant drugs. The evidence of the violations was discovered during a routine search for illegal aliens of a camper truck at a permanent border-patrol checkpoint on California State Highway 86 approximately 36 air miles and 49 highway miles north of the Mexican border. Highway 86 is a principal route from Mexicali to Los An-geles by way of Indio and Riverside.
On June 21, 1973, the Supreme Court held in Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973), rev’g, 452 F.2d 459 (9th Cir. 1971), that border-patrol agents on roving patrol cannot stop and search cars pursuant to 8 U.S.C. § 1357(a) and 8 C.F.R. § 287.1 without probable cause or warrant.
Two separate issues are presented here: (1) How does Almeida-Sanchez affect searches conducted at a fixed checkpoint? (2) If fixed-checkpoint searches, as well as roving-patrol searches, are included within the ambit of the Almeida-Sanchez ruling, should that ruling be applied to fixed-checkpoint searches conducted by border-patrol agents prior to June 21, 1973, in cases pending on appeal on that date ?
For the reasons set forth in Part I of the opinion of the majority of the court here, we hold that the rule announced by the Supreme Court in Almeida-Sanchez does apply to searches at fixed checkpoints. However, for the reasons set forth in Part II, we also hold that Almeida-Sanchez will not be applied to fixed-checkpoint searches conducted prior to June 21, 1973.
The judgment of conviction is affirmed.
PART I
ALFRED T. GOODWIN, Circuit Judge:
According to the Supreme Court in Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973), the government has been conducting three types of alien searches pursuant to 8 U.S.C. § 1357(a) and 8 C.F.R. § 287.1: (1) searches at “[permanent checkpoints * * * maintained at certain nodal intersections”; (2) searches at “temporary checkpoints * * * established from time to time at various places”; and (3) searches carried out by “roving patrols.” 413 U.S. at 268. The government argued in Almeida-Sanchez that all these searches conducted “within a reasonable distance from any external boundary,” 8 U.S.C. § 1357(a)(3), could be considered border searches, and thus be carried out with neither a warrant nor probable cause. See Carroll v. United States, 267 U.S. 132, 154, 45 S.Ct. 280, 69 L.Ed. 543 (1925).
The search condemned in Almeida-Sanchez was of the “roving patrol” type. It was conducted 25 miles north of the Mexican border, on a California east-west highway that lies at all points at least 20 miles north of the border. 413 U.S. at 267-268, 273. The search of Bowen’s camper, however, was a fixed-checkpoint search, a type of search reserved from the Almeida-Sanchez decision. The checkpoint, on California State Highway 86, was between the major population centers of the Imperial Valley and Indio.
The opinion ***S.in Almeida-Sanchez, delivered by Mr. Justice Stewart, leaves little doubt that traditional Fourth Amendment standards apply to fixed-checkpoint searches as well as to roving-patrol searches. Early in the opinion, after listing the three types of surveillance conducted by the Border Patrol along inland roadways and noting that the government argues that “[i]n all of these operations * * * the agents are acting within the Constitution when they stop and search automobiles without a warrant, without probable cause to believe the cars contain aliens, and even without probable cause to believe the cars have made a border crossing,” the Court stated that “ [t] he only asserted justification for this extravagant license to search is § 287 of the Immigration and Nationality Act, 66 Stat. 233, 8 U.S.C. § 1357(a) * * 413 U.S. at 268.
Moreover, the government in Almei-da-Sanchez sought to justify roving-patrol searches on the basis of 8 U.S.C. § 1357(a)(3) and 8 C.F.R. § 287.1(a)(2). Here, the government seeks to justify the fixed-checkpoint search by reference to the same statute and regulation. But, when the Supreme Court held that this statute and regulation could not exempt searches carried out pursuant to them from traditional Fourth Amendment scrutiny, see 413 U.S. at 272, the government’s statutory justification for fixed-checkpoint searches as well as for roving-patrol searches vanished.
Finally, at the very end of its opinion, 413 U.S. at 274-275, the Court quoted from Carroll v. United States as follows:
“* * It would be intolerable and unreasonable if a prohibition agent were authorized to stop every automobile on the chance of finding.liquor and thus subject all persons lawfully using the highways to the inconvenience and indignity of such a search. Travelers may be stopped in crossing an international boundary because of national self-protection reasonably requiring one entering the country to identify himself as entitled to come in, and his belongings as effects which may be lawfully brought in. But those lawfully within the country, entitled to use the public highways, have a right to free passage without interruption or search unless there is known to a competent official authorized to search, probable cause for believing that their vehicles are carrying contraband or illegal merchandise * * 267 U.S. at 153-154.
It would be strange indeed for the Court to quote this language if it meant to leave intact the government’s asserted right to establish fixed checkpoints anywhere within 100 miles of the border. Surely, searches at these checkpoints, like searches by roving patrols have the effect of violating the “right to free passage without interruption or search” of “those lawfully within the country * * Such searches, therefore, must meet constitutional standards regardless of their utility in carrying forward the difficult mission of the Border Patrol.
To be sure, Mr. Justice Powell in his concurrence and Mr. Justice White in his dissent both correctly pointed out that Almeida-Sanchez did not present a question of a fixed-checkpoint search. See 413 U.S. at 275-276, 288. Nonetheless, these disclaimers do not override clear indications in the opinion of the Court that any distinction between fixed and movable checkpoints will be meaningless unless the distinction can be based upon reasoned Fourth Amendment considerations.
The government argues that there are, in fact, significant constitutional differences between roving patrols and fixed checkpoints. First, since fixed checkpoints often involve a stop and inspection of every car passing through them, they provide much less opportunity for the unfettered discretion of the police officer that was condemned in Almeida-Sanchez. See 413 U.S. at 268. Second, being stopped on a lonely road at night in a sparsely populated part of the country (Almeida-Sanchez) is more burdensome to the traveler than a stop at an identified and lighted checkpoint (Bowen). The government contends once again that the Constitution does not forbid all searches, but only “unreasonable” ones. In support of the validity of arguably “reasonable” fixed-checkpoint searches, the government cites a number of judicial decisions upholding roadblocks established for the purpose of checking drivers’ licenses and registrations. See, e. g., United States v. Croft, 429 F.2d 884, 886 (10th Cir. 1970); People v. Washburn, 265 Cal.App.2d 665, 71 Cal.Rptr. 577, 581 (2d Dist. 1968); State v. Smolen, 4 Conn.Cir. 385, 232 A.2d 339 (App.Div.), pet. for certification for appeal denied, 231 A.2d 283 (Conn.1967), cert. denied, 389 U.S. 1044, 88 S.Ct. 787, 19 L.Ed.2d 835 (1968); State v. Severance, 108 N.H. 404, 237 A.2d 683 (1968).
We agree with the government that a fixed-checkpoint search that does not entail significant delay is probably less offensive than a roving-patrol search. Being asked to stop at a fixed checkpoint is not frightening to a seasoned traveler. Being flagged over to the side of the road by a roving patrol might be traumatic. Also, an officer on roving patrol probably has more discretion in deciding which cars to stop than one stationed at a fixed checkpoint, although the difference might be less than the government contends. Since not all vehicles passing through a checkpoint are stopped, and since not all vehicles stopped are searched, the officer at the checkpoint still retains a good deal of discretion to “single out” some travelers for stops or intrusive searches.
Nonetheless, even conceding that a fixed-checkpoint search might be less of an imposition on domestic travelers than a roving-patrol search, we are able to find nothing in the opinion of the Court in Almeida-Sanchez which suspends Fourth Amendment standards in dealing with immigration searches at fixed checkpoints.
Moreover, the government’s reliance on judicial decisions upholding automobile stops for the purpose of checking drivers’ licenses is misplaced. Although the government has cited only roadblock stops, there is a parallel line of decisions upholding roving-patrol stops to check for valid license and registration. See, e. g., Lipton v. United States, 348 F.2d 591 (9th Cir. 1965); State v. Ream, 19 Ariz.App. 131, 505 P.2d 569 (Div. 1, Dept. B, 1973); Leonard v. State, 496 S.W.2d 576 (Tex.Cr.App.1973). In other cases, courts did not even find the fact that the stop may have been at a roadblock rather than incident to a roving patrol significant enough to mention. See, e. g., United States v. Lepinski, 460 F.2d 234, 237 (10th Cir. 1972); Myricks v. United States, 370 F.2d 901 (5th Cir.), pet. for cert. dismissed, 386 U.S. 1015, 87 S.Ct. 1366, 18 L.Ed.2d 474 (1967). Hence, since this line of vehicle-registration-check decisions was as relevant in Almeida-Sanchez as here, we do not find these decisions to be an appropriate means for distinguishing Bowen’s search from that of Almeida-Sanchez.
What is more, the rationale for the drivers’-license decisions will not support the government’s position here. For example, in Lipton v. United States, supra, in which this court upheld a stop by a motorcycle police officer of a youth driving an automobile, we reasoned that there was no way for a police officer to determine that a driver had a valid license permitting him to operate a motor vehicle other than by stopping him and asking him to produce his license. We noted:
“* * * A contrary holding would render unenforceable the State statute requiring that automobile drivers be licensed.” 348 F.2d at 593.
We are not persuaded that laws prohibiting illegal immigration will be rendered similarly unenforceable should we deny to the government the power to stop and search automobiles, without probable cause or warrant, at fixed checkpoints.
We hold, then, that fixed-checkpoint searches, like roving-patrol searches, even though conducted within a “reasonable distance” from the border, are not necessarily exempt from the traditional Fourth Amendment requirement of a warrant or probable cause. This holding, however, merely shifts the focus of our inquiry. The opinion in Al-meida-Sanchez does not require that a border search, to be constitutional, be at the border itself; rather, a legitimate border search may also be conducted “in certain circumstances” at the border’s “functional equivalents.” 413 U.S. at 272. The search conducted in the present ease was obviously not at the border itself; nor was it at a “functional equivalent” of the border.
The “function” of a border checkpoint is to regulate border crossings. Thus, in attempting to clarify what would constitute a “functional equivalent” of the border, the Court in Almeida-Sanchez offered two examples:
"* * * For example, searches at an established station near the border, at a point marking the confluence of two or more roads that extend from the border, might be functional equivalents of border searches. For another example, a search of the passen- ■ gers and cargo of an airplane arriving at a St. Louis airport after a nonstop flight from Mexico City would clearly be the functional equivalent of a border search.” 413 U.S. at 272-273. (Emphasis added.)
These examples are then contrasted with the search conducted in Almeida-San-chez:
“* * * [T]he search of * * * [an] automobile by a roving patrol, on a California road that lies at all points at least 20 miles north of the Mexican border, was of a wholly different sort * * 413 U.S. at 273.
In other words, if a search takes place at a location where virtually everyone searched has just come from the other side of the border, the search is a functional equivalent of a border search. In contrast, if a search takes place at a location where a significant number of those stopped are domestic travelers going from one point to another within the United States, the search is not the functional equivalent of a border search. One need only contemplate the volume of domestic travel between Buffalo and Rochester, New York, to see why a checkpoint between those two cities could not be the functional equivalent of a border checkpoint even though the checkpoint could be less than twenty miles from an international border.
In addition to the two examples of a functional equivalent of a border search provided by the Court in Almeida-Sanchez, other examples may be drawn from two series of decisions of this court. Representative of the first line of authority is Alexander v. United States, 362 F.2d 379 (9th Cir.), cert. denied, 385 U.S. 977, 87 S.Ct. 519, 17 L.Ed.2d 439 (1966). In that case customs officials, acting upon a tip from an informer, placed the defendant’s automobile under surveillance when it crossed the border, and kept it under almost continuous watch as it made suspicious movements through the streets of a border city. In holding that a subsequent search by customs officials was properly called a border search, the court stated:
“Where * * * a search for contraband by Customs officers is not made at or in the immediate vicinity of the point of international border crossing, the legality of the search must be tested by a determination whether the totality of the surrounding circumstances, including the time and distance elapsed as well as the manner and extent of surveillance, are such as to convince the fact finder with reasonable certainty that any contraband which might be found in or on the vehicle at the time of the search was aboard the vehicle at the time of entry into the jurisdiction of the United States * * *.” 362 F.2d at 382.
In a second line of our own cases, this court has treated a search north of the border as the equivalent of a border search, where it appeared with reasonable certainty that the vehicle searched contained either goods which have just been smuggled or a person who had just crossed the border illegally. See, e. g., United States v. Weil, 432 F.2d 1320 (9th Cir. 1970), cert. denied, 401 U.S. 947, 91 S.Ct. 933, 28 L.Ed.2d 230 (1971), in which this court held:
“* * * [I]f customs agents are reasonably certain that parcels have been (a) smuggled across the border and (b) placed in a vehicle, whether the vehicle has itself crossed the border or not, they may stop and search the vehicle. Similarly, if agents are reasonably certain that a person has crossed the border illegally, and has then entered a vehicle on this side of the border, we think that they may stop and search the vehicle and person. They can assume that he may have brought something with him.” 432 F.2d at 1323.
In both of these gre-Almeida-Sanchez lines of Ninth Circuit authority, as well as in the two examples offered by the Supreme Court in Almeida-Sanchez, although the search was not conducted precisely at the border, it still was directly related to a recent entry from across a border. See United States v. Almeida-Sanchez, 452 F.2d at 463 (dissenting opinion of Browning, J.), rev’d, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973).
It is clear that the search conducted in the present case lacks the vital connection between the vehicle stopped and a reasonable certainty, or even a probability, that it or its contents had recently crossed an international border. The checkpoint was approximately 36 air miles and 49 highway miles north of the Mexican border. Several significant population centers and highways, including Interstate 8, a major east-west freeway that connects the Southwest with the West Coast, lie between the checkpoint and the border. Under these circumstances, border-patrol agents had no reason to believe that virtually all or even most of the cars passing through their checkpoint had recently, or ever, crossed the border. Moreover, there was neither the continuing surveillance from the border nor the dependable intelligence from other sources required to fit this case into the Alexander line of decisions ; nor was there the reasonable certainty that the vehicle contained either recently smuggled goods or aliens required under the Weil line. See United States v. Petersen, 473 F.2d 874 (9th Cir. 1973); United States v. Mitchell, 472 F.2d 67, 68 n. 1 (9th Cir. 1973). Hence, the record in this case clearly indicates that the search conducted was not the functional equivalent of a border search. Were the record more equivocal, we would not hesitate to remand the case to the district court for a determination of functional equivalency. Where the record is as clear as it is here, however, we see no need for a remand.
As its last line of defense, the government argues that fixed-checkpoint searches, even if not the functional equivalent of border searches, should be upheld simply because they are urgently needed. The government’s difficulty in detecting and repatriating illegal aliens along our southern boundary needs no new documentation here. The short answer to this argument, however, is that necessity alone cannot override the Fourth Amendment’s prohibition against unreasonable searches and seizures. A similar argument was made and rejected in Almeida-Sanchez itself. See 413 U.S. at 293 (dissenting opinion of White, J.). Mr. Justice Powell in his concurring opinion in Almeida-Sanchez suggested that warrants based on area-wide conditions could be employed to resolve the contending interests of law enforcement and Fourth Amendment safeguards. 413 U.S. at 275-285; see generally The Supreme Court — 1972 Term, 87 Harv.L. Rev. 55, 200-04 (1973). Since the government did not seek such a warrant in this ease, we need not now express an opinion on a hypothetical search conducted pursuant to a judicial warrant authorizing searches for a limited time at a specific checkpoint. We refer to Mr. Justice Powell’s opinion here merely to suggest to the government that procedures less offensive to the Fourth Amendment than judicially unapproved checkpoint searches might be devised and implemented to supplement its program for enforcing immigration laws.
Our conclusion that Almeida-Sanchez is as applicable to fixed-checkpoint searches as to roving-patrol searches is consistent with that reached by the Court of Appeals for the Fifth Circuit in United States v. Speed, 489 F.2d 478 (5th Cir. 1973). There, the court held that a border-patrol search at temporary checkpoint on a north-south highway approximately 65 to 75 miles north of the Mexican border was neither a border search nor a functional equivalent of a border search and, hence, was unconstitutional. The court commented, “The distinction between a checkpoint and a roving patrol is not important.” 489 F.2d at 480.
Likewise, the Court of Appeals for the Tenth Circuit has held that a warrant-less search, without probable cause, of an automobile at the checkpoint at Truth or Consequences, New Mexico, violates the Fourth Amendment unless a search at that checkpoint could be deemed the functional equivalent of a border search. United States v. King, 485 F.2d 353 (10th Cir. 1973); United States v. Maddox, 485 F.2d 361 (10th Cir. 1973).
We hold here that under the rule announced by the Supreme Court in Almei-da-Sanchez the search of Bowen’s camper truck violated the Fourth Amendment because the search was not the functional equivalent of a border search and was authorized neither by warrant nor by probable cause.
Circuit Judges MERRILL, BROWNING, DUNIWAY, ELY, HUFSTEDLER and TRASK concur in this majority opinion (Part I).
[Part I]
. Mr. Justice Stewart’s opinion is explicitly identified as “the opinion of the Court.” It was approved by a majority of five justices, including Mr. Justice Powell, who stated, “ * * * I join the opinion of the Court * * 413 U.S. at 275. Mr. Justice Powell has demonstrated elsewhere that he understands the difference between concurring in an opinion and concurring only in its result. Compare Weinberger v. Hynson, Westcott & Dunning, Inc., 412 U.S. 609, 637, 93 S.Ct. 2469, 2487, 37 L.Ed.2d 207 (1973) (“I concur in Part II of the Court’s opinion * * *. As to Part 1***1 concur only in the result * * *.”) with Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 651, 94 S.Ct. 791, 802, 39 L.Ed.2d 52, 42 U.S.L.W. 4186, 4192 (1974) (“I concur in the Court’s result, but I am unable to join its opinion.”) and Frontiero v. Richardson, 411 U.S. 677, 691, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973) (concurring only in judgment). The language of Mr. Justice Powell’s concurrence in Almeida-Sanchez strongly suggests that his concurrence was not limited to the result. Moreover, his concurring opinion was written primarily to elaborate his views on an issue not presented by the facts of Almeida-Sanchez and not reached by the other justices (but, see 413 U.S. at 270 n. 3) : whether a roving search would be sustainable if it were based on an area search warrant.
. But see Commonwealth v. Swanger, 453 Pa. 107, 307 A.2d 875 (1973), in which the Supreme Court of Pennsylvania held that a routine check of a motor vehicle to determine whether it and its operator were properly licensed violates the Fourth Amendment. See also State v. Cloman, 254 Or. 1, 6 n. 2, 456 P.2d 67, 69 n. 2 (1969), in which the Supreme Court of Oregon expressly reserved ruling upon “the right to stop and examine the driver’s operating license or the right to stop at a general roadblock.” See generally Note, Xonarrest Automobile Stops: Unconstitutional Seizures of the Person, 25 Stan.L.llev. 865 (1973).
. Mr. Justice Powell in his concurrence also noted: “The search here involved * * * was not a border search, nor can it fairly be said to have been a search conducted at the ‘functional equivalent’ of the border.” 413 U.S. at 275-276.
. See also United States v. Mejias, 452 F.2d 1190, 1192-1193 (9th Cir. 1971); United States v. Terry, 446 F.2d 579 (9th Cir.), cert. denied, 404 U.S. 946, 92 S.Ct. 301, 30 L.Ed.2d 261 (1971); Castillo-Garcia v. United States, 424 F.2d 482, 484-485 (9th Cir. 1970); Bloomer v. United States, 409 F.2d 869, 870-871 (9th Cir. 1969); GonzalezAlonso v. United States, 379 F.2d 347, 349-350 (9th Cir. 1967); Rodriquez-Gonzalez v. United States, 378 F.2d 256, 258 (9th Cir. 1967); Leeks v. United States, 356 F.2d 470, 471 (9th Cir. 1966); King v. United States, 348 F.2d 814, 816 (9th Cir.), cert. denied, 382 U.S. 926, 86 S.Ct. 314, 15 L.Ed.2d 339 (1965); Murgia v. United States, 285 F.2d 14 (9th Cir. 1960), cert. denied, 366 U.S. 977, 81 S.Ct. 1946, 6 L.Ed.2d 1265 (1961), cert. denied, 376 U.S. 946, 84 S.Ct. 803, 11 L.Ed.2d 769 (1964).
. See also United States v. Vigil, 448 F.2d 1250 (9th Cir. 1971); United States v. Markham, 440 F.2d 1119, 1121-1123 (9th Cir. 1971). See generally Note, From Bags to Body Cavities: The Law of Border Search, 74 Colum.L.Rev. 53 (1974) ; Note, In Search of the Border: Searches Conducted by Federal Customs and Immigration Officers, 5 N.Y.U.J. Int’l L. & Politics 93 (1972).
. Cf. United States v. King, 485 F.2d 353 (10th Cir. 1973); United States v. Maddox, 485 F.2d 361 (10th Cir. 1973). Both cases held that a warrantless search, without probable cause, of an automobile at the checkpoint in Truth or Consequences, New Mexico, violates the Fourth Amendment unless a search at that checkpoint could be deemed the functional equivalent of a border search. Both cases were remanded to the district court for determination of that issue. However, beyond directing the district court to interpret the phrase as it was used in Almeida-Sanchez, the opinions offer no guidance in defining the functional equivalent of a border search.
Question: What is the total number of respondents in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number.
Answer:
|
songer_typeiss
|
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.
FOX JEWELRY COMPANY, Appellant, v. John C. LEE, Trustee in Bankruptcy of Fox Jewelers, Inc., Bankrupt, Appellee.
No. 17480.
United States Court of Appeals Fifth Circuit.
March 12, 1959.
Edwin W. Ross, Harold Karp, and Carpenter, Karp & Mathews, Atlanta, Ga., for appellants, Fox Jewelry Company and Robert Feldser.
J. Kurt Holland and Haas, Holland & Zinkow, Atlanta, Ga., for appellee.
Before HUTCHESON, Chief Judge,, and CAMERON and BROWN, Circuit Judges.
HUTCHESON, Chief Judge.
This is an appeal from a turnover order issued in Fox Jewelers, Inc., Bankrupt, against Fox Jewelry Company, a corporation not only in name but in every other aspect which underlies and attends corporate existence. The purpose and scope of the order was, treating the respondent as the alter ego of Fox Jewelers, Inc. to seize and administer its assets and affairs as though its possession was the possession of the bankrupt.
The trustee, standing firmly on the-finding of the referee, insists that the-possession of the assets by the respondent for itself and in its own right was. merely colorable, that is pretextual and feigned, and was really in right of the-bankrupt.
Arguing that the fact that Feldserwas the president and stockholder in both companies; that, as such, he did all the purchasing of the stocks of merchandise and generally handled the business, for both companies; that, in short, he-had one man control of both; and that, this is a case in which there is no difficulty in piercing the corporate veil; he-urges upon us that, though the two corporations conducted their business in-separate towns, had separate bookkeeping, paid separate income and social' security taxes, and in every respect except that they were closely affiliated one-man corporations, were separate, the ref-eree’s holding, that the respondent was in effect the bankrupt and his assets were subject to be seized in a summary proceeding, was correct. We do not think so.
Without discussing the facts in detail other than as above set out, we think that there is no basis whatever in the record for the exercise of summary jurisdiction. This is not to say that there may not be ample basis for a finding in a plenary proceeding that the bankrupt has been imposed upon by the respondent, and that the respondent is accountable to the bankrupt for such imposition. It is to say, though, that the matters on which the trustee relies, control of the two corporations by the one man stockholder and president of each, the fact that they act together, and especially the fact that the purchasing of their stocks of goods are all done by the same man, is not determinative of the question whether the corporations are in fact, as in every legal aspect they appear to be, two corporations or simply one, and the possession of the respondent was the possession of the bankrupt. If the contention of the trustee in this case is correct, then in any case merely of closely affiliated corporations, with one stockholder and one management, this claim of summary judgment could be maintained. The law is otherwise settled. Sampsell v. Imperial Paper & Color Corp., 313 U.S. 215, 61 S.Ct. 904, 85 L.Ed. 1293. In Maule Industries v. Gerstel, 5 Cir., 232 F.2d 294, this court discussed the philosophy and theory of summary jurisdiction and the reasons which underlie and support it, as well as the reasons which deny such asserted jurisdiction when those against whom it is asserted will be deprived thereby of their constitutional rights to a plenary trial with the sanctions and protections such trial affords.
The argument, which seems to be the main reliance of referee and trustee, that it is more desirable that the bankruptcy court have the summary jurisdiction contended for because it can therewith administer matters more expeditiously and more effectively protect the creditors and the estate, while good enough as far as it goes, gives too little weight to the counter contention that durable as that is, it is not sufficiently desirable to permit doing away with the safeguards and sanctions provided by law against undue celerity and the deprivation of substantial rights. The exercise of summary jurisdiction in this case is without support in the evidence and the applicable law.
The judgment is reversed and the cause is remanded for further and not inconsistent proceedings.
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_treat
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the disposition by the court of appeals of the decision of the court or agency below; i.e., how the decision below is "treated" by the appeals court. That is, the basic outcome of the case for the litigants, indicating whether the appellant or respondent "won" in the court of appeals.
Phyllis K. SHEPHERD and Douglas T. Shepherd, Plaintiffs-Appellees, v. John P. PUZANKAS, Defendant-Appellant.
No. 16336.
United States Court of Appeals Sixth Circuit.
Feb. 1, 1966.
R. Hunter Cagle, Knoxville, Tenn. (Arthur D. Byrne, Thearon Chandler, Knoxville, Tenn., on the brief; Poore, Cox, Baker & MeAuley, Knoxville, Tenn., of counsel), for appellant.
Creed A. Daniel, Rutledge, Tenn. (W. I. Daniel, Rutledge, Tenn., on the brief; Daniel & Daniel, Rutledge, Tenn., of counsel), for appellees.
Before EDWARDS, Circuit Judge, CECIL, Senior Circuit Judge, and KENT, District Judge.
CECIL, Senior Circuit Judge.
This appeal arises out of an automobile accident which occurred on U. S. Highway 11W, in the state of Tennessee, on April 28, 1963. The plaintiff-appellee, Phyllis K. Shepherd, was driving her automobile west on the highway at the time and place of the accident. John P. Puzankas, defendant-appellant, traveling east on the highway, lost control of his automobile and collided with the Shepherd automobile in its lane of traffic.
Phyllis Shepherd and her husband, Douglas T. Shepherd, were residents of Texas. John P. Puzankas, hereinafter called the defendant, was a resident of New York. The Shepherds brought an action against the defendant in the United States District Court for the Eastern District of Tennessee, Northern Division. Jurisdiction was based on diversity of citizenship. (Section 1332(a), Title 28, U.S.C.) The case was tried to a jury and resulted in a verdict of $25,-000 for Phyllis Shepherd, and a verdict of $2000 for her husband. The defendant appealed.
It is alleged in the complaint that “The defendant operated his aforesaid described motor vehicle at a high, reckless, dangerous and negligent rate of speed and without the exercise of due care or caution or to circumspection and without keeping a proper lookout ahead, without having said motor vehicle under proper or adequate control, and said defendant did in the reckless, negligent and wanton manner aforede-scribed, operate said motor vehicle in such manner as to lose control of same after passing another vehicle proceeding in the same direction, cross the center line of said highway and to strike the automobile operated by the plaintiff, Phyllis K. Shepherd, headon in her right and proper lane of travel, striking the same with great force and violence.”
It is further alleged that the defendant operated his motor vehicle “in open, willful and flagrant violation of certain statutes of the State of Tennessee.”
There was evidence in the record that the highway was wet and slick and that the defendant was traveling at a high rate of speed, that he passed three ears and that he cut back in his lane of traffic just ahead of a car immediately ahead of the Shepherd automobile. It was at this point that he lost control of his car and crossed into the lane of the oncoming Shepherd vehicle. The trial judge instructed the jury, “(I)f you find that this defendant was guilty of willful, wanton, gross negligence you have the right to assess what is known in the law as punitive damages.” He then correctly explained gross negligence and punitive damages.
Objection is made on behalf of the defendant that the court erred in instructing the jury that it had the right to assess punitive damages. In support of this objection, it is claimed that the proof did not sustain such a charge and that the plaintiffs did not contend in their complaint, the pretrial order or upon the trial that the defendant was guilty of gross negligence or that they were entitled to punitive damages.
The language of the complaint is broad enough to cover a charge of gross negligence and there is ample evidence in the record to support such a charge. There is nothing in the pretrial order which would prohibit an instruction on gross negligence and punitive damages. Under the law of Tennessee where gross negligence is pleaded and there is evidence to support it, the question of punitive damages is properly submitted to the jury. In American Lead Pencil Co. v. Davis, 108 Tenn. 251, 254, at page 255, 66 S.W. 1129, at page 1130, the court said:
“Gross negligence, then, is undoubtedly one ground for the allowance of punitive or exemplary damages ; * * * ”
See also Memphis Street Railway v. Shaw, 110 Tenn. 467, 478, 75 S.W. 713; Choctaw, Oklahoma and Gulf Railroad Co. v. Hill, 110 Tenn. 396, 406, 75 S.W. 963; Lazenby v. Universal Underwriters Ins. Co., 214 Tenn. 639, 646, 383 S.W.2d 1; Caccamisi v. Thurmond, 39 Tenn.App. 245, 270, 282 S.W.2d 633.
In Caccamisi v. Thurmond, heretofore cited, at p. 272, 282 S.W.2d at p. 646, the court quoted from Baker v. Bates, 4 Tenn.Civ.App. 175, as follows:
“It is not necessary that these damages (punitive damages) be claimed eo nomine. It is sufficient, if the facts alleged justify their recovery.”
Assuming that the trial judge was in error in instructing the jury on punitive damages, it was a harmless error and did not affect the substantial rights of the defendant. Rule 61 Federal Rules of Civil Procedure. American Lead Pencil Co. v. Davis, supra, 108 Tenn. at 257, 66 S.W. 1129; Butler v. Barrett & Jordan, C.C., 130 F. 944, 949; Philadelphia & W. C. Traction Co. v. Kordiyak, 171 F. 315, 318, C.A. 3; Sucher Packing Co. v. Manufacturers Casualty Ins. Co., 245 F.2d 513, 522, C.A. 6, cert. den. 355 U.S. 956, 78 S.Ct. 541, 2 L.Ed.2d 531; Gillis v. Keystone Mut. Casualty Co., 172 F.2d 826, 830, 11 A.L. R.2d 455, C.A. 6, cert. den. 338 U.S. 822, 70 S.Ct. 67, 94 L.Ed. 499; E. I. Dupont De Nemours & Co. v. Wright, 146 F.2d 765, 768, C.A. 6, cert. den. 324 U.S. 873, 65 S.Ct. 1017, 89 L.Ed. 1426; DeAddio v. Darling & Co., D.C., 112 F.Supp. 166, 167, affirmed 204 F.2d 272, C.A. 6.
In returning the verdict, the foreman of the jury specifically stated that the jury did not allow anything by way of punitive damages. We agree with the trial judge that since the jury disallowed punitive damages the issue has become moot.
Another assignment of error is that the amount of damages awarded to Phyllis Shepherd by the jury is excessive and that the trial judge abused his discretion in not granting a new trial. The trial judge heard the evidence and he had an opportunity to observe the plaintiff Phyllis Shepherd on the witness stand. In denying the motion for new trial he enumerated her injuries which were supported by the record and were such as to justify the verdict of the jury.
In Montgomery Ward & Co. v. Morris, 273 F.2d 452, 453, C.A. 6, we said:
“The power of this Court to review and set aside an order of the District Court overruling a motion for a new trial based on alleged excessive damages, is very limited. (Citations omitted) It is not sufficient that the verdict is considerably larger than we think it should have been. In the absence of a showing of passion and prejudice on the part of the jury, the trial court’s action in overruling a motion for a new trial where a factual question is involved, will not be reviewed by this Court unless it involves an abuse of discretion.”
See also Morton Butler Timber Co. v. United States, 91 F.2d 884, 891, C.A. 6; Spero-Nelson v. Brown, 175 F.2d 86, 89, C.A. 6; Werthan Bag Corp. v. Agnew, 202 F.2d 119, 122-123, C.A. 6; Cross v. Thompson, 298 F.2d 186, 187, C.A. 6; Fairmount Glass Works v. Fork Coal Co., 287 U.S. 474, 481-483, 53 S.Ct. 252, 77 L.Ed. 439; United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 247, 60 S.Ct. 811, 84 L.Ed. 1129; Tennant v. Peoria & Pekin Union Railway Co., 321 U.S. 29, 35, 64 S.Ct. 409, 88 L.Ed. 520.
We find no abuse of discretion here on the part of the trial judge, in denying the motion for a new trial on the ground of excessive damages.
The judgment of the District Court is affirmed.,
. Section 59-816, Tenn.Code Ann., Passing vehicles proceeding in opposite directions.
Section 59-823, Tenn.Code Ann., Driving on roadways laned for traffic.
Section 59-858, Tenn.Code Ann., (a) Any person who drives any vehicle in. willful or wanton disregard for the safety of persons or property is guilty of reckless driving.
(b) Penalty provisions.
Question: What is the disposition by the court of appeals of the decision of the court or agency below?
A. stay, petition, or motion granted
B. affirmed; or affirmed and petition denied
C. reversed (include reversed & vacated)
D. reversed and remanded (or just remanded)
E. vacated and remanded (also set aside & remanded; modified and remanded)
F. affirmed in part and reversed in part (or modified or affirmed and modified)
G. affirmed in part, reversed in part, and remanded; affirmed in part, vacated in part, and remanded
H. vacated
I. petition denied or appeal dismissed
J. certification to another court
K. not ascertained
Answer:
|
sc_decisiondirection
|
B
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the ideological "direction" of the decision ("liberal", "conservative", or "unspecifiable"). Use "unspecifiable" if the issue does not lend itself to a liberal or conservative description (e.g., a boundary dispute between two states, real property, wills and estates), or because no convention exists as to which is the liberal side and which is the conservative side (e.g., the legislative veto). Specification of the ideological direction comports with conventional usage. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. In interstate relations and private law issues, consider unspecifiable in all cases.
COOTER & GELL v. HARTMARX CORP. et al.
No. 89-275.
Argued February 20, 1990
Decided June 11, 1990
O’Connor, J., delivered the opinion for a unanimous Court with respect to Parts I, II, IV, and V, and the opinion of the Court with respect to Part III, in which Rehnquist, C. J., and Brennan, White, Marshall, Blackmun, Scalia, and Kennedy, JJ., joined. Stevens, J., filed an opinion concurring in part and dissenting in part, post, p. 409.
Stephen A. Saltzburg argued the cause for petitioner. With him on the briefs were Dale A. Cooter and Donna S. Mangold.
Richard J. Favretto argued the cause for respondents. With him on the brief were Kenneth S. Geller, Mark W. Ryan, Evan M. Tager, and Carey M. Stein.
Alan B. Morrison, Paul Alan Levy, and David C. Vladeck filed a brief for Public Citizen as amicus curiae urging reversal.
Briefs of amici curiae urging affirmance were filed for the Legal Affairs Council by Wyatt B. Durrette, Jr., and Bradley B. Cavedo; and for the Washington Legal Foundation by Daniel J. Popeo, Paul D. Kamenar, and Richard A. Samp.
Briefs of amici curiae were filed for the Association of Trial Lawyers of America by Gregory P. Joseph, Russ M. Herman, and Jeffrey Robert White; for the Chicago Council of Lawyers by Thomas R. Meites; and for the Plaintiff Employment Lawyers Association by Barry D. Roseman.
Justice O’Connor
delivered the opinion of the Court.
This case presents three issues related to the application of Rule 11 of the Federal Rules of Civil Procedure: whether a district court may impose Rule 11 sanctions on a plaintiff who has voluntarily dismissed his complaint pursuant to Rule 41(a)(1)(i) of the Federal Rules of Civil Procedure; what constitutes the appropriate standard of appellate review of a district court’s imposition of Rule 11 sanctions; and whether Rule 11 authorizes awards of attorney’s fees incurred on appeal of a Rule 11 sanction.
I
In 1983, Danik, Inc., owned and operated a number of discount men’s clothing stores in the Washington, D. C., area. In June 1983, Intercontinental Apparel, a subsidiary of respondent Hartmarx Corp., brought a breach-of-contract action against Danik in the United States District Court for the District of Columbia. Danik, represented by the law firm of Cooter & Gell (petitioner), responded to the suit by filing a counterclaim against Intercontinental, alleging violations of the Robinson-Patman Act, 49 Stat. 1526, 15 U. S. C. § 13. In March 1984, the District Court granted summary judgment for Intercontinental in its suit against Danik, and, in February 1985, a jury returned a verdict for Intercontinental on Danik’s counterclaim. Both judgments were affirmed on appeal. Danik, Inc. v. Intercontinental Apparel, Inc., 245 U. S. App. D. C. 233, 759 F. 2d 959 (1985) (judgment order); Intercontinental Apparel, Inc. v. Danik, Inc., 251 U. S. App. D. C. 327, 784 F. 2d 1131 (1986) (judgment order).
While this litigation was proceeding, petitioner prepared two additional antitrust complaints against Hartmarx and its two subsidiaries, respondents Hart, Schaffner & Marx and Hickey-Freeman Co. One of the complaints, the one giving rise to the Rule 11 sanction at issue in this case, alleged a nationwide conspiracy to fix prices and to eliminate competition through an exclusive retail agent policy and uniform pricing scheme, as well as other unfair competition practices such as resale price maintenance and territorial restrictions. App. 3-14.
Petitioner filed the two complaints in November 1983. Respondents moved to dismiss the antitrust complaint at issue, alleging, among other things, that Danik’s allegations had no basis in fact. Respondents also moved for sanctions under Rule 11. In opposition to the Rule 11 motion, petitioner filed three affidavits setting forth the prefiling research that supported the allegations in the complaint. Id., at 16-17, 22-23, 24-27. In essence, petitioner’s research consisted of telephone calls to salespersons in a number of men’s clothing stores in New York City, Philadelphia, Baltimore, and Washington, D. C. Petitioner inferred from this research that only one store in each major metropolitan area nationwide sold Hart, Schaffner & Marx suits.
In April 1984, petitioner filed a notice of voluntary dismissal of the complaint, pursuant to Rule 41(a)(1)(i). The dismissal became effective in July 1984, when the District Court granted petitioner’s motion to dispense with notice of dismissal to putative class members. In June 1984, before the dismissal became effective, the District Court heard oral argument on the Rule 11 motion. The District Court took the Rule 11 motion under advisement.
In December 1987, 3½ years after its hearing on the motion and after dismissal of the complaint, the District Court ordered respondents to submit a statement of costs and attorney’s fees. Respondents filed a statement requesting $61,917.99 in attorney’s fees. Two months later, the District Court granted respondents’ motion for Rule 11 sanctions, holding that petitioner’s prefiling inquiry was grossly inadequate. Specifically, the District Court found that the allegations in the complaint regarding exclusive retail agency arrangements for Hickey-Freeman clothing were completely baseless because petitioner researched only the availability of Hart, Schaffner & Marx menswear. In addition, the District Court found that petitioner’s limited survey of only four Eastern cities did not support the allegation that respondents had exclusive retailer agreements in every major city in the United States. Accordingly, the District Court determined that petitioner violated Rule 11 and imposed a sanction of $21,452.52 against petitioner and $10,701.26 against Danik.
The Court of Appeals for the District of Columbia Circuit affirmed the imposition of Rule 11 sanctions. Danik, Inc. v. Hartmarx Corp., 277 U. S. App. D. C. 333, 875 F. 2d 890 (1989). Three aspects of its decision are at issue here.
First, the Court of Appeals rejected petitioner’s argument that Danik’s voluntary dismissal of the antitrust complaint divested the District Court of jurisdiction to rule upon the Rule 11 motion. After reviewing the decisions of other Circuits considering the issue, the Court of Appeals concluded that “the policies behind Rule 11 do not permit a party to escape its sanction by merely dismissing an unfounded case.” Id., at 337, 875 F. 2d, at 894. The court reasoned that because Rule 11 sanctions served to punish and deter, they secured the proper functioning of the legal system “independent of the burdened party’s interest in recovering its expenses.” Id., at 338, 875 F. 2d, at 895. Accordingly, the court held that such sanctions must “be available in appropriate circumstances notwithstanding a private party’s effort to cut its losses and run out of court, using Rule 41 as an emergency exit.” Ibid.
Second, the Court of Appeals affirmed the District Court’s determination that petitioner had violated Rule 11. Petitioner’s arguments failed to “cal[l] into doubt” the two fatal deficiencies identified by the District Court. Rather, petitioner’s “account of [its] efforts d[id] no more than confirm these shortcomings.” Ibid.
Third, the Court of Appeals considered respondents’ claim that petitioner should also pay the expenses respondents incurred in defending its Rule 11 award on appeal. Relying on Westmoreland v. CBS, Inc., 248 U. S. App. D. C. 255, 770 F. 2d 1168 (1985), the Court of Appeals held that an appellant that successfully defends a Rule 11 award is entitled to recover its attorney’s fees on appeal and remanded the case to the District Court to determine the amount of reasonable attorney’s fees and to enter an appropriate award.
II
The Rules Enabling Act, 28 U. S. C. § 2072, authorizes the Court to “prescribe general rules of practice and procedure and rules of evidence for cases in the United States district courts (including proceedings before Magistrates thereof) and courts of appeals.” The Court has no authority to enact rules that “abridge, enlarge or modify any substantive right.” Ibid. Pursuant to this authority, the Court promulgated the Federal Rules of Civil Procedure to “govern the procedure in the United States district courts in all suits of a civil nature.” Fed. Rule Civ. Proc. 1. We therefore interpret Rule 11 according to its plain meaning, see Pavelic & LeFlore v. Marvel Entertainment Group, 493 U. S. 120, 123 (1989), in light of the scope of the congressional authorization.
Rule 11 provides, in full:
“Every pleading, motion, and other paper of a party represented by an attorney shall be signed by at least one attorney of record in the attorney’s individual name, whose address shall be stated. A party who is not represented by an attorney shall sign the party’s pleading, motion, or other paper and state the party’s address. Except when otherwise specifically provided by rule or statute, pleadings need not be verified or accompanied by affidavit. The rule in equity that the averments of an answer under oath must be overcome by the testimony of two witnesses or of one witness sustained by corroborating circumstances is abolished. The signature of an attorney or party constitutes a certificate by the signer that the signer has read the pleading, motion, or other paper; that to the best of the signer’s knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. If a pleading, motion, or other paper is not signed, it shall be stricken unless it is signed promptly after the omission is called to the attention of the pleader or movant. If a pleading, motion, or other paper is signed in violation of this rule, the court, upon motion or upon its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion, or other paper, including a reasonable attorney’s fee.”
An interpretation of the current Rule 11 must be guided, in part, by an understanding of the deficiencies in the original version of Rule 11 that led to its revision. The 1938 version of Rule 11 required an attorney to certify by signing the pleading “that to the best of his knowledge, information, and belief there is good ground to support [the pleading]; and that it is not interposed for delay . . . or is signed with intent to defeat the purpose of this rule.” 28 U. S. C., pp. 2616-2617 (1940 ed.). An attorney who willfully violated the rule could be “subjected to appropriate disciplinary action.” Ibid. Moreover, the pleading could “be stricken as sham and false and the action [could] proceed as though the pleading had not been served.” Ibid. In operation, the Rule did not have the deterrent effect expected by its drafters. See Advisory Committee Note on Rule 11, 28 U. S. C. App., pp. 575-576. The Advisory Committee identified two problems with the old Rule. First, the Rule engendered confusion regarding when a pleading should be struck, what standard of conduct would make an attorney liable to sanctions, and what sanctions were available. Second, courts were reluctant to impose disciplinary measures on attorneys, see ibid., and attorneys were slow to invoke the Rule. Vairo, Rule 11: A Critical Analysis, 118 F. R. D. 189, 191 (1988).
To ameliorate these problems, and in response to concerns that abusive litigation practices abounded in the federal courts, the Rule was amended in 1983. See Schwarzer, Sanctions Under the New Federal Rule 11—A Closer Look, 104 F. R. D. 181 (1985). It is now clear that the central purpose of Rule 11 is to deter baseless filings in district court and thus, consistent with the Rules Enabling Act’s grant of authority, streamline the administration and procedure of the federal courts. See Advisory Committee Note on Rule 11, 28 U. S. C. App., p. 576. Rule 11 imposes a duty on attorneys to certify that they have conducted a reasonable inquiry and have determined that any papers filed with the court are well grounded in fact, legally tenable, and “not interposed for any improper purpose.” An attorney who signs the paper without such a substantiated belief “shall” be penalized by “an appropriate sanction.” Such a sanction may, but need not, include payment of the other parties’ expenses. See ibid. Although the Rule must be read in light of concerns that it will spawn satellite litigation and chill vigorous advocacy, ibid., any interpretation must give effect to the Rule’s central goal of deterrence.
III
We first address the question whether petitioner’s dismissal of its antitrust complaint pursuant to Rule 41(a)(1)(i) deprived the District Court of the jurisdiction to award attorney’s fees. Rule 41(a)(1) states:
“(1) By Plaintiff; by Stipulation. Subject to the provisions of Rule 23(e), of Rule 66, and of any statute of the United States, an action may be dismissed by the plaintiff without order of court (i) by filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment, whichever first occurs, or (ii) by filing a stipulation of dismissal signed by all parties who have appeared in the action. Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is without prejudice, except that a notice of dismissal operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in any court of the United States or of any state an action based on or including the same claim.”
Rule 41(a)(1) permits a plaintiff to dismiss an action without prejudice only when he files a notice of dismissal before the defendant files an answer or motion for summary judgment and only if the plaintiff has never previously dismissed an action “based on or including the same claim.” Once the defendant has filed a summary judgment motion or answer, the plaintiff may dismiss the action only by stipulation, Rule 41(a)(1)(h), or by order of the court, “upon such terms and conditions as the court deems proper,” Rule 41(a)(2). If the plaintiff invokes Rule 41(a)(1) a second time for an “action based on or including the same claim,” the action must be dismissed with prejudice.
Petitioner contends that filing a notice of voluntary dismissal pursuant to this Rule automatically deprives a court of jurisdiction over the action, rendering the court powerless to impose sanctions thereafter. Of the Courts of Appeals to consider this issue, only the Court of Appeals for the Second Circuit has held that a voluntary dismissal acts as a jurisdictional bar to further Rule 11 proceedings. See Johnson Chemical Co. v. Home Care Products, Inc., 823 F. 2d 28, 31 (1987).
The view more consistent with Rule 11’s language and purposes, and the one supported by the weight of Circuit authority, is that district courts may enforce Rule 11 even after the plaintiff has filed a notice of dismissal under Rule 41(a)(1). See Szabo Food Service, Inc. v. Canteen Corp., 823 F. 2d 1073, 1076-1079 (CA7 1987), cert. dism’d, 485 U. S. 901 (1988); Greenberg v. Sala, 822 F. 2d 882, 885 (CA9 1987); Muthig v. Brant Point Nantucket, Inc., 838 F. 2d 600, 603-604 (CA1 1988). The district court’s jurisdiction, invoked by the filing of the underlying complaint, supports consideration of both the merits of the action and the motion for Rule 11 sanctions arising from that filing. As the “violation of Rule 11 is complete when the paper is filed,” Szabo Food Service, Inc., supra, at 1077, a voluntary dismissal does not expunge the Rule 11 violation. In order to comply with Rule ll’s requirement that a court “shall” impose sanctions “[i]f a pleading, motion, or other paper is signed in violation of this rule,” a court must have the authority to consider whether there has been a violation of the signing requirement regardless of the dismissal of the underlying action. In our view, nothing in the language of Rule 41(a)(1)(i), Rule 11, or other statute or Federal Rule terminates a district court’s authority to impose sanctions after such a dismissal.
It is well established that a federal court may consider collateral issues after an action is no longer pending. For example, district courts may award costs after an action is dismissed for want of jurisdiction. See 28 U. S. C. § 1919. This Court has indicated that motions for costs or attorney’s fees are “independent proceeding[s] supplemental to the original proceeding and not a request for a modification of the original decree.” Sprague v. Ticonic National Bank, 307 U. S. 161, 170 (1939). Thus, even “years after the entry of a judgment on the merits” a federal court could consider an award of counsel fees. White v. New Hampshire Dept. of Employment Security, 455 U. S. 445, 451, n. 13 (1982). A criminal contempt charge is likewise “'a separate and independent proceeding at law’” that is not part of the original action. Bray v. United States, 423 U. S. 73, 75 (1975), quoting Gompers v. Bucks Stove & Range Co., 221 U. S. 418, 445 (1911). A court may make an adjudication of contempt and impose a contempt sanction even after the action in which the contempt arose has been terminated. See United States v. Mine Workers, 330 U. S. 258, 294 (1947) (“Violations of an order are punishable as criminal contempt even though . . . the basic action has become moot”); Gompers v. Bucks Stove & Range Co., supra, at 451 (when main case was settled, action became moot, “of course without prejudice to the power and right of the court to punish for contempt by proper proceedings”). Like the imposition of costs, attorney’s fees, and contempt sanctions, the imposition of a Rule 11 sanction is not a judgment on the merits of an action. Rather, it requires the determination of a collateral issue: whether the attorney has abused the judicial process, and, if so, what sanction would be appropriate. Such a determination may be made after the principal suit has been terminated.
Because a Rule 11 sanction does not signify a district court’s assessment of the legal merits of the complaint, the imposition of such a sanction after a voluntary dismissal does not deprive the plaintiff of his right under Rule 41(a)(1) to dismiss an action without prejudice. “[Dismissal . . . without prejudice” is a dismissal that does not “operat[e] as an adjudication upon the merits,” Rule 41(a)(1), and thus does not have a res judicata effect. Even if a district court indicated that a complaint was not legally tenable or factually well founded for Rule 11 purposes, the resulting Rule 11 sanction would nevertheless not preclude the refiling of a complaint. Indeed, even if the Rule 11 sanction imposed by the court were a prohibition against refiling the complaint (assuming that would be an “appropriate sanction” for Rule 11 purposes), the preclusion of refiling would be neither a consequence of the dismissal (which was without prejudice) nor a “term or condition” placed upon the dismissal (which was unconditional), see Rule 41(a)(2).
The foregoing interpretation is consistent with the policy and purpose of Rule 41(a)(1), which was designed to limit a plaintiff’s ability to dismiss an action. Prior to the promulgation of the Federal Rules, liberal state and federal procedural rules often allowed dismissals or nonsuits as a matter of right until the entry of the verdict, see, e. g., N. C. Code § 1-224 (1943), or judgment, see, e. g., La. Code Prac. Ann., Art. 491 (1942). See generally Note, The Right of a Plaintiff to Take a Voluntary Nonsuit or to Dismiss His Action Without Prejudice, 37 Va. L. Rev. 969 (1951). Rule 41(a)(1) was designed to curb abuses of these nonsuit rules. See 2 American Bar Association, Proceedings of the Institute on Federal Rules, Cleveland, Ohio, 350 (1938) (Rule 41(a)(1) was intended to eliminate “the annoying of a defendant by being summoned into court in successive actions and then, if no settlement is arrived at, requiring him to permit the action to be dismissed and another one commenced at leisure”) (remarks of Judge George Donworth, member of the Advisory Committee on Rules of Civil Procedure); id., at 309; see also 9 C. Wright & A. Miller, Federal Practice and Procedure § 2363, p. 152 (1971). Where state statutes and common law gave plaintiffs expansive control over their suits Rule 41(a)(1) preserved a narrow slice: It allowed a plaintiff to dismiss an action without the permission of the adverse party or the court only during the brief period before the defendant had made a significant commitment of time and money. Rule 41(a)(1) was not designed to give a plaintiff any benefit other than the right to take one such dismissal without prejudice.
Both Rule 41(a)(1) and Rule 11 are aimed at curbing abuses of the judicial system, and thus their policies, like their language, are completely compatible. Rule 41(a)(1) limits a litigant’s power to dismiss actions, but allows one dismissal without prejudice. Rule 41(a)(1) does not codify any policy that the plaintiff’s right to one free dismissal also secures the right to file baseless papers. The filing of complaints, papers, or other motions without taking the necessary care in their preparation is a separate abuse of the judicial system, subject to separate sanction. As noted above, a voluntary dismissal does not eliminate the Rule 11 violation. Baseless filing puts the machinery of justice in motion, burdening courts and individuals alike with needless expense and delay. Even if the careless litigant quickly dismisses the action, the harm triggering Rule 11’s concerns has already occurred. Therefore, a litigant who violates Rule 11 merits sanctions even after a dismissal. Moreover, the imposition of such sanctions on abusive litigants is useful to deter such misconduct. If a litigant could purge his violation of Rule 11 merely by taking a dismissal, he would lose all incentive to “stop, think and investigate more carefully before serving and filing papers.” Amendments to Federal Rules of Civil Procedure, 97 F. R. D. 165, 192 (1983) (Letter from Judge Walter Mansfield, Chairman, Advisory Committee on Civil Rules) (Mar. 9, 1982).
We conclude that petitioner’s voluntary dismissal did not divest the District Court of jurisdiction to consider respondents’ Rule 11 motion. Although Rule 11 does not establish a deadline for the imposition of sanctions, the Advisory Committee did not contemplate that there would be a lengthy delay prior to their imposition, such as occurred in this case. Rather, “it is anticipated that in the case of pleadings the sanctions issue under Rule 11 normally will be determined at the end of the litigation, and in the case of motions at the time when the motion is decided or shortly thereafter.” Advisory Committee Note on Rule 11, 28 U. S. C. App., p. 576. District courts may, of course, “adopt local rules establishing timeliness standards,” White v. New Hampshire Dept. of Employment Security, 455 U. S., at 454, for filing and deciding Rule 11 motions.
IV
Petitioner further contends that the Court of Appeals did not apply a sufficiently rigorous standard in reviewing the District Court’s imposition of Rule 11 sanctions. Determining whether an attorney has violated Rule 11 involves a consideration of three types of issues. The court must consider factual, questions regarding the nature of the attorney’s prefiling inquiry and the factual basis of the pleading or other paper. Legal issues are raised in considering whether a pleading is “warranted by existing law or a good faith argument” for changing the law and whether the attorney’s conduct violated Rule 11. Finally, the district court must exercise its discretion to tailor an “appropriate sanction.”
The Court of Appeals in this case did not specify the applicable standard of review. There is, however, precedent in the District of Columbia Circuit for applying an abuse-of-discretion standard to the determination whether a filing had an insufficient factual basis or was interposed for an improper purpose, but reviewing de novo the question whether a pleading or motion is legally sufficient. See, e. g., International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America (Airline Div.) v. Association of Flight Attendants, 274 U. S. App. D. C. 370, 373, 864 F. 2d 173, 176 (1988); Westmoreland v. CBS, Inc., 248 U. S. App. D. C., at 261, 770 F. 2d, at 1174-1175. Petitioner contends that the Court of Appeals for the Ninth Circuit has adopted the appropriate approach. That Circuit reviews findings of historical fact under the clearly erroneous standard, the determination that counsel violated Rule 11 under a de novo standard, and the choice of sanction under an abuse-of-discretion standard. See Zaldivar v. Los Angeles, 780 F. 2d 823, 828 (1986). The majority of Circuits follow neither approach; rather, they apply a deferential standard to all issues raised by a Rule 11 violation. See Kale v. Combined Ins. Co. of America, 861 F. 2d 746, 757-758 (CA1 1988); Teamsters Local Union No. 430 v. Cement Express, Inc., 841 F. 2d 66, 68 (CA3), cert. denied, 488 U. S. 848 (1988); Stevens v. Lawyers Mutual Liability Ins. Co. of North Carolina, 789 F. 2d 1056, 1060 (CA4 1986); Thomas v. Capital Security Services, Inc., 836 F. 2d 866, 872 (CA5 1988) (en banc); Century Products, Inc. v. Sutter, 837 F. 2d 247, 250 (CA6 1988); Mars Steel Corp. v. Continental Bank N. A., 880 F. 2d 928, 933 (CA7 1989); Adamson v. Bowen, 855 F. 2d 668, 673 (CA10 1988).
Although the Courts of Appeals use different verbal formulas to characterize their standards of review, the scope of actual disagreement is narrow. No dispute exists that the appellate courts should review the district court’s selection of a sanction under a deferential standard. In directing the district court to impose an “appropriate” sanction, Rule 11 itself indicates that the district court is empowered to exercise its discretion. See also Advisory Committee Note on Rule 11, 28 U. S. C. App., p. 576 (suggesting that a district court “has discretion to tailor sanctions to the particular facts of the case, with which it should be well acquainted”).
The Circuits also agree that, in the absence of any language to the contrary in Rule 11, courts should adhere to their usual practice of reviewing the district court’s findings of fact under a deferential standard. See Fed. Rule Civ. Proc. 52(a) (“Findings of fact. . . shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses”). In practice, the “clearly erroneous” standard requires the appellate court to uphold any district court determination that falls within a broad range of permissible conclusions. See, e. g., Anderson v. Bessemer City, 470 U. S. 564, 573-574 (1985) (“If the district court’s account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous”); Inwood Laboratories, Inc. v. Ives Laboratories, Inc., 456 U. S. 844, 857-858 (1982). When an appellate court reviews a district court’s factual findings, the abuse-of-discretion and clearly erroneous standards are indistinguishable: A court of appeals would be justified in concluding that a district court had abused its discretion in making a factual finding only if the finding were clearly erroneous.
The scope of disagreement over the appropriate standard of review can thus be confined to a narrow issue: whether the court of appeals must defer to the district court’s legal conclusions in Rule 11 proceedings. A number of factors have led the majority of Circuits, see supra, at 399-400, as well as a number of commentators, see, e. g., C. Shaffer & P. Sandler, Sanctions: Rule 11 and Other Powers 14-15 (2d ed. 1988) (hereinafter Shaffer & Sandler); American Judicature Society, Rule 11 in Transition, The Report of the Third Circuit Task Force on Federal Rule of Civil Procedure 11, pp. 45-49 (Burbank, reporter 1989), to conclude that appellate courts should review all aspects of a district court’s imposition of Rule 11 sanctions under a deferential standard.
The Court has long noted the difficulty of distinguishing between legal and factual issues. See Pullman-Standard v. Swint, 456 U. S. 273, 288 (1982) (“Rule 52(a) does not furnish particular guidance with respect to distinguishing law from fact. Nor do we yet know of any other rule or principle that will unerringly distinguish a factual finding from a legal conclusion”). Making such distinctions is particularly difficult in the Rule 11 context. Rather than mandating an inquiry into purely legal questions, such as whether the attorney’s legal argument was correct, the Rule requires a court to consider issues rooted in factual determinations. For example, to determine whether an attorney’s prefiling inquiry was reasonable, a court must consider all the circumstances of a case. An inquiry that is unreasonable when an attorney has months to prepare a complaint may be reasonable when he has only a few days before the statute of limitations runs. In considering whether a complaint was supported by fact and law “to the best of the signer’s knowledge, information, and belief,” a court must make some assessment of the signer’s credibility. Issues involving credibility are normally considered factual matters. See Fed. Rule Civ. Proc. 52; see also United States v. Oregon State Medical Society, 343 U. S. 326, 332 (1952). The considerations involved in the Rule 11 context are similar to those involved in determining negligence, which is generally reviewed deferentially. See Mars Steel Corp. v. Continental Bank N. A., supra, at 932; see also 9 C. Wright & A. Miller, Federal Practice and Procedure § 2590 (1971); McAllister v. United States, 348 U. S. 19, 20-22 (1954) (holding that the District Court’s findings of negligence were not clearly erroneous). Familiar with the issues and litigants, the
Question: What is the ideological direction of the decision?
A. Conservative
B. Liberal
C. Unspecifiable
Answer:
|
songer_respond2_7_5
|
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 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).
Harry LEVEY and Leona Levey, Plaintiffs-Appellees v. FIRST VIRGINIA BANK, Defendant-Appellant, and Arthur Rupley, IV, Defendant.
No. 87-1546.
United States Court of Appeals, Fourth Circuit.
Argued Feb. 3, 1988.
Decided April 25, 1988.
Robert Louis Deichmeister (Fagelson, Schonberger, Payne & Arthur on brief), for defendant-appellant.
Charles M. Rust-Tierney (Philip J. Hirschkop, Bernard J. DiMuro, Hirschkop & Associates on brief), for plaintiffs-appel-lees.
Before HALL and ERVIN, Circuit Judges, and BUTZNER, Senior Circuit Judge.
ERVIN, Circuit Judge:
The Levey’s, judgment creditors of Arthur Rupley, IV, sought to satisfy their judgment by attacking a spendthrift trust set up for Rupley by his grandmother. The district court ruled that the corpus of the trust is protected against Rupley’s creditors; however, the income from the trust is not so protected. The Trustee appeals the decision as it pertains to the income. Finding no error below, we affirm.
I.
Arthur Rupley, IV, borrowed and refused to pay $50,000.00 from Harry and Leona Levey in 1981. Understandably concerned, the Leveys filed suit and obtained judgment in the Circuit Court of Fairfax County against him for the principal amount owed, consequential damages, interest and attorneys fees. Feeling frustrated in their attempts to find some asset upon which to satisfy their judgment, the Leveys attacked a trust created for Rupley.
Rupley is the sole beneficiary of a trust created on April 6, 1979, by Mildred G. Rupley, his grandmother. The Trustee of the trust is First Virginia Bank, appellant herein. The trust agreement contains separate provisions relating to the income generated by the trust and the corpus of the trust. As to the income, Article 3(a) of the agreement provides: “Until grantor’s grandson shall attain 40 years of age, the trust shall pay to or apply for the benefit of Grantor’s grandson in quarterly or more frequent installments, all of the net income arising from said trust.” Jt.App. at 16. Article 3(b) restricts the payment of the principal of the trust as follows: “Until Grantor’s grandson attains the age of 40, the trustee shall pay to or expend for the benefit of Grantor’s grandson so much of the principal hereof as the trustee, in its sole discretion, shall deem necessary for the support, maintenance, general welfare and education of the Grantor’s grandson.” Id. Based on this language, the district court split the income from the corpus, and ruled that the income is vulnerable to creditors. Upon review, we can find no error in this decision.
II.
Spendthrift trusts are permitted in Virginia under section 55-19 of the Virginia Code. That provision reads in pertinent part:
§ 55-19. Estates in trust subject to debts of beneficiaries; exception for spendthrift trust.
Estates of every kind holden or possessed in trust shall be subject to the debts and charges of the persons to whose use or to whose benefit they are holden or possessed, as they would be if those persons owned the like interest in the things holden or possessed as in the uses of trusts thereof; but any such estate, not exceeding $500,000.00 in actual value may be holden or possessed in trust upon condition that the corpus thereof and income therefrom, or either of them, shall be applied by the trustee to the support and maintenance of the beneficiaries without being subject to their liabilities or the alienation by them, but no such trust shall operate to the prejudice of any existing creditor of the creator of such trust.
The statutory language protects the corpus of a spendthrift trust, the income of a trust, or both, from the beneficiaries’ creditors only if the monies of the trust are to be used for the support and maintenance of the beneficiary. Alderman v. Virginia Trust Co., 181 Va. 497, 25 S.E.2d 333, 340 (1943).
It is clear from a reading of the trust agreement involved in this case that the income monies are not disbursed only for the support and maintenance of Rupley. Rather, the income is to be paid to him without any exercise of discretion on the part of the bank as Trustee: “[T]he trust shall pay ... all of the net income” to Rupley. In this regard, the cases cited by the bank for the proposition that the trust is protected as a spendthrift trust are distinguishable. Each of the cases cited by the bank holds that for an entire trust to be invulnerable to creditors, both the income and the corpus of the trust can be paid to the beneficiary only for support and maintenance. Alderman, 25 S.E.2d at 342; Sheridan v. Krause, 161 Va. 873, 172 S.E. 508 (1934); Rountree v. Lane, 155 F.2d 471 (4th Cir.1946); and In re Hersch, 57 B.R. 667 (Bkrtcy.E.D.Va.1986). In this case, the income of the trust is unprotected.
The bank argues that language apart from that found in Article 3 sections (a) and (b) supplies the missing language that the income is to be used for Rupley’s support and maintenance. The bank refers us to the language found in Article 3(f):
“To the full extent allowed by law, any principal or income payable by the trustee under this agreement shall not be pledged, mortgaged, hypothecated, assigned, transferred or sold or in any manner whatsoever accelerated nor shall any principal or income in any manner be subject to or liable in the hands of the trustee for the debts, contracts, obligations, liabilities, or engagements of any beneficiary or be subject to any assignment, or any other voluntary or involuntary alienation or disposition.
Jt.App. at 17. This language from Article 3(f) does not evidence an intent by the settlor to make the income payable to Rupley only as his support and maintenance needs require; rather, it speaks to the ability of Rupley to alienate the principal or income from the trust. Under Virginia law, a spendthrift trust has three defining characteristics: First, the trust must provide for the support and maintenance of its beneficiary; second, the settlor must intend to protect the trust from the beneficiary’s creditors; and third, the settlor must intend to prevent the beneficiary’s voluntary or involuntary alienation of trust property. In re Hersch, 57 B.R. at 668-69. Article 3(f) speaks to the third requirement of a spendthrift trust, not the first. As such, we conclude that the income of the trust is not limited to the support and maintenance of Rupley and is therefore unprotected as against creditors like the Leveys.
The statute and the case law from Virginia contemplate that either or both the income and the corpus of a trust can be denominated “spendthrift” if all requisite elements are present. In this case the corpus is so protected, the income is not. The district court correctly ruled that the income from the trust is subject to the judgment creditors’ claim.
AFFIRMED.
. Because we resolve the case favorably toward the Leveys, we need not address their further argument that the Trustee is equitably estopped from denying their claim.
Question: This question concerns the second listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Which of these categories best describes the income of the litigant?
A. not ascertained
B. poor + wards of state
C. presumed poor
D. presumed wealthy
E. clear indication of wealth in opinion
F. other - above poverty line but not clearly wealthy
Answer:
|
songer_casetyp2_geniss
|
G
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
There are two main issues in this case. The first issue is economic activity and regulation - property disputes - disputes over real property (private). Your task is to determine the second issue in the case. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous".
McALLISTER et al. v. SLOAN.
No. 10305.
Circuit Court of Appeals, Eighth Circuit
Feb. 13, 1936.
Harry Campbell, of Tulsa, Old. (A. J. Biddison, V. Biddison, and Harry Campbell, Jr., all of Tulsa, Old., on the brief), for appellants.
M. A. Breckinridge, of Tulsa, Okl. (Vincent M. Miles, Fred S. Armstrong, and Robert A. Young, Jr., all of Fort Smith, Ark., on the brief), for appellee.
Before STONE, SANBORN, and BOOTH, Circuit Judges.
Rehearing denied March 23, 1936.
SANBORN, Circuit Judge.
This was an action at law brought by Mr. and Mrs. McAllister against J. W. Sloan to recover damages to' land alleged to have been caused by the building, by the defendant, of a dam in the Illinois river, a nonnavigable stream which runs from Arkansas into Oklahoma.
In substance, the complaint alleged that the McAllisters owned land on the banks of the stream, which they.used as a summer camp for girls 9,nd which was valuable and desirable for that purpose, having a fine beach upon a natural pool of clear water suitable for 'boating, bathing, and other water sports; that they had spent large sums of money improving their land and the adjacent river bank; that the defendant Sloan built a dam in the river below their land, raised the water seven feet above its n&tural level, flooded the bathing beach and a portion of the land, and made the land and the river unsightly, unattractive, and unfit for the purposes for which the land was used and useful; that the defendant had never obtained a permit to build the dam from any court; that the land was worth $35,000 before it was flooded, and $5,000 after it was flooded. They prayed for double damages.
The defendant first moved, unsuccessfully, to make the complaint more definite and certain and to strike portions of it. He then demurred. His demurrer was overruled. He then answered, denying all of the allegations of the complaint, and alleging that the dam was built by the Illinois Water Development Company, an Oklahoma corporation, upon lands in Oklahoma, pursuant to a permit from the Oklahoma Conservation Commission, and that his only participation in the project was as an officer of that company.
After the answer was filed, the plaintiffs asked leave to file an amended complaint omitting the allegation that Sloan had no permit from any court and asserting that in 1926 he had caused the incorporation of the Illinois Water Development Company with a capital stock of $1,000, 98 per cent, of which was issued to Sloan; that during 1930, when the dam was built, that company was insolvent; that Sloan, acting either for himself or as president of the company, had full charge and control of the building of the dam. The court refused leave to file the amended complaint.
The case was called for trial. Mrs. McAllister having died, the administrator of her estate was substituted for her. A jury was impaneled. Counsel for the plaintiffs made his opening statement. In substance, he stated to the jury that he would prove the same facts which were alleged in the complaint. He made no reference, however, to the lack of a permit from any court to erect the dam, and said that he would show that the dam was built on land in Oklahoma, the title to which was in the name of the Illinois Water Development Company; and that J. W. Sloan owned virtually the entire capital stock of that company,-and was its president and in full control of it; that he supervised the building of the dam and actively participated in building it. Upon the completion of this opening statement, the defendant moved the court “for a directed verdict on the allegations of the petition and the opening statement of counsel.” The court announced that counsel for the plaintiffs had failed “to state a state of facts which the court thinks would entitle him to recover under his complaint,” and directed a verdict for the defendant, upon which the judgment appealed from was entered.
The plaintiffs assign as error (1) the refusal by the court of leave to file the amended complaint; (2) the granting of the motion for a directed verdict.
The federal statute covering amendments to pleadings (U.S.C., tit. 28, § 777; 28 U.S.C.A. § 777) is liberally construed. Woodard v. Outland (C.C.A.8) 37 F.(2d) 87, 89. The practice of the federal courts is to permit amendments in all judicial proceedings where they are necessary to enable parties to reach the merits of the controversy they attempt to present, and where the allowance of the amendments will work no injustice. In re Plymouth Cordage Co. et al. (C.C.A.) 135 F. 1000, 1003; .Woodard v. Outland, supra, 37 F. (2d) 87, 89. Amendments to pleadings are freely allowed where they are in furtherance of justice. The. propriety of such amendments is a matter of discretion with the trial court, and its determination will not be disturbed unless it appears that its discretion has been unwisely exercised and that its action was not, under the circumstances, in furtherance of, but a detriment to, justice. Schulenberg v. Norton (C.C. A.8) 49 F.(2d) 578, 579. Amendments maybe made at any time while the court has jurisdiction, even after judgment; and upon appeal the appellate court may regard a pleading as having been amended to conform to the proof. Schulenberg v. Norton, supra, 49 F.(2d) 578, at page 579. An amendment which makes no change in the facts relied upon for recovery, but which merely alters the remedy or result of the facts alleged, states no different cause of action and is proper. Schulenberg v. Norton, supra, 49 F.(2d) 578, at page 579; Missouri, Kansas & Texas Ry. Co. v. Wulf, 226 U.S. 570, 33 S.Ct. 135, 57 L.Ed. 355; New York Central & Hudson River R. Co. v. Kinney, 260 U.S. 340, 43 S.Ct. 122, 67 L.Ed. 294; Manhattan Oil Co. et al. v. Mosby (C.C.A.8) 72 F.(2d) 840, 843.
Apparently the court below, in denying leave to amend and in disposing of the case upon the trial, proceeded upon the theory that the plaintiffs were seeking to depart from the cause of action stated in the complaint and to set up and prove a different, distinct, and inconsistent cause of action. Since they alleged the lack of the permit to build a dam and asked for double damages, it is claimed that they had declared under the mill dam statutes of Arkansas (Crawford & Moses’ Dig.1921, §§ 3943-3967) — which give the right to build dams in nonnavigable streams with permission from county courts, but make the person building such a dam liable for double damages if he has no permit — and that they could not, under their complaint, treat their cause of action as one arising in tort under the common law. When it appeared from the opening statement of counsel that the dam was built in Oklahoma, and it then became apparent to the court below that no recovery could be had( under the statutes of the state of Arkansas relating to dams built in the streams of that state, the court directed a verdict for the defendant.
It is obvious that, unless the plaintiffs at the trial were offering to prove a different cause of action than that alleged in their complaint, the motion of the defendant for a directed verdict should have been denied.
While it is apparent that the plaintiffs, in drawing their complaint, originally had in mind that the mill dam statutes of Arkansas applied to their situation, it is equally apparent that they stated sufficient facts to make out a cause of action at common law for damages for the flooding of their lands. The defendant was fully apprised of the factual basis of their claim. The allegations of the complaint were not, in our opinion, inconsistent with the facts stated in the opening statement. The opening statement amplified what was asserted in the complaint. It was only the remedy or result of the facts alleged as originally conceived that the plaintiffs were departing from. There are several cases in the Supreme Court which clearly demonstrate that neither the amendment proposed nor the opening statement constituted a departure from the cause of action stated in the complaint.
In Missouri, Kansas & Texas Ry. Co. v. Wulf, supra, 226 U.S. 570, 33 S.Ct. 135, 57 L.Ed. 355, a mother, as sole heir, commenced a suit, under the Kansas statute, to recover damages for the death of her son. Two years after the injury, and after the statute of limitations had run, she amended her complaint and sued both as sole heir and as administratrix, and relied both on the Kansas law and the Federal Employers’ Liability Act (45 U.S.C.A. §§ 51-59). She obtained a judgment under the federal act, which was sustained by the Supreme Court, although, because' the suit was brought by her originally in her personal capacity and in terms based upon the Kansas law, it could not originally have been attributed to the federal act. The court said (226 U.S. 570, at page 576, 33 S.Ct. 135, 137, 57 L.Ed. 355) : “Nor do we think it [the amendment] was equivalent to the commencement of a new action, so as to render it subject to the two years’ limitation prescribed by section 6 of the Federal Employers’ Liability Act [45 U.S. C.A. § 56]. The change was in form rather than in substance. Stewart v. Baltimore & Ohio Railroad Co., 168 U.S. 445, 18 S.Ct. 105, 42 L.Ed. 537. It introduced no new or different cause of action, nor did it set up any differe'nt state of facts as the ground of action, and therefore it related back to the beginning of the suit.”
In New York Central & Hudson River R. Co. v. Kinney, supra, 260 U.S. 340, 43 S. Ct. 122, 67 L.Ed. 294, the original complaint set forth facts which would have given a cause of action at common law, under the statutes of New York or the' Federal Employers’ Liability Act, a.s one or another law might govern. It alleged a notice required by the New York statute, indicating that it was drawn upon the theory that that statute applied. Some seven and a half years after the action was begun, an amended complaint was filed, which alleged that the plaintiff and the defendant were engaged in interstate commerce, but which retained the allegation as to the notice required by the state statute. It was contended that the amendment introduced a new cause of action which was barred by limitations. The trial court.held that the complaint warranted a recovery under either law, as the jury should find. The Supreme Court, in affirming a judgment for the plaintiff and holding that no new cause of action was stated, said (260 U.S. 340, at page 346, 43 S.Ct. 122, 123, 67 L.Ed. 294): “Of course an argument can be made on the other side, but when a defendant has had notice from the beginning that the plaintiff sets up and is trying to enforce a claim against it because of specified conduct, the reasons for the statute of limitations do not exist, and we are of opinion that a liberal rule should be applied.”
In Seaboard Air Line Railway v. Koennecke, 239 U.S. 352, 353, 36 S.Ct. 126, 60 L.Ed. 324, the original complaint was clearly based upon the statute of South Carolina relating to death by wrongful act,- because exemplary damages were prayed for. Upon the trial, the plaintiff asked leave to amend so as to bring the case under the Federal Employers’ Liability Act. The amendment was allowed, and the plaintiff had judgment. The court said (239 U.S. 352, at page 354, 36 S.Ct. 126, 127, 60 L.Ed. 324): “The cause of action arose under a different law by the amendment, but the facts constituting the tort were the same whichever law gave them that effect.”
See, also, Seaboard Air Line Railway v. Renn, 241 U.S. 290, 293, 36 S.Ct. 567, 60 L.Ed. 1006; St. Louis, S. F. & T. Ry. Co. v. Smith, 243 U.S. 630, 37 S.Ct. 477, 61 L.Ed. 938, affirming St. Louis, S. F. & T. Ry. Co. v. Smith (Tex.Civ.App.) 171 S.W. 512; Manhattan Oil Co. et al. v. Mosby (C.C.A.8), supra, 72 F.(2d) 840, 843.
The case at bar is not one where the plaintiffs failed to state enough facts; the claim is that they stated one fact too many (lack of a permit), and asked for double damages, and hence must lose their case. The gist of their complaint was the flooding of their land. Whether it was done by a dam rightfully built or wrongfully, built is of little consequence. Whether they are to receive damages or mere compensation for their loss is not important. Compensation is the fundamental principle of damages. Miller v. Robertson, 266 U.S. 243, 257, 45 S.Ct. 73, 69 L.Ed. 265. We think that it is a situation where the defendant has had notice from the beginning that the plaintiffs set up and were trying to enforce a claim against him because of specified conduct, and we believe a liberal rule should apply.
We do not hold that the court below erred in denying leave to amend. The allegation as to lack of a permit may be regarded as surplusage. Evidence as to the extent and nature of the defendant’s participation in the building of the dam can be received under the complaint as it stands. A trial court has discretion to amend the pleadings upon the trial to conform to the proof if that is necessary. H. F. Wilcox Oil & Gas Co. v. Skidmore (C.C.A.8) 72 F. (2d) 748, 752.
It was error to grant the motion for a directed verdict. Whether a verdict could ever be directed upon the opening statement of counsel on the ground that the cause of action stated differed from that alleged in the complaint, we need not determine. The practice is certainly unusual. If no opening statement had been made, and if counsel for the plaintiffs had attempted to introduce evidence which was inadmissible because not within the issues, and which was ruled out on that ground, and thus had failed to prove his case, the penalty would have been that imposed by the practice of Arkansas for failure of a plaintiff to establish •a cause of action— whether a dismissal without prejtidice or one with prejudice, we do not now stop to inquire.
In Hanna et al. v. Brictson Mfg. Co. et al. (C.C.A.8) 62 F.(2d) 139, 144, this court said: “It is the duty of the courts to dispose of controversies after trial and upon their merits whenever possible. The modern tendency of both the bench and the bar is to brush aside technicalities and to bring about a disposition of suits, not upon some technical rule of pleading and practice incomprehensible to the lay mind, but upon the evidence and in accordance with the law.”
In Bedford v. J. Henry Miller, Inc., 212 F. 368, 370, the Circuit Court of Appeals of the Fourth Circuit said: “When a party gets his cause of action, or his defense, or his appeal, before a court of competent jurisdiction, he should not be turned out before trial of the merits of the controversy, except in obedience to a clear statutory mandate, or on a showing of gross carelessness or bad faith. The absolute dismissal of a plea or an appeal, for error in a matter of mere procedure, is in reality the infliction of the severest penalty for a minor fault, and is suggestive of the excessive punishments formerly inflicted for minor offenses in the administration of the criminal law. Conformity to rules of procedure is important, but usually it may be secured by imposing as a condition of amendment the payment of costs or other penalty, short of dismissal, on the party or his counsel, as circumstances may require, for negligence or inadvertence.” See, also, Nash v. Towne, 5 Wall. 689, 698, 18 L.Ed. 527; Washington & Georgetown R. Co. v. Hickey, 166 U.S. 521, 531, 532, 17 S.Ct. 661, 41 L.Ed. 1101; Berger v. United States, 295 U.S. 78, 83, 55 S.Ct. 629, 79 L.Ed. 1314.
The judgment is reversed, and the case remanded, with directions to grant the plaintiffs a new trial.
Question: What is the second general issue in the case, other than economic activity and regulation - property disputes - disputes over real property (private)?
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_sentence
|
E
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What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court conclude that some penalty, excluding the death penalty, was improperly imposed?" 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".
HOOD, Commissioner of Banks of North Carolina, ex rel. NORTH CAROLINA BANK & TRUST CO. v. BELL. RECONSTRUCTION FINANCE CORPORATION v. SAME.
No. 4029.
Circuit Court of Appeals, Fourth Circuit.
June 8, 1936.
Oscar Leach, of Raleigh, N. C. (Smith, Leach & Anderson, of Raleigh, N. C., on the brief), for appellant.
J. M. Broughton and Clyde A. Douglass, both of Raleigh, N. C., for appellee.
Before PARKER, NORTHCOTT, and SOPER, Circuit Judges.
PARKER, Circuit Judge.
This action was instituted in the court below by the Reconstruction Finance Corporation against the defendant, Carl W. Bell, to recover on certain promissory notes aggregating $24,300. These notes had been executed by Bell to the North Carolina Bank & Trust Company and had been indorsed and transferred by-it to the Reconstruction Finance Corporation, which held them as collateral security at the time of the institution of the action. While the action was pending, the indebtedness of the North Carolina Bank & Trust Company to the Reconstruction Finance Corporation was paid in full; and the notes were thereupon transferred and delivered to Gurney P. Hood, commissioner of banks of the state of North Carolina, who had succeeded by operation of law to the rights and assets of the North Carolina Bank & Trust Company, which in the meantime had been placed in liquidation. The defendant then filed a plea puis darrein continuance, asking the dismissal of the action on the ground that the plaintiff had no further interest in the notes; and Hood, as commissioner of banks of the state of North Carolina, filed a petition setting forth the facts and asking that he be substituted as plaintiff in the place and stead of -the Reconstruction Finance Corporation. The court below denied the motion for substitution and dismissed the action.
As the government of the United States is the owner of more than one-half the stock of the Reconstruction Finance Corporation, and as the amount in controversy is more than $3,000, exclusive of interest and costs, the suit was properly instituted in the court below. 28 U.S.C.A. § 42; Federal Intermediate Credit Bank v. Mitchell, 277 U.S. 213, 48 S.Ct. 449, 72 L.Ed. 854. And that court, having prop-erly acquired jurisdiction in the first instance, did not lose it because of a subsequent change in the conditions upon which jurisdiction was originally based. It is well settled that jurisdiction depending on diversity of citizenship is not lost by removal or change of citizenship, Morgan’s Heirs v. Morgan, 2 Wheat. 290, 297, 4 L.Ed. 242; Louisville, N. A. & C. Ry. Co. v. Louisville Trust Co., 174 U.S. 552, 19 S.Ct. 817, 822, 43 L.Ed. 1081; Wichita R. & Light Co. v. Public Utilities Comm., 260 U.S. 48, 54, 43 S.Ct. 51, 53, 67 L.Ed. 124; or by substitution of parties, Hardenbergh v. Ray, 151 U.S. 112, 14 S.Ct. 305, 38 L.Ed. 93; People of Porto Rico v. Ramos, 232 U.S. 627, 34 S.Ct. 461, 58 L.Ed. 763, or by the making of additional parties, Stewart v. Dunham, 115 U.S. 61, 64, 5 S.Ct. 1163, 1164, 29 L.Ed. 329; Phelps v. Oaks, 117 U.S. 236, 6 S.Ct. 714, 29 L.Ed. 888; Wichita R. & Light Co. v. Public Utilities Comm., supra; or by the reduction of the amount demanded below the jurisdictional amount, Cook v. United States, 2 Wall. 218, 17 L.Ed. 755; Kirby v. American Soda Fountain Co., 194 U. S. 141, 24 S.Ct. 619, 48 L.Ed. 911; Travelers’ Protective Ass’n of America v. Smith (C.C.A. 4th) 71 F.(2d) 511, 512; or by the transfer of the subject matter of the suit pendente lite to one who is a citizen of the same state as the opposite party, Hardenbergh v. Ray, 151 U.S. 112, 14 S.Ct. 305, 38 L.Ed. 93; Secombe v. Steele, 20 How. 94, 105, 107, 15 L.Ed. 833; Cross v. Evans (C.C.A. 5th) 86 F. 1, 4; Glover v. Shepperd (C.C.Wis.) 21 F. 481, 482; Jarboe v. Templer (C.C.Kan.) 38 F. 213, 217; Sternberger v. Continental Mines, Power & Reduction Co. (D.C.Colo.) 259 F. 293, 297 (but see Pittsburgh, S. & N. R. Co. v. Fiske [C.C.A. 3d] 178 F. 66). And there is no more reason to hold that the court loses jurisdiction in a case such as this than in any of the cases cited; for diversity of citizenship or the question of amount was just as vital to jurisdiction in those cases as is federal incorporation in the case at bar.
As the court had jurisdiction to proceed with the cause, therefore, the question as to whether it should have permitted substitution of parties or dismissed the action upon the facts presented by the opposing motions was a matter to be determined by the local practice under the Conformity Act. 28 U.S.C.A. § 724; Burns Mortgage Co., Inc., v. Fried, 292 U.S. 487, 492, 54 S.Ct. 813, 814, 78 L.Ed. 1380, 92 A. L.R. 1193; Atlantic & P. R. Co. v. Hopkins, 94 U.S. 11, 13, 24 L.Ed. 48; City of Greensboro v. Southern Pav. & Construction Co. (C.C.A. 4th) 168 F. 880, 884 (cert. den. 217 U.S. 602, 30 S.Ct. 693, 54 L.Ed. 898). And we think there can be no doubt but that the North Carolina statute requires that substitution of parties be permitted in 'such case and that the action be not dismissed. Section 461 of the Code provides: “1. No action abates by the death, marriage, or other disability of a party, or by the transfer of any interest therein, if the cause of action survives, or continues. In case of death, except in suits. for penalties and for damages m'erely. vindictive, or in case of marriage or other .disability of a party, the court, on' motion at any time within one year thereafter, or afterwards on a supplemental complaint, may allow the action to be continued,, by, or against, his representative or successor in interest. In case of any other ■transfer of interest, the action shall be continued in the name of the original party, or the court may allow the person to whom the transfer is made to be substituted in the action.” (Italics ours).
The use of the word “may” in the last clause of the statute was not intended, we think, to.confer on the court a discretion to dismiss the. action in the teeth of the provision ’that the. action should not abate by a transfer of interest, but merely a discretion to substitute the transferee as a party instead of continuing the action in the name of the original party. Plotkin v. Merchants’ Bank & Trust Co., 188 N.C. 711, 125 S.E. 541. The discretion thus conferred is a sound discretion to be exercised where the circumstances render it proper that the action- be prosecuted in the name of the transferee rather than in that of the original plaintiff; and one circumstance calling for the exercise of the discretion is the fact that the transferor, as in this case, has parted with all interest to the transferee, since section 446 of the Code requires that the action be prosecuted in the name of the real party in interest.
For the reasons stated, there was error in the order dismissing the action and refusing to permit the substitution of parties as prayed.
Reversed.
Question: Did the court conclude that some penalty, excluding the death penalty, was improperly imposed?
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
Answer:
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sc_issuearea
|
A
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What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states.
FISHER v. PACE, SHERIFF.
No. 45.
Argued December 9, 1948.
Decided February 7, 1949.
R. Dean Moorhead argued the cause for petitioner. With him on the brief were Dan Moody, Chas. L. Black, Everett L. Looney and Edward Clark.
Quentin Keith submitted on brief for respondent.
Mr. Justice Reed
delivered the opinion of the Court.
While participating as counsel in the trial of a cause the petitioner, Joe J. Fisher, was adjudged guilty of contempt committed in the presence of the court by the District Court of Jasper County, Texas. The petitioner’s client was the plaintiff in an action under the state workmen’s compensation law. The case was being tried before a jury and the parties had stipulated as to the average weekly wage of the claimant and the rate of compensation per week. The only remaining questions to be determined were as to the extent and duration of the incapacity resulting from an injury to the claimant’s foot. Seven special issúes, designed to furnish an answer to these problems and limited to them, were submitted to the jury.
Thereafter petitioner began his opening argument to the jury during which the following occurrence took place, as shown by the trial court’s order of contempt and commitment:
“Opening argument to Jury of Plaintiff’s Attorney, Joe J. Fisher
“Now, bear in mind, gentlemen, that this is what we call a specific injury. A general injury is an injury to the entire body. This is what is known as a specific injury, and it is confined to the left foot. We have specific injuries where you have injuries to the eye, to your hand, and to your foot; this is an injury to the foot, to the left foot; and the law states the amount of maximum compensation which a person can receive for such an injury, that is, one hundred and twenty-five weeks. That is the most compensation Anderson Godfrey could receive, would be one hundred and twenty-five weeks, because his injury is confined to his left foot. That is all we are asking. Now, that means one hundred and twenty-five weeks times the average weekly compensation rate.
“By Mr. Cox: Your Honor please—
“By the Court: Wait a minute.
“By Mr. Cox: The jury is not concerned with the computation; it has only one series of issues. That is not before the jury.
“By the Court: That has all been agreed upon.
“By Mr. Fisher: I think it is material, Your Honor, to tell the jury what the average weekly compensation is of this claimant so they can tell where he is.
“By the Court: They are not interested in dollars and cents.
“By Mr. Fisher: They are interested to this extent—
“By the Court: Don’t argue with me. Go ahead. I will give you your exception to it.
“By Mr. Fisher: Note our exception.
“By the Court: All right.
“[By Mr. Fisher:] This negro, as I stated, can only recover one hundred and twenty-five weeks compensation, at whatever compensation the rate will figure under the law.
“By Mr. Cox: I am objecting to that discussion, Your Honor, as to what the plaintiff can recover.
“By the Court: Gentlemen! Mr. Fisher, you know the rule, and I have sustained his objection.
“By Mr. Fisher: I am asking—
“By the Court: Don’t argue with me. Gentlemen, don’t give any consideration to the statement of Mr. Fisher.
“By Mr. Fisher: Note our exception. I think I have a right to explain whether it is a specific injury or general injury.
“By the Court: I will declare a mistrial if you mess with me two minutes and a half, and fine you besides.
“By Mr. Fisher: That is all right. We take exception to the conduct of the Court.
“By the Court: That is all right; I will fine you $25.00.
“By Mr. Fisher: If that will give you any satisfaction.
“By the Court: That is $50.00; that is $25.00 more. Mr. Sheriff come get it. Pay the clerk $50.00.
“By Mr. Fisher: You mean for trying to represent my client?
“By the Court: No, sir; for contempt of Court. Don’t argue with me.
“By Mr. Fisher: I am making no effort to commit contempt, but merely trying to represent the plaintiff and stating in the argument—
“By the Court: Don’t tell me. Mr. Sheriff, take him out of the courtroom. Go on out of the courtroom. I fine you three days in jail.
“By Mr. Fisher: If that will give you any satisfaction; you know you have all the advantage by you being on the bench.
“By the Court: That will be a hundred dollar fine and three days in jail. Take him out.
“By Mr. Fisher: I demand a right to state my position before the audience.
“By the Court: Don’t let him stand there. Take him out.”
The sheriff held the petitioner in custody upon the verbal order of the court until an amended order in conformity with Texas law, setting forth in full the above proceedings together with a formal commitment, was filed later the same day. Upon his application for a writ of habeas corpus from the Supreme Court of Texas to secure his release from the commitment, the judgment for contempt was upheld and the petitioner was denied any relief by that court and was remanded to the custody of the sheriff to undergo the punishment adjudged by the trial court. Ex parte Fisher, 146 Tex. 328, 206 S. W. 2d 1000. As the application alleged a denial of due process of law under the Fourteenth Amendment to the Constitution of the United States, we granted certiorari to consider its application to this conviction for contempt. 334 U. S. 827. The claimed denial of due process consists of an alleged refusal to review the facts to ascertain whether a contempt was committed and in the alternative, if the facts were reviewed, due process was denied because no facts constituting contempt appear.
Historically and rationally the inherent power of courts to punish contempts in the face of the court without further proof of facts and without aid of jury is not open to question. This attribute of courts is essential to preserve their authority and to prevent the administration of justice from falling into disrepute. Such summary conviction and punishment accords due process of law.
There must be adequate facts to support an order for contempt in the face of the court. Contrary to the contention of the petitioner the state Supreme Court evaluated the facts to decide whether there was sufficient evidence to support the judgment of the trial court and held that there was. The opinion of the Texas Supreme Court states that the court set out to review the facts “for the purpose of determining whether they constituted acts sufficient to confer jurisdiction upon the court” to enter the contempt order. In other words, the highest court of the state proposed to satisfy itself that there was substantial evidence to validate the judgment of contempt and to insure that petitioner was not “restrained of his liberty without due process of law.” After a careful analysis of the facts as disclosed by the judgment of the trial court, the conclusion was reached that the conduct of the petitioner was clearly sufficient to support the power of the court to punish summarily the contempt committed in its presence.
The judgment of the Supreme Court of Texas must be affirmed. In a case of this type the transcript of the record cannot convey to us the complete picture of the courtroom scene. It does not depict such elements of misbehavior as expression, manner of speaking, bearing, and attitude of the petitioner. Reliance must be placed upon the fairness and objectivity of the presiding judge. The occurrence must be viewed as a unit in order to appraise properly the misconduct, and the relationship of the petitioner as an officer of the court must not be lost sight of.
The state Supreme Court pointed out that its practice of submitting special issues to the jury was adopted in order to remove from the jury’s consideration the effect on the ultimate outcome of the case of their answers to questions of disputed facts. In this case, the jury might be tempted to find a long incapacity or a severe injury if they knew the amount of recovery was limited by the employee’s wage and rate of compensation. Counsel are required to confine their arguments to the evidence and must not touch upon matters withdrawn from the consideration of the jury. Yet here, petitioner, a member of the Texas bar, ignored this rule and at the outset of his address to the jury exceeded the bounds of permissible argument by trying to tell the jury the maximum compensation which their answers to the special issues would allow his client. On objection of the opposing counsel petitioner was stopped by the trial judge, but in the face of the court’s decision he persisted in trying to tell the jury the effect of their answers. He switched his explanation of the stipulated amount of recovery from the words “one hundred and twenty-five weeks times the average weekly compensation rate” to “one hundred and twenty-five weeks compensation, at whatever compensation the rate will figure under the law.” The change obviously brought before the jury information on the limitation to the amount of recovery — a factor held by the trial judge inadmissible under the special issues. In addition to this stubborn effort to bring excluded matter to the knowledge of the jury, the petitioner twice refused to heed the court’s admonition not to argue the point. As the Supreme Court said,
“It was the duty and power of the trial judge in the trial of the compensation suit to determine the type, manner and character of the argument before the jury. Of course his rulings thereon were subject to review in the appellate courts, but he has the power to make them whether right or wrong. If they are erroneous the injured party has the plain, simple and adequate remedy of appeal. It was thus the duty of counsel to abide by his decisions even if erroneous; and if any rights of his clients were violated the remedy was by exception and appeal. Any other procedure would result in mockery of our trial courts and would destroy every concept of orderly process in the administration of justice.”
This judgment of the Supreme Court turned on their understanding of Texas law and practice. We see nothing in their opinion or conclusion that indicates any disregard of petitioner’s rights. The conduct of a judge should be such as to command respect for himself as well as for his office. We cannot say, however, that mildly provocative language from the bench puts a constitutional protection around an attorney so as to allow him to show the contempt for judge and court manifested by this record, particularly the last few sentences of the altercation.
The judgment of the Supreme Court of Texas accordingly is
Affirmed.
Me. Justice Douglas, with whom Me. Justice Black concurs, dissenting.
The power to punish for contempt committed in open court was recognized long ago as a means of vindicating the dignity and authority of the court. See Ex parte Terry, 128 U. S. 289, 301-304 and cases cited. But its exercise must be narrowly confined lest it become an instrument of tyranny. Chief Justice Taft in Cooke v. United States, 267 U. S. 517, 539, warned that its exercise by a federal court is “a delicate one and care is needed to avoid arbitrary or oppressive conclusions.” The same restraint is necessary under our constitutional scheme when state courts are claiming the right to take a person by the heels and fine or imprison him for contempt without a trial or an opportunity to defend. In Bridges v. California, 314 U. S. 252; Pennekamp v. Florida, 328 U. S. 331; and Craig v. Harney, 331 U. S. 367, we narrowly restricted the power to punish summarily for constructive contempts in order to maintain freedom of press and of speech in their preferred position. Freedom of speech in the courtroom deserves the same protection.
Fisher’s conviction is sustained because it is said that he persisted in trying to tell the jury what the judge held to be improper. I do not so read the record. The judge sustained an objection to Fisher’s attempt to get the average weekly compensation of the injured person before the jury, as appears from the following colloquy:
“By Mr. Cox: The jury is not concerned with the computation; it has only one series of issues. That is not before the jury.
“By the Court: That has all been agreed upon.
“By Mr. Fisher: I think it is material, Your Honor, to tell the jury what the average weekly compensation is of this claimant so they can tell where he is.
“By the Court: They are not interested in dollars and cents.
“By Mr. Fisher: They are interested to this extent — ■
“By the Court: Don’t argue with me. Go ahead. I will give you your exception to it.
“By Mr. Fisher: Note our exception.
“By the Court: All right.”
Fisher never again tried to get the amount of weekly compensation of the injured person into the record. He abided by the ruling of the judge. What next happened was as follows:
“By Mr. Fisher: This negro, as I stated, can only recover one hundred and twenty-five weeks compensation, at whatever compensation the rate will figure under the law.
“By Mr. Cox: I am objecting to that discussion, Your Honor, as to what the plaintiff can recover.
“By the Court: Gentlemen! Mr. Fisher, you know the rule, and I have sustained his objection.
“By Mr. Fisher: I am asking—
“By the Court: Don’t argue with me. Gentlemen, don’t give any consideration to the statement of Mr. Fisher.
“By Mr. Fisher: Note our exception. I think I have a right to explain whether it is a specific injury or general injury.”
Fisher’s statement that, “This negro, as I stated, can only recover one hundred and twenty-five weeks compensation, at whatever compensation the rate will figure under the law,” did not mention the matter of “dollars and cents” that the judge held irrelevant. It was not a new attempt by Fisher to get the “average weekly compensation” before the jury. Yet the record can be read as meaning that they were the only specific matters on which the judge had ruled. As Justice Sharp, dissenting in the Texas Supreme Court, stated, “This statement does not indicate that relator was disobeying the ruling of the court, but, on the contrary, shows that he was trying to obey same.” It also means to me that he was seeking to perfect the record so as to preserve all of his points.
It is said that the statement was improper under Texas practice. But it took a ruling of the Texas Supreme Court to make it so, and even then Justice Sharp dissented. If Texas law on the point is so uncertain that the highest judges of the State disagree as to what is the permissible practice, is a lawyer to be laid by the heels for pressing the point? Yet it was for pressing the point of law on which the Supreme Court of Texas divided that Fisher was held in contempt.
It is said, however, that such elements of misbehavior as expression, manner of speaking, bearing, and attitude of Fisher may have given the words a contemptuous flavor that the cold record does not reveal. I do not think freedom of speech should be so readily sacrificed, even in a courtroom. If that were the offense, it is not too much to ask that the judge make it the ground of his ruling. Certainly the judge did not purport to fine and imprison Fisher for the manner of making the objection, for the tone of his voice, or for his facial expression. The dispute was merely over the bounds of permissible comment before a jury. Fisher having been stopped at one point tried another strategy. He was acting the role of a resourceful lawyer. The decision which penalizes him for that zeal sanctions censorship inside a courthouse where the ideals of freedom of speech should flourish.
There is for me only one fair inference from the record— that the judge picked a quarrel with this lawyer and used his high position to wreak vengeance on him. It is shown, I think, by the commencement of the critical colloquy:
“By the Court: I will declare a mistrial if you mess with me two minutes and a half, and fine you besides.
“By Mr. Fisher: That is all right. We take exception to the conduct of the Court.
“By the Court: That is all right; I will fine you $25.00.”
This lawyer was the victim of the pique and hotheadedness of a judicial officer who is supposed to have a serenity that keeps him above the battle and the crowd. That is as much a perversion of the judicial function as if the judge who sat had a pecuniary interest in the outcome of the litigation. Tumey v. Ohio, 273 U. S. 510.
Ex parte Kearby, 35 Tex. Crim. Rep. 531, 34 S. W. 635; Ex parte Ray, 101 Tex. Crim. Rep. 432, 276 S. W. 709.
4 Bl. Comm. 286; Ex parte Terry, 128 U. S. 289, 302-304, 313-14; Ex parte Savin, 131 U. S. 267, 277; Eilenbecker v. District Court, 134 U. S. 31, 36-37; Cooke v. United States, 267 U. S. 517, 534-36; In re Oliver, 333 U. S. 257, 274-75.
Ex parte Terry, 128 U. S. 289, 313: “We have seen that it is a settled doctrine in the jurisprudence both of England and of this country, never supposed to be in conflict with the liberty of the citizen, that for direct contempts committed in the face of the court, at least one of superior jurisdiction, the offender may, in its discretion, be instantly apprehended and immediately imprisoned, without trial or issue, and without other proof than its actual knowledge of what occurred; and that, according to an unbroken chain of authorities, reaching back to the earliest times, such power, although arbitrary in its nature and liable to abuse, is absolutely essential to the protection of the courts in the discharge of their functions. Without it, judicial tribunals would be at the mercy of the disorderly and violent, who respect neither the laws enacted for the vindication of public and private rights, nor the officers charged with the duty of administering them.”
See also Cooke v. United States, supra, 534; Ex parte Hudgings, 249 U. S. 378, 383.
This rule is well established in Texas. Ex parte Testard, 101 Tex. 250, 106 S. W. 319; Ex parte Dulaney, 146 Tex. 108, 203 S. W. 2d 203. For other cases see the opinion in the instant case, Ex parte Fisher, 146 Tex. 328. 333. 206 S. W. 2d 1000, 1003.
Clark v. United. States, 289 U. S. 1, 12.
Ex parte Fisher, 146 Tex. 328, 334-335, 206 S. W. 2d 1000, 1004-1005.
Rule 269, Vernon’s Texas Rules of Civil Procedure; Ramirez v. Acker, 134 Tex. 647, 138 S. W. 2d 1054.
146 Tex. 328, 335, 206 S. W. 2d 1000, 1005; cf. United States v. United Mine Workers, 330 U. S. 258, 293, 302-303.
Question: What is the issue area of the decision?
A. Criminal Procedure
B. Civil Rights
C. First Amendment
D. Due Process
E. Privacy
F. Attorneys
G. Unions
H. Economic Activity
I. Judicial Power
J. Federalism
K. Interstate Relations
L. Federal Taxation
M. Miscellaneous
N. Private Action
Answer:
|
songer_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.
FRIENDS OF THE EARTH, INC., et al., Plaintiffs-Appellants, v. Claude S. BRINEGAR et al., Defendants-Appellees.
No. 74-3490.
United States Court of Appeals, Ninth Circuit.
March 17, 1975.
William P. Hoffman, Jr., Ferguson, Hoffman, Henn & Mandel, San Francisco, Cal., for plaintiffs-appellants.
Thomas M. O’Connor, City Atty., William F. Bourne, Utilities General Counsel, Jerome Cohen, David I. Kroopnick, Deputy City Attys., for defendants-appellees City and County of San Francisco.
John D. Leshy, Palo Alto, Cal., Natural Resources Defense Counsel, amicus curiae.
Darrell P. McCrory, Montellone & McCrory, Los Angeles, Cal., for Stockton Steel Fabricators, amicus curiae.
PUBLISHED ORDER
Before KOELSCH, BROWNING and WALLACE, Circuit Judges.
Appellants are a non-profit environmental organization and thirteen individuals who live near the San Francisco International Airport. They seek to compel preparation of an environmental impact statement for the airport’s expansion program, contending that such a statement is required by the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq. Specifically, appellants seek to enjoin certain federal officials from committing any more funds to the airport’s expansion program and the City of San Francisco from further constructing a parking garage and a new terminal until an impact statement is prepared. The district court issued a preliminary injunction against the federal officials but declined to enjoin construction of the new terminal and garage, concluding that these projects were not part of the overall expansion program and would not have a substantial environmental impact.
Appellants appealed from the denial of a preliminary injunction against the city. On January 22, 1975, we granted appellants’ motion for an injunction pending appeal. However, we remanded the case to the district court to determine whether appellants should be required to post bond or provide indemnity as a condition of the injunction and, if so, to fix the amounts and terms. The injunction pending appeal was to take effect only after the district court made that determination and appellants complied with any bond or indemnity requirements imposed.
On remand, the district court determined that a $4,500,000 bond was required to protect the City of San Francisco against losses in the form of increased construction costs due to inflation, lost rental income and temporary construction that might be necessary because of the delay. Appellants now move for an order reducing the bond and we grant the motion.
Appellants assert that environmental interest groups and individual plaintiffs usually have limited resources. They contend that if public interest groups and citizens are required to post substan-, tial bonds in NEPA cases in order to secure preliminary injunctions or injunctions pending appeal, plaintiffs in many NEPA cases would be precluded from effective and meaningful appellate review. More importantly, they argue, such bonds would seriously undermine the mechanisms in NEPA for private enforcement. Cf. Natural Resources Defense Council, Inc. v. Morton, 337 F.Supp. 167, 168-69 (D.D.C. 1971).
We recognize that in NEPA, Congress sacrificed some efficiency and economy in order to further a strong policy of environmental protection. However, we need not reach the question of whether no more than a nominal bond may be required in any NEPA case in which environmental groups or individuals procure an injunction pending appeal. Here, we are impressed that another panel of this court has already granted an injunction and thus implicitly concluded that appellants have a likelihood of success. Balancing the conflicting interests, we are persuaded that a $4,500,-000 bond is unreasonable. A bond in the amount of $1,000 is reasonable and we order that such bond be imposed. All other terms of the bonds set by the district court will remain in effect.
True, in pending appeals in People of the State of California v. Tahoe Regional Planning Agency we adopted a district court’s order requiring an appeal bond of $3,500,000. However, these are not NEPA cases. Moreover, there, the State of California, which has ample resources to post bond, obtained an interlocutory injunction against construction by private developers. Here, the situation is materially different: a private organization and citizens, with limited resources, obtained an interlocutory injunction against construction by a governmental entity.
Question: What is the general category of issues discussed in the opinion of the court?
A. criminal and prisoner petitions
B. civil - government
C. diversity of citizenship
D. civil - private
E. other, not applicable
F. not ascertained
Answer:
|
songer_respond1_1_4
|
E
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "manufacturing". Your task is to determine what subcategory of business best describes this litigant.
CHILDERS OIL COMPANY, INCORPORATED, a corporation; James E. Childers, Jr.; Erma L. Childers, doing business as Childers Short Stop, Plaintiffs-Appellants, v. EXXON CORPORATION, a corporation, Defendant-Appellee.
No. 91-2598.
United States Court of Appeals, Fourth Circuit.
Argued Dec. 4, 1991.
Decided April 3, 1992.
Carl Lee Fletcher, Jr., Spilman, Thomas, Battle & Klostermeyer, Charleston, W.Va., argued (David A. Faber, R. Scott Long, on brief), for plaintiffs-appellants.
William R. O’Brien, Howrey & Simon, Washington, D.C., argued (Darren B. Bern-hard, Gregory J. Commins, Jr., Howrey & Simon, Washington, D.C., Thomas B. Bennett, Bowles, Rice, McDavid, Graff & Love, Charleston, W.Va., William R. Hurt, Exxon Co., U.S.A., Houston, Tex., on brief), for defendant-appellee.
Before HALL, NIEMEYER, and LUTTIG, Circuit Judges.
OPINION
K.K. HALL, Circuit Judge:
Childers Oil Company and James and Erma Childers d/b/a Short Stop appeal the district court’s grant of summary judgment for defendant Exxon Corporation in Childers’ action for breach of contract, tor-tious interference with prospective business relations, and fraud, and on Exxon’s counterclaims for trademark infringement, breach of contract, and recovery on a promissory note. Through a combination of waiver, the parol evidence rule, and the statute of limitations, the appellants are unable to recover. In addition, they offer no colorable defenses to Exxon’s counterclaims. Accordingly, the judgment is affirmed.
I.
The appellants are two businesses, both wholly owned by James and Erma Child-ers — Childers Oil Co., Inc., and Short Stop, a partnership. Childers Oil was formed in 1975 to operate a bulk fuel distributorship in Bluefield, West Virginia. Childers Oil initially sold Amoco products. Shortly after it began operations, Childers Oil built a new plant near Princeton, West Virginia, at the junction of two major highways — Interstate 77 and U.S. Route 460.
In January 1980, Childers Oil built a retail service station adjacent to its Princeton plant. It leased the station to the Short Stop partnership. The competition-less station prospered. In early 1982, however, Amoco announced its withdrawal from West Virginia. Mr. Childers learned of-Amoco’s action in his Sunday newspaper.
If Mr. Childers worried of not having a supplier, his fears were quickly erased. The very next day, William Lucas, a distributorship salesman for Exxon, telephoned Mr. Childers to express Exxon’s interest in replacing Amoco as Childers Oil’s supplier. At the time, Exxon had no retail outlets on Interstate 77 from Charleston, West Virginia, to Wytheville, Virginia — a stretch of over 120 miles — and it was interested in filling this lacuna in its competitive ubiquity.
Mr. and Mrs. Childers had one serious concern about Exxon. Exxon owned a tract of land 400 yards from Short Stop, and the Childers had heard rumors that Exxon planned to build a companyowned station there. The Childers did not want to become an Exxon distributor and then be forced to compete with another retail Exxon outlet.
A few days after the initial telephone call, Lucas came to the Childers Oil plant to discuss Exxon’s proposal, Mr. Childers asked Lucas about Exxon’s plans for its tract of land. According to Mr. Childers, Lucas promised that Exxon would not build a retail station on the tract if Childers Oil would sign an Exxon Distributor Agreement.
A few weeks passed. Then Lucas and his boss, Lowe Lunsford, paid Mr. Childers another visit. Again, Mr. Childers brought up his concern about Exxon’s plans for its land. Lunsford assured him that the property was in Exxon’s inactive “land bank,” and Exxon had no plans to construct a station there.
Through the summer of 1982, Mr. Child-ers continued negotiations with Exxon. Both Lucas and Lunsford repeated their assurances that Exxon would not compete with Short Stop by building on its “land bank” tract.
On September 14, 1982, Childers Oil signed Exxon’s standard Distributor Agreement. The agreement contains a boilerplate integration clause:
25. ENTIRE AGREEMENT: This writing is intended by the parties to be the final, complete and exclusive statement of their agreement about the matters covered herein. THERE ARE NO ORAL UNDERSTANDINGS, REPRESENTATIONS OR WARRANTIES AFFECTING IT.
Mr. Childers asked that Exxon’s promise not to compete be included in the agreement, but was told that no changes could be made in the form. He signed anyway. The agreement was to expire on March 31, 1984.
Within a few months, Mr. and Mrs. Child-ers began hearing new rumors that Exxon was planning to develop its property. Mr. Childers called Lunsford each time he heard such a rumor. At first, Lunsford said that he had heard nothing, but he later expressly stated that a company-owned station would not be built.
Sometime in late 1983, a contractor showed up at Childers Oil and said he was there for a pre-bid conference on the “new station.” Mr. Childers told the contractor that he had no intention of building a new station. He immediately called Lunsford, who said that Exxon was “just getting some cost figures together” and was not actually planning to build.
Nonetheless, before the end of 1983, Exxon began construction of a station to compete with Short Stop. Mr. Childers called Lunsford at the first sign of construction. Lunsford said, “Jim, I am sorry, I didn’t have the clout I thought I had, I couldn’t prevent this from happening.”
By June 1984, Exxon’s retail service station was open for business. Short Stop’s business immediately and sharply declined. On June 10, 1984, Mr. Childers appeared in front of the Small Business Subcommittee of the Joint Committee of Government and Finance of the West Virginia Legislature to complain of Exxon’s conduct. To contravene Mr. Childers’ complaint, Exxon sent a written response, with a cover letter signed by Lunsford, to members of the subcommittee on September 14,1984. In it, Exxon asserted that it had always planned to build the station, and no one at Exxon had told Childers otherwise. Exxon’s response was not sent to Mr. Childers, and he did not inquire about the subcommittee’s handling of his complaint. In September 1988, at Mr. Childers' deposition, he first learned of the existence of this document.
If they desired relief through litigation, 1984 was the most apt moment for the Childers to have filed suit against Exxon. Instead, they took fateful steps toward financial and litigation ruin. In early 1984, with construction of the company station going on before their eyes, they signed a second distributorship agreement, substantively identical to and expressly superseding the first. This new agreement extended the Exxon franchise for three years. The Childers spent $700,000, most of it borrowed, turning Short Stop into an extravagant traveler’s mecca. The new and improved Short Stop included an ice cream store, convenience store, delicatessen, separate restroom building, and a large increase in gasoline capacity.
The revenue of Short Stop could not keep up with the increased debt burden. In January 1986, Childers Oil’s account with Exxon became delinquent (over thirty days late) in an amount exceeding $100,000. The parties agreed on a payment plan under which Childers Oil would pay the two oldest outstanding invoices each time it picked up a load of gasoline from Exxon. This repayment scheme did not work, however, because Childers Oil began purchasing gasoline from Pennzoil instead of Exxon, and thus avoided the triggering of two-for-one payments. Exxon soon exercised its contractual right to demand payment by cashier’s check.
Things got even worse when Exxon learned that Childers Oil had sold Pennzoil gas under Exxon’s trademark. On April 23, 1986, Exxon exercised its right under the Petroleum Marketing Practices Act to terminate the franchise, effective July 24, 1986, because of the misbranding. The appellants admit the misbranding and the lawfulness of the franchise termination.
During the three-month window between notice and the effective date of the termination, Mr. and Mrs. Childers tried to sell Childers Oil to H.C. Lewis, an Exxon distributor in Welch, West Virginia. The Childers and Lewis agreed that Lewis would purchase Childers Oil and sell gas to Short Stop, which the Childers would continue to own. The agreement, however, was contingent on Exxon’s increasing Lewis’ allotment so that he would have enough gas to supply Short Stop. Because it had no more wish to entrust its trademark to the Childers indirectly as directly, Exxon refused to increase Lewis’ allotment, and the proposed deal collapsed.
In October 1986, two months after termination of the franchise, the Childers still owed Exxon $224,168.27. They signed a promissory note providing for monthly payments and interest. They have made only small payments, and do not dispute the amount that they owe on the note.
On August 10, 1987, the Childers filed this suit against Exxon in district court. Jurisdiction rests on diversity of citizenship. They amended the complaint twice, the last time on March 24, 1989. The final complaint pled three claims: (1) breach of contract, (2) tortious interference with plaintiffs’ prospective business relationship with Lewis, and (3) fraud. The fraud claim did not appear in earlier versions of the complaint.
Exxon counterclaimed for breach of the distributorship agreement, for trademark infringement, and to recover on the promissory note. At the conclusion of discovery, on September 15, 1989, Exxon moved for summary judgment on all claims and counterclaims. On June 27, 1991, the district court granted summary judgment for Exxon.
Plaintiffs appeal.
II.
The substantive law of West Virginia applies to this diversity action. A concept central to the contract issues we must address — the parol evidence rule — is not, as its name may suggest, a procedural rule of evidence, but is rather a substantive component of West Virginia’s law of contracts. United States v. Bethlehem Steel Co., 215 F.Supp. 62, 68 n. 12 (D.Md.1962), aff'd, 323 F.2d 655 (4th Cir.1963); Jack H. Brown & Co., Inc. v. Toys “R” Us, Inc., 906 F.2d 169, 173 (5th Cir.1990); see Mohr v. Metro East Manufacturing Co., 711 F.2d 69, 72 (7th Cir.1983).
The district court held that the parol evidence rule barred use of Exxon’s oral promises to vary the terms of the written distributorship agreement. See generally, Kanawha Banking and Trust Co. v. Gilbert, 131 W.Va. 88, 46 S.E.2d 225, 232-233 (1947); Cardinal State Bank v. Crook, 184 W.Va. 152, 399 S.E.2d 863, 866-867 (1990). Appellants proffer various exceptions to the rule, but none of them quite fit.
A.
Fraudulent inducement is an exception to the parol evidence rule, because such evidence does not “alter or vary” the terms of the contract; instead, a party may avoid the contract altogether (through rescission) by showing that it was fraudulently procured. Central Trust Co. v. Virginia Trust Co., 120 W.Va. 23, 197 S.E. 12, 16 (1938); Foremost Guaranty Cory. v. Meritor Savings Bank, 910 F.2d 118, 123 (4th Cir.1990) (applying Virginia law). The Childers do not seek rescission of the distributorship agreement; they seek damages for breach of the alleged parol promise.
B.
Appellants’ argument that the no-competition promise was a collateral contract is unavailing as well. They do not identify the separate consideration for the collateral promise. The subject matter of the supposed collateral contract is very closely related to the distributorship agreement, and indeed, a covenant not to compete would naturally be a part of an integrated distributorship agreement. This close connection precludes a finding of a collateral contract. Jones v. Kessler, 98 W.Va. 1, 126 S.E. 344, 349 (1925). Finally, the agreement’s integration clause emphasizes that no “ORAL UNDERSTANDINGS ... AFFECT[ ] IT.” The district court rightly rejected the collateral contract argument.
C.
In direct contradiction to the collateral contract theory, appellants posit that the oral promise was additional consideration for the distributorship agreement. Where consideration is a mere recital (e.g. “one dollar and other good and valuable consideration”), parol evidence may establish what the actual consideration was. However, West Virginia law draws a line at enforcement of parol promises as “additional consideration.” Kanawha Banking & Trust, 46 S.E.2d at 233-234. In a sense, every promise made in a contract is in “consideration” of the other party’s promises, and the “additional consideration” exception would swallow the rule if it were applied as appellants suggest.
D.
Finally, with full knowledge that Exxon had broken its promise not to compete, Childers entered into a new distribution agreement. This second agreement specifically states:
28. PRIOR AGREEMENT: This Agreement cancels and supersedes any prior agreements between the parties thereto, covering the purchase and sale of product(s) covered by this Agreement.
The parol term the Childers seek to enforce was, if anything, a part of the original distributorship agreement. Signing a new agreement that “cancels and supersedes” the former, with knowledge of a breach of the old agreement, is a clear waiver of that breach.
In sum, the Childers have no tenable breach of contract claim, and the summary judgment on that claim was proper.
III.
The district court held that Exxon had an absolute right to refuse to increase Lewis’ allotment, and its refusal can never be “tortious interference” with the proposed Lewis-Childers transaction. Restatement (Second) of Torts § 766, comment b; Torbett v. Wheeling Dollar Savings & Trust Co., 173 W.Va. 210, 314 S.E.2d 166, 171-173 (1983) (relying on Restatement definition).
We agree with the district court, for the reason it gave and more. Tortious interference claims lie only against a party that is a stranger to the relationship. Torbett, 314 S.E.2d at 173. Exxon would have been the supplier of the fuel that was the subject of the proposed transaction, it would have had to license the use of its marks, and it would have derived profits from the sale of the product. Finally, even if Exxon were a stranger to the deal, and had some legal duty to supply the fuel, we think it was entitled as a matter of law to refuse to entrust its product to a person who had admitted prior misuse of its trademark. See Humboldt Oil Co. v. Exxon Co., USA, 823 F.2d 373, 375 (9th Cir.1987), cert. denied, 485 U.S. 1021, 108 S.Ct. 1575, 99 L.Ed.2d 890 (1988).
IV.
The West Virginia statute of limitations for claims of fraud is two years. W.Va. Code § 55-2-12. The parties agree that if the statute of limitations began to run when the Childers learned that Exxon was going to build a company-owned station, the action is barred.
A.
Appellants, however, argue that they did not find out that Exxon knew its promise was false when made until September 1988, when, at his deposition, Mr. Child-ers was shown Exxon’s 1984 letter to the state legislative subcommittee. Breaking a promise, without more, is only a breach of contract. Making a promise that is not intended to be kept may be a fraud, if the other elements of that tort are present. Janssen v. Carolina Lumber Co., 137 W.Va. 561, 73 S.E.2d 12, 17 (1952); Dyke v. Alleman, 130 W.Va. 519, 44 S.E.2d 587 (1947). Consequently, the Childers argue that they did not “discover” their fraud cause of action until Mr. Childers’ deposition, and the statute of limitations did not begin to run until then.
Appellants assert that the possibility of sanctions under Fed.R.Civ.Pr. 11 is a strong deterrent to pleading fraud claims on bare suspicion that a broken promise was never intended to be kept. Appellees counter that Rule 9(b) permits intent to be pled generally, and, if fraud claims do not accrue until a smoking gun is in the plaintiff's hands, few claims will accrue until after a suit is filed and information in the defendant’s possession is discovered. This debate, whether knowledge of so-called “legal” causation is required to begin the running of a statute of limitations, is not new to jurisprudence.
Two recent West Virginia cases provide guidance. In Hickman v. Grover, 178 W.Va. 249, 358 S.E.2d 810 (1987), the plaintiff had been injured by a bursting air tank. He sued a defendant, who then filed a third-party claim against the manufacturer of the tank. More than two years after the accident, the plaintiff attempted to assert a claim directly against the manufacturer. He asserted that the statute of limitations did not begin to run until he discovered that the tank was defective. The West Virginia court rejected his argument, 358 S.E.2d at 813-814:
In products liability cases, the statute of limitations begins to run when the plaintiff knows, or by the exercise of reasonable diligence should know, (1) that he has been injured, (2) the identity of the maker of the product, and (3) that the product had a causal relation to his injury.
* * * * * *
Hickman asks us to take this one step further. He suggests that we add another requirement, i.e., that the product was defective as a result of the conduct of its manufacturer. Indeed, this is a big requirement, because such knowledge is often not known with legal certainty until after the jury returns its verdict. At the very least, this knowledge would be very difficult to obtain, except during the discovery phase of trial. Thus, we would have a situation where the statute of limitations would almost never accrue until after the suit was filed. This would almost abrogate the statute of limitations in products liability claims. We cannot accept such a holding.
Hickman was followed by Stemple v. Dobson, 184 W.Va. 317, 400 S.E.2d 561 (1990), which imported its concepts into a fraud case. The court held, 400 S.E.2d at 565:
[W]e conclude that where a cause of action is based on tort or on a claim of fraud, the statute of limitations does not begin to run until the injured person knows, or by the exercise of reasonable diligence should know, of the nature of his injury, and determining that point in time is a question of fact to be answered by the jury.
The court identifies the “injury” as the thing to be discovered, not that the defendant’s state of mind or breach of duty may legally entitle the plaintiff to recover damages. The majority rule is the same. United States v. Kubrick, 444 U.S. 111, 118-125, 100 S.Ct. 352, 357-360, 62 L.Ed.2d 259 (1979); Phillips v. Amoco Oil Co., 799 F.2d 1464, 1469 (11th Cir.1986); Berkley v. American Cyanamid Co., 799 F.2d 995, 999 (5th Cir.1986).
The “discovery rule” tolls a statute of limitations until the plaintiff has, or ought to have, answers to two questions: Am I injured? Who injured me? Kubrick, 444 U.S. at 122, 100 S.Ct. at 359. At that point, the plaintiff has enough information to begin investigating his claims. Phillips, 799 F.2d at 1469 (fraud cause of action accrues “when the plaintiff should have discovered facts that would provoke a person of ordinary prudence to inquiry”); Berkley, 799 F.2d at 999 (fraud cause of action accrues when plaintiff knows of “falsity of defendant’s statements and their relationship to the claimed injury”). He may not know enough to win a verdict or even file a complaint on that first day, but that is why the law gives him a reasonable limitations period to investigate. The appellants had sufficient knowledge to be put on a duty to inquire when Exxon built its company station. Lest the discovery rule abrogate West Virginia’s fraud statute of limitations, we hold that the fraud claim is barred.
B.
Appellants seize the Stemple court’s comment that the point in time that a plaintiff discovers enough to start the clock running is a question of fact to be resolved by a jury. Appellants argue that the district court should have let a jury decide when the statute began to run.
We do not read Stemple to require submission of a statute of limitations defense on undisputed facts to a jury. Stemple was a pair of homeowners’ appeal of a summary judgment entered against them in their suit against the prior owners for, among other things, fraudulently concealing severe termite damage to the structure. As we described above, the court identified the termite damage, and not the defendants’ state of mind, as the thing to be discovered. 400 S.E.2d at 565. The court then surveyed the evidence in the case, which consisted of a series of events, each one of which would tend to cause more alarm in the plaintiffs. Inasmuch as application of the statute of limitations required identifying one of these discoveries as the proverbial straw that broke the camel’s back, the court concluded, in reversing the summary judgment (400 S.E.2d at 566, emphasis added):
Clearly, reasonable persons could draw different conclusions from these facts.... Because there is a material question of fact with regard to when the plaintiffs’ right of action accrued so as to commence the running of the statute of limitations, the matter was clearly a question for the jury.
In other words, if resolution of a statute of limitations defense presents a genuine question of material fact, a jury should resolve it. If not, a statute of limitations may be applied as a matter of law. Here, if Childers’ knowledge of Exxon’s state of mind were a prerequisite to the running of the statute, a jury might very well have to resolve whether Childers should have, with reasonable diligence, discovered the 1984 report to the legislative subcommittee sooner. However, because knowledge of the injury and the injurer is enough, and appellants admittedly had both more than two years before suit, there is no material issue of fact for a jury to resolve. Exxon is entitled to the benefit of its statute of limitations defense as a matter of law.
The judgment of the district court is affirmed.
AFFIRMED.
. This opinion will refer to the appellants collectively as "Childers,” except where the context indicates otherwise.
. Exxon denies that this oral promise was made, but concedes that disputed issues of fact must be resolved in appellants’ favor for purposes of Exxon's motion for summary judgment. Our recital of facts applies this rule, and we make no attempt to identify every fact that Exxon might controvert if the case were tried.
. 15 U.S.C. §§ 2801-2841.
. Exxon also argues that if the promise not to compete were a freestanding contract independent of the distributorship agreement, it would be unenforceable under the Statute of Frauds, because any contract for a term of more than one year must be in writing. W.Va.Code, § 55-1 — 1(f) (1981 & Supp.1991). Exxon did not as-serf this defense below, however, and it was not considered by the district court. Because adequate alternate grounds for affirmance are present, we need not decide whether Exxon may interpose a statute of frauds defense for the first time on appeal.
. Mr. Childers admitted at his deposition that he knew Exxon had broken its promise, and that he felt he had been lied to, when construction of the station began.
. Kubrick was cited by the West Virginia court in a medical malpractice case, Harrison v. Seltzer, 165 W.Va. 366, 268 S.E.2d 312, 315 n. 2 (1980), where the court stated in dicta the rule it was later to explicitly adopt in Hickman:
[W]here the adverse results of medical treatment are so extraordinary that the patient is immediately aware that something went wrong, ... the statute of limitations will begin to run once the extraordinary result is known to the plaintiff even though he may not be aware of the precise act of malpractice.
Harrison, 268 S.E.2d at 315. West Virginia’s medical malpractice/discovery rule jurisprudence is disproportionately replete with cases involving foreign objects left within a patient’s body during surgery. Hill v. Clarke, 161 W.Va. 258, 241 S.E.2d 572 (1978); Morgan v. Grace Hospital, 149 W.Va. 783, 144 S.E.2d 156 (1965); Gray v. Wright, 142 W.Va. 490, 96 S.E.2d 671 (1957), overruled in part, Morgan, 144 S.E.2d at 161 (fraudulent concealment of object's presence by physician not required for discovery rule tolling); Baker v. Hendrix, 126 W.Va. 37, 27 S.E.2d 275 (1943). Inasmuch as discovery of such an object not only identifies the source of the injury, but also virtually establishes malpractice res ipsa loquitur, the Kubrick issue did not arise in those cases.
. Without citation to authority, appellants assert that Exxon’s counterclaim on the promissory note should have been held in abeyance pending resolution of appellants’ claims "by a jury.” Of course, the district court had disposed of appellants’ claims on summary judgment when it ruled in Exxon’s favor on the note, and the premise of their argument is rendered nugatory by our affirmance. Moreover, the Childers proffer no defense to collection of the note.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "manufacturing". What subcategory of business best describes this litigant?
A. auto
B. chemical
C. drug
D. food processing
E. oil refining
F. textile
G. electronic
H. alcohol or tobacco
I. other
J. unclear
Answer:
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sc_authoritydecision
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G
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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.
ARIZONA v. CALIFORNIA
No. 8,
Orig.
Argued April 25, 2000 —
Decided June 19, 2000
Ginsburg, J., delivered the opinion of the Court, in which Stevens, Scalia, Kennedy, Souter, and Breyer, JJ., joined. Rehnquist, C. J., filed an opinion concurring in part and dissenting in part, in which O’Con-nor and Thomas, JJ., joined, post, p. 422.
Jeffrey P Minear argued the cause for the United States. With him on the briefs were Solicitor General Waxman, Assistant Attorney General Schiffer, and Deputy Solicitor General Kneedler.
Mason D. Morisset argued the cause for defendant Que-ehan Indian Tribe. With him on the briefs was K. Allison McGaw.
Jerome C. Muys argued the cause for the State parties. With him on the briefs were Bill Lockyer, Attorney General of California, Richard M. Frank, Chief Assistant Attorney General, Mary B. Hackenbracht, Assistant Attorney General, Douglas B. Noble, Deputy Attorney General, Michael Pearce, Steven B. Abbott, and Karen L. Tachiki
Jofoi M. Lindskog filed a brief for the West Bank Homeowners Association as amicus curiae.
Justice Ginsburg
delivered the opinion of the Court.
In the latest chapter of this long-litigated original-jurisdiction ease, the Queehan Tribe (Tribe) and the United States on the Tribe’s behalf assert claims for increased rights to water from the Colorado River. These claims are based on the contention that the Fort Yuma (Queehan) Indian Reservation encompasses some 25,000 acres of disputed boundary lands not attributed to that reservation in earlier stages of the litigation. In this decision, we resolve a threshold question regarding these claims to additional water rights: Are the claims precluded by this Court’s prior decision in Arizona v. California, 873 U. S. 546 (1963) (Arizona I), or by a consent judgment entered by the United States Claims Court in 1983? The Special Master has prepared a report recommending that the Court reject the first ground for preclusion but accept the second. We reject both grounds for preclusion and remand the case to the Special Master for consideration of the claims for additional water rights appurtenant to the disputed boundary lands.
I
This litigation began in 1952 when Arizona invoked our original jurisdiction to settle a dispute with California over the extent of each State’s right to use water from the Colorado River system. Nevada intervened, seeking a determination of its water rights, and Utah and New Mexico were joined as defendants. The United States intervened and sought water rights on behalf of various federal establishments, including five Indian reservations: the Chemehuevi Indian Reservation, the Cocopah Indian Reservation, the Fort Yuma (Queehan) Indian Reservation, the Colorado River Indian Reservation, and the Fort Mojave Indian Reservation. The Court appointed Simon Rifkind as Special Master.
The first round of the litigation culminated in our opinion in Arizona L We agreed with Special Master Rifkind that the apportionment of Colorado River water was governed by the Boulder Canyon Project Act of 1928, 43 U. S. C. § 617 et seq., and by contracts entered into by the Secretary of the Interior pursuant to the Act. We further agreed that the United States had reserved water rights for the five reservations under the doctrine of Winters v. United States, 207 U. S. 564 (1908). See Arizona I, 373 U. S., at 565, 599-601. Because the Tribes’ water rights were effective as of the time each reservation was created, the rights were considered present perfected rights and given priority under the Act. Id., at 600. We also agreed with the Master that the reservations’ water rights should be based on the amount of practicably irrigable acreage on each reservation and sustained his findings as to the relevant acreage for each reservation. Ibid. Those findings were incorporated in our decree of March 9, 1964, which specified the quantities and priorities of the water entitlements for the States, the United States, and the Tribes. Arizona v. California, 376 U. S. 340. The Court rejected as premature, however, Master Rifkind’s recommendation to determine the disputed boundaries of the Fort Mojave and Colorado River Indian Reservations; we ordered, instead, that water rights for those two reservations “shall be subject to appropriate adjustment by agreement or decree of this Court in the event that the boundaries of the respective reservations are finally determined.” Id., at 345.
In 1978, the United States and the State parties jointly moved this Court to enter a supplemental decree identifying present perfected rights to the use of mainstream water in each State and their priority dates. The Tribes then filed motions to intervene, and the United States ultimately joined the Tribes in moving for additional water rights for the five reservations. Again, the Court deferred resolution of reservation boundary disputes and allied water rights claims. The supplemental decree we entered in 1979 set out the water rights and priority dates for the five reservations under the 1964 decree, but added that the rights for all five reservations (including the Fort Yuma Indian Reservation at issue here) “shall continue to be subject to appropriate adjustment by agreement or decree of this Court in the event that the boundaries of the respective reservations are finally determined.” Arizona v. California, 439 U. S. 419, 421 (per curiam). The Court then appointed Senior Circuit Judge Elbert P. Tuttle as Special Master and referred to him the Tribes’ motions to intervene and other pending matters.
Master Tuttle issued a report recommending that the Tribes be permitted to intervene, and concluding that various administrative actions taken by the Secretary of the Interior constituted “final determinations” of reservation boundaries for purposes of allocating water rights under the 1964 decree. (Those administrative actions included a 1978 Secretarial Order, discussed in greater detail infra, at 404-405, which recognized the Queehan Tribe’s entitlement to the disputed boundary lands of the Fort Yuma Reservation.) Master Tuttle also concluded that certain lands within the undisputed reservation boundaries but for which the United States had not sought water rights in Arizona / — the so-called “omitted lands” — had in fact been practicably irrigable at the time of Arizona I and were thus entitled to water. On these grounds, Master Tuttle recommended that the Court reopen the 1964 decree to award the Tribes additional water rights.
In Arizona v. California, 460 U. S. 605 (1988) (Arizona II), the Court permitted the Tribes to intervene, but otherwise rejected Master Tuttle’s recommendations. The Secretary’s determinations did not qualify as “final determinations” of reservation boundaries, we ruled, because the States, agencies, and private water users had not had an opportunity to obtain judicial review of those determinations. Id., at 636-637. In that regard, we noted that California state agencies had initiated an action in the United States District Court for the Southern District of California chai-lenging the Secretary’s decisions, and that the United States had moved to dismiss that action on various grounds, including sovereign immunity. “There will be time enough,” the Court stated, “if any of these grounds for dismissal are sustained and not overturned on appellate review, to determine whether the boundary issues foreclosed by such action are nevertheless open for litigation in this Court.” Id., at 638. The Court also held that the United States was barred from seeking water rights for the lands omitted from presentation in the proceedings leading to Arizona I; “principles of res judicata,” we said, “advise against reopening the calculation of the amount of practicably irrigable acreage.” 466 U. S., at 626. In 1984, in another supplemental decree, the Court again declared that water rights for all five reservations “shall be subject to appropriate adjustments by agreement or decree of this Court in the event that the boundaries of the respective reservations are finally determined.” Arizona v. California, 466 U. S. 144, 145.
The District Court litigation proceeded with the participation of eight parties: the United States, the States of Arizona and California, the Metropolitan Water District of Southern California, the Coachella Valley Water District, and the Que-ehan, Fort Mojave, and Colorado River Indian Tribes. The District Court rejected the United States’ sovereign immunity defense; taking up the Fort Mojave Reservation matter first, the court voided the Secretary’s determination of that reservation’s boundaries. Metropolitan Water Dist. of S. Cal. v. United States, 628 F. Supp. 1018 (SD Cal. 1986). The Court of Appeals for the Ninth Circuit, however, accepted the United States’ plea of sovereign immunity, and on that ground reversed and remanded with instructions to dismiss the entire case. Specifically, the Court of Appeals held that the Quiet Title Act, 28 U. S. C. § 2409a, preserved the United States’ sovereign immunity from suits challenging the United States’ title “to trust or restricted Indian lands,” § 2409a(a), and therefore blocked recourse to the Dis-triet Court by the States and state agencies. Metropolitan Water Dist. of S. Cal. v. United States, 830 F. 2d 139 (1987). We granted certiorari and affirmed the Ninth Circuit’s judgment by an equally divided Court. California v. United States, 490 U. S. 920 (1989) (per curiam).
The dismissal of the District Court action dispelled any expectation that a “final determination” of reservation boundaries would occur in that forum. The State parties then moved to reopen the 1964 decree, asking the Court to determine whether the Fort Yuma Indian Reservation and two other reservations were entitled to claim additional boundary lands and, if so, additional water rights. Neither the United States nor the Tribes objected to the reopening of the decree, and the Court granted the motion. Arizona v. California, 493 U. S. 886 (1989). After the death in 1990 of the third Special Master, Robert McKay, the Court appointed Frank J. McGarr as Special Master. Special Master McGarr has now filed a report and recommendation (McGarr Report), a full understanding of which requires a discussion of issues and events specific to the Fort Yuma Indian Reservation. We now turn to those issues and events.
H-f f — (
The specific dispute before us has its roots in an 1884 Executive Order signed by President Chester A. Arthur, designating approximately 72 square miles of land along the Colorado River in California as the Fort Yuma Indian Reservation (Reservation) for the benefit of the Quechan Tribe. The Tribe, which had traditionally engaged in farming, offered to cede its rights to a portion of the Reservation to the United States in exchange for allotments of irrigated land to individual Indians. In 1893, the Secretary of the Interior concluded an agreement with the Tribe (1893 Agreement), which Congress ratified in 1894. The 1893 Agreement provided for the Tribe’s cession of a 25,000-acre tract of boundary lands on the Reservation. Language in the agreement, however, could be read to condition the cession on the performance by the United States of certain obligations, including construction within three years of an irrigation canal, allotment of irrigated land to individual Indians, sale of certain lands to raise revenues for canal construction, and opening of certain lands to the public domain.
Doubts about the validity and effect of the 1893 Agreement arose as early as 1985. In that year the construction of the All-American Canal, which prompted the interstate dispute in Arizona I, see 373 U. S., at 554-555, also sparked a controversy concerning the Fort Yuma Reservation. When the Department of the Interior’s Bureau of Reclamation sought to route the canal through the Reservation, the Department’s Indian Office argued that the Bureau had to pay compensation to the Tribe for the right-of-way. The Secretary of the Interior submitted the matter to the Department’s Solicitor, Nathan Margold. In 1936, Solicitor Margold issued an opinion (Margold Opinion) stating that, under the 1893 Agreement, the Tribe had unconditionally eeded the lands in question to the United States. 1 Dept, of Interior, Opinions of the Solicitor Relating to Indian Affairs 596, 600 (No. M-28198, Jan. 8, 1936). The Margold Opinion remained the position of the Federal Government for 42 years.
In 1946, Congress enacted the Indian Claims Commission Act, 60 Stat. 1049, 25 U. S. C. § 70 et seq. (1976 ed.), establishing an Article I tribunal with power to decide claims of Indian tribes against the United States. See generally United States v. Dann, 470 U. S. 39 (1985). The Tribe filed an action before the Commission in 1951, challenging the validity and effect of the 1893 Agreement. In that action, referred to by the parties as Doeket No. 320, the Tribe relied principally on two mutually exclusive grounds for relief. First, the Tribe alleged that the 1893 Agreement was obtained through fraud, coercion, and/or inadequate consideration, rendering it “wholly nugatory.” Petition for Loss of Reservation in Docket No. 320 (Ind. Cl. Comm’n), ¶¶ 15-16, reprinted in Brief for United States in Support of Exception, pp. lla-27a. At the very least, contended the Tribe, the United States had failed to perform the obligations enumerated in the 1893 Agreement, rendering the cession void. Id., at ¶31. In either event, the Tribe claimed continuing title to the disputed lands and sought damages essentially for trespass. Alternatively, the Tribe alleged that the 1893 Agreement was contractually valid but constituted an uncompensated taking of tribal lands, an appropriation of lands for unconscionable consideration, and/or a violation of standards of fair and honorable dealing, for which §§ 2(3) — (5) of the Act authorized recovery. Id., at ¶¶ 19,22,25. According to this theory of recovery, the 1893 Agreement had indeed vested in the United States unconditional title to the disputed lands, and the Tribe sought damages as compensation for that taking. During the more than quarter-century of litigation in Docket No. 320, the Tribe vacillated between these two grounds for relief, sometimes emphasizing one and sometimes the other. See Quechan Tribe of Fort Yuma Reservation v. United States, 26 Ind. Cl. Comm’n 15 (1971), reprinted in Brief for United States in Support of Exception, at 29a-34a.
The Commission conducted a trial on liability, but stayed further proceedings in 1970 because legislation had been proposed in Congress that would have restored the disputed lands to the Tribe. The legislation was not enacted, and the Commission vacated the stay. In 1976, the Commission transferred the matter to the Court of Claims.
In the meantime, the Tribe had asked the Department of the Interior to reconsider its 1936 Margold Opinion regarding the 1893 Agreement. In 1977, Interior Solicitor Scott Austin concluded, in aeeord with the 1936 opinion, that the 1893 Agreement was valid and that the cession of the disputed lands had been unconditional. Opinion of the Solicitor, No. M-36886 (Jan. 18, 1977), 84 I. D. 1 (1977) (Austin Opinion). It soon became clear both to the Tribe and to interested Members of Congress, however, that the Austin Opinion had provoked controversy within the Department, and, after the election of President Carter, the Department revisited the issue and reversed course. In 1978, without notice to the parties, Solicitor Leo Krulitz issued an opinion concluding that the 1893 Agreement had provided for a conditional cession of the disputed lands, that the conditions had not been met by the United States, and that “[t]itle to the subject property is held by the United States in trust for the Quechan Tribe.” Opinion of the Solicitor, No. M-36908 (Jan. 2, 1979), 86 I. D. 3, 22 (1979) (Krulitz Opinion). On December 20, 1978, the Secretary of the Interior issued a Secretarial Order adopting the Krulitz Opinion and confirming the Tribe’s entitlement to the disputed lands, with the express exception of certain lands that the United States had acquired pursuant to Act of Congress or had conveyed to third parties.
The 1978 Secretarial Order caused the United States to change its position both in Docket No. 320, which was still pending in the Claims Court, and in the present litigation. Because the Secretarial Order amounted to an admission that the 1893 Agreement had been ineffective to transfer title and that the Tribe enjoyed beneficial ownership of the disputed boundary lands, the United States no longer opposed the Tribe’s claim for trespass in Docket No. 320. In the present litigation, the Secretarial Order both prompted the United States to file a water rights claim for the affected boundary lands and provided the basis for the Tribe’s intervention to assert a similar, albeit larger, water rights claim. See Arizona II, 460 U. S., at 632-633. Those water rights claims are the subject of the current proceedings.
In August 1983, a few months after this Court decided in Arizona II that the 1978 Secretarial Order did not constitute a final determination of reservation boundaries, see supra, at 399-400, the United States and the Tribe entered into a settlement of Docket No. 320, which the Court of Claims approved and entered as its final judgment. Under the terms of that settlement, the United States agreed to pay the Tribe $15 million in full satisfaction of “all rights, claims, or demands which plaintiff [i e., the Tribe] has asserted or could have asserted with respect to the claims in Docket 320.” Final Judgment, Docket No. 320 (Aug. 11,1983). The judgment further provided that “plaintiff shall be barred thereby from asserting any further rights, claims, or demands against the defendant and any future action on the claims encompassed on Docket 320.” Ibid. The United States and the Tribe also stipulated that the “final judgment is based on a compromise and settlement and shall not be construed as an admission by either party for the purposes of precedent or argument in any other case.” Ibid. Both the Tribe and the United States continue to recognize the Tribe’s entitlement to the disputed boundary lands.
HH
Master McGarr has issued a series of orders culminating in the report and recommendation now before the Court. He has recommended that the Court reject the claims of the United States and the Tribe seeking additional water rights for the Fort Yuma Indian Reservation. The Master rejected the State parties’ contention that this Court’s Arizona I decision precludes the United States and the Tribe from seeking water rights for the disputed boundary lands. He concluded, however, that the United States and the Tribe are precluded from pursuing those claims by operation of the 1983 Claims Court consent judgment. The State parties have filed an exception to the first of these preclusion recommendations, and the United States and the Tribe have filed exceptions to the second. In Part III-A, infra, we consider the exception filed by the State parties, and in Part III-B we address the exceptions filed by the United States and the Tribe. The Special Master has also recommended that the Court approve the parties’ proposed settlements respecting the Fort Mojave and Colorado River Indian Reservations. No party has filed an exception to those recommendations; we .address them in Part III-C, infra.
A
The States of Arizona and California, the Coachella Valley Water District, and the Metropolitan Water District of Southern California (State parties) argued before Special Master McGarr, and repeat before this Court, that the water rights claims associated with the disputed boundary lands of the Fort Yuma Reservation are precluded by the finality rationale this Court employed in dismissing the “omitted lands” claims in Arizona II. See supra, at 399-400. According to the State parties, the United States could have raised a boundary lands claim for the Fort Yuma Reservation in the Arizona I proceedings based on facts known at that time, just as it did for the Fort Mojave and Colorado River Reservations, but deliberately decided not to do so, just as it did with respect to the “omitted lands.” In Arizona II, this Court rejected the United States’ claim for water rights for the “omitted lands,” emphasizing that “[cjertainty of rights is particularly important with respect to water rights in the Western United States” and noting “the strong interest in finality in this case.” 460 U. S., at 620. Observing that the 1964 decree determined “the extent of irrigable acreage within the uneontested boundaries of the reservations,” id., at 621, n. 12, the Court refused to reconsider issues “fully and fairly litigated 20 years ago,” id., at 621. The Court concomitantly held that the Tribes were bound by the United States’ representation of them in Arizona I. 460 U. S., at 626-627.
The Special Master rejected the State parties’ preclusion argument. He brought out first the evident reason why the United States did not assert water rights claims for the Fort Yuma Reservation boundary lands in Arizona I. At that point in time, the United States was bound to follow the 1986 Margold Opinion, see supra, at 402, which maintained that the Tribe had no claim to those lands. “[I]t is clear,” the Master stated, “that the later Secretary of the Interior opinion arbitrarily changing [the Margold] decision was a circumstance not known in 1964, thus constituting an exception to the application of the rule of res adjudicata.” Special Master McGarr Memorandum Opinion and Order No. 4, pp. 6-7 (Sept. 6,1991). Characterizing the question as “close,” the Master went on to conclude that “the Tribe is not precluded from asserting water rights based on boundary land claims on [sicj this proceeding, because although the U. S. on behalf of the Tribe failed to assert such claims in the proceeding leading to the 1964 decree, a later and then unknown cireum-stance bars the application of the doctrine of res judicata to this issue.” Id., at 7.
While the Special Master correctly recognized the relevance of the Margold Opinion to the litigating stance of the United States, he ultimately relied on an improper ground in rejecting the State parties’ preclusion argument. The Department of the Interior’s 1978 Secretarial Order recognizing the Tribe’s beneficial ownership of the boundary lands, see supra, at 404-405, does not qualify as a “later and then unknown circumstance” that can overcome otherwise applicable preclusion principles. The 1978 Order did not change the underlying facts in dispute; it simply embodied one party’s changed view of the import of unchanged facts. * Moreover, the Tribe can hardly claim to have been surprised by the Government’s shift in assessment of the boundary lands ownership question, for the Tribe had been advocating just such a shift for decades.
The United States and the Tribe, however, urge other grounds on which to reject the State parties’ argument regarding the preclusive effect of Arizona I. The United States and the Tribe maintain that the preclusion rationale the Court applied to the “omitted lands” in Arizona II is not equally applicable to the disputed boundary lands, and that, in any event, the State parties have forfeited their preclusion defense. We agree that the State parties’ preclusion defense is inadmissible at this late date, and therefore we do not reach the merits of that plea. The State parties could have raised the defense in 1979 in response to the United States’ motion for a supplemental decree granting additional water rights for the Fort Yuma Reservation. The State parties did not do so then, nor did they raise the objection in 1982 when Arizona II was briefed and argued. Unaccountably, they raised the preclusion argument for the first time in 1989, when they initiated the current round of proceedings. See Exception and Brief for State Parties 16; Motion of State Parties to Reopen Decree in Arizona v. California, O. T. 1989, No. 8 Orig., p. 6, n. 2. The State parties had every opportunity, and every incentive, to press their current preclusion argument at earlier stages in the litigation, yet failed to do so.
“[W]hile the technical rules of preclusion are not strictly applicable [in the context of a single ongoing original action], the principles upon which these rules are founded should inform our decision.” Arizona II, 460 U. S., at 619. Those principles rank res judicata an affirmative defense ordinarily lost if not timely raised. See Fed. Rule Civ. Proc. 8(c). Counsel for the State parties conceded at oral argument that “no preclusion argument was made with respect to boundary lands” in the proceedings leading up to Arizona II, and that “after this Court’s decision in Arizona II and after the Court’s later decision in [Nevada v. United States, 463 U. S. 110 (1983)], the light finally dawned on the State parties that there was a valid preclusion — or res judicata argument here with respect to Fort Yuma.” Tr. of Oral Arg. 46-47. We disapprove the notion that a party may wake up because a “light finally dawned,” years after the first opportunity to raise a defense, and effectively raise it so long as the party was (though no fault of anyone else) in the dark until its late awakening.
The State parties assert that our prior pronouncements in this case have expressly recognized the possibility that future boundary lands claims for the Fort Yuma Reservation might be precluded. If anything, the contrary is true. Nothing in the Arizona II decision hints that the Court believed the boundary lands issue might ultimately be held precluded. Rather, the Court expressly found it “necessary to decide whether any or all of these boundary disputes have been ‘finally determined’ within the meaning of Article 11(D)(5) . . . 460 U. S., at 631 (emphasis added). That Arizona II contains no discussion of preclusion with respect to the disputed lands is hardly surprising, given that the State parties neglected to raise that issue until six years later.
The Court did note in Arizona II that in the District Court proceedings the United States had asserted defenses based on “lack of standing, the absence of indispensable parties, sovereign immunity, and the applicable statute of limitations,” and added that “[t]here will be time enough, if any of these grounds for dismissal are sustained and not overturned on appellate review, to determine whether the boundary issues foreclosed by such [lower court] action are nevertheless open for litigation in this Court.” 460 U. S., at 638 (emphasis added). This passage, however, is most sensibly read to convey that the defenses just mentioned — standing, indispensable parties, sovereign immunity, and the statute of limitations — would not necessarily affect renewed litigation in this Court. The passage contains no acknowledgment, express or implied, of a lurking preclusion issue stemming from our Arizona I disposition.
Moreover, and of large significance, the 1979 and 1984 supplemental decrees anticipated that the disputed boundary issues for all five reservations, including the Fort Yuma Reservation, would be “finally determined” in some forum, not by preclusion but on the merits. See 1984 Supplemental Decree, Art. 11(D)(5), Arizona v. California, 466 U. S., at 145 (Water rights for all five reservations “shall be subject to appropriate adjustments by agreement or decree of this Court in the event that the boundaries of the respective reservations are finally determined.”); 1979 Supplemental Decree, Art. 11(D)(5), Arizona v. California, 439 U. S., at 421 (same).
The State parties themselves stipulated to the terms of the supplemental decree we entered in 1979. They also appear to have litigated the Arizona II proceedings on the understanding that the boundary disputes should be resolved on the merits. See 460 U. S., at 634 (“[The State parties] argued . . . that the boundary controversies were ripe for judicial review, and they urged the Special Master to receive evidence, hear legal arguments, and resolve each of the boundary disputes, but only for the limited purpose of establishing additional Indian water rights, if any.”); Report of Special Master Tuttle, O. T. 1981, No. 8 Orig., p. 57 (describing the State parties' contention “that the boundaries [of all five reservations] have not been finally determined and that I should make a de novo determination of the boundaries for recommendation to the Court”). As late as 1988, the State parties asked the Court to appoint a new Special Master and direct him “to conclude his review of the boundary issues as expeditiously as possible and to submit a recommended decision to the Court.” Brief for Petitioners in California v. United States, O. T. 1987, No. 87-1165, p. 49.
Finally, the State parties argue that even if they earlier failed to raise the preclusion defense, this Court should raise it now sua sponte. Judicial initiative of this sort might be appropriate in special circumstances. Most notably, “if a court is on notice that it has previously decided the issue presented, the court may dismiss the action sua sponte, even though the defense has not been raised. This result is fully consistent with the policies underlying res judicata: it is not based solely on the defendant's interest in avoiding the burdens of twice defending a suit, but is also based on the avoidance of unnecessary judicial waste.” United States v. Sioux Nation, 448 U. S. 371, 432 (1980) (Rehnquist, J., dissenting) (citations omitted). That special circumstance is not present here: While the State parties contend that the Fort Yuma boundary dispute could have been decided in Arizona I, this Court plainly has not “previously decided the issue presented.” Therefore we do not face the prospect of redoing a matter once decided. Where no judicial resources have been spent on the resolution of a question, trial courts must be cautious about raising a preclusion bar sua sponte, thereby eroding the principle of party presentation so basic to our system of adjudication.
In view of the State parties’ failure to raise the preclusion argument earlier in the litigation, despite ample opportunity and cause to do so, we hold that the claims of the United States and the Tribe to increased water rights for the disputed boundary lands of the Fort Yuma Reservation are not foreclosed by our decision in Arizona I.
B
The State parties also assert that the instant water rights claims are precluded by the 1988 consent judgment in the Claims Court proceeding, Docket No. 320. Special Master McGarr agreed, noting the consent judgment’s declaration that the Tribe would “be barred thereby from asserting any further rights, claims or demands against the defendant and any future action encompassed on docket no. 320.” See Special Master McGarr Memorandum Opinion and Order No. 4, at 9-10. On reconsideration, the Special Master provided a fuller account of his recommendation. The settlement, he concluded, had extinguished the Tribe’s claim to title in the disputed boundary lands, vesting that title in the United States against all the world: “The only viable basis for a damage or trespass claim [in Docket No. 320] was that the 1893 taking was illegal and that title therefore remained with the Tribe. When the Tribe accepted money in settlement of this claim, it relinquished its claim to title.” Id., No. 7, at 5 (May 5,1992). See also id, No. 13, at 3 (Apr. 13, 1993) (“[T]he relinquishment of all future claims regarding the subject matter of Docket No. 320 in exchange for a sum of money extinguished the Tribe’s title in the subject lands . . . .”). Because the settlement extinguished the Tribe’s title to the disputed boundary lands, the Master reasoned, the United States and the Tribe cannot now seek additional water rights based on the Tribe’s purported beneficial ownership of those lands.
Under standard preclusion doctrine, the Master’s recommendation cannot be sustained. As already noted, the express terms of the consent judgment in Docket No. 320 barred the Tribe and the United States from asserting against each other any claim or defense they raised or could have raised in that action. See supra, at 405. As between the parties to Docket No. 320, then, the settlement indeed had, and was intended to have, claim-preclusive effect — a matter the United States and the Tribe readily concede. Exception and Brief for United States 36; Exception and Brief for Queehan Indian Tribe 20. But settlements ordinarily occasion no issue preclusion (sometimes called collateral estoppel), unless it is clear, as it is not here, that the parties intend their agreement to have such an effect. “In most circumstances, it is recognized that consent agreements ordinarily are intended to preclude any further litigation on the claim presented but are not intended to preclude further litigation on any of the issues presented. Thus consent judgments ordinarily support claim preclusion but not issue preclusion.” 18 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure §4443, pp. 384-385 (1981). This differentiation is grounded in basic res judicata doctrine. It is the general rule that issue preclusion attaches only “[w]hen an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment.” Restatement (Second) of Judgments. § 27, p. 250 (1982). “In the case of a judgment entered by confession, consent, or default, none of the issues is actually litigated. Therefore, the rule of
Question: What is the basis of the Supreme Court's decision?
A. judicial review (national level)
B. judicial review (state level)
C. Supreme Court supervision of lower federal or state courts or original jurisdiction
D. statutory construction
E. interpretation of administrative regulation or rule, or executive order
F. diversity jurisdiction
G. federal common law
Answer:
|
songer_opinstat
|
B
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify whether the opinion writter is identified in the opinion or whether the opinion was per curiam.
MARTIN TYPEWRITER CO. v. WALLING, Adm’r of Wage and Hour Division, Dept. of Labor.
No. 3878.
Circuit Court of Appeals, First Circuit.
May 21, 1943.
Abraham Breitbard, of Portland, Me. (Wilfred A. Hay, of Portland, Me., of counsel), for ap'pellant.
Morton Liftin, of Washington, D. C. (Bessie Margolin, of Washington, D. C., Vernon C. Stoneman, of Boston, Mass., and Irving J. Levy, Acting Sol., and Morton H. Rowen, Atty., United States Department of Labor, of Washington, D. C., of counsel), for appellee.
Before MAHONEY and WOODBURY, Circuit Judges, and WYZANSKI, District Judge.
PER CURIAM.
The appellee, alleging on information and belief that the appellant was engaged “in the business of producing goods for interstate commerce, and engaged in interstate commerce”, applied to the court below for an order requiring the appellant to appear and show cause why an order should not issue requiring it to comply with subpoena duces tecum which the appellee had prepared and served on the appellant but which it had ignored. The court issued the order to shovy cause and the appellant answered and moved to dismiss alleging that it was a “retail and servicing establishment, the greater part of whose selling and servicing is in intrastate commerce”, and that therefore it was not subject to the provisions of the Fair Labor Standards Act of 1938, 52 Stat. 1060, 29 U.S.C.A. § 201 et seq. It did not put in issue the scope of the subpoena or the relevancy of the data therein described. The court, after .hearing, ordered the appellant to comply with the subpoena and set the time and place for its appearance with the books and records described, saying in the course of its memorandum opinion (D.C., 48 F.Supp. 751, 752): “This is an application to enforce a subpoena in what appears on its face to be an authorized and orderly investigation, and I do not feel justified in turning it into a lawsuit to decide a question which must be decided by the administrator in the course of his investigation, and which, if decided wrong, can be corrected later in a proceeding to enforce the orders of the administrator.”
We are of the opinion that the order of the district court must be sustained on the authority of Endicott Johnson Corp. v. Perkins, 317 U.S. 501, 63 S.Ct. 339, 87 L.Ed. —. See, also, Walling v. Standard Dredging Corp., 2 Cir., 132 F.2d 322.
The order of the District Court is affirmed.
Question: Is the opinion writer identified in the opinion, or was the opinion per curiam?
A. Signed, with reasons
B. Per curiam, with reasons
C. Not ascertained
Answer:
|
songer_procedur
|
D
|
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant.
In re KING RESOURCES COMPANY, SECURITIES LITIGATION. ROYAL RESOURCES CORPORATION, a Delaware Corporation, et al., Appellants, v. Harold BOTTGER et al., Appellees.
Nos. 74-1771-72.
United States Court of Appeals, Tenth Circuit.
Argued July 10, 1975.
Decided Nov. 13, 1975.
P. B. Konrad Knake, Jr., White & Case, New York City (H. Clay Whitlow, Dawson, Nagel, Sherman & Howard, Denver, Colo., with him on the brief), Paul E. Goodspeed, Shaw & Coghill, Denver, Colo. (Richard H. Shaw, H. Thomas Coghill, Shaw & Coghill, Denver, Colo., and Charles W. Boand, George W. Thompson, Wilson & McIlvaine, Chicago, Ill., with him on the brief), for appellant, Arthur Andersen & Co.
C. Henry Roath, Jay W. Enyart, Roath & Brega, Denver, Colo., on the brief for appellants, Royal Resources Corp., Royal Resources Exploration, Inc., Edward R. Annis, Marvin R. Barnett, George C. Hardin, Jr., Charles F. McCoy, David E. Melendy, and Paul W. Fairchild.
Donald J. McLachlan, Matthew J. Iverson, John M. Christian, Isham, Lincoln & Beale, Chicago, Ill., and Jeffrey A. Hyman, Elliott & Greengard, Denver, Colo., on the brief for appellants, Peterson, Ross, Rail, Barber & Seidel, and Herbert C. Loth, Jr.
Ernest W. Lohf, Paul F. Huitín, Lohf & Barnhill, P. C., Denver, Colo., on the brief for appellants, Myer Feldman, Joseph J. Foss, Stanley D. Hope, Arthur J. C. Underhill, Grover E. Murray, and J. L. Burke.
Edgar H. Brenner, Robert D. Rosenbaum, Arnold & Porter, Washington, D. C., and Harold Taft King, Denver, Colo., on the brief for appellants, Ginsburg, Feldman & Bress.
Robert J. Dyer, III, Bader & Dufty, Denver, Colo. (Gerald L. Bader, Jr., Denver, Colo., and Eugene W. Landy, Landy & Spector, Eatontown, N. J., with him on the brief), for appellees.
Before SETH, McWILLIAMS and DOYLE, Circuit Judges.
PER CURIAM.
This is an appeal sought by the defendants from a class certification under Rule 23, Fed.R.Civ.P. Under the trial court’s order, some 16,000 individuals who purchased limited partnership interests in twenty-five or twenty-six partnerships for oil development or prospecting were made a class in this action against a group of individual and corporate defendants. The complaint asserted common law causes and causes under the federal securities acts.
The defendants seek an appeal from the class action order.
The standards for review of appeals sought from the entry of orders under Rule 23 are set forth in Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 94 S.Ct. 2140, 40 L.Ed.2d 732, and in Cohen v. Beneficial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528. We have recently examined the standards in a securities act case, Seiffer v. Topsy’s International, Inc., 520 F.2d 795 (Tenth Circuit, 1975). See also In re Cessna Aircraft Distributorship Anti-Trust Litigation, White Industries, Inc. v. Cessna Aircraft Co., 518 F.2d 213 (8th Cir.); Rodgers v. United States Steel Corp., 508 F.2d 152 (3d Cir.); and General Motors Corp. v. City of New York, 501 F.2d 639 (2d Cir.).
The plaintiffs have here asserted several claims against the defendants in broad terms. We understand from the oral arguments that the common law claims have now been dropped, leaving the causes which accrued over a considerable period of time, and based on the federal security acts.
The defendants are a diverse group with quite different duties and responsibilities placed upon them by the federal acts. The defendants include the twenty-five or twenty-six limited partnerships, the corporate general partners, the officers and directors of the general partners, the parent management companies of the general partners, certain underwriters, attorneys, accountants for the partnerships and for related companies, and individuals. The directness of the transactional relationship between the plaintiffs and the defendants varies greatly. There are derivative claims asserted as well as direct claims. One of the general partners is undergoing reorganization.
The standard of “irreparable harm” urged by the parties seeking review was referred to in Seiffer v. Topsy’s International, Inc., 520 F.2d 795 (10th Cir.), as the expenses faced by defendants in defense of a class action, and whether or not the action would proceed regardless of a class action certification. This was one of the standards referred to by the court in Rodgers v. United States Steel Corp., 508 F.2d 152 (3d Cir.), and in General Motors Corp. v. City of New York, 501 F.2d 639 (2d Cir.), as expense matter alone in the defense of a large class action suit.
It is apparent that in the case before us, the defendants may be put to great expense in defense of the action as it now stands, and that this expense could possibly constitute irreparable harm. This is always a possibility, but perhaps somewhat more here in view of the vagueness of the claims, the period of time concerned, and the presence of such a diverse group of defendants; nevertheless, it is too early to tell with sufficient certainty to entertain this appeal.
Thus this application for review has been made prematurely, for the reason that the trial court has not yet sought to create subclasses, has not been asked to do so, and is presently narrowing the issues.
We have not examined the claims of conflicting interests of those representing certain plaintiffs which were argued on this review, as this is a problem for the trial court at this stage of the proceedings.
The appeal is dismissed.
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_fed
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
J. W. JENKINS SONS’ MUSIC COMPANY v. Nona MATHEW.
No. 396.
Circuit Court of Appeals, Tenth Circuit.
Jan. 13, 1931.
Vermilion, Evans, Carey & Lilleston, of Wichita, Kan., for appellant.
Payne H. Ratner, of Parsons, Kan., Harold Medill, of Independence, Kan., and A. M. Etchen, of Kansas City, Kan., for appellee.
Before LEWIS and MeDERMOTT, Circuit Judges, and KENNEDY, District Judge.
PER CURIAM.
Appeal dismissed January 13, 1931, per stipulation, at costs of appellant.
Question: What is the total number of respondents in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number.
Answer:
|
songer_circuit
|
D
|
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.
Leonard HALL, Jr., Appellant, v. WARDEN, MARYLAND PENITENTIARY, Appellee.
No. 8592.
United States Court of Appeals Fourth Circuit.
Argued June 20, 1966.
Decided July 26, 1966.
Robert F. Sweeney, Asst Atty. Gen., of Maryland, (Thomas B. Finan, Atty. Gen., of Maryland, and Donald Needle, Asst. Atty. Gen., of Maryland, on the brief) for appellee.
William F. Mosner, Towson, Md., for appellant.
Before HAYNSWORTH, Chief Judge, and SOBELOFF, BOREMAN, BRYAN and J. SPENCER BELL, Circuit Judges, sitting en banc.
HAYNSWORTH, Chief Judge:
Maryland has applied to us for a vacation of a judgment we entered in a habeas corpus proceeding in 1963, relief which we find ourselves unable to grant.
Leonard Hall, Jr. was convicted of murder. After affirmance of his conviction, and the denial of post-conviction relief in the state courts, he sought habeas corpus relief in the District Court and appealed from denial of relief there. We reversed and the Supreme Court denied certiorari.
Our judgment reversing the denial of habeas corpus relief was entered on January 17, 1963. It was based upon a conclusion of a majority of this Court that certain evidence introduced against Hall had been seized in violation of his constitutional rights, and that the rule of Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, should be applied retroactively.
As indicated above, the Supreme Court declined to take the Hall case in 1963, though, on June 7, 1965, it announced its decision in Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601; in which it held that the Mapp rule should not be applied retroactively to judgments which had become final prior to the announcement of the Mapp opinion. The Supreme Court’s opinion in Linkletter was inconsistent, of course, with the decision of this court in Hall, but Hall preceded Linkletter by more than two years. In light of Linkletter, our decision in Hall now clearly appears to have been erroneous, but after the Supreme Court’s denial of certiorari in Hall on June 10, 1963, our mandate in Hall had gone down and had long since become final.
Meanwhile, Maryland has retried Hall. It did so after preliminary proceedings in the state trial court, in which his confession was suppressed upon a finding that it was the coerced product of the unlawful search. The case went to the jury without the fruits of the search or the confession to bolster the state’s case, and the jury was unable to reach an agreement. A mistrial was declared.
The Linkletter doctrine was enunciated in an effort to preserve a substantial amount of finality in judgments which had become final before Mapp was decided. The same principle suggests that judgments which had become final long before Linkletter was decided should not be reopened merely upon a showing of inconsistency with that decision. We do not find authority in Rule 60(b) to recall our mandate, with the effect of reinstatement of the state court’s judgment imposing the death sentence. This is particularly true in light of the state’s intervening retrial of Hall, its suppression of the confession, and the mistrial which was declared. Nor do we think that we should construe the motion as one for a rehearing in which Hall’s objection to the original admission of his confession would be open for our consideration. Construed as a motion for a rehearing, it is very belated, and, subsequent to our decision, the Warden exhausted his rights of review in the Supreme Court.
What we say is without prejudice to any right Maryland may have to apply to the Supreme Court of the United States for a rehearing or reconsideration of its denial of certiorari to this Court, but, in the absence of any indication by the Supreme Court that Linkletter should be construed as opening up final judgments such as this one, we think there is no remedy in this Court to relieve the State of Maryland wholly or partially from the effects of the judgment entered in 1963, more than three years ago.
Motion denied.
. Hall v. State, 223 Md. 158, 162 A.2d 751.
. Hall V. Warden, 224 Md. 662, 168 A.2d 373, cert. den. 368 U.S. 867, 82 S.Ct. 78, 7 L.Ed.2d 65.
. Hall v. Warden, D.C.Md., 201 F.Supp. 639.
. Hall v. Warden, 4 Cir., 313 F.2d 483.
. Pepersack, Warden v. Hall, 374 U.S. 809, 83 S.Ct. 1693, 10 L.Ed.2d 1032.
. In the habeas proceeding, Hall attacked his conviction not only on the basis of tbe evidentiary use of the fruits of the search, but also on the basis that his confession, used at the trial, was coerced and inadmissible. He also claimed that his lawyer had deprived him of his right to testify in his own behalf. We did not find it necessary to reach those questions. Now, in no event, could we affirm the District Court’s dismissal of the habeas petition without formal consideration of those other claims.
Question: What is the circuit of the court that decided the case?
A. First Circuit
B. Second Circuit
C. Third Circuit
D. Fourth Circuit
E. Fifth Circuit
F. Sixth Circuit
G. Seventh Circuit
H. Eighth Circuit
I. Ninth Circuit
J. Tenth Circuit
K. Eleventh Circuit
L. District of Columbia Circuit
Answer:
|
songer_appel1_8_2
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "miscellaneous". Your task is to determine which of the following categories best describes the litigant.
Gerard A. FLOERSCH, Jr., Executor of the Estate of Gerard A. Floersch, Deceased, and Florence Alberta Floersch, Deceased, Appellant, v. MERCHANTS MOTOR FREIGHT, Inc., a Minnesota Corporation, George Meads and Barbara Kaisser, Appellees.
No. 15734.
United States Court of Appeals Eighth Circuit.
Oct 15, 1957.
Rehearing Denied Dec. 6, 1957.
James G. McDowell, Jr., Des Moines, Iowa, for appellant.
Donald T. Hines, Cedar Rapids, Iowa (Amor H. Sargent, Cedar Rapids, Iowa, on the brief), for appellees.
Before SANBORN, WOODROUGH, and VAN OOSTERHOUT, Circuit Judges.
VAN OOSTERHOUT, Circuit Judge.
Gerard A. Floersch and Florence Alberta Floersch, husband and wife, while in an automobile owned and operated by Mr. Floersch, suffered injuries causing their deaths as the result of a collision with a truck driven by defendant Meads. Plaintiff, as executor of the estates of Mr. and Mrs. Floersch, brought this action for the wrongful death of each decedent, basing his right to recover upon both the specifications of negligence and the last clear chance doctrine. The case was tried to a jury. The court sustained defendants’ motion to direct a verdict for the defendants upon all claims based upon Mr. Floersch’s death. The claim for damages based upon Mrs. Floersch’s death was submitted to the jury upon the specifications of negligence, but not upon the last clear chance doctrine. The jury found for the defendants upon the cause of action on behalf of the decedent Mrs. Floersch, based on specifications of negligence.
This appeal is from final judgment entered against the plaintiff dismissing all claims asserted. Jurisdiction based upon diversity of citizenship and the jurisdictional amount is established.
The principal error urged upon this appeal is that the court erred in sustaining defendants’ motion for a directed verdict upon that portion of the plaintiff’s claim as to each decedent which was based upon the last clear chance doctrine, and in failing to submit the claim as to each decedent to the jury upon the last clear chance doctrine. No complaint is made that the court erred in directing the verdict in favor of the defendants upon the divisions of the complaint asserting a right to recover on behalf of Mr. Floersch’s estate upon the specific allegations of negligence. The sufficiency of the evidence to sustain the jury verdict for the defendants upon that portion of the claim on behalf of Mrs. Floersch’s estate based upon specific allegations of negligence is not challenged.
We proceed to examine plaintiff’s contention that the court erred in failing to submit the claims on behalf of each decedent, based upon the last clear chance doctrine.
The accident occurred in Iowa. All parties agree that Iowa law governs, and that the applicable Iowa law upon the last clear chance doctrine is set out in Menke v. Peterschmidt, 246 Iowa 722, 69 N.W.2d 65, at page 68, wherein the court states:
“III. It is well settléd that the requisites to an application of the last clear chance doctrine are evidence that the defendant had 1, knowledge of plaintiff’s presence; 2, realization of plaintiff’s peril; and 3, the ability to avoid the injury to ' plaintiff thereafter. * * * ”
We shall separately consider the three requisites of a cause of action based upon last clear chance.
Requisite No. 1 is a subjective test. Proof of actual knowledge by defendant of the plaintiff’s presence is required. This test is fully met by the evidence in this case. Defendant Meads had actual knowledge of the presence of the Floersch vehicle prior to the collision. Requisite No. 2, realization of plaintiff’s peril, is an objective test. Actual knowledge of plaintiff’s peril is not required. The test is met if the peril should have been realized by a person of ordinary prudence in the exercise of reasonable care. There is evidence to support a conclusion that some time before the collision defendant Meads realized the peril. The third requisite is defendant’s ability to avoid injury after realization of plaintiff’s peril. In a last clear chance situation defendant may not be charged with negligence occurring prior to the time he discovered or should have discovered the peril. In the Menke ease, supra, 69 N.W. 2d at page 69, the court states, “It is defendant’s negligence after he discovers or in the exercise of reasonable care should have discovered the plaintiff’s danger that brings the doctrine into effect.” The defendant must have “time to be negligent.” Mast v. Illinois Central R. Co., D.C.N.D.Iowa, 79 F.Supp. 149, 161, affirmed 8 Cir., 176 F.2d 157; Menke v. Peterschmidt, supra, 69 N.W.2d at page 72.
The Iowa court has not definitely determined whether the Iowa last clear chance doctrine is an exception to the rule barring recovery to one guilty of contributory negligence, or whether it is a phase of the doctrine of proximate cause. Menke v. Peterschmidt, supra; Mast v. Illinois Central R. Co., supra. In the last cited case, Judge Graven, after reviewing the applicable Iowa cases exhaustively, states (79 F.Supp. at pages 161-162):
“ * * * However, whatever may be the situation as to the theory of the rule, it seems that the Iowa Supreme Court apparently still recognizes the right of injured persons whose negligence continues up to the instant of the collision to have the benefit of the rule. * * * ”
The burden is on the pleader to prove the facts making the last clear chance doctrine applicable by a preponderance of the evidence. Menke v. Peterschmidt, supra, 69 N.W.2d at page 68; Mast v. Illinois Central R. Co., supra, 79 F.Supp. at page 160; Note 159 A.L.R. 724.
In the light of the principles of law just set out, we look to the evidence to determine whether the plaintiff has made a submissible case under the last clear chance doctrine. In examining the evidence we must, of course, examine it in the light most favorable to the plaintiff.
The collision between the truck and the Floersch automobile, which caused the injuries resulting in the death of Mr. and Mrs. Floersch, occurred about 10:35 P.M. on October 21, 1954, at a point on primary highway 30 about 27 feet east of the intersection of highway 30 and highway 212. Highway 30 runs east and west. Highway 212, from the place where it meets highway 30, runs in a southeasterly direction. There is a stop sign at this intersection stopping traffic entering highway 30 from highway 212. There is no road running to the north at the intersection of highways 30 and 212. Defendant Meads, as he approached the accident intersection, driving in a westerly direction on highway 30, was operating a tractor-trailer weighing 23,000 pounds, carrying a load of 30,-000 pounds, a legally permissible load. At the same time the Floersches were traveling northwest on highway 212 in their automobile. Defendant Meads, driver of the truck, is the sole surviving witness to the accident. His testimony is that he first saw the Floersch car when he was 400 to 450 feet east of the intersection. He was then traveling 40 to 45 miles an hour and had just put on his brakes to slow down for the intersection. At that time the Floersch car was just behind the stop sign on highway 212. Meads thought the car was going to stop, but instead it pulled directly north across the highway when Meads was about 125 feet way. The Floersch car continued north up to a point where its front wheels were about one foot north of the north edge of highway 30, the rear end of the Floersch car then extending across the north half of the pavement and to a point about three feet south of the center line of the highway. Meads, who had been traveling on the right or the north side of the road, immediately applied his brakes, blew his horn, and turned to the left as far as he could to attempt to avoid the collision. Before the collision his left wheels were on the south shoulder of the highway. When the truck reached a point about 50 feet from the Floersch automobile, the automobile commenced to back up across the highway in a southerly direction, and there was nothing Meads could do to avoid the collision. Meads further testified that if the Floersch car had not been backed up, he would have safely passed to the south of the automobile.
Meads’ testimony gains some corroboration from the physical facts. Two officers who came to the scene of the accident soon after it occurred testified to tire marks on the north shoulder of the pavement directly in line with the point of collision. They also testified as to skid marks made by the truck tires extending 125 feet back to the point of collision and heading in a southwesterly direction.
Plaintiff contends that the jury would not be compelled to believe Meads’ testimony. He states that Meads’ testimony at the trial as to his location when he first saw the Floersch car is inconsistent with the written statement he gave the coroner shortly after the accident and with the statement he gave the witness Shuttleworth the day after the accident. Meads’ statement to the coroner was offered in evidence by the plaintiff and received for all purposes without objection. Plaintiff relies particularly upon the following part of the statement:
“ * * * As I came over a hill going west at a point in Salt Creek Township, Tama County, Iowa, at what is known as intersection of Highway 30 and County Road No. 212, I noticed an automobile coming from No. 212 onto Highway 30. Said automobile was headed north, but [on] my portion of the Highway 30, I was travelling about 45 miles per hour at this time. As I approached said intersection from the east I operated my brakes which are air brakes controlled and in good condition. However, as it appeared the driver of the automobile was not going to clear my portion of the said Highway 30, I attempted to pass him on the left in order to avoid the collision. Just before contact was made, however, he reversed his movement and backed his car to the south but I was too close to his car to change my course of travel and we collided with the above results. * * *»
There is a hill east of the intersection. Plaintiff introduced undisputed evidence that a person coming down this hill as defendant Meads was could see the accident intersection when at a point 1500 feet distant therefrom. Plaintiff seizes on the words “As I came over the hill” in the statement given by defendant Meads to the coroner as meaning that Meads saw the Floersch car when he came over the top of the hill, and interprets Meads’ statement to the coroner as stating that Meads saw the Floersch car when it was 1500 feet distant. Plaintiff argues that such a statement is inconsistent with Meads’ testimony at the trial that he first saw the Floersch car when it was 450 feet away and his statement made to Shuttleworth the day following the accident that he saw the car when it was about 600 feet away.
Determination of the credibility of a witness falls within the province of the jury. It is true that a jury is not required to believe any witness. However, even if we assume that there is evidence from which the jury could find that Meads first saw the Floersch vehicle when it was 1500 feet distant, plaintiff still fails to make out a case of last clear chance.
It is definitely established that shortly prior to the collision the Floersch car had come to rest across the pavement, headed north, with its front wheels extending one foot north of the north edge of the pavement, blocking the north lane of the pavement and the north three feet of the south lane. In the argument on the motion for a directed verdict in the District Court the following colloquy took place:
“The Court: It seems to me that the evidence pretty conclusively establishes that their car was crosswise of the road over the north half.
“Mr. McDowell: I believe that is correct, your Honor.
“The Court: It would be pretty hard to get away from that.”
Defendant Meads’ testimony both at the trial and in his statement to the coroner is that he slowed down and turned to the left to pass. Meads testified at the trial that if Floersch had not attempted to back up he would have safely passed to the left of the automobile. This testimony is supported by the physical facts, the tire marks of the truck and the evidence showing adequate space on the south side of the pavement and adjoining shoulder to permit Meads to avoid the obstructing car. Consequently, it affirmatively appears that Meads was exercising reasonable care to avoid any collision after discovering the peril created by the position of the Floersch car on the highway. The only evidence of what happened thereafter is that offered by Meads. Such testimony is to the effect that the Floersch car started backing up to the south when Meads got within 50 feet of it. Meads’ testimony as to his speed is that he was traveling 40 to 45 miles per hour 450 feet from the intersection, 30 to 35 miles per hour 125 feet from the intersection, and 10 to 20 miles per hour at the point of collision. Meads testified that when the Floersch car backed up when he was 50 feet away, it was impossible for him to avoid the collision.
The only evidence in the record bearing upon the issue of discovery of peril occasioned by the Floersch car being backed across the road is that of Meads. If his testimony is to be believed, he did not discover the peril created by this car movement within sufficient time to avoid the collision by the exercise of ordinary care. He did not have time to be negligent. Menke v. Peterschmidt, supra; Note, The Iowa Doctrine of Last Clear Chance by Harry G. Slife, 34 Iowa Law Review 480. Again, plaintiff correctly states that a jury would not have to believe defendant Meads’ testimony. In answer to this the trial court states:
“Can you prove the affirmative of a hypothesis by assuming a falsity of what has been testified to? And that is what you have to do. A witness comes on and testifies so and so. By saying because he must have been lying a case is for the jury even though there is no evidence to sustain that charge.”
A somewhat similar problem confronted the court in the Menke case, supra. The court there states (69 N.W.2d at pages 70-71, 73):
“ * * * The appellee devotes much time to his argument that Mrs. Menke’s testimony is inconsistent and in many respects not credible. Without endorsing this contention, we think it immaterial in any event. Since she was the only witness who was present and who testified to what actually happened, if her testimony is not to be accepted, there is nothing substantial to show what she saw and what she did, or from which a last clear chance situation may be inferred. There are no presumptions of appellants’ negligence to aid appellee. He must recover upon the strength of his own case; a merely negative showing will not avail him.
******
“Something better than an opportunity for the jury to guess must be furnished by the litigant who assumes the burden of proving the applicability of the doctrine of the last clear chance. If the record here shows anything affirmative, it is that Mrs. Menke had no real time or opportunity — no ‘clear chance’— to avoid the collision within the meaning of the rule.”
See also Mast v. Illinois Central R. Co., supra, 79 F.Supp. at page 164.
In our present case, if Meads’ testimony as to the distance between the vehicles when the Floersch car started to back to the south is not to be believed, there is no evidence direct or substantial to indicate when in the sequence of events this backing up occurred, and there is no evidence to sustain plaintiff’s burden of proving that such backing occurred a sufficient time before the collision to afford defendant Meads an opportunity to avoid the collision by the exercise of reasonable care. We are satisfied that the court was justified in sustaining the motion for a directed verdict as to the divisions of the complaint on behalf of each of the decedents, based upon the last clear chance doctrine.
Plaintiff also contends the court committed error in instructing the jury upon the doctrine of sudden emergency. From the exception taken to the instruction and from the statements appearing in plaintiff’s brief, plaintiff’s objection to the instruction appears to be based on the giving of any instruction at all upon sudden emergency, rather than to the form of the instruction given. Enough of the evidence has heretofore been set out to indicate that there is substantial evidence to support a finding that defendant Meads was confronted with an emergency not of his own making. Under such circumstances, under Iowa law, an instruction upon sudden emergency is required. Merchants Motor Freight v. Downing, 8 Cir., 227 F.2d 247, 252. The court committed no error in giving the sudden emergency instruction.
The judgment appealed from is affirmed.
. Other defendants are the owner and lessee of the trailer tractor equipment. Their liability is dependent upon the liability of the driver, Meads.
. At p. 489 of the Law Review article, the author states: “The Iowa court has been very careful to require, particularly in the more recent cases, sufficient showing that avoidance would have been possible in the exercise of ordinary care. There are many cases approving the trial court’s directed verdict for defendant where the record clearly shows that after discovery of plaintiff’s position and facts justifying realization of his peril, there was not sufficient time to avoid the aceident, and there are many more eases reversing a judgment for plaintiff because under the record the trial court should have directed a verdict for defendant for the same reason.”
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "miscellaneous". Which of the following categories best describes the litigant?
A. fiduciary, executor, or trustee
B. other
C. nature of the litigant not ascertained
Answer:
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sc_respondentstate
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21
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state associated with the respondent. If the respondent is a federal court or federal judge, note the "state" as the United States. The same holds for other federal employees or officials.
STONE et al. v. GRAHAM, SUPERINTENDENT OF PUBLIC INSTRUCTION OF KENTUCKY
No. 80-321.
Decided November 17, 1980
Per Curiam.
A Kentucky statute requires the posting of a copy of the Ten Commandments, purchased with private contributions, on the wall of each public classroom in the State. Petitioners, claiming that this statute violates the Establishment and Free Exercise Clauses of the First Amendment, sought an injunction against its enforcement. The state trial court upheld the statute, finding that its “avowed purpose” was “secular and not religious,” and that the statute would “neither advance nor inhibit any religion or religious group” nor involve the State excessively in religious matters. App. to Pet. for Cert. 38-39. The Supreme Court of the Commonwealth of Kentucky affirmed by an equally divided court. 599 S. W. 2d 157 (1980). We reverse.
This Court has announced a three-part test for determining whether a challenged state statute is permissible under the Establishment Clause of the United States Constitution:
“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. 602, 612-613 (1971) (citations omitted).
If a statute violates any of these three principles, it must be struck down under the Establishment Clause. We conclude that Kentucky’s statute requiring the posting of the Ten Commandments in public school rooms has no secular legislative purpose, and is therefore unconstitutional.
The Commonwealth insists that the statute in question serves a secular legislative purpose, observing that the legislature required the following notation in small print at the bottom of each display of the Ten Commandments: “The secular application of the Ten Commandments is clearly seen in its adoption as the fundamental legal code of Western Civilization and the Common Law of the United States.” 1978 Ky. Acts, ch. 436, § 1 (effective June 17, 1978), Ky. Rev. Stat. § 158.178 (1980).
The trial court found the “avowed” purpose of the statute to be secular, even as it labeled the statutory declaration “self-serving.” App. to Pet. for Cert. 37. Under this Court’s rulings, however, such an “avowed” secular purpose is not sufficient to avoid conflict with the First Amendment. In Abington School District v. Schempp, 374 U. S. 203 (1963), this Court held unconstitutional the daily reading of Bible verses and the Lord’s Prayer in the public schools, despite the school district’s assertion of such secular purposes as “the promotion of moral values, the contradiction to the materialistic trends of our times, the perpetuation of our institutions and the teaching of literature.” Id., at 223.
The pre-eminent purpose for posting the Ten Commandments on schoolroom walls is plainly religious in nature. The Ten Commandments are undeniably a sacred‘text in the Jewish and Christian faiths, and no legislative recitation of a supposed secular purpose can blind us to that fact. The Commandments do not confine themselves to arguably secular matters, such as honoring one’s parents, killing or murder, adultery, stealing, false witness, and covetousness. See Exodus 20: 12-17; Deuteronomy 5: 16-21. Rather, the first part of the Commandments concerns the religious duties of believers: worshipping the Lord God alone, avoiding idolatry, not using the Lord’s name in vain, and observing the Sabbath Day. See Exodus 20: 1-11; Deuteronomy 5: 6-15.
This is not a case in which the Ten Commandments are integrated into the school curriculum, where the Bible may constitutionally be used in an appropriate study of history, civilization, ethics, comparative religion, or the like. Abington School District v. Schempp, supra, at 225. Posting of religious texts on the wall serves no such educational function. If the posted copies of the Ten Commandments are to have any effect at all, it will be to induce the schoolchildren to read, meditate upon, perhaps to venerate and obey, the Commandments. However desirable this might be as a matter of private devotion, it is not a permissible state objective under the Establishment Clause.
It does not matter that the posted copies of the Ten Commandments are financed by voluntary private contributions, for the mere posting of the copies under the auspices of the legislature provides the “official support of the State . . . Government” that the Establishment Clause prohibits. 374 U. S., at 222; see Engel v. Vitale, 370 U. S. 421, 431 (1962). Nor is it significant that the Bible verses involved in this case are merely posted on the wall, rather than read aloud as in Schempp and Engel, for “it is no defense to urge that the religious practices here may be relatively minor encroachments on the First Amendment.” Abington School District v. Schempp, supra, at 225. We conclude that Ky. Rev. Stat. § 158.178 (1980) violates the first part of the Lemon v. Kurtzman test, and thus the Establishment Clause of the Constitution.
The petition for a writ of certiorari is granted, and the judgment below is reversed.
It is so ordered.
The Chief Justice and Justice Blackmun dissent. They would grant certiorari and give this case plenary consideration.
Justice Stewart dissents from this summary reversal of the courts of Kentucky, which, so far as appears, applied wholly correct constitutional .criteria in reaching their decisions.
The statute provides in its entirety:
“(1) It shall be the duty of the superintendent of public instruction, provided sufficient funds are available as provided in subsection (3) of this Section, to ensure that a durable, permanent copy of the Ten Commandments shall be displayed on a wall in each public elementary and secondary school classroom in the Commonwealth. The copy shall be sixteen (16) inches wide by twenty (20) inches high.
“(2) In small print below the last commandment shall appear a notation concerning the purpose of the display, as follows: ‘The secular application of the Ten Commandments is clearly seen in its adoption as the fundamental legal code of Western Civilization and the Common Law of the United States.’
“(3) The copies required by this Act shall be purchased with funds made available through voluntary contributions made to the state treasurer for the purposes of this Act.” 1978 Ky. Acts, ch. 436, § 1 (effective June 17, 1978), Ky. Rev. Stat. § 168.178 (1980).
The First Amendment’ provides in relevant part: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . .” This prohibition is applicable to the States through the Fourteenth Amendment. Abington School District v. Schempp, 374 U. S. 203, 215-216 (1963).
As this Court commented in Abington School District v. Schempp, supra, at 224: “Surely the place of the Bible as an instrument of religion cannot be gainsaid . . . .”
Moreover, while the actual copies of the Ten Commandments were purchased through private contributions, the State nevertheless expended public money in administering the statute. For example, the statute requires that the state treasurer serve as a collecting agent for the contributions. Ky. Rev. Stat. §158.178 (3) (1980).
The Supreme Court eases cited by the dissenting opinion as contrary, Committee for Public Education v. Nyquist, 413 U. S. 756 (1973); Sloan v. Lemon, 413 U. S. 825 (1973); Lemon v. Kurtzman, 403 U. S. 602 (1971); Board of Education v. Allen, 392 U. S. 236 (1968), are easily distinguishable: all are cases involving state assistance to private schools. Such assistance has the obvious legitimate secular purpose of promoting educational opportunity. The posting of the Ten Commandments on classroom walls has no such secular purpose.
Question: What state is associated with the respondent?
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:
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sc_issuearea
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C
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What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states.
CENTRAL HUDSON GAS & ELECTRIC CORP. v. PUBLIC SERVICE COMMISSION OF NEW YORK
No. 79-565.
Argued March 17, 1980
Decided June 20, 1980
Powell, J., delivered the opinion of the Court, in which BurgeR, C. J., and Stewart, White, and Marshall, JJ., joined. BreNNAN, J., filed an opinion concurring in the judgment, post, p. 572. Blackmutst, J., post, p. 573, and SteveNS, J., post, p. 579, filed opinions concurring in the judgment, in which BreNNAN, J., joined. Rehnquist, J., filed a dissenting opinion, post, p. 583.
Telford Taylor argued the cause for appellant. With him on the briefs were Walter A. Bossert, Jr., and Davison W. Grant.
Peter H. Schiff argued the cause for appellee. With him on the brief was Howard J. Read.
Briefs of amici curiae urging reversal were filed by Cameron F. Mac-Bae and Robert L. Baum for the Edison Electric Institute; by Burt Nen-horne for Long Island Lighting Co.; by Edward H. Dowd and Myrna P. Field for the Mid-Atlantic Legal Foundation et ah; and by Edwin P. Rome and William H. Roberts for Mobil Corp.
Me. Justice Powell
delivered the opinion of the Court.
This case presents the question whether a regulation of the Public Service Commission of the State of New York violates the First and Fourteenth Amendments because it completely bans promotional advertising by an electrical utility.
I
In December 1973, the Commission, appellee here, ordered electric utilities in New York State to cease all advertising that “promot[es] the use of electricity.” App. to Juris. Statement 31a. The order was based on the Commission’s finding that “the interconnected utility system in New York State does not have sufficient fuel stocks or sources of supply to continue furnishing all customer demands for the 1973-1974 winter.” Id., at 26a.
Three years later, when the fuel shortage had eased, the Commission requested comments from the public on its proposal to continue the ban on promotional advertising. Central Hudson Gas & Electric Corp., the appellant in this case, opposed the ban on First Amendment grounds. App. A10. After reviewing the public comments, the Commission extended the prohibition in a Policy Statement issued on February 25, 1977.
The Policy Statement divided advertising expenses “into two broad categories: promotional — advertising intended to stimulate the purchase of utility services — and institutional and informational, a broad category inclusive of all advertising not clearly intended to promote sales.” App. to Juris. Statement 35a. The Commission declared all promotional advertising contrary to the national policy of conserving energy. It acknowledged that the ban is not a perfect vehicle for conserving energy. For example, the Commission’s order prohibits promotional advertising to develop consumption during periods when demand for electricity is low. By limiting growth in “off-peak” consumption, the ban limits the “beneficial side effects” of such growth in terms of more efficient use of existing powerplants. Id., at 37a. And since oil dealers are not under the Commission’s jurisdiction and thus remain free to advertise, it was recognized that the ban can achieve only “piecemeal conservationism” Still, the Commission adopted the restriction because it was deemed likely to “result in some dampening of unnecessary growth” in energy consumption. Ibid.
The Commission’s order explicitly permitted “informational” advertising designed to encourage “shifts of consumption” from peak demand times to periods of low electricity demand. Ibid, (emphasis in orginal). Informational advertising would not seek to increase aggregate consumption, but would invite a leveling of demand throughout any given 24-hour period. The agency offered to review “specific proposals by the companies for specifically described [advertising] programs that meet these criteria.” Id., at 38a.
When it rejected requests for rehearing on the Policy Statement, the Commission supplemented its rationale for the advertising ban. The agency observed that additional electricity probably would be more expensive to produce than existing output. Because electricity rates in New York were not then based on marginal cost, the Commission feared that additional power would be priced below the actual cost of generation. The additional electricity would be subsidized by all consumers through generally higher rates. Id., at 57a-58a. The state agency also thought that promotional advertising would give “misleading signals” to the public by appearing to encourage energy consumption at a time when conservation is needed. Id., at 59a.
Appellant challenged the order in state court, arguing that the Commission had restrained commercial speech in violation of the First and Fourteenth Amendments. The Commission’s order was upheld by the trial court and at the intermediate appellate level. The New York Court of Appeals affirmed. It found little value to advertising in “the noncompetitive market in which electric corporations operate.” Consolidated Edison Co. v. Public Service Comm’n, 47 N. Y. 2d 94, 110, 390 N. E. 2d 749, 757 (1979). Since consumers “have no choice regarding the source of their electric power,” the court denied that “promotional advertising of electricity might contribute to society’s interest in ‘informed and reliable’ economic decisionmaking.” Ibid. The court also observed that by encouraging consumption, promotional advertising would only exacerbate the current energy situation. Id., at 110, 390 N. E. 2d, at 758. The court concluded that the governmental interest in the prohibition outweighed the limited constitutional value of the commercial speech at issue. We noted probable jurisdiction, 444 U. S. 962 (1979), and now reverse.
The Commission’s order restricts only commercial speech, that is, expression related solely to the economic interests of the speaker and its audience. Virginia Pharmacy Board v. Virginia Citizens Consumer Council, 425 U. S. 748, 762 (1976); Bates v. State Bar of Arizona, 433 U. S. 350, 363-364 (1977); Friedman v. Rogers, 440 U. S. 1, 11 (1979). The First Amendment, as applied to the States through the Fourteenth Amendment, protects commercial speech from unwarranted governmental regulation. Virginia Pharmacy Board, 425 U. S., at 761-762. Commercial expression not only serves the economic interest of the speaker, but also assists consumers and furthers the societal interest in the fullest possible dissemination of information. In applying the First Amendment to this area, we have rejected the “highly paternalistic” view that government has complete power to suppress or regulate commercial speech. “[P]eople will perceive their own best interests if only they are well enough informed, and . . . the best means to that end is to open the channels of communication, rather than to close them. . . .” Id., at 770; see Linmark Associates, Inc. v. Willingboro, 431 U. S. 85, 92 (1977). Even when advertising communicates only an incomplete version of the relevant facts, the First Amendment presumes that some accurate information is better than no information at all. Bates v. State Bar of Arizona, supra, at 374.
Nevertheless, our decisions have recognized "the ‘commonsense’ distinction between speech proposing a commercial transaction, which occurs in an area traditionally subject to government regulation, and other varieties of speech.” Ohralik v. Ohio State Bar Assn., 436 U. S. 447, 455-456 (1978); see Bates v. State Bar of Arizona, supra, at 381; see also Jackson & Jeffries, Commercial Speech: Economic Due Process and the First Amendment, 65 Ya. L. Rev. 1, 38-39 (1979). The Constitution therefore accords a lesser protection to commercial speech than to other constitutionally guaranteed expression. 436 U. S., at 456, 457. The protection available for particular commercial expression turns on the nature both of the expression and of the governmental interests served by its regulation.
The First Amendment’s concern for commercial speech is based on the informational function of advertising. See First National Bank of Boston v. Bellotti, 435 U. S. 765, 783 (1978). Consequently, there can be no constitutional objection to the suppression of commercial messages that do not accurately inform the public about lawful activity. The government may ban forms of communication more likely to deceive the public than to inform it, Friedman v. Rogers, supra, at 13, 15-16; Ohralik v. Ohio State Bar Assn., supra, at 46A-465, or commercial speech related to illegal activity, Pittsburgh Press Co. v. Human Relations Comm’n, 413 U. S. 376, 388 (1973).
If the communication is neither misleading nor related to unlawful activity, the government’s power is more circumscribed. The State must assert a substantial interest to be achieved by restrictions on commercial speech. Moreover, the regulatory technique must be in proportion to that interest. The limitation on expression must be designed carefully to achieve the State’s goal. Compliance with this requirement may be measured by two criteria. First, the restriction must directly advance the state interest involved; the regulation may not be sustained if it provides only ineffective or remote support for the government’s purpose. Second, if the governmental interest could be served as well by a more limited restriction on commercial speech, the excessive restrictions cannot survive.
Under the first criterion, the Court has declined to uphold regulations that only indirectly advance the state interest involved. In both Bates and Virginia Pharmacy Board, the Court concluded that an advertising ban could not be imposed to protect the ethical or performance standards of a profession. The Court noted in Virginia Pharmacy Board that “[t]he advertising ban does not directly affect professional standards one way or the other.” 425 U. S., at 769. In Bates, the Court overturned an advertising prohibition that was designed to protect the “quality” of a lawyer’s work. “Restraints on advertising . . . are an ineffective way of deterring shoddy work.” 433 U. S., at 378.
The second criterion recognizes that the First Amendment mandates that speech restrictions be “narrowly drawn.” In re Primus, 436 U. S. 412, 438 (1978). The regulatory technique may extend only as far as the interest it serves. The State cannot regulate speech that poses no danger to the asserted state interest, see First National Bank of Boston v. Bellotti, supra, at 794-795, nor can it completely suppress information when narrower restrictions on expression would serve its interest as well. For example, in Bates the Court explicitly did not “foreclose the possibility that some limited supplementation, by way of warning or disclaimer or the like, might be required” in promotional materials. 433 U. S., at 384. See Virginia Pharmacy Board, supra, at 773. And in Carey v. Population Services International, 431 U. S. 678, 701-702 (1977), we held that the State’s “arguments ... do not justify the total suppression of advertising concerning contraceptives.” This holding left open the possibility that the State could implement more carefully drawn restrictions. See id., at 712 (Powell, J., concurring in part and in judgment) ; id., at 716-717 (Stevens, J., concurring in part and in judgment).
In commercial speech cases, then, a four-part analysis has developed. At the outset, we must determine whether the expression is protected by the First Amendment. For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading. Next, we ask whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest.
Ill
We now apply this four-step analysis for commercial speech to the Commission’s arguments in support of its ban on promotional advertising.
A
The Commission does not claim that the expression at issue either is inaccurate or relates to unlawful activity. Yet the New York Court of Appeals questioned whether Central Hudson’s advertising is protected commercial speech. Because appellant holds a monopoly over the sale of electricity in its service area, the state court suggested that the Commission’s order restricts no commercial speech of any worth. The court stated that advertising in a "noncompetitive market” could not improve the decisionmaking of consumers. 47 N. Y. 2d, at 110, 390 N. E. 2d, at 757. The court saw no constitutional problem with barring commercial speech that it viewed as conveying little useful information.
This reasoning falls short of establishing that appellant’s advertising is not commercial speech protected by the First Amendment. Monopoly over the supply of a product provides no protection from competition with substitutes for that product. Electric utilities compete with suppliers of fuel oil and natural gas in several markets, such as those for home heating and industrial power. This Court noted the existence of interfuel competition 45 years ago, see West Ohio Gas Co. v. Public Utilities Comm’n, 294 U. S. 63, 72 (1935). Each energy source continues to offer peculiar advantages and disadvantages that may influence consumer choice. For consumers in those competitive markets, advertising by utilities is just as valuable as advertising by unregulated firms.
Even in monopoly markets, the suppression of advertising reduces the information available for consumer decisions and thereby defeats the purpose of the First Amendment. The New York court’s argument appears to assume that the providers of a monopoly service or product are willing to pay for wholly ineffective advertising. Most businesses— even regulated monopolies — are unlikely to underwrite promotional advertising that is of no interest or use to consumers. Indeed, a monopoly enterprise legitimately may wish to inform the public that it has developed new services or terms of doing business. A consumer may need information to aid his decision whether or not to use the monopoly service at all, or how much of the service he should purchase. In the absence of factors that would distort the decision to advertise, we may assume that the willingness of a business to promote its products reflects a belief that consumers are interested in the advertising. Since no such extraordinary conditions have been identified in this case, appellant’s monopoly position does not alter the First Amendment’s protection for its commercial speech.
B
The Commission offers two state interests as justifications for the ban on promotional advertising. The first concerns energy conservation. Any increase in demand for electricity— during peak or off-peak periods — means greater consumption of energy. The Commission argues, and the New York, court agreed, that the State’s interest in conserving energy is sufficient to support suppression of advertising designed to increase consumption of electricity. In view of our country’s dependence on energy resources beyond our control, no one can doubt the importance of energy conservation. Plainly, therefore, the state interest asserted is substantial.
The Commission also argues that promotional advertising will aggravate inequities caused by the failure to base the utilities’ rates on marginal cost. The utilities argued to the Commission that if they could promote the use of electricity in periods of low demand, they would improve their utilization of generating capacity. The Commission responded that promotion of off-peak consumption also would increase consumption during peak periods. If peak demand were to rise, the absence of marginal cost rates would mean that the rates charged for the additional power would not reflect the true costs of expanding production. Instead, the extra costs would be borne by all consumers through higher overall rates. Withqut promotional advertising, the Commission stated, this inequitable turn of events would be less likely to occur. The choice among rate structures involves difficult and important questions of economic supply and distributional fairness. The State’s concern that rates be fair and efficient represents a clear and substantial governmental interest.
C
Next, we focus on the relationship between the State’s interests and the advertising ban. Under this criterion, the Commission’s laudable concern over the equity and efficiency of appellant’s rates does not provide a constitutionally adequate reason for restricting protected speech. The link between the advertising prohibition and appellant’s rate structure is, at most, tenuous. The impact of promotional advertising on the equity of appellant’s rates is highly speculative. Advertising to increase off-peak usage would have to increase peak usage, while other factors that directly affect the fairness and efficiency of appellant’s rates remained constant. Such conditional and remote eventualities simply cannot justify silencing appellant’s promotional advertising.
In contrast, the State’s interest in energy conservation is directly advanced by the Commission order at issue here. There is an immediate connection between advertising and demand for electricity. Central Hudson would not contest the advertising ban unless it believed that promotion would increase its sales. Thus, we find a direct link between the state interest in conservation and the Commission’s order.
D
We come finally to the critical inquiry in this case: whether the Commission’s complete suppression of speech ordinarily protected by the First Amendment is no more extensive than necessary to further the State’s interest in energy conservation. The Commission’s order reaches all promotional advertising, regardless of the impact of the touted service on overall energy use. But the energy conservation rationale, as important as it is, cannot justify suppressing information about electric devices or services that would cause no net increase in total energy use. In addition, no showing has been made that a more limited restriction on the content of promotional advertising would not serve adequately the State’s interests.
Appellant insists that but for the ban, it would advertise products and services that use energy efficiently. These include the “heat pump,” which both parties acknowledge to be a major improvement in electric heating, and the use of electric heat as a “backup” to solar and other heat sources. Although the Commission has questioned the efficiency of electric heating before this Court, neither the Commission’s Policy Statement nor its order denying rehearing made findings on this issue. In the absence of authoritative findings to the contrary, we must credit as within the realm of possibility the claim that electric heat can be an efficient alternative in some circumstances.
The Commission’s order prevents appellant from promoting electric services that would reduce energy use by diverting demand from less efficient sources, or that would consume roughly the same amount of energy as do alternative sources. In neither situation would the utility’s advertising endanger conservation or mislead the public. To. the extent that the Commission’s order suppresses speech that in no way impairs the State’s interest in energy conservation, the Commission’s order violates the First and Fourteenth Amendments and must be invalidated. See First National Bank of Boston v. Bellotti, 435 U. S. 765 (1978).
The Commission also has not demonstrated that its interest in conservation cannot be protected adequately by more limited regulation of appellant’s commercial expression. To further its policy of conservation, the Commission could attempt to restrict the format and content of Central Hudson’s advertising. It might, for example, require that the advertisements include information about the relative efficiency and expense of the offered service, both under current conditions and for the foreseeable future. Cf. Banzhaf v. FCC, 132 U. S. App. D. C. 14, 405 F. 2d 1082 (1968), cert. denied sub nom. Tobacco Institute, Inc. v. FCC, 396 U. S. 842 (1969). In the absence of a showing that more limited speech regulation would be ineffective, we cannot approve the complete suppression of Central Hudson’s advertising.
IV
Our decision today in no way disparages the national interest in energy conservation. We accept without reservation the argument that conservation, as well as the development of alternative energy sources, is an imperative national goal. Administrative bodies empowered to regulate electric utilities have the authority — and indeed the duty — -to take appropriate action to further this goal. When, however, such action involves the suppression of speech, the First and Fourteenth Amendments require that the restriction be no more extensive than is necessary to serve the state interest. In this case, the record before us fails to show that the total ban on promotional advertising meets this requirement.
Accordingly, the judgment of the New York Court of Appeals is
Reversed.
The dissenting opinion attempts to construe the Policy Statement to authorize advertising that would result “in a net energy savings” even if the advertising encouraged consumption of additional electricity. Post, at 604-605. The attempted construction fails, however, since the Policy Statement is phrased only in terms of advertising that promotes “the purchase of utility services” and “sales” of electricity. Plainly, the Commission did not intend to permit advertising that would enhance net energy efficiency by increasing consumption of electrical services.
“Marginal cost” has been defined as the “extra or incremental cost of producing an extra unit of output.” P. Samuelson, Economics 463 (19th ed. 1976) (emphasis in original).
Central Hudson also alleged that the Commission’s order reaches beyond the agency’s statutory powers. This argument was rejected by the New York Court of Appeals, Consolidated Edison Co. v. Public Service Comm’n, 47 N. Y. 2d 94, 102-104, 390 N. E. 2d 749, 752-754 (1979), and was not argued to this Court.
Consolidated Edison Co. v. Public Service Comm’n, 63 App. Div. 2d 364, 407 N. Y. S. 2d 735 (1978); App. to Juris. Statement 22a (N. Y. Sup. Ct., Feb. 17, 1978).
In an opinion concurring in the judgment, Mr. Justice SteveNS suggests that the Commission's order reaches beyond commercial speech to suppress expression that is entitled to the full protection of the First Amendment. See post, at 580-581. We find no support for this claim in the record of this case. The Commission’s Policy Statement excluded “institutional and informational” messages from the advertising ban, which was restricted to all advertising “clearly intended to promote sales.” App. to Juris. Statement 35a. The complaint alleged only that the “prohibition of promotional advertising by Petitioner is not reasonable regulation of Petitioner’s commercial speech. . . .” Id., at 70a. Moreover, the state-court opinions and the arguments of the parties before this Court also viewed this litigation as involving only commercial speech. Nevertheless, the concurring opinion of Me. Justice SteveNS views the Commission’s order as suppressing more than commercial speech because it would outlaw, for example, advertising that promoted electricity consumption by touting the environmental benefits of such uses. See post, at 581. Apparently the opinion would accord full First Amendment protection to all promotional advertising that includes claims “relating to . . . questions frequently discussed and debated by our political leaders.” Ibid.
Although this approach responds to the serious issues surrounding our national energy policy as raised in this case, we think it would blur further the line the Court has sought to draw in commercial speech cases. It would grant broad constitutional protection to any advertising that links a product to a current public debate. But many, if not most, products may be tied to public concerns with the environment, energy, economic policy, or individual health and safety. We rule today in Consolidated Edison Co. v. Public Service Comm’n, ante, p. 530, that utilities enjoy the full panoply of First Amendment protections for their direct comments on public issues. There is no reason for providing similar constitutional protection when such statements are made only in the context of commercial transactions. In that context, for example, the State retains the power to “insur[e] that the stream of commercial information flow[s] cleanly as well as freely.” Virginia Pharmacy Board v. Virginia Citizens Consumer Council, 425 U. S. 748, 772 (1975). This Court’s decisions on commercial expression have rested on the premise that such speech, although meriting some protection, is of less constitutional moment than other forms of speech. As we stated in Ohralik, the failure to distinguish between commercial and noncommercial speech “could invite dilution, simply by a leveling process, of the force of the [First] Amendment’s guarantee with respect to the latter kind of speech.” 436 U. S., at 456.
In most other contexts, the First Amendment prohibits regulation based on the content of the message. Consolidated Edison Co. v. Public Service Comm’n, ante, at 537-540. Two features of commercial speech permit regulation of its content. First, commercial speakers have extensive knowledge of both the market and their products. Thus, they are well situated to evaluate the accuracy of their messages and the lawfulness of the underlying activity. Bates v. State Bar of Arizona, 433 U. S. 350, 381 (1977). In addition, commercial speech, the offspring of economic self-interest, is a hardy breed of expression that is not “particularly susceptible to being crushed by overbroad regulation.” Ibid.
In Linmark Associates, Inc. v. Willingboro, 431 U. S. 85, 95-96 (1977), we observed that there was no definite connection between the township’s goal of integrated housing and its ban on the use of “For Sale” signs in front of houses.
This analysis is not an application of the “overbreadth” doctrine. The latter theory permits the invalidation of regulations on First Amendment grounds even when the litigant challenging the regulation has engaged in no constitutionally protected activity. E. g., Kunz v. New York, 340 U. S. 290 (1951). The overbreadth doctrine derives from the recognition that unconstitutional restriction of expression may deter protected speech by parties not before the court and thereby escape judicial review. Broadrick v. Oklahoma, 413 U. S. 601, 612-613 (1973); see Note, The First Amendment Overbreadth Doctrine, 83 Harv. L. Rev. 844, 853-858 (1970). This restraint is less likely where the expression is linked to “commercial well-being” and therefore is not easily deterred by “over-broad regulation.” Bates v. State Bar of Arizona, supra, at 381.
In this case, the Commission’s prohibition acts directly against the promotional activities of Central Hudson, and to the extent the limitations are unnecessary to serve the State’s interest, they are invalid.
We review with special care regulations that entirely suppress commercial speech in order to pursue a nonspeech-related policy. In those circumstances, a ban on speech could screen from public view the underlying governmental policy. See Virginia Pharmacy Board, 425 U. S., at 780, n. 8 (Stewart, J., concurring). Indeed, in recent years this Court has not approved a blanket ban on commercial speech unless the expression itself was flawed in some way, either because it was deceptive or related to unlawful activity.
Several commercial speech decisions have involved enterprises subject to extensive state regulation. E. g., Friedman v. Rogers, 440 U. S. 1, 4-5 (1979) (optometrists); Bates v. State Bar of Arizona, 433 U. S. 350 (1977) (lawyers); Virginia Pharmacy Board v. Virginia Citizens Consumer Council, supra, at 750-752 (pharmacists).
There may be a greater incentive for a utility to advertise if it can use promotional expenses in determining its rate of return, rather than pass those costs on solely to shareholders. That practice, however, hardly distorts the economic decision whether to advertise. Unregulated businesses pass on promotional costs to consumers, and this Court expressly approved the practice for utilities in West Ohio Gas Co. v. Public Utilities Comrn’n, 294 U. S. 63, 72 (1935).
See W. Jones, Regulated Industries 191-287 (2d ed. 1976).
The Commission also might consider a system of previewing advertising campaigns to insure that they will not defeat conservation policy. It has instituted such a program for approving “informational” advertising under the Policy Statement challenged in this case. See supra, at 560. We have observed that commercial speech is such a sturdy brand of expression that traditional prior restraint doctrine may not apply to it. Virginia Pharmacy Board v. Virginia Citizens Consumer Council, 425 U. S., at 771-772, n. 24. And in other areas of speech regulation, such as obscenity, we have recognized that a prescreening arrangement can pass constitutional muster if it includes adequate procedural safeguards. Freedman v. Maryland, 380 U. S. 51 (1965).
In view of our conclusion that the Commission’s advertising policy violates the First and Fourteenth Amendments, we do not reach appellant’s claims that the agency’s order also violated the Equal Protection Clause of the Fourteenth Amendment, and that it is both overbroad and vague.
The Commission order at issue here was not promulgated in response to an emergency situation. Although the advertising ban initially was prompted by critical fuel shortage in 1973, the Commission makes no claim that an emergency now exists. We do not consider the powers that the State might have over utility advertising in emergency circumstances. See State v. Oklahoma Oas & Electric Co., 536 P. 2d 887, 895-896 (Okla. 1975).
Question: What is the issue area of the decision?
A. Criminal Procedure
B. Civil Rights
C. First Amendment
D. Due Process
E. Privacy
F. Attorneys
G. Unions
H. Economic Activity
I. Judicial Power
J. Federalism
K. Interstate Relations
L. Federal Taxation
M. Miscellaneous
N. Private Action
Answer:
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sc_issue_8
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19
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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.
WARNER-JENKINSON CO., INC. v. HILTON DAVIS CHEMICAL CO.
No. 95-728.
Argued October 15, 1996
Decided March 3, 1997
Richard G. Taranto argued the cause for petitioner. With him on the briefs were H. Bartow Farr III and J. Robert Chambers.
Deputy Solicitor General Wallace argued the cause for the United States as amicus curiae. With him on the brief were Solicitor General Days, Assistant Attorney General Bingaman, Cornelia T. L. Pillará, Nancy J. Linck, and Albin F. Drost.
David E. Schmit argued the cause and filed a brief for respondent.
Briefs of amici curiae urging reversal were filed for Gateway Technologies, Inc., by Richard Grant Lyon; for GHZ Equipment Co. by Ronald D. Maines and Richard G. Wilkins; for the Information Technology Industry Council et al. by Joel M. Freed, Jerrold J. Ganzfried, John F. Cooney, and William D. Coston; for the Intellectual Property Owners by Carter G. Phillips, Mark E. Haddad, and Joseph R. Guerra; for MCI Telecommunications Corp. by Paul M. Smith and Nory Miller; for Micron Separations, Inc., by Steven M. Bauer and John J. Cotter; and for Seagate Technology, Inc., et al. by Carrie L. Walthour, Karl A. Limbach, Deborah Bailey-Wells, and Edward P. Heller III.
Briefs of amici curiae urging affirmance were filed for the Biotechnology Industry Organization by Charles E. Ludlam; for Chiron Corp. by Donald S. Chisum; for the Dallas-Fort Worth Intellectual Property Law Association by Lawrence J. Bassuk; for Litton Systems, Inc., by Laurence H. Tribe and Jonathan S. Massey; and for the Ohio State Bar Association by Eugene P. Whetzel and Albert L. Bell.
Briefs of amici curiae were filed for the American Automobile Manufacturers Association by D. Dennis Allegretti, Phillip D. Brady, and Andrew D. Koblenz; for the American Intellectual Property Law Association by Robert J. Baechtold, Stevan J. Bosses, Nicholas M. Cannella, Charles L. Gholz, and Roger W. Parkhurst; for the Chemical Manufacturers Association by Robert A. Armitage and Michael P. Walls; and for the Licensing Executive Society (U. S. A. and Canada), Inc., by Gayle Parker and James W. Gould.
Justice Thomas
delivered the opinion of the Court.
• Nearly 50 years ago, this Court in Graver Tank & Mfg. Co. v. Linde Air Products Co., 339 U. S. 605 (1950), set out the modern contours of what is known in patent law as the “doctrine of equivalents.” Under this doctrine, a product or process that does not literally infringe upon the express terms of a patent claim may nonetheless be found to infringe if there is “equivalence” between the elements of the accused product or process and the claimed elements of the patented invention. Id., at 609. Petitioner, which was found to have infringed upon respondent’s patent under the doctrine of equivalents, invites us to speak the death of that doctrine. We decline that invitation. The significant disagreement within the Court of Appeals for the Federal Circuit concerning the application of Graver Tank suggests, however, that the doctrine is not free from confusion. We therefore will endeavor to clarify the proper scope of the doctrine.
h — 1
The essential facts of this case are few. Petitioner Warner-Jenkinson Co. and respondent Hilton Davis Chemical Co. manufacture dyes. Impurities in those dyes must be removed. Hilton Davis holds United States Patent No. 4,560,746 (’746 patent), which discloses an improved purification process involving “ultrafiltration.” The ’746 process filters impure dye through a porous membrane at certain pressures and pH levels, resulting in a high purity dye product.
The ’746 patent issued in 1985. As relevant to this case, the patent claims as its invention an improvement in the ul-trafiltration process as follows:
“In a process for the purification of a dye . . . the improvement which comprises: subjecting an aqueous solution ... to ultrafiltration through a membrane having a nominal pore diameter of 5-15 Angstroms under a hydrostatic pressure of approximately 200 to 400 p.si.g., at a pH from approximately 6.0 to 9.0, to thereby cause separation of said impurities from said dye .. . .” App. 36-37 (emphasis added).
The inventors added the phrase “at a pH from approximately 6.0 to 9.0” during patent prosecution. At a minimum, this phrase was added to distinguish a previous patent (the “Booth” patent) that disclosed an ultrafiltration process operating at a pH above 9.0. The parties disagree as to why the low-end pH limit of 6.0 was included as part of the claim.
In 1986, Warner-Jenkinson developed an ultrafiltration process that operated with membrane pore diameters assumed to be 5-15 Angstroms, at pressures of 200 to nearly 500 p. s. i. g., and at a pH of 5.0. Warner-Jenkinson did not learn of the ’746 patent until after it had begun commercial use of its ultrafiltration process. Hilton Davis eventually learned of Warner-Jenkinson’s use of ultrafiltration and, in 1991, sued Warner-Jenkinson for patent infringement.
As trial approached, Hilton Davis conceded that there was no literal infringement, and relied solely on the doctrine of equivalents. Over Warner-Jenkinson’s objection that the doctrine of equivalents was an equitable doctrine to be applied by the court, the issue of equivalence was included among those sent to the jury. The jury found that the ’746 patent was not invalid and that Warner-Jenkinson infringed upon the patent under the doctrine of equivalents. The jury also found, however, that Warner-Jenkinson had not intentionally infringed, and therefore awarded only 20% of the damages sought by Hilton Davis. The District Court denied Warner-Jenkinson’s post-trial motions, and entered a permanent injunction prohibiting Warner-Jenkinson from practicing ultrafiltration below 500 p. s. i. g. and below 9.01 pH. A fractured en banc Court of Appeals for the Federal Circuit affirmed. 62 F. 3d 1512 (1995).
The majority below held that the doctrine of equivalents continues to exist and that its touchstone is whether substantial differences exist between the accused process and the patented process. Id., at 1521-1522. The court also held that the question of equivalence is for the jury to decide and that the jury in this case had substantial evidence from which it could conclude that the Warner-Jenkinson process was not substantially different from the ultrafiltration process disclosed in the ’746 patent. Id., at 1525.
There were three separate dissents, commanding a total of 5 of 12 judges. Four of the five dissenting judges viewed the doctrine of equivalents as allowing an improper expansion of claim scope, contrary to this Court’s numerous holdings that it is the claim that defines the invention and gives notice to the public of the limits of the patent monopoly. Id., at 1537-1538 (opinion of Plager, J.). The fifth dissenter, the late Judge Nies, was able to reconcile the prohibition against enlarging the scope of claims and the doctrine of equivalents by applying the doctrine to each element of a claim, rather than to the accused product or process “overall.” Id., at 1574. As she explained it: “The ‘scope’ is not enlarged if courts do not go beyond the substitution of equivalent elements.” Ibid. All of the dissenters, however, would have found that a much narrowed doctrine of equivalents may be applied in whole or in part by the court. Id., at 1540-1542 (opinion of Plager, J.); id., at 1579 (opinion of Nies, J.).
We granted certiorari, 516 U. S. 1145 (1996), and now reverse and remand.
II
In Graver Tank we considered the application of the doctrine of equivalents to an accused chemical composition for use in welding that differed from the patented welding material by the substitution of one chemical element. 339 U. S., at 610. The’ substituted element did not fall within the literal terms of the patent claim, but the Court nonetheless found that the “question which thus emerges is whether the substitution [of one element for the other] ... is a change of such substance as to make the doctrine of equivalents inapplicable; or conversely, whether under the circumstances the change was so insubstantial that the trial court’s invocation of the doctrine of equivalents was justified.” Ibid. The Court also described some of the considerations that go into applying the doctrine of equivalents:
“What constitutes equivalency must be determined against the context of the patent, the prior art, and the particular circumstances of the case. Equivalence, in the patent law, is not the prisoner of a formula and is not an absolute to be considered in a vacuum. It does not require complete identity for every purpose and in every respect. In determining equivalents, things equal to the same thing may not be equal to each other and, by the same token, things for most purposes different may sometimes be equivalents. Consideration must be given to the purpose for which an ingredient is used in a patent, the qualities it has when combined with the other ingredients, and the function which it is intended to perform. An important factor is whether persons reasonably skilled in the art would have known of the interchangeability of an ingredient not contained in the patent with one that was.” Id., at 609.
Considering those factors, the Court viewed the difference between the chemical element claimed in the patent and the substitute element to be “colorable only,” and concluded that the trial court’s judgment of infringement under the doctrine of equivalents was proper. Id., at 612.
A
Petitioner’s primary argument in this Court is that the doctrine of equivalents, as set out in Graver Tank in 1950, did not survive the 1952 revision of the Patent Act, 35 U. S. C. § 100 et seq., because it is inconsistent with several aspects of that Act. In particular, petitioner argues: (1) The doctrine of equivalents is inconsistent with the statutory requirement that a patentee specifically “claim” the invention covered by a patent, § 112; (2) the doctrine circumvents the patent reissue process — designed to correct mistakes in drafting or the like — and avoids the express limitations on that process, §§251-252; (3) the doctrine is inconsistent with the primacy of the Patent and Trademark Office (PTO) in setting the scope óf a patent through the patent prosecution process; and (4) the doctrine was implicitly rejected as a general matter by Congress’ specific and limited inclusion of the doctrine in one section regarding “means” claiming, §112, ¶6. All but one of these arguments were made in Graver Tank in the context of the 1870 Patent Act, and failed to command a majority.
The 1952 Patent Act is not materially different from the 1870 Act with regard to claiming, reissue, and the role of the PTO. Compare, e. g., 35 U. S. C. § 112 (“The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention”) with the Consolidated Patent Act of 1870, ch. 230, § 26, 16 Stat. 198, 201 (the applicant “shall particularly point out and distinctly claim the part, improvement, or combination which he claims as his invention or discovery”). Such minor differences as exist between those provisions in the 1870 and the 1952 Acts have no bearing on the result reached in Graver Tank, and thus provide no basis for our overruling it. In the context of infringement, we have already held that pre-1952 precedent survived the passage of the 1952 Act. See Aro Mfg. Co. v. Convertible Top Replacement Co., 365 U. S. 336, 342 (1961) (new section defining infringement “left intact the entire body of case law on direct infringement”). We see no reason to reach a different result here.
Petitioner’s fourth argument for an implied congressional negation of the doctrine of equivalents turns on the reference to “equivalents” in the “means” claiming provision of the 1952 Act. Section 112, ¶ 6, a provision not contained in the 1870 Act, states:
“An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.” (Emphasis added.)
Thus, under this new provision, an applicant can describe an element of his invention by the result accomplished or the function served, rather than describing the item or element to be used (e. g., “a means of connecting Part A to Part B,” rather than “a two-penny nail”). Congress enacted §112, ¶ 6, in response to Halliburton Oil Well Cementing Co. v. Walker, 329 U. S. 1 (1946), which rejected claims that “do not describe the invention but use ‘conveniently functional language at the exact point of novelty.’” Id., at 8 (citation omitted). See In re Donaldson Co., 16 F. 3d 1189, 1194 (CA Fed. 1994) (Congress enacted predecessor of § 112,¶ 6, in response to Halliburton); In re Fuetterer, 319 F. 2d 259, 264, n. 11 (CCPA 1963) (same); see also 2 D. Chisum, Patents §8.04[2], pp. 63-64 (1996) (discussing 1954 commentary of then-Chief Patent Examiner P. J. Federico). Section 112, ¶ 6, now expressly allows so-called “means” claims, with the proviso that application of the broad literal language of such claims must be limited to only those means that are “equiva-len[t]” to the actual means shown in the patent specification. This is an application of the doctrine of equivalents in a restrictive role, narrowing the application of broad literal claim elements. We recognized this type of role for the doctrine of equivalents in Graver Tank itself. 339 U. S., at 608-609. The added provision, however, is silent on the doctrine of equivalents as applied where there is no literal infringement.
Because § 112, ¶ 6, was enacted as a targeted cure to a specific problem, and because the reference in that provision to “equivalents” appears to be no more than a prophylactic against potential side effects of that cure, such limited congressional action should not be overread for negative implications. Congress in 1952 could easily have responded to Graver Tank as it did to the Halliburton decision. But it did not. Absent something more compelling than the dubious negative inference offered by petitioner, the lengthy history of the doctrine of equivalents strongly supports adherence to our refusal in Graver Tank to find that the Patent Act conflicts with that doctrine. Congress can legislate the doctrine of equivalents out of existence any time it chooses. The various policy arguments now made by both sides are thus best addressed to Congress, not this Court.
B
We do, however, share the concern of the dissenters below that the doctrine of equivalents, as it has come to be applied since Graver Tank, has taken on a life of its own, unbounded by the patent claims. There can be no denying that the doctrine of equivalents, when applied broadly, conflicts with the definitional and public-notice functions of the statutory claiming requirement. Judge Nies identified one means of avoiding this conflict:
“[A] distinction can be drawn that is not too esoteric between substitution of an equivalent for a component in an invention and enlarging the metes and bounds of the invention beyond what is claimed.
“Where a claim to an invention is expressed as a combination of elements, as here, ‘equivalents’ in the sobriquet ‘Doctrine of Equivalents’ refers to the equivalency of an element or part of the invention with one that is substituted in the accused product or process.
“This view that the accused device or process must be more than ‘equivalent’ overall reconciles the Supreme Court’s position on infringement by equivalents with its concurrent statements that ‘the courts have no right to enlarge a patent beyond the scope of its claims as allowed by the Patent Office.’ [Citations omitted.] The ‘scope’ is not enlarged if courts do not go beyond the substitution of equivalent elements.” 62 F. 3d, at 1573-1574 (dissenting opinion) (emphasis in original).
We concur with this apt reconciliation of our two lines of precedent. Each element contained in a patent claim is deemed material to defining the scope of the patented invention, and thus the doctrine of equivalents must be applied to individual elements of the claim, not to the invention as a whole. It is important to ensure that the application of the doctrine, even as to an individual element, is not allowed such broad play as to effectively eliminate that element in its entirety. So long as the doctrine of equivalents does not encroach beyond the limits just described, or beyond related limits to be discussed infra this page and 31-34, 39, n. 8, and 39-40, we are confident that the doctrine will not vitiate the central functions of the patent claims themselves.
Ill
Understandably reluctant to assume this Court would overrule Graver Tank, petitioner has offered alternative arguments in favor of a more restricted doctrine of equivalents than it feels was applied in this case. We address each in turn.
A
Petitioner first argues that Graver Tank never purported to supersede a well-established limit on nonliteral infringement, known variously as “prosecution history estoppel” and “file wrapper estoppel.” See Bayer Aktiengesellschaft v. Duphar Int’l Research B. V., 738 F. 2d 1237, 1238 (CA Fed.1984). According to petitioner, any surrender of subject matter during patent prosecution, regardless of the reason for such surrender, precludes recapturing any part of that subject matter, even if it is equivalent to the matter expressly claimed. Because, during patent prosecution, respondent limited the pH element of its claim to pH levels between 6.0 and 9.0, petitioner would have those limits form bright lines beyond which no equivalents may be claimed. Any inquiry into the reasons for a surrender, petitioner claims, would undermine the public’s right to clear notice of the scope of the patent as embodied in the patent file.
We can readily agree with petitioner that Graver Tank did not dispose of prosecution history estoppel as a legal limitation on the doctrine of equivalents. But petitioner reaches too far in arguing that the reason for an amendment during patent prosecution is irrelevant to any subsequent estoppel. In each of our cases cited by petitioner and by the dissent below, prosecution history estoppel was tied to amendments made to avoid the prior art, or otherwise to address a specific concern — such as obviousness — that arguably would have rendered the claimed subject matter unpatentable. Thus, in Exhibit Supply Co. v. Ace Patents Corp., 315 U. S. 126 (1942), Chief Justice Stone distinguished inclusion of a limiting phrase in an original patent claim from the “very different” situation in which “the applicant, in order to meet objections in the Patent Office, based on references to the prior art, adopted the phrase as a substitute for the broader one” previously used. Id., at 136 (emphasis added). Similarly, in Keystone Driller Co. v. Northwest Engineering Corp., 294 U. S. 42 (1935), estoppel was applied where the initial claims were “rejected on the prior art,” id., at 48, n. 6, and where the allegedly infringing equivalent element was outside of the revised claims and within the prior art that formed the basis for the rejection of the earlier claims, id., at 48.
It is telling that in each case this Court probed the reasoning behind the Patent Office’s insistence upon a change in the claims. In each instance, a change was demanded because the claim as otherwise written was viewed as not describing a patentable invention at all — typically because what it described was encompassed within the prior art. But, as the United States informs us, there are a variety of other reasons why the PTO may request a change in claim language. Brief for United States as Amicus Curiae 22-23 (counsel for the PTO also appearing on the brief). And if the PTO has been requesting changes in claim language without the intent to limit equivalents or, indeed, with the expectation that language it required would in many cases allow for a range of equivalents, we should be extremely reluctant to upset the basic assumptions of the PTO without substantial reason for doing so. Our prior cases have consistently applied prosecution history estoppel only where claims have been amended for a limited set of reasons, and we see no substantial cause for requiring a more rigid rule invoking an estoppel regardless of the reasons for a change.
In this case, the patent examiner objected to the patent claim due to a perceived overlap with the Booth patent, which revealed an ultrafiltration process operating at a pH above 9.0. In response to this objection, the phrase “at a pH from approximately 6.0 to 9.0” was added to the claim. While it is undisputed that the upper limit of 9.0 was added in order to distinguish the Booth patent, the reason for adding the lower limit of 6.0 is unclear. The lower limit certainly did not serve to distinguish the Booth patent, which said nothing about pH levels below 6.0. Thus, while a lower limit of 6.0, by its mere inclusion, became a material element of the claim, that did not necessarily preclude the application of the doctrine of equivalents as to that element. See Hubbell v. United States, 179 U. S. 77, 82 (1900) (“ ‘[A]ll [specified elements] must be regarded as material,’ ” though it remains an open “'question whether an omitted part is supplied by an equivalent device or instrumentality’ ” (citation omitted)). Where the reason for the change was not related to avoiding the prior art, the change may introduce a new element, but it does not necessarily preclude infringement by equivalents of that element.
We are left with the problem, however, of what to do in a case like the one at bar, where the record seems not to reveal the reason for including the lower pH limit of 6.0. In our view, holding that certain reasons for a claim amendment may avoid the application of prosecution history estoppel is not tantamount to holding that the absence of a reason for an amendment may similarly avoid such an estoppel. Mindful that claims do indeed serve both a definitional and a notice function, we think the better rule is to place the burden on the patent holder to establish the reason for an amendment required during patent prosecution. The court then would decide whether that reason is sufficient to overcome prosecution history estoppel as a bar to application of the doctrine of equivalents to the element added by that amendment. Where no explanation is established, however, the court should presume that the patent applicant had a substantial reason related to patentability for including the limiting element added by amendment. In those circumstances, prosecution history estoppel would bar the application of the doctrine of equivalents as to that'element. The presumption we have described, one subject to rebuttal if an appropriate reason for a required amendment is established, gives proper deference to the role of claims in defining an invention and providing public notice, and to the primacy of the PTO in ensuring that the claims allowed cover only subject matter that is properly patentable in a proffered patent application. Applied in this fashion, prosecution history estoppel places reasonable limits on the doctrine of equivalents, and further insulates the doctrine from any feared conflict with the Patent Act.
Because respondent has not proffered in this Court a reason for the addition of a lower pH limit, it is impossible to tell whether the reason for that addition could properly avoid an estoppel. Whether a reason in fact exists, but simply was not adequately developed, we cannot say. On remand, the Federal Circuit can consider whether reasons for that portion of the amendment were offered or not and whether further opportunity to establish such reasons would be proper.
B
Petitioner next argues that even if Graver Tank remains good law, the case held only that the absence of substantial differences, was a necessary element for infringement under the doctrine of equivalents, not that it was sufficient for such a result. Brief for Petitioner 32. Relying on Graver Tank’s, references to the problem of an “unscrupulous copyist” and “piracy,” 339 U. S., at 607, petitioner would require judicial exploration of the equities of a case before allowing application of the doctrine of equivalents. To be sure, Graver Tank refers to the prevention of copying and piracy when describing the benefits of the doctrine of equivalents. That the doctrine produces such benefits, however, does not mean that its application is limited only to cases where those particular benefits are obtained.
Elsewhere in Graver Tank the doctrine is described in more neutral terms. And the history of the doctrine as relied upon by Graver Tank reflects a basis for the doctrine not so limited as petitioner would have it. In Winans v. Denmead, 15 How. 330, 343 (1854), we described the doctrine of equivalents as growing out of a legally implied term in each patent claim that “the claim extends to the thing patented, however its form or proportions may be varied.” Under that view, application of the doctrine of equivalents involves determining whether a particular accused product or process infringes upon the patent claim, where the claim takes the form — half express, half implied — of “X and its equivalents.”
Machine Co. v. Murphy, 97 U. S. 120, 125 (1878), on which Graver Tank also relied, offers a similarly intent-neutral view of the doctrine of equivalents:
“[T]he substantial equivalent of a thing, in the sense of the patent law, is the same as the thing itself; so that if two devices do the same work in substantially the same way, and accomplish substantially the same result, they are the same, even though they differ in name, form, or shape.”
If the essential predicate of the doctrine of equivalents is the notion of identity between a patented invention and its equivalent, there is no basis for treating an infringing equivalent any differently from a device that infringes the express terms of the patent. Application of the doctrine of equivalents, therefore, is akin to determining literal infringement, and neither requires proof of intent.
Petitioner also points to Graver Tank’s, seeming reliance on the absence of independent experimentation by the alleged infringer as supporting an equitable defense to the doctrine of equivalents. The federal Circuit explained this factor by suggesting that an alleged infringer’s behavior, be it copying, designing around a patent, or independent experimentation, indirectly reflects the substantiality of the differences between the patented invention and the accused device or process. According to the Federal Circuit, a person aiming to copy or aiming to avoid a patent is imagined to be at least marginally skilled at copying or avoidance, and thus intentional copying raises an inference — rebuttable by proof of independent development — of having only insubstantial differences, and intentionally designing around a patent claim raises an inference of substantial differences. This explanation leaves much to be desired. At a minimum, one wonders how ever to distinguish between the intentional copyist making minor changes to lower the risk of legal action and the incremental innovator designing around the claims, yet seeking to capture as much as is permissible of the patented advance.
But another explanation is available that does not require a divergence from generally objective principles of patent infringement. In both instances in Graver Tank where we referred to independent research or experiments, we were discussing the known interchangeability between the chemical compound claimed in the patent and the compound substituted by the alleged infringer. The need for independent experimentation thus could reflect knowledge — or lack thereof — of interchangeability possessed by one presumably skilled in the art. The known interchangeability of substitutes for an element of a patent is one of the express objective factors noted by Graver Tank as bearing upon whether the accused device is substantially the same as the patented invention. Independent experimentation by the alleged in-fringer would not always reflect upon the objective question whether a person skilled in the art would have known of the interchangeability between two elements, but in many cases it would likely be probative of such knowledge.
Although Graver Tank certainly leaves room for petitioner’s suggested inclusion of intent-based elements in the doctrine of equivalents, we do not read it as requiring them. The better view, and the one consistent with Graver Tank’s predecessors and the objective approach to infringement, is that intent plays no role in the application of the doctrine of equivalents.
c
Finally, petitioner proposes that in order to minimize conflict with the notice function of patent claims, the doctrine of equivalents should be limited to equivalents that are disclosed within the patent itself. A milder version of this argument, which found favor with the dissenters below, is that the doctrine should be limited to equivalents that were known at the time the patent was issued, and should not extend to after-arising equivalents.
As we have noted, supra, at 36, with regard to the objective nature of the doctrine, a skilled practitioner’s knowledge of the interchangeability between claimed and accused elements is not relevant for its own sake, but rather for what it tells the factfinder about the similarities or differences between those elements. Much as the perspective of the hypothetical “reasonable person” gives content to concepts such as “negligent” behavior, the perspective of a skilled practitioner provides content to, and limits on, the concept of “equivalence.” Insofar as the question under the doctrine of equivalents is whether an accused element is equivalent to a claimed element, the proper time for evaluating equivalency — and thus knowledge of interchangeability between elements — is at the time of infringement, not at the time the patent was issued. And rejecting the milder version of petitioner’s argument necessarily rejects the more severe proposition that equivalents must not only be known, but must also be actually disclosed in the patent in order for such equivalents to infringe upon the patent.
1 — I <J
The various opinions below, respondents, and amici devote considerable attention to whether application of the doctrine of equivalents is a task for the judge or for the jury. However, despite petitioner’s argument below that the doctrine should be applied by the judge, in this Court petitioner makes only passing reference to this issue. See Brief for Petitioner 22, n. 15 (“If this Court were to hold in Markman v. Westview Instruments, Inc., No. 95-26 (argued Jan. 8, 1996), that judges rather than juries are to construe patent claims, so as to provide a uniform definition of the scope of the legally protected monopoly, it would seem at cross-purposes to say that juries may nonetheless expand the claims by resort to a broad notion of ‘equivalents’ ”); Reply Brief for Petitioner 20 (whether judge or jury should apply the doctrine of equivalents depends on how the Court views the nature of the inquiry under the doctrine of equivalents).
Petitioner’s comments go more to the alleged inconsistency between the doctrine of equivalents and the claiming requirement than to the role of the jury in applying the doctrine as properly understood. Because resolution of whether, or how much of, the application of the doctrine of equivalents can be resolved by the court is not necessary for us to answer the question presented, we decline to take it up. The Federal Circuit held that it was for the jury to decide whether the accused process was equivalent to the claimed process. There was ample support in our prior cases for that holding. See, e. g., Machine Co. v. Murphy, 97 U. S., at 125 (“[I]n determining the question of infringement, the court or jury, as the case may be, . . . are to look at the machines or their several devices or elements in the light of what they do, or what office or function they perform, and how they perform it, and to find that one thing is substantially the same as another, if it performs substantially the same function in substantially the same way to obtain the same result”); Winans v. Denmead, 15 How., at 344 (“[It] is a question for the jury” whether the accused device was “the same in kind, and effected by the employment of [the patent-ee’s] mode of operation in substance”). Nothing in our recent decision in Markman v. Westview Instruments, Inc., 517 U. S. 370 (1996), necessitates a different result than that reached by the Federal Circuit. Indeed, Markman cites with considerable favor, when discussing the role of judge and jury, the seminal Winans decision. 517 U. S., at 384-385. Whether, if the issue were squarely presented to us, we would reach a different conclusion than did the Federal Circuit is not a question we need decide today.
V
All that remains is to address the debate regarding the linguistic framework under which “equivalence” is determined. Both the parties and the Federal Circuit spend considerable time arguing whether the so-called “triple identity” test — focusing on the function served by a particular claim element, the way that element serves that function, and the result thus obtained by that element — is a suitable method for determining equivalence, or whether an “insubstantial differences” approach is better. There seems to be substantial agreement that, while the triple identity test may be suitable for analyzing mechanical devices, it often provides a poor framework for analyzing other products or processes. On the other hand, the insubstantial differences test offers little additional guidance as to what might render any given difference “insubstantial.”
In our view, the particular linguistic framework used is less important than whether the test is probative of the essential inquiry: Does the accused
Question: What is the issue of the decision?
01. antitrust (except in the context of mergers and union antitrust)
02. mergers
03. bankruptcy (except in the context of priority of federal fiscal claims)
04. sufficiency of evidence: typically in the context of a jury's determination of compensation for injury or death
05. election of remedies: legal remedies available to injured persons or things
06. liability, governmental: tort or contract actions by or against government or governmental officials other than defense of criminal actions brought under a civil rights action.
07. liability, other than as in sufficiency of evidence, election of remedies, punitive damages
08. liability, punitive damages
09. Employee Retirement Income Security Act (cf. union trust funds)
10. state or local government tax
11. state and territorial land claims
12. state or local government regulation, especially of business (cf. federal pre-emption of state court jurisdiction, federal pre-emption of state legislation or regulation)
13. federal or state regulation of securities
14. natural resources - environmental protection (cf. national supremacy: natural resources, national supremacy: pollution)
15. corruption, governmental or governmental regulation of other than as in campaign spending
16. zoning: constitutionality of such ordinances, or restrictions on owners' or lessors' use of real property
17. arbitration (other than as pertains to labor-management or employer-employee relations (cf. union arbitration)
18. federal or state consumer protection: typically under the Truth in Lending; Food, Drug and Cosmetic; and Consumer Protection Credit Acts
19. patents and copyrights: patent
20. patents and copyrights: copyright
21. patents and copyrights: trademark
22. patents and copyrights: patentability of computer processes
23. federal or state regulation of transportation regulation: railroad
24. federal and some few state regulations of transportation regulation: boat
25. federal and some few state regulation of transportation regulation:truck, or motor carrier
26. federal and some few state regulation of transportation regulation: pipeline (cf. federal public utilities regulation: gas pipeline)
27. federal and some few state regulation of transportation regulation: airline
28. federal and some few state regulation of public utilities regulation: electric power
29. federal and some few state regulation of public utilities regulation: nuclear power
30. federal and some few state regulation of public utilities regulation: oil producer
31. federal and some few state regulation of public utilities regulation: gas producer
32. federal and some few state regulation of public utilities regulation: gas pipeline (cf. federal transportation regulation: pipeline)
33. federal and some few state regulation of public utilities regulation: radio and television (cf. cable television)
34. federal and some few state regulation of public utilities regulation: cable television (cf. radio and television)
35. federal and some few state regulations of public utilities regulation: telephone or telegraph company
36. miscellaneous economic regulation
Answer:
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sc_issue_4
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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 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.
CITY OF CHICAGO v. MORALES et al.
No. 97-1121.
Argued December 9, 1998
Decided June 10, 1999
Stevens, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, and V, in which O’Con-nor, Kennedy, Souter, Ginsburg, and Breyer, JJ., joined, and an opinion with respect to Parts III, IV, and VI, in which Souter and Ginsburg, JJ., joined. O’Connor, J., filed an opinion concurring in part and concurring in the judgment, in which Breyer, J., joined, post, p. 64. Kennedy, J., post, p. 69, and Breyer, J., post, p. 70, filed opinions concurring in part and concurring in the judgment. Scaua, J., filed a dissenting opinion, post, p. 73. Thomas, J., filed a dissenting opinion, in which Rehnquist, C. J., and Scalia, J., joined, post, p. 98.
Lawrence Rosenthal argued the cause for petitioner. With him on the briefs were Brian L. Crowe, Benna Ruth Solomon, Timothy W. Joranko, and Julian N. Henriques, Jr.
Harvey Grossman argued the cause for respondents. With him on the brief were Rita Fry, James H. Reddy, Richard J. O’Brien, Jr., Barbara O’Toole, and Steven R. Shapiro.
Briefs of amici curiae urging reversal were filed for the United States by Solicitor General Waxman, Deputy Solicitor General Underwood, and Jarms A. Feldman; for the State of Ohio et al. by Betty D. Montgomery, Attorney General of Ohio, Jeffrey S. Sutton, State Solicitor, Robert C. Maier, and David M. Gormley, and by the Attorneys General for their respective jurisdictions as follows: William H. Pryor, Jr., of Alabama, Bruce M. Botelko of Alaska, Grant Woods of Arizona, Daniel E. Lun-gren of California, Gale A Norton of Colorado, John M. Bailey of Connecticut, M. Jam Brady of Delaware, Robert A Butterworth of Florida, Thurbert E. Baker of Georgia, James E. Ryan of Illinois, Jeffrey A Modi-sett of Indiana, Carla J. Stovall of Kansas, A B. Chandler HI of Kentucky, Richard P. Ieyoub of Louisiana, J. Joseph Curran, Jr., of Maryland, Frank J. Kelley of Michigan, Hubert H. Humphrey HI of Minnesota, Michael C. Moore of Mississippi, Jeremiah W. (Jay) Nixon of Missouri, Joseph P. Mazurek of Montana, Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada, Dennis C. Vacco of New York, Michael F. Easley of North Carolina, D. Michael Fisher of Pennsylvania, Carlos Lugo-Fiol of Puerto Rico, Jeffrey B. Pine of Rhode Island, Charles M. Condon of South Carolina, Mark Barnett of South Dakota, Jan Graham of Utah, Julio A Brady of the Virgin Islands, and Mark 0. Earley of Virginia; for the Center for the Community Interest by Richard K Willard and Roger L. Conner; for the Chicago Neighborhood Organizations by Michele L. Odorizzi and Jeffrey W. Sarles; for the Los Angeles County District Attorney by Gil Garceüi pro se, and Brent Dail Riggs; for the National District Attorneys Association et al. by Kristin Linsley Myles, Daniel P. Collins, William L. Murphy, and Wayne TV Schmidt; for the Washington Legal Foundation et al. by Daniel J. Popeo and Richard A Samp; and for the U. S. Conference of Mayors et al. by Richard Ruda, Miguel A Estrada, and Mark A Perry.
Briefs of amicus curiae urging affirmance were filed for the Chicago Alliance for Neighborhood Safety et al. by Stephen J. Schulhofer and Randolph N. Stone; for the Illinois Attorneys for Criminal Justice by Robert Hirschhorn and Steven A Greenberg; for the National Association of Criminal Defense Lawyers by David M. Porter; for the National Black Police Association et al. by Elaine R. Jones, Theodore M. Shato, George H. Kendall, Laura E. Hankins, Marc O. Beem, and Diane F. Klotnia; for the National Law Center on Homelessness & Poverty et al. by RobeH M. Bruskin; and for See Forever/the Maya Angelou Public Charter School et al. by Lou-is R. Cohen, John Payton, and James For-man, Jr.
Justice Stevens
announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, and V, and an opinion with respect to Parts III, IV, and VI, in which Justice Souter and Justice Ginsburg join.
In 1992, the Chicago City Council enacted the Gang Congregation Ordinance, which prohibits “criminal street gang members” from “loitering” with one another or with other persons in any public place. The question presented is whether the Supreme Court of Illinois correctly held that the ordinance violates the Due Process Clause of the Fourteenth Amendment to the Federal Constitution.
I
Before the ordinance was adopted, the city council’s Committee on Police and Fire conducted hearings to explore the problems created by the city’s street gangs, and more particularly, the consequences of public loitering by gang members. Witnesses included residents of the neighborhoods where gang members are most active, as well as some of the aldermen who represent those areas. Based on that evidence, the council made a series of findings that are included in the text of the ordinance and explain the reasons for its enactment.
The council found that a continuing increase in criminal street gang activity was largely responsible for the city’s rising murder rate, as well as an escalation of violent and drug related crimes. It noted that in many neighborhoods throughout the city, “‘the burgeoning presence of street gang members in public places has intimidated many law abiding citizens.’ ” 177 Ill. 2d 440, 445, 687 N. E. 2d 53, 58 (1997). Furthermore, the council stated that gang members “‘establish control over identifiable areas ... by loitering in those areas and intimidating others from entering those areas; and . . . [m]embers of criminal street gangs avoid arrest by committing no offense punishable under existing laws when they know the police are present ....’” Ibid. It further found that “ ‘loitering in public places by criminal street gang members creates a justifiable fear for the safety of persons and property in the area’” and that “ ‘[a]ggressive action is necessary to preserve the city’s streets and other public places so that the public may use such places without fear.’ ” Moreover, the council concluded that the city “‘has an interest in discouraging all persons from loitering in public places with criminal gang members.’” Ibid.
The ordinance creates a criminal offense punishable by a fine of up to $500, imprisonment for not more than six months, and a requirement to perform up to 120 hours of community service. Commission of the offense involves four predicates. First, the police officer must reasonably believe that at least one of the two or more persons present in a “‘public place’” is a ‘“criminal street gang membe[r].’” Second, the persons must be “‘loitering,’” which the ordinance defines as “ ‘remaining] in any one place with no apparent purpose.’” Third, the officer must then order “‘all’” of the persons to disperse and remove themselves “‘from the area.’” Fourth, a person must disobey the officer’s order. If any person, whether a gang member or not, disobeys the officer’s order, that person is guilty of violating the ordinance. Ibid.
Two months after the ordinance was adopted, the Chicago Police Department promulgated General Order 92-4 to provide guidelines to govern its enforcement. That order purported to establish limitations on the enforcement discretion of police officers “to ensure that the anti-gang loitering ordinance is not enforced in an arbitrary or discriminatory way.” Chicago Police Department, General Order 92-4, reprinted in App. to Pet. for Cert. 65a. The limitations confine the authority to arrest gang members who violate the ordinance to sworn “members of the Gang Crime Section” and certain other designated officers, and establish detailed criteria for defining street gangs and membership in such gangs. Id., at 66a-67a. In addition, the order directs district commanders to “designate areas in which the presence of gang members has a demonstrable effect on the activities of law abiding persons in the surrounding community,” and provides that the ordinance “will be enforced only within the designated areas.” Id., at 68a-69a. The city, however, does not release the locations of these “designated areas” to the public.
II
During the three years of its enforcement, the police issued over 89,000 dispersal orders and arrested over 42,000 people for violating the ordinance. In the ensuing enforcement proceedings, 2 trial judges upheld the constitutionality of the ordinance, but 11 others ruled that it was invalid. In respondent Youkhana’s case, the trial judge held that the “ordinance fails to notify individuals what conduct is prohibited, and it encourages arbitrary and capricious enforcement by police.”
The Illinois Appellate Court affirmed the trial court’s ruling in the Youkhana case, consolidated and affirmed other pending appeals in accordance with Youkhana, and reversed the convictions of respondents Gutierrez, Morales, and others. The Appellate Court was persuaded that the ordinance impaired the freedom of assembly of nongang members in violation of the First Amendment to the Federal Constitution and Article I of the Illinois Constitution, that it was unconstitutionally vague, that it improperly criminalized status rather than conduct, and that it jeopardized rights guaranteed under the Fourth Amendment.
The Illinois Supreme Court affirmed. It held “that the gang loitering ordinance violates due process of law in that it is impermissibly vague on its face and an arbitrary restriction on personal liberties.” 177 Ill. 2d, at 447, 687 N. E. 2d, at 59. The court did not reach the contentions that the ordinance “creates a status offense, permits arrests without probable cause or is overbroad.” Ibid.
In support of its vagueness holding, the court pointed out that the definition of “loitering” in the ordinance drew no distinction between innocent conduct and conduct calculated to cause harm. “Moreover, the definition of ‘loiter’ provided by the ordinance does not assist in clearly articulating the proscriptions of the ordinance.” Id., at 451-452, 687 N. E. 2d, at 60-61. Furthermore, it concluded that the ordinance was “not reasonably susceptible to a limiting construction which would affirm its validity.”
We granted certiorari, 523 U. S. 1071 (1998), and now affirm. Like the Illinois Supreme Court, we conclude that the ordinance enacted by the city of Chicago is unconstitutionally vague.
Ill
The basic factual predicate for the city’s ordinance is not in dispute. As the city argues in its brief, “the very presence of a large collection of obviously brazen, insistent, and lawless gang members and hangers-on on the public ways intimidates residents, who become afraid even to leave their homes and go about their business. That, in turn, imperils community residents’ sense of safety and security, detracts from property values, and can ultimately destabilize entire neighborhoods.” The findings in the ordinance explain that it was motivated by these concerns. We have no doubt that a law that directly prohibited such intimidating conduct would be constitutional, but this ordinance broadly covers a significant amount of additional activity. Uncertainty about the scope of that additional coverage provides the basis for respondents’ claim that the ordinance is too vague.
We are confronted at the outset with the city’s claim that it was improper for the state courts to conclude that the ordinance is invalid on its face. The city correctly points out that imprecise laws can be attacked on their face under two different doctrines. First, the overbreadth doctrine permits the facial invalidation of laws that inhibit the exercise of First Amendment rights if the impermissible applications of the law are substantial when “judged in relation to the statute’s plainly legitimate sweep.” Broadrick v. Oklahoma, 413 U. S. 601, 612-615 (1973). Second, even if an enactment does not reach a substantial amount of constitutionally protected conduct, it may be impermissibly vague because it fails to establish standards for the police and public that are sufficient to guard against the arbitrary deprivation of liberty interests. Kolender v. Lawson, 461 U. S. 352, 358 (1983).
While we, like the Illinois courts, conclude that the ordinance is invalid on its face, we do not rely on the overbreadth doctrine. We agree with the city’s submission that the law does not have a sufficiently substantial impact on conduct protected by the First Amendment to render it unconstitutional. The ordinance does not prohibit speech. Because the term “loiter” is defined as remaining in one place “with no apparent purpose,” it is also clear that it does not prohibit any form of conduct that is apparently intended to convey a message. By its terms, the ordinance is inapplicable to assemblies that are designed to demonstrate a group’s support of, or opposition to, a particular point of view. Cf. Clark v. Community for Creative Non-Violence, 468 U. S. 288 (1984); Gregory v. Chicago, 394 U. S. 111 (1969). Its impact on the social contact between gang members and others does not impair the First Amendment “right of association” that our cases have recognized. See Dallas v. Stanglin, 490 U. S. 19, 23-25 (1989).
On the other hand, as the United States recognizes, the freedom to loiter for innocent purposes is part of the “liberty” protected by the Due Process Clause of the Fourteenth Amendment. We have expressly identified this “right to remove from one place to another according to inclination” as “an attribute of personal liberty” protected by the Constitution. Williams v. Fears, 179 U. S. 270, 274 (1900); see also Papachristou v. Jacksonville, 405 U. S. 156, 164 (1972). Indeed, it is apparent that an individual’s decision to remain in a public place of his choice is as much a part of his liberty as the freedom of movement inside frontiers that is “a part of our heritage” Kent v. Dulles, 357 U. S. 116, 126 (1958), or the right to move “to whatsoever place one’s own inclination may direct” identified in Blaekstone’s Commentaries. 1 W. Blackstone, Commentaries on the Laws of England 130 (1765).
There is no need, however, to decide whether the impact of the Chicago ordinance on constitutionally protected liberty alone would suffice to support a facial challenge under the overbreadth doctrine. Cf. Aptheker v. Secretary of State, 378 U. S. 500, 515-517 (1964) (right to travel); Planned Parenthood of Central Mo. v. Danforth, 428 U. S. 52, 82-83 (1976) (abortion); Kolender v. Lawson, 461 U. S., at 355, n. 3, 358-360, and n. 9. For it is clear that the vagueness of this enactment makes a facial challenge appropriate. This is not an ordinance that “simply regulates business behavior and contains a scienter requirement.” See Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U. S. 489, 499 (1982). It is a criminal law that contains no mens rea requirement, see Colautti v. Franklin, 439 U. S. 379, 395 (1979), and infringes on constitutionally protected rights, see id., at 391. When vagueness permeates the text of such a law, it is subject to facial attack.
Vagueness may invalidate a criminal law for either of two independent reasons. First, it may fail to provide the kind of notice that will enable ordinary people to understand what conduct it prohibits; second, it may authorize and even encourage arbitrary and discriminatory enforcement. See Kolender v. Lawson, 461 U. S., at 357. Accordingly, we first consider whether the ordinance provides fair notice to the citizen and then discuss its potential for arbitrary enforcement.
IV
“It is established that a law fails to meet the requirements of the Due Process Clause if it is so vague and standardless that it leaves the public uncertain as to the conduct it prohibits .. . .” Giaccio v. Pennsylvania, 382 U. S. 399, 402-403 (1966). The Illinois Supreme Court recognized that the term “loiter” may have a common and accepted meaning, 177 Ill. 2d, at 451, 687 N. E. 2d, at 61, but the definition of that term in this ordinance — “to remain in any one place with no apparent purpose” — does not. It is difficult to imagine how any citizen of the city of Chicago standing in a public place with a group of people would know if he or she had an “apparent purpose.” If she were talking to another person, would she have an apparent purpose? If she were frequently checking her watch and looking expectantly down the street, would she have an apparent purpose?
Since the city cannot conceivably have meant to criminalize each instance a citizen stands in public with a gang member, the vagueness that dooms this ordinance is not the product of uncertainty about the normal meaning of “loitering,” but rather about what loitering is covered by the ordinance and what is not. The Illinois Supreme Court emphasized the law’s failure to distinguish between innocent conduct and conduct threatening harm. Its decision followed the precedent set by a number of state courts that have upheld ordinances that criminalize loitering combined with some other overt act or evidence of criminal intent. However, state courts have uniformly invalidated laws that do not join the term “loitering” with a second specific element of the crime.
The city’s principal response to this concern about adequate notice is that loiterers are not subject to sanction until after they have failed to comply with an officer’s order to disperse. “[Wjhatever problem is created by a law that criminalizes conduct people normally believe to be innocent is solved when persons receive actual notice from a police order of what they are expected to do.” We find this response unpersuasive for at least two reasons.
First, the purpose of the fair notice requirement is to enable the ordinary citizen to conform his or her conduct to the law. “No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes.” Lanzetta v. New Jersey, 306 U. S. 451, 453 (1939). Although it is true that a loiterer is not subject to criminal sanctions unless he or she disobeys a dispersal order, the loitering is the conduct that the ordinance is designed to prohibit. If the loitering is in fact harmless and innocent, the dispersal order itself is an unjustified impairment of liberty. If the police are able to decide arbitrarily which members of the public they will order to disperse, then the Chicago ordinance becomes indistinguishable from the law we held invalid in Shuttlesworth v. Birmingham, 382 U. S. 87, 90 (1965). Because an officer may issue an order only after prohibited conduct has already occurred, it cannot provide the kind of advance notice that will protect the putative loiterer from being ordered to disperse. Such an order cannot retroactively give adequate warning of the boundary between the permissible and the impermissible applications of the law.
Second, the terms of the dispersal order compound the inadequacy of the notice afforded by the ordinance. It provides that the officer “shall order all such persons to disperse and remove themselves from the area.” App. to Pet. for Cert. 61a. This vague phrasing raises a host of questions. After such an order issues, how long must the loiterers remain apart? How far must they move? If each loiterer walks around the block and they meet again at the same location, are they subject to arrest or merely to being ordered to disperse again? As we do here, we have found vagueness in a criminal statute exacerbated by the use of the standards of “neighborhood” and “locality.” Connally v. General Constr. Co., 269 U. S. 385 (1926). We remarked in Connolly that “[b]oth terms are elastic and, dependent upon circumstances, may be equally satisfied by areas measured by rods or by miles.” Id., at 395.
Lack of clarity in the description of the loiterer's duty to obey a dispersal order might not render the ordinance uneon-stitutionally vague if the definition of the forbidden conduct were clear, but it does buttress our conclusion that the entire ordinance fails to give the ordinary citizen adequate notiee of what is forbidden and what is permitted. The Constitution does not permit a legislature to “set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained, and who should be set at large.” United States v. Reese, 92 U. S. 214, 221 (1876). This ordinance is therefore vague “not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all.” Coates v. Cincinnati, 402 U. S. 611, 614 (1971).
V
The broad sweep of the ordinance also violates “ The requirement that a legislature establish minimal guidelines to govern law enforcement.’ ” Kolender v. Lawson, 461 U. S., at 358. There are no such guidelines in the ordinance. In any public place in the city of Chicago, persons who stand or sit in the company of a gang member may be ordered to disperse unless their purpose is apparent. The mandatory language in the enactment directs the police to issue an order without first making any inquiry about their possible purposes. It matters not whether the reason that a gang member and his father, for example, might loiter near Wrigley Field is to rob an unsuspecting fan or just to get a glimpse of Sammy Sosa leaving the ballpark; in either event, if their purpose is not apparent to a nearby police officer, she may— indeed, she “shall” — order them to disperse.
Recognizing that the ordinance does reach a substantial amount of innocent conduct, we turn, then, to its language to determine if it “necessarily entrusts lawmaking to the moment-to-moment judgment of the policeman on his beat.” Kolender v. Lawson, 461 U. S., at 360 (internal quotation marks omitted). As we discussed in the context of fair notice, see supra, at 56-60, the principal source of the vast discretion conferred on the police in this ease is the definition of loitering as “to remain in any one place with no apparent purpose.”
As the Illinois Supreme Court interprets that definition, it “provides absolute discretion to police officers to decide what activities constitute loitering.” 177 Ill. 2d, at 457, 687 N. E. 2d, at 63. We have no authority to construe the language of a state statute more narrowly than the construction given by that State’s highest court. “The power to determine the meaning of a statute carries with it the power to prescribe its extent and limitations as well as the method by which they shall be determined.” Smiley v. Kansas, 196 U. S. 447, 455 (1905).
Nevertheless, the city disputes the Illinois Supreme Court’s interpretation, arguing that the text of the ordinance limits the officer’s discretion in three ways. First, it does not permit the officer to issue a dispersal order to anyone who is moving along or who has an apparent purpose. Second, it does not permit an arrest if individuals obey a dispersal order. Third, no order can issue unless the officer reasonably believes that one of the loiterers is a member of a criminal street gang.
Even putting to one side our duty to defer to a state court’s construction of the scope of a local enactment, we find each of these limitations insufficient. That the ordinance does not apply to people who are moving — that is, to activity that would not constitute loitering under any possible definition of the term — does not even address the question of how much discretion the police enjoy in deciding which stationary persons to disperse under the ordinance. Similarly, that the ordinance does not permit an arrest until after a dispersal order has been disobeyed does not provide any guidance to the officer deciding whether sueh an order should issue. The “no apparent purpose” standard for making that decision is inherently subjective because its application depends on whether some purpose is “apparent” to the officer on the scene.
Presumably an officer would have discretion to treat some purposes — perhaps a purpose to engage in idle conversation or simply to enjoy a cool breeze on a warm evening — as too frivolous to be apparent if he suspected a different ulterior motive. Moreover, an officer conscious of the city council’s reasons for enacting the ordinance might well ignore its text and issue a dispersal order, even though an illicit purpose is actually apparent.
It is true, as the city argues, that the requirement that the officer reasonably believe that a group of loiterers contains a gang member does place a limit on the authority to order dispersal. That limitation would no doubt be sufficient if the ordinance only applied to loitering that had an apparently harmful purpose or effect, or possibly if it only applied to loitering by persons reasonably believed to be criminal gang members. But this ordinance, for reasons that are not explained in the findings of the city council, requires no harmful purpose and applies to nongang members as well as suspected gang members. It applies to everyone in the city who may remain in one place with one suspected gang member as long as their purpose is not apparent to an officer observing them. Friends, relatives, teachers, counselors, or even total strangers might unwittingly engage in forbidden loitering if they happen to engage in idle conversation with a gang member.
Ironically, the definition of loitering in the Chicago ordinance not only extends its scope to encompass harmless conduct, but also has the perverse consequence of excluding from its coverage much of the intimidating conduct that motivated its enactment. As the city council’s findings demonstrate, the most harmful gang loitering is motivated either by an apparent purpose to publicize the gang’s dominance of certain territory, thereby intimidating nonmembers, or by an equally apparent purpose to conceal ongoing commerce in illegal drugs. As the Illinois Supreme Court has not placed any limiting construction on the language in the ordinance, we must assume that the ordinance means what it says and that it has no application to loiterers whose purpose is apparent. The relative importance of its application to harmless loitering is magnified by its inapplicability to loitering that has an obviously threatening or illicit purpose.
Finally, in its opinion striking down the ordinance, the Illinois Supreme Court refused to accept the general order issued by the police department as a sufficient limitation on the “vast amount of discretion” granted to the police in its enforcement. We agree. See Smith v. Goguen, 415 U. S. 566, 575 (1974). That the police have adopted internal rules limiting their enforcement to certain designated areas in the city would not provide a defense to a loiterer who might be arrested elsewhere. Nor could a person who knowingly loitered with a well-known gang member anywhere in the city safely assume that they would not be ordered to disperse no matter how innocent and harmless their loitering might be.
I — I i>
In our judgment, the Illinois Supreme Court correctly concluded that the ordinance does not provide sufficiently specific limits on the enforcement discretion of the police “to meet constitutional standards for definiteness and clarity.” 177 Ill. 2d, at 459, 687 N. E. 2d, at 64. We recognize the serious and difficult problems testified to by the citizens of Chicago that led to the enactment of this ordinance. “We are mindful that the preservation of liberty depends in part on the maintenance of social order.” Houston v. Hill, 482 U. S. 451, 471-472 (1987). However, in this instance the city has enacted an ordinance that affords too much discretion to the police and too little notice to citizens who wish to use the public streets.
Accordingly, the judgment of the Supreme Court of Illinois is
Affirmed.
The findings are quoted in full in the opinion of the Supreme Court of Illinois. 177 Ill. 2d 440, 445, 687 N. E. 2d 58, 58 (1997). Some of the evidence supporting these findings is quoted in Justice Thomas’ dissenting opinion. Post, at 100-101.
The ordinance states in pertinent part:
“(a) Whenever a police officer observes a person whom he reasonably believes to be a criminal street gang member loitering in any public place with one or more other persons, he shall order all such persons to disperse and remove themselves from the area. Any person who does not promptly obey such an order is in violation of this section.
“(b) It shall be an affirmative defense to an alleged violation of this section that no person who was observed loitering was in fact a member of a criminal street gang.
“(c) As used in this Section:
“(1) ‘Loiter’ means to remain in any one place with no apparent purpose.
“(2) ‘Criminal street gang’ means any ongoing organization, association in fact or group of three or more persons, whether formal or informal, having as one of its substantial activities the commission of one or more of the criminal acts enumerated in paragraph (3), and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity.
“(5) ‘Public place’ means the public way and any other location open to the public, whether publicly or privately owned.
“(e) Any person who violates this Section is subject to a fine of not less than $100 and not more than $500 for each offense, or imprisonment for not more than six months, or both.
“In addition to or instead of the above penalties, any person who violates this section may be required to perform up to 120 hours of community service pursuant to section 1-4-120 of this Code.” Chicago Municipal Code §8-4-015 (added June 17,1992), reprinted in App. to Pet. for Cert. 61a-63a.
As the Illinois Supreme Court noted, during the hearings preceding the adoption of the ordinance, “representatives of the Chicago law and police departments informed the city counsel that any limitations on the discretion police have in enforcing the ordinance would be best developed through police policy, rather than placing such limitations into the ordinance itself.” 177 Ill. 2d, at 446, 687 N. E. 2d, at 58-59.
Presumably, these officers would also be able to arrest all nongang members who violate the ordinance.
Tr. of Oral Arg. 22-23.
The city began enforcing the ordinance on the effective date of the general order in August 1992 and stopped enforcing it in December 1995, when it was held invalid in Chicago v. Youkhana, 277 Ill. App. 3d 101, 660 N. E. 2d 34 (1995). Tr. of Oral Arg. 43.
Brief for Petitioner 16. There were 5,251 arrests under the ordinance in 1993, 15,660 in 1994, and 22,056 in 1995. City of Chicago, R. Daley & T. Hillard, Gang and Narcotic Related Violent Crime: 1993-1997, p. 7 (June 1998).
The city believes that the ordinance resulted in a significant decline in gang-related homicides. It notes that in 1995, the last year the ordinance was enforced, the gang-related homicide rate fell by 26%. In 1996, after the ordinance had been held invalid, the gang-related homicide rate rose 11%. Pet. for Cert. 9, n. 5. However, gang-related homicides fell by 19% in 1997, over a year after the suspension of the ordinance. Daley & Hil-lard, at 5. Given the myriad factors that influence levels of violence, it is difficult to evaluate the probative value of this statistical evidence, or to reach any firm conclusion about the ordinance’s efficacy. Cf. Harcourt, Reflecting on the Subject: A Critique of the Social Influence Conception of Deterrence, the Broken Windows Theory, and Order-Maintenance Policing New York Style, 97 Mich. L. Rev. 291, 296 (1998) (describing the “hotly contested debate raging among... experts over the causes of the decline in crime in New York City and nationally”).
See Poulos, Chicago’s Ban on Gang Loitering: Making Sense of Vagueness and Overbreadth in Loitering Laws, 83 Calif. L. Rev. 379, 384, n. 26 (1995).
Chicago v. Youkhana, Nos. 93 MCI 293368 et al. (Ill. Cir. Ct., Cook Cty., Sept. 29, 1993), App. to Pet. for Cert. 45a. The court also concluded that the ordinance improperly authorized arrest on the basis of a person’s status instead of conduct and that it was facially overbroad under the First Amendment to the Federal Constitution and Art. I, § 5, of the Illinois Constitution. Id., at 59a
Chicago v. Youkhana, 277 Ill. App. 3d 101, 660 N. E. 2d 34 (1995).
Chicago v. Ramsey, Nos. 1-93-4125 et al. (Ill. App., Dec. 29, 1995), App. to Pet. for Cert. 39a.
Chicago v. Morales, Nos. 1-93-4039 et al. (Ill. App., Dec. 29, 1995), App. to Pet. for Cert. 37a
Chicago v. Youkhana, 277 Ill. App. 3d, at 106, 660 N. E. 2d, at 38; id., at 112, 660 N. E. 2d, at 41; id., at 113, 660 N. E. 2d, at 42.
“The ordinance defines ‘loiter’ to mean ‘to remain in any one place with no apparent purpose.’ Chicago Municipal Code §8-4-015(c)(l) (added June 17, 1992). People with entirely legitimate and lawful purposes will not always be able to make their purposes apparent to an observing police officer. For example, a person waiting to hail a taxi, resting on a corner during a jog, or stepping into a doorway to evade a rain shower has a perfectly legitimate purpose in all these scenarios; however, that purpose will rarely be apparent to an observer.” 177 Ill. 2d, at 451—452, 687 N. E. 2d, at 60-61.
It stated: “Although the proscriptions of the ordinance are vague, the city council's intent in its enactment is clear and unambiguous. The city has declared gang members a public menace and determined that gang members are too adept at avoiding arrest for all the other crimes they commit. Accordingly
Question: What is the issue of the decision?
A. due process: miscellaneous (cf. loyalty oath), the residual code
B. due process: hearing or notice (other than as pertains to government employees or prisoners' rights)
C. due process: hearing, government employees
D. due process: prisoners' rights and defendants' rights
E. due process: impartial decision maker
F. due process: jurisdiction (jurisdiction over non-resident litigants)
G. due process: takings clause, or other non-constitutional governmental taking of property
Answer:
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sc_issue_1
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45
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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.
Bridget Anne KELLY, Petitioner
v.
UNITED STATES
No. 18-1059
Supreme Court of the United States.
Argued January 14, 2020
Decided May 7, 2020
Michael D. Critchley, Critchley, Kinum, & Denoia, LLC, Roseland, NJ, Yaakov M. Roth, Michael A. Carvin, Anthony J. Dick, Andrew J. M. Bentz, Jones Day, Washington, DC, for Petitioner.
Jeffrey B. Wall, Acting Solicitor General, Brian A. Benczkowski, Assistant Attorney General, Eric J. Feigin, Colleen E. Roh Sinzdak, Assistants to the Solicitor General, Andrew W. Laing, Attorney, Department of Justice, Washington, DC, for Respondent.
Christopher M. Egleson, Sidley Austin LLP, Los Angeles, CA, Matthew J. Letten, Sidley Austin LLP, Washington, DC, Michael A. Levy, Michael D. Mann, S. Yasir Latifi, David S. Kanter, Patricia Butler, Sidley Austin LLP, New York, NY, for Respondent.
Justice KAGAN delivered the opinion of the Court.
For four days in September 2013, traffic ground to a halt in Fort Lee, New Jersey. The cause was an unannounced realignment of 12 toll lanes leading to the George Washington Bridge, an entryway into Manhattan administered by the Port Authority of New York and New Jersey. For decades, three of those access lanes had been reserved during morning rush hour for commuters coming from the streets of Fort Lee. But on these four days-with predictable consequences-only a single lane was set aside. The public officials who ordered that change claimed they were reducing the number of dedicated lanes to conduct a traffic study. In fact, they did so for a political reason-to punish the mayor of Fort Lee for refusing to support the New Jersey Governor's reelection bid.
Exposure of their behavior led to the criminal convictions we review here. The Government charged the responsible officials under the federal statutes prohibiting wire fraud and fraud on a federally funded program or entity. See 18 U.S.C. §§ 1343, 666(a)(1)(A). Both those laws target fraudulent schemes for obtaining property. See § 1343 (barring fraudulent schemes "for obtaining money or property"); § 666(a)(1)(A) (making it a crime to "obtain[ ] by fraud ... property"). The jury convicted the defendants, and the lower courts upheld the verdicts.
The question presented is whether the defendants committed property fraud. The evidence the jury heard no doubt shows wrongdoing-deception, corruption, abuse of power. But the federal fraud statutes at issue do not criminalize all such conduct. Under settled precedent, the officials could violate those laws only if an object of their dishonesty was to obtain the Port Authority's money or property. The Government contends it was, because the officials sought both to "commandeer" the Bridge's access lanes and to divert the wage labor of the Port Authority employees used in that effort. Tr. of Oral Arg. 58. We disagree. The realignment of the toll lanes was an exercise of regulatory power-something this Court has already held fails to meet the statutes' property requirement. And the employees' labor was just the incidental cost of that regulation, rather than itself an object of the officials' scheme. We therefore reverse the convictions.
I
The setting of this case is the George Washington Bridge. Running between Fort Lee and Manhattan, it is the busiest motor-vehicle bridge in the world. Twelve lanes with tollbooths feed onto the Bridge's upper level from the Fort Lee side. Decades ago, the then-Governor of New Jersey committed to a set allocation of those lanes for the morning commute. And (save for the four days soon described) his plan has lasted to this day. Under the arrangement, nine of the lanes carry traffic coming from nearby highways. The three remaining lanes, designated by a long line of traffic cones laid down each morning, serve only cars coming from Fort Lee.
The case's cast of characters are public officials who worked at or with the Port Authority and had political ties to New Jersey's then-Governor Chris Christie. The Port Authority is a bi-state agency that manages bridges, tunnels, airports, and other transportation facilities in New York and New Jersey. At the time relevant here, William Baroni was its Deputy Executive Director, an appointee of Governor Christie and the highest ranking New Jersey official in the agency. Together with the Executive Director (a New York appointee), he oversaw "all aspects of the Port Authority's business," including operation of the George Washington Bridge. App. 21 (indictment). David Wildstein (who became the Government's star witness) functioned as Baroni's chief of staff. And Bridget Anne Kelly was a Deputy Chief of Staff to Governor Christie with special responsibility for managing his relations with local officials. She often worked hand-in-hand with Baroni and Wildstein to deploy the Port Authority's resources in ways that would encourage mayors and other local figures to support the Governor.
The fateful lane change arose out of one mayor's resistance to such blandishments. In 2013, Governor Christie was up for reelection, and he wanted to notch a large, bipartisan victory as he ramped up for a presidential campaign. On his behalf, Kelly avidly courted Democratic mayors for their endorsements-among them, Mark Sokolich of Fort Lee. As a result, that town received some valuable benefits from the Port Authority, including an expensive shuttle-bus service. But that summer, Mayor Sokolich informed Kelly's office that he would not back the Governor's campaign. A frustrated Kelly reached out to Wildstein for ideas on how to respond. He suggested that getting rid of the dedicated Fort Lee lanes on the Bridge's toll plaza would cause rush-hour traffic to back up onto local streets, leading to gridlock there. Kelly agreed to the idea in an admirably concise e-mail: "Time for some traffic problems in Fort Lee." App. 917 (trial exhibit). In a later phone conversation, Kelly confirmed to Wildstein that she wanted to "creat[e] a traffic jam that would punish" Mayor Sokolich and "send him a message." Id. , at 254 (Wildstein testimony). And after Wildstein relayed those communications, Baroni gave the needed sign-off.
To complete the scheme, Wildstein then devised "a cover story"-that the lane change was part of a traffic study, intended to assess whether to retain the dedicated Fort Lee lanes in the future. Id., at 264. Wildstein, Baroni, and Kelly all agreed to use that "public policy" justification when speaking with the media, local officials, and the Port Authority's own employees. Id., at 265. And to give their story credibility, Wildstein in fact told the Port Authority's engineers to collect "some numbers on how[ ] far back the traffic was delayed." Id., at 305. That inquiry bore little resemblance to the Port Authority's usual traffic studies. According to one engineer's trial testimony, the Port Authority never closes lanes to study traffic patterns, because "computer-generated model[ing]" can itself predict the effect of such actions. Id. , at 484 (testimony of Umang Patel); see id., at 473-474 (similar testimony of Victor Chung). And the information that the Port Authority's engineers collected on this singular occasion was mostly "not useful" and "discarded." Id. , at 484-485 (Patel testimony). Nor did Wildstein or Baroni show any interest in the data. They never asked to review what the engineers had found; indeed, they learned of the results only weeks later, after a journalist filed a public-records request. So although the engineers spent valuable time assessing the lane change, their work was to no practical effect.
Baroni, Wildstein, and Kelly also agreed to incur another cost-for extra toll collectors-in pursuit of their object. Wildstein's initial thought was to eliminate all three dedicated lanes by not laying down any traffic cones, thus turning the whole toll plaza into a free-for-all. But the Port Authority's chief engineer told him that without the cones "there would be a substantial risk of sideswipe crashes" involving cars coming into the area from different directions. Id. , at 284 (Wildstein testimony). So Wildstein went back to Baroni and Kelly and got their approval to keep one lane reserved for Fort Lee traffic. That solution, though, raised another complication. Ordinarily, if a toll collector on a Fort Lee lane has to take a break, he closes his booth, and drivers use one of the other two lanes. Under the one-lane plan, of course, that would be impossible. So the Bridge manager told Wildstein that to make the scheme work, "an extra toll collector" would always have to be "on call" to relieve the regular collector when he went on break. Id., at 303. Once again, Wildstein took the news to Baroni and Kelly. Baroni thought it was "funny," remarking that "only at the Port Authority would [you] have to pay a toll collector to just sit there and wait." Ibid. Still, he and Kelly gave the okay.
The plan was now ready, and on September 9 it went into effect. Without advance notice and on the (traffic-heavy) first day of school, Port Authority employees placed traffic cones two lanes further to the right than usual, restricting cars from Fort Lee to a single lane. Almost immediately, the town's streets came to a standstill. According to the Fort Lee Chief of Police, the traffic rivaled that of 9/11, when the George Washington Bridge had shut down. School buses stood in place for hours. An ambulance struggled to reach the victim of a heart attack; police had trouble responding to a report of a missing child. Mayor Sokolich tried to reach Baroni, leaving a message that the call was about an "urgent matter of public safety." Id., at 323. Yet Baroni failed to return that call or any other: He had agreed with Wildstein and Kelly that they should all maintain "radio silence." Id., at 270. A text from the Mayor to Baroni about the locked-in school buses-also unanswered-went around the horn to Wildstein and Kelly. The last replied: "Is it wrong that I am smiling?" Id. , at 990 (Kelly text message). The three merrily kept the lane realignment in place for another three days. It ended only when the Port Authority's Executive Director found out what had happened and reversed what he called their "abusive decision." Id. , at 963 (e-mail of Patrick Foye).
The fallout from the scheme was swift and severe. Baroni, Kelly, and Wildstein all lost their jobs. More to the point here, they all ran afoul of federal prosecutors. Wildstein pleaded guilty to conspiracy charges and agreed to cooperate with the Government. Baroni and Kelly went to trial on charges of wire fraud, fraud on a federally funded program or entity (the Port Authority), and conspiracy to commit each of those crimes. The jury found both of them guilty on all counts. The Court of Appeals for the Third Circuit affirmed, rejecting Baroni's and Kelly's claim that the evidence was insufficient to support their convictions. See United States v. Baroni , 909 F.3d 550, 560-579 (2018). We granted certiorari. 588 U.S. ----, 139 S.Ct. 2777, 204 L.Ed.2d 1156 (2019).
II
The Government in this case needed to prove property fraud. The federal wire fraud statute makes it a crime to effect (with use of the wires) "any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises." 18 U.S.C. § 1343. Construing that disjunctive language as a unitary whole, this Court has held that "the money-or-property requirement of the latter phrase" also limits the former. McNally v. United States , 483 U.S. 350, 358, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987). The wire fraud statute thus prohibits only deceptive "schemes to deprive [the victim of] money or property." Id., at 356, 107 S.Ct. 2875. Similarly, the federal-program fraud statute bars "obtain[ing] by fraud" the "property" (including money) of a federally funded program or entity like the Port Authority. § 666(a)(1)(A). So under either provision, the Government had to show not only that Baroni and Kelly engaged in deception, but that an "object of the[ir] fraud [was] 'property.' " Cleveland v. United States , 531 U.S. 12, 26, 121 S.Ct. 365, 148 L.Ed.2d 221 (2000).
That requirement, this Court has made clear, prevents these statutes from criminalizing all acts of dishonesty by state and local officials. Some decades ago, courts of appeals often construed the federal fraud laws to "proscribe[ ] schemes to defraud citizens of their intangible rights to honest and impartial government." McNally , 483 U.S. at 355, 107 S.Ct. 2875. This Court declined to go along. The fraud statutes, we held in McNally , were "limited in scope to the protection of property rights." Id., at 360, 107 S.Ct. 2875. They did not authorize federal prosecutors to "set[ ] standards of disclosure and good government for local and state officials." Ibid. Congress responded to that decision by enacting a law barring fraudulent schemes "to deprive another of the intangible right of honest services"-regardless of whether the scheme sought to divest the victim of any property. § 1346. But the vagueness of that language led this Court to adopt "a limiting construction," confining the statute to schemes involving bribes or kickbacks. Skilling v. United States , 561 U.S. 358, 405, 410, 130 S.Ct. 2896, 177 L.Ed.2d 619 (2010). We specifically rejected a proposal to construe the statute as encompassing "undisclosed self-dealing by a public official," even when he hid financial interests. Id., at 409, 130 S.Ct. 2896. The upshot is that federal fraud law leaves much public corruption to the States (or their electorates) to rectify. Cf. N. J. Stat. Ann. § 2C:30-2 (West 2016) (prohibiting the unauthorized exercise of official functions).
Save for bribes or kickbacks (not at issue here), a state or local official's fraudulent schemes violate that law only when, again, they are "for obtaining money or property." 18 U.S.C. § 1343 ; see § 666(a)(1)(A) (similar).
The Government acknowledges this much, but thinks Baroni's and Kelly's convictions remain valid. According to the Government's theory of the case, Baroni and Kelly "used a lie about a fictional traffic study" to achieve their goal of reallocating the Bridge's toll lanes. Brief for United States 43. The Government accepts that the lie itself-i.e., that the lane change was part of a traffic study, rather than political payback-could not get the prosecution all the way home. See id., at 43-44. As the Government recognizes, the deceit must also have had the "object" of obtaining the Port Authority's money or property. Id., at 44. The scheme met that requirement, the Government argues, in two ways. First, the Government claims that Baroni and Kelly sought to "commandeer[ ]" part of the Bridge itself-to "take control" of its "physical lanes." Tr. of Oral Arg. 58-59. Second, the Government asserts that the two defendants aimed to deprive the Port Authority of the costs of compensating the traffic engineers and back-up toll collectors who performed work relating to the lane realignment. On either theory, the Government insists, Baroni's and Kelly's scheme targeted "a 'species of valuable right [or] interest' that constitutes 'property' under the fraud statutes." Brief for United States 22 (quoting Pasquantino v. United States , 544 U.S. 349, 356, 125 S.Ct. 1766, 161 L.Ed.2d 619 (2005) ).
We cannot agree. As we explain below, the Government could not have proved-on either of its theories, though for different reasons-that Baroni's and Kelly's scheme was "directed at the [Port Authority's] property." Brief for United States 44. Baroni and Kelly indeed "plotted to reduce [Fort Lee's] lanes." Id., at 34. But that realignment was a quintessential exercise of regulatory power. And this Court has already held that a scheme to alter such a regulatory choice is not one to appropriate the government's property. See Cleveland , 531 U.S. at 23, 121 S.Ct. 365. By contrast, a scheme to usurp a public employee's paid time is one to take the government's property. But Baroni's and Kelly's plan never had that as an object. The use of Port Authority employees was incidental to-the mere cost of implementing-the sought-after regulation of the Bridge's toll lanes.
Start with this Court's decision in Cleveland , which reversed another set of federal fraud convictions based on the distinction between property and regulatory power. The defendant there had engaged in a deceptive scheme to influence, to his own benefit, Louisiana's issuance of gaming licenses. The Government argued that his fraud aimed to deprive the State of property by altering its licensing decisions. This Court rejected the claim. The State's "intangible rights of allocation, exclusion, and control"-its prerogatives over who should get a benefit and who should not-do "not create a property interest." Ibid. Rather, the Court stated, those rights "amount to no more and no less than" the State's "sovereign power to regulate." Ibid. ; see id., at 20, 121 S.Ct. 365 ("[T]he State's core concern" in allocating gaming licenses "is regulatory "). Or said another way: The defendant's fraud "implicate[d] the Government's role as sovereign" wielding "traditional police powers"-not its role "as property holder." Id., at 23-24, 121 S.Ct. 365. And so his conduct, however deceitful, was not property fraud.
The same is true of the lane realignment. Through that action, Baroni and Kelly changed the traffic flow onto the George Washington Bridge's tollbooth plaza. Contrary to the Government's view, the two defendants did not "commandeer" the Bridge's access lanes (supposing that word bears its normal meaning). They (of course) did not walk away with the lanes; nor did they take the lanes from the Government by converting them to a non-public use. Rather, Baroni and Kelly regulated use of the lanes, as officials responsible for roadways so often do-allocating lanes as between different groups of drivers. To borrow Cleveland 's words, Baroni and Kelly exercised the regulatory rights of "allocation, exclusion, and control"-deciding that drivers from Fort Lee should get two fewer lanes while drivers from nearby highways should get two more. They did so, according to all the Government's evidence, for bad reasons; and they did so by resorting to lies. But still, what they did was alter a regulatory decision about the toll plaza's use-in effect, about which drivers had a "license" to use which lanes. And under Cleveland , that run-of-the-mine exercise of regulatory power cannot count as the taking of property.
A government's right to its employees' time and labor, by contrast, can undergird a property fraud prosecution. Suppose that a mayor uses deception to get "on-the-clock city workers" to renovate his daughter's new home. United States v. Pabey , 664 F.3d 1084, 1089 (CA7 2011). Or imagine that a city parks commissioner induces his employees into doing gardening work for political contributors. See United States v. Delano , 55 F.3d 720, 723 (CA2 1995). As both defendants agree, the cost of those employees' services would qualify as an economic loss to a city, sufficient to meet the federal fraud statutes' property requirement. See Brief for Respondent Baroni 27; Tr. of Oral Arg. 16. No less than if the official took cash out of the city's bank account would he have deprived the city of a "valuable entitlement." Pasquantino , 544 U.S. at 357, 125 S.Ct. 1766.
But that property must play more than some bit part in a scheme: It must be an "object of the fraud." Id. , at 355, 125 S.Ct. 1766 ; see Brief for United States 44; supra, at 1570-1572. Or put differently, a property fraud conviction cannot stand when the loss to the victim is only an incidental byproduct of the scheme. In the home-and-garden examples cited above, that constraint raised no problem: The entire point of the fraudsters' plans was to obtain the employees' services. But now consider the difficulty if the prosecution in Cleveland had raised a similar employee-labor argument. As the Government noted at oral argument here, the fraud on Louisiana's licensing system doubtless imposed costs calculable in employee time: If nothing else, some state worker had to process each of the fraudster's falsified applications. But still, the Government acknowledged, those costs were "[i]ncidental." Tr. of Oral Arg. 63. The object of the scheme was never to get the employees' labor: It was to get gaming licenses. So the labor costs could not sustain the conviction for property fraud. See id., at 62-63.
This case is no different. The time and labor of Port Authority employees were just the implementation costs of the defendants' scheme to reallocate the Bridge's access lanes. Or said another way, the labor costs were an incidental (even if foreseen) byproduct of Baroni's and Kelly's regulatory object. Neither defendant sought to obtain the services that the employees provided. The back-up toll collectors-whom Baroni joked would just "sit there and wait"-did nothing he or Kelly thought useful. App. 303; see supra, at ----. Indeed, those workers came onto the scene only because the Port Authority's chief engineer managed to restore one of Fort Lee's lanes to reduce the risk of traffic accidents. See supra, at 1570. In the defendants' original plan, which scrapped all reserved lanes, there was no reason for extra toll collectors. And similarly, Baroni and Kelly did not hope to obtain the data that the traffic engineers spent their time collecting. By the Government's own account, the traffic study the defendants used for a cover story was a "sham," and they never asked to see its results. Brief for United States 4, 32; see supra, at 1570. Maybe, as the Government contends, all of this work was "needed" to realize the final plan-"to accomplish what [Baroni and Kelly] were trying to do with the [B]ridge." Tr. of Oral Arg. 60. Even if so, it would make no difference. Every regulatory decision (think again of Cleveland , see supra, at 1573 - 1574) requires the use of some employee labor. But that does not mean every scheme to alter a regulation has that labor as its object. Baroni's and Kelly's plan aimed to impede access from Fort Lee to the George Washington Bridge. The cost of the employee hours spent on implementing that plan was its incidental byproduct.
To rule otherwise would undercut this Court's oft-repeated instruction: Federal prosecutors may not use property fraud statutes to "set[ ] standards of disclosure and good government for local and state officials." McNally , 483 U.S. at 360, 107 S.Ct. 2875 ; see supra, at 1571 - 1572. Much of governance involves (as it did here) regulatory choice. If U.S. Attorneys could prosecute as property fraud every lie a state or local official tells in making such a decision, the result would be-as Cleveland recognized-"a sweeping expansion of federal criminal jurisdiction." 531 U.S. at 24, 121 S.Ct. 365. And if those prosecutors could end-run Cleveland just by pointing to the regulation's incidental costs, the same ballooning of federal power would follow. In effect, the Federal Government could use the criminal law to enforce (its view of) integrity in broad swaths of state and local policymaking. The property fraud statutes do not countenance that outcome. They do not "proscribe[ ] schemes to defraud citizens of their intangible rights to honest and impartial government." McNally , 483 U.S. at 355, 107 S.Ct. 2875 ; see supra, at 1571. They bar only schemes for obtaining property.
III
As Kelly's own lawyer acknowledged, this case involves an "abuse of power." Tr. of Oral Arg. 19. For no reason other than political payback, Baroni and Kelly used deception to reduce Fort Lee's access lanes to the George Washington Bridge-and thereby jeopardized the safety of the town's residents. But not every corrupt act by state or local officials is a federal crime. Because the scheme here did not aim to obtain money or property, Baroni and Kelly could not have violated the federal-program fraud or wire fraud laws. We therefore reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion.
It is so ordered.
The conspiracy verdicts raise no separate issue. None of the parties doubts that those convictions stand or fall with the substantive offenses. If there was property fraud here, there was also conspiracy to commit it. But if not, not.
Without that rule, as Judge Easterbrook has elaborated, even a practical joke could be a federal felony. See United States v. Walters , 997 F.2d 1219, 1224 (CA7 1993). His example goes: "A [e-mails] B an invitation to a surprise party for their mutual friend C. B drives his car to the place named in the invitation," thus expending the cost of gasoline. Ibid. "But there is no party; the address is a vacant lot; B is the butt of a joke." Ibid. Wire fraud? No. And for the reason Judge Easterbrook gave: "[T]he victim's loss must be an objective of the [deceitful] scheme rather than a byproduct of it." Id., at 1226.
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_state
|
17
|
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".
PINFOLD v. HUNTER, Warden.
No. 2817.
Circuit Court of Appeals, Tenth Circuit.
Jan. 28, 1944.
Geo. H. McElroy and Alma Bell, both of Oklahoma City, Okl., for appellant.
Eugene W. Davis, Asst. U. S. Atty., of Topeka, Kan. (George H. West, U. S. Atty., of Topeka, Kan., on the brief), for appellee.
Before PHILLIPS and BRATTON, Circuit Judges, and VAUGHT, District Judge.
VAUGHT, District Judge.
This is an appeal from a judgment of the United States District Court for the District of Kansas, denying a writ of habeas corpus to the petitioner.
The petitioner was indicted in the United States District Court for the Eastern District of Missouri, March 12, 1943, on two counts for violation of Section 347, Title 18 U.S.C.A. The first count charged petitioner with unlawfully and feloniously forging the name of the payee of a United States postal money order. The second count charged the petitioner with unlawfully and feloniously passing a money order with intent to defraud, with knowledge the endorsement and signature thereon were false and forged.
On March 19, 1943, the petitioner appeared in court in person and was informed by the trial court that he was charged with defrauding the postal authorities of the amount of $18 in a postal money order. The indictment was read to him and he was asked how he desired to plead. The petitioner then entered a plea of guilty to the first count and a plea of not guilty to the second count. He was then asked by the trial judge if he had counsel, to which he replied: “No, I ask to waive counsel.” After leaving the courtroom, a deputy marshal stated to petitioner that if he did not plead guilty to the other count, he would get the limit. The petitioner then advised the deputy marshal to advise the court that he wanted to change his plea on the second count. When he was again brought before the court, he changed his plea to the second count from a plea of not guilty to a plea of guilty. Whereupon the court sentenced him to the penitentiary for four years on each count, said sentences to run concurrently. Petitioner was committed to the penitentiary at Leavenworth, Kansas, and, thereafter, on June 23, 1943, filed his petition in the United States District Court for the District of Kansas for a writ of habeas corpus.
In his petition he sets up as grounds for the writ, that he was denied the assistance of counsel, and that prejudicial statements were made by the United States Attorney at the time the sentence was imposed.
A hearing was had upon the petition and petitioner testified in his own behalf. The court, in his findings of fact, said:
“The Court finds that on the 19th day of March, 1943, the petitioner appearing in the trial court in his own proper person and having been fully advised by the court of his constitutional rights, and with full knowledge of said rights, waived the appointment of counsel and did enter his free, voluntary plea of guilty to the offenses charged in said indictment.
“The Court further finds from the testimony of the petitioner that he was not denied any of his constitutional rights, that he fully knew and understood his right to have the benefit of counsel, that he voluntarily and without being deceived or misled in any way waived his right to counsel.
“The Court further finds that by the testimony and admissions of the petitioner before this court he was and is guilty of the offenses charged in said indictments; and that neither in his petition nor in his testimony has the petitioner stated any lawful grounds which would authorize his release from the custody of the respondent by writ of habeas corpus.
“The Court further finds that the trial court hearing petitioner’s original case had jurisdiction of the petitioner and the subject matter for which he was tried, and finds further that each and every count in the indictment lodged against him stated offenses against the laws of the United States.”
Upon a review of the record, we approve said findings.
Petitioner admits that he expressly waived counsel, but asserts that he did so without knowledge of his constitutional rights. The judgment recites that petitioner, having been fully advised by the court of his constitutional rights and with full knowledge of such rights, waived the appointment of counsel. Petitioner’s evidence at the hearing does not overcome that recital in the judgment.
Petitioner admitted that he received the .money order and that it was not issued in his favor, or to any corporation with which he was connected, but to a wholly independent corporation. He admits that, with full knowledge of these facts, he did endorse the money order and delivered it to a hotel proprietor in payment of his hotel charges. His contention is that he was misled in entering his plea of guilty to the second count, and that he supposed by so doing, he would get a lesser sentence than the one he did receive.
Courts cannot be bound by indiscriminate and miscellaneous statements of other persons as to what judgment the court may render. The fact that petitioner may'have been led to believe, from such character of statements, that he would receive a lesser sentence, would not be a basis for disproving his guilt, nor that he had not had a fair trial. The burden of establishing that he did not competently and intelligently waive his constitutional right to be represented by counsel rests upon the petitioner. This court has so held in numerous cases.
In Buckner v. Hudspeth, Warden, 10 Cir., 105 F.2d 396, 397, this court said:
“The constitutional right of accused to have the assistance of counsel may be waived. The burden rested upon petitioner to establish that he did not competently and intelligently waive his constitutional right. The determination of whether there has been an intelligent waiver of the right to counsel depends upon the particular facts and circumstances in each case, including the background, experience, and conduct of the accused. Johnson v. Zerbst, 304 U.S. 458, 464, 468, 58 S.Ct. 1019, 82 L.Ed. 1461 [146 A.L.R. 357]. Waiver of the right will ordinarily be implied where the accused appears without counsel and fails to request that counsel be assigned to him.”
And, again, in Moore v. Hudspeth, Warden, 10 Cir., 110 F.2d 386, 388, this court held:
“The trial court found that petitioner freely, voluntarily, intelligently, and competently waived his right to the assistance of counsel at the time he entered his pleas of guilty to the indictment. The evidence adduced supports the finding.”
The record discloses that the petitioner is fifty years of age, well schooled in the ways of life, and has had a wide and varied experience in business and controversies involving court proceedings, relating to prosecutions for crime. It is apparent that he fully understood his rights when he waived counsel. The lower court so held on his application for habeas corpus and the findings of fact and conclusions of law were approved by petitioner’s attorney who represented him in the hearing.
The contention that prejudicial statements were made by the United States Attorney at the time the sentence was imposed is not sustained by the evidence; on the contrary, the evidence discloses that any such statements so made were substantially true.
The judgment is affirmed.
Question: In what state or territory was the case first heard?
01. not
02. Alabama
03. Alaska
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. Florida
11. Georgia
12. Hawaii
13. Idaho
14. Illinois
15. Indiana
16. Iowa
17. Kansas
18. Kentucky
19. Louisiana
20. Maine
21. Maryland
22. Massachussets
23. Michigan
24. Minnesota
25. Mississippi
26. Missouri
27. Montana
28. Nebraska
29. Nevada
30. New
31. New
32. New
33. New
34. North
35. North
36. Ohio
37. Oklahoma
38. Oregon
39. Pennsylvania
40. Rhode
41. South
42. South
43. Tennessee
44. Texas
45. Utah
46. Vermont
47. Virginia
48. Washington
49. West
50. Wisconsin
51. Wyoming
52. Virgin
53. Puerto
54. District
55. Guam
56. not
57. Panama
Answer:
|
songer_const1
|
0
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited provision of the U.S. Constitution in the headnotes to this case. Answer "0" if no constitutional provisions are cited. If one or more are cited, code the article or amendment to the constitution which is mentioned in the greatest number of headnotes. In case of a tie, code the first mentioned provision of those that are tied. If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment.
Raymond E. MILLER, Plaintiff-Appellant, v. ARMSTRONG WORLD INDUSTRIES, INC. (successor to Armstrong Cork Company, a Pennsylvania corp.); Acands, Inc., a Delaware corp.; Combustion Engineering, Inc. (successor to M.H. Detrick Company & Walsh Refractory, a Delaware corp.); Fibreboard Corporation (successor to Plant Rubber & Asbestos Co., a Delaware corp.); GAF Corporation (successor to Ruberoid Corp., a Delaware corp.); National Gypsum Company, a Delaware corporation (successor to Keasby & Mattison Corp., a Delaware corp.); Owens-Corning Fiberglass Corporation (a Delaware corp.); Pittsburgh Corning Corporation (successor to Unarco Industries, Inc.); Raymark Industries, Inc. (successor to Raybestos-Manhattan, Inc.); Turner & Newall, Ltd. (successor to Keasby & Mattison Corp.), a public corporation organized under the laws of the United Kingdom; and United States Gypsum Company, a Delaware corp., Defendants, and The Celotex Corporation (successor to Phillip-Carey Manufacturing Corp., a Delaware corp.); Eagle-Picher Industries, Inc., an Ohio corp.; the Keene Corporation (successor to Baldwin-Ehert Hill Co. and Corp.); and Owens-Illinois, Inc. (successor to Owens-Illinois Glass Co., an Illinois corp.), Defendants-Appellees.
No. 89-1097.
United States Court of Appeals, Tenth Circuit.
Nov. 26, 1991.
J. Conard Metcalf and Michael A. Patrick, Williams, Trine, Greenstein & Griffith, P.C., Boulder, Colo., for plaintiff-appellant.
Michael L. O’Donnell of White & Steele, P.C.; James D. Hinga of Baker & Hostet-ler, Denver, Colo.; Peggy S. Ball of Pryor, Carney and Johnson, Englewood, Colo., and William G. Meyer of Hutchinson, Black, Hill & Cook, Boulder, Colo., for defendants-appellees.
Before McKAY, Chief Judge, SEYMOUR, and BRORBY, Circuit Judges.
. When federal jurisdiction is invoked on the basis of diversity of citizenship a federal court is to apply the substantive law, including statutes of limitations, which the forum’s courts would apply to the claims in the suit. Erie R.R. v. Tompkins, 304 U.S. 64, 71-80, 58 S.Ct. 817, 818-23, 82 L.Ed. 1188 (1938); Guaranty Trust Co. v. York, 326 U.S. 99, 110, 65 S.Ct. 1464, 1470, 89 L.Ed. 2079 (1945). Here, the parties and the district court have assumed that Colorado’s substantive law is applicable. Our review proceeds on the basis of that assumption.
BRORBY, Circuit Judge.
Plaintiff Raymond Miller brought this diversity action in the United States District Court for the District of Colorado against various manufacturers and distributors of asbestos products (together, Defendants) alleging that he developed asbestosis, an asbestos-related disease, as a result of his exposure to Defendants’ products. Plaintiff is presently appealing from an Order of the district court granting Defendants' Motion for Summary Judgment. See Miller v. Celotex Corp., 708 F.Supp. 306 (D.Colo.1989). The district court concluded that Plaintiff’s complaint, filed on June 9, 1987, was untimely under a Colorado three-year statute of limitations applicable to personal injury actions brought against the manufacturer or seller of a product, see Colo.Sess.Laws.1977, ch. 199, § 13-80-127.5(1) at 819, because Plaintiff’s cause of action “probably” accrued in 1981 but “certainly no later than April 1984.” Miller, 708 F.Supp. at 309. For the reasons set forth below, we reverse and remand.
It is undisputed by the parties that Plaintiff was employed as an insulator, at least from 1946 to 1951, and during this time he was exposed to asbestos-containing products. Plaintiff knew that Defendants’ products contained asbestos but, initially, he did not know that asbestos was dangerous. Plaintiff became aware of the hazards of asbestos from newspaper reports in the late 1970s.
The district court, in determining when Plaintiff’s cause of action accrued and when the statute of limitations began to run, relied on Plaintiff’s responses to interrogatories and numerous medical reports submitted by Defendants. Specifically, the district court first focused on Plaintiff’s response to a July 1987 interrogatory which asked when he was first examined by a physician for the purpose of determining if he suffered from “any type of asbestos-related disease.” Plaintiff answered that he was “diagnosed” with an unspecified disease by Dr. Bruce Brian in 1984. The district court coupled the answer to the July 1987 interrogatory with the only 1984 report in Dr. Brian’s file which was dated April 10, 1984, and was from Dr. James Brubaker and stated the following impression: “pleural thickening with associated calcification of posterior aspects of both hemithoraces showing no significant change since 10/19/83.”
The district court then looked to three reports in Dr. Brian’s file from 1981 and 1983. The first of these reports was a consultation report from Dr. Stephen A. Holt dated October 13, 1983, which reflected the impression of “[d]iffuse pleural thickening posterior to both hemithoraces which is calcified consistent with asbestosis.” The second report, dated October 14, 1981, was from Dr. S.H. Shealy to Dr. Brian and stated that “the exam demonstrates pleural thickening and calcification of the chest due to asbestosis. The pleural thickening seen on this exam is nonspecific, however, a mesothelyoma cannot be excluded.” The final report relied on by the district court was prepared by Dr. Brian and was dated October 2, 1981. This report recounted Plaintiff’s exposure to asbestos from 1945 to 1951 and stated the following observations: “pleural fibrosis and pleural calcification secondary to asbestos exposure probably.” In the report Dr. Brian recommended that Plaintiff have a fluoroscopy of the pleura with a CT scan of the pleura for future reference and routine yearly chest x-rays thereafter with detailed review of the films for abnormalities. The report concluded by stating that these “recommendations” were discussed with Plaintiff.
After considering Plaintiff’s answer to the July 1987 interrogatory and the medical data in Dr. Brian’s file, the district court concluded that:
In light of his answers to the July 1987 interrogatories corroborated by the data in Dr. Brian’s file I conclude that there is no genuine issue of material fact that probably in September 1981, and certainly no later than April 1984, plaintiff knew or reasonably should have known that he had asbestosis and at least the potentially progressive condition of pleural fibrosis and pleural calcification caused by exposure to defendants’ asbestos products. Plaintiff then knew, at least generally, of the hazards posed by his exposure to asbestos products manufactured by these defendants. Although plaintiff may not have become aware of his injury and its cause simultaneously, when plaintiff learned that his long term exposure to defendants’ asbestos products caused his diagnosed condition, the requisite causal nexus was forged to establish notice of his claim.
Miller, 708 F.Supp. at 309.
In reviewing the district court’s grant of summary judgment, this court must apply the same standard employed by the trial court under Fed.R.Civ.P. 56(c). Osgood v. State Farm Mut. Auto. Ins. Co., 848 F.2d 141, 143 (10th Cir.1988). Thus, the district court’s determination can be affirmed only if the evidence presented, viewed in the light most favorable to Plaintiff, does not reveal any genuine issue of material fact concerning the accrual of Plaintiff’s cause of action more than three years prior to commencement of this suit.
Plaintiff’s theory is that his cause of action did not accrue until he discovered, i.e., knew of or should have known of, his asbestosis, the injury upon which he premises his claim. Plaintiff relies primarily on an affidavit submitted by Dr. Lawrence Repsher who examined Plaintiff and Plaintiffs medical file after this action was commenced. According to Dr. Repsher, asbestosis is not a more fully developed expression of any minimally disabling asbestos-related pleural changes such as pleural thickening, pleural fibrosis, and pleural calcification. Rather, asbestosis, according to Dr. Repsher, is a separate and distinct disease process that does not depend on the presence of any asbestos-related pleural changes for its development. In the opinion of Dr. Repsher, the first time Plaintiff’s medical records show a diagnostic test that revealed any findings necessary to make a diagnosis of asbestosis is 1985, and prior to 1985 the diagnostic tests revealed pleural thickening.
Dr. Repsher’s affidavit clearly conflicts with other medical evidence in the record. As discussed above, the medical records in Dr. Brian’s file refer to asbestosis as early as 1981. The district court, in granting summary judgment in Defendants’ favor, did not expressly refer to Dr. Repsher’s affidavit, but it did acknowledge the conflicting evidence in the record regarding when Plaintiff’s asbestosis became manifest and dismissed such factual dispute as not “material.” See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986) (“Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.”). According to the district court, Plaintiff’s asbestos-related pleural changes were potentially progressive and, therefore, “although a difference of medical opinion may exist whether in fact plaintiff had asbestosis by April 1984, and whether pleural fibrosis and pleural calcification is a disease, what is material is whether plaintiff knew or reasonably should have known of the general nature and extent of his injury.” Miller, 708 F.Supp. at 310.
Our departure from the district court’s analysis begins with its assumption that Plaintiff’s asbestosis can be linked to his asbestos-related pleural changes. Because the question of when Plaintiff’s cause of action accrued is being addressed in the context of a summary judgment, it must be assumed, based on Dr. Repsher’s affidavit, that Plaintiff’s asbestosis is not a complication of any of his initial asbestos-related pleural changes such as pleural thickening and pleural calcification, and that Plaintiff’s asbestosis became manifest, at the earliest, in 1985. Given this view of the record, Plaintiff’s claim based on asbestosis is untimely under the limitation period relied upon by Defendants only if Plaintiff’s asbestos-related pleural changes could trigger the running of a limitation period on his separate, distinct, and later-manifested asbestosis.
At the time this appeal was ready for decision, the Colorado Supreme Court had never expressly decided what events can trigger the commencement of a limitation period in an asbestos-related disease case. Therefore, we elected to certify the following question to the Colorado Supreme Court pursuant to Colo.App.R. 21.1:
Does discovery of an initial asbestos-related disease (in this case asbestos related pleural disease manifested by pleural thickening and pleural calcification) trigger the running of a statute of limitations on a separate, distinct, and later manifested disease (here, asbestosis) engendered by the same asbestos exposure?
The Colorado Supreme Court, in an opinion, the details of which need not be set forth here, answered no. Miller v. Armstrong World Industries, Inc., 817 P.2d 111, 113 (Colo.1991).
Based on the Colorado Supreme Court’s opinion we conclude that the district court erred in dismissing Plaintiff’s action as time barred. Our determination does not preclude a judgment against Plaintiff on the basis of a statute of limitations defense after further development of the issue at trial or otherwise. We speak only based on the assumption that asbestosis is separate and distinct from, and not a complication of, asbestos-related pleural disease and that Plaintiff’s asbestosis became manifest and discoverable at the earliest in 1985. We recognize that both the relationship between asbestos-related pleural disease and asbestosis and when Plaintiff’s asbestosis became manifest are factual questions.
Accordingly, the judgment of the United States District Court for the District of Colorado is REVERSED and the case is REMANDED for further proceedings.
.While this appeal was pending, Defendants-appellees Eagle-Picher and Celotex filed Chapter 11 bankruptcy proceedings which remain pending. In re Eagle-Picker Industries, Inc., Case No. 1-91-00101 (Bankr.S.D.Ohio, filed Jan. 7, 1991); In re The Celotex Corp., Consolidated Nos. 90-10016-8B1 and 90-10017-8B1 (Bankr.M.D.Fla., filed Oct. 12, 1990). Accordingly, the automatic stay provision, 11 U.S.C. § 362, which stays judicial action "against the debtor” prohibits us from adjudicating Plaintiffs claims against Eagle-Picher and Celotex. Dillon v. Fibreboard Corp., 919 F.2d 1488, 1498 n. 1 (10th Cir.1990). We hereby order abatement of all proceedings in this appeal as to, and only as to, Eagle-Picher and Celotex. We are not enjoined from proceeding in this matter as to the remaining Defendants-appellees. Id. Plaintiff, Eagle-Picher and Celotex shall notify this court forthwith of any termination of the stay resulting from the above-described bankruptcies.
. After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App.P. 34(a); 10th Cir.R. 34.1.9. The case is therefore ordered submitted without oral argument.
. Dr. Repsher, in his affidavit, was also of the opinion that Plaintiff did not have asbestosis when he commenced this action despite the 1985 medical findings in his medical record. However, Plaintiff, in an affidavit filed in opposition to Defendants’ motion for summary judgment and in deposition testimony, asserted that he was diagnosed in April 1987 with asbestosis by another doctor, Dr. Daniel Teitelbaum. Viewing Dr. Repsher’s affidavit and Dr. Teitel-baum’s diagnosis in the light most favorable to Plaintiff, as required when reviewing a summary judgment, we must assume that Plaintiff has asbestosis and his asbestosis became manifest, at the earliest, in 1985.
Question: What is the most frequently cited provision of the U.S. Constitution in the headnotes to this case? If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment.
Answer:
|
songer_usc1
|
0
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if no U.S. Code titles are cited. If one or more provisions are cited, code the number of the most frequently cited title.
DERMAN v. STOR-AID, Inc., et al. STOR-AID OF NEW JERSEY v. DECORATIVE CABINET CORPORATION et al. STOR-AID OF ILLINOIS, Inc., v. SAME.
Nos. 292-294.
Circuit Court of Appeals, Second Circuit.
March 23, 1944.
W. Lee Helms, of New York City, for appellants.
Aaron L. Danzig, of New York City, for appellees. '
Before L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges.
L. HAND, Circuit Judge.
The defendant appeals from one, and the plaintiffs appeal from two judgments of the District Court. The first was in an action for patent infringement and held valid and infringed, claims eleven, thirteen and fourteen of Patent No. 1,933,099, issued to the plaintiff, Harry Derman, on October 31, 1933; and dismissed a counterclaim for unfair competition because of his abuse of the patent in suit and ten other patents issued to him. The other two judgments were in actions brought by subsidiaries of defendant in the first action—Stor-Aid, Inc.-—against companies controlled by Derman, and dismissed complaints for unfair competition, similar to the counterclaim in the first action. The principal issue in the litigation is the validity of the claims in suit of Derman’s patent. Its specifications disclose a collapsible box or case which can be used as a chest—or, when stood on end, as a wardrobe—made of cardboard or the like, cheap, easily set up and made as follows. A rectangular strip of the specified material, longer than its width, is scored across its shorter axis at three different places and then folded upon the scored lines so as to form the bottom, front and back walls and cover of the chest, making, when the cover is closed, a parallelogram with open ends. The ends are closed by two square pieces of the same material, to the inside surface of which along all four edges is glued or otherwise fastened a wooden' frame. This frame has slots on three of its lengths, into which fit the edges of the bottom and front and back walls of the chest, and which hold them in place by glue, upholstery tacks, or the like. This makes a solid box with a cover, hinged upon the third fold, having a flap, frictionally held by the upper edge of the front wall. Derman shipped this chest or wardrobe in a collapsed state so as to be easily transported, and sold it at wholesale for about a dollar. Sales began early in 1933, and immediately began to grow with enormous rapidity : during the following eight years twenty-five or thirty million units have been sold. Blechman, one of the defendants, at first took out a license under the patent for a company of which he was president, and which continued to manufacture under the license for nearly ten years, paying Derman over $175,000 in royalties. But in August, 1941, Blechman apparently concluded that the patent was invalid, resigned from the company which had taken the license, and formed another, the defendant, StorAid, Inc., which thereupon began frankly to infringe the claims in suit. Thus, the only question as to the complaint in the first action is of validity.
Many years before Derman’s filing date —January 13, 1933—the art had been familiar with boxes made of three pieces of cardboard, pasteboard, or the like: one piece, folded along two or three scored lines, so as to form a box, open at the ends, and two square pieces to close the openings. The earliest of these are Manneck, No. 111,463, which issued January 31, 1871. The bottom, front and back walls were made of a single piece of pasteboard folded in only two places, for it had no cover; the square ends were of the same material with flanges turned in on three sides, which slipped inside the bottom and front and back walls—instead of embracing them like Derman’s—and which were held in place by metallic clamps. Green, in 1896, No. 573,782, disclosed a similar construction except that the end pieces were framed with wood, and that the box had a cover with a flap like Derman’s. We need not discuss any other references except Hofman, No. 1,270,294, issued June 25, 1918; and Friedel, No. 1,523,639, issued January 20, 1925. The first of these was for a cardboard “shipping box” whose bottom, front and back walls, and cover (a double flap), were of a single piece of cardboard scored in four lines, along which it was bent to form a parallelogram. The end pieces did not, it is true, have any frames into whose grooves the edges of the bottom and front and back walls fitted; but the edges of the end walls were bent into flanges at right angles, and then doubled back on themselves through 180 degrees, thus making channels or grooves, and into these the bottom and front and back walls slipped. Thus, the end pieces embraced the edges of the bottom and front and back walls by means similar in function to the slots in Derman’s “frames.” The result of this construction was that the surfaces of the end pieces were set a little inside the main body of the box, instead of being flush as in Derman. Friedel’s disclosure was of a wardrobe proper, which stood on its end. The three upright sides, and two “stiles” for a door, were made of a single piece of scored and folded cardboard, or the like. The end pieces—top and bottom—were of the same material, and flanged; the flanges at the bottom being turned down, and those at the top, turned up. These flanges fitted into grooves in .. wooden frames which ran around the edges of the end pieces, and were secured in them. In setting up this wardrobe, the edges of the upright sides were fitted into the same grooves alongside of the flanges of the end pieces; and from this it resulted that, as in Hofman, the end pieces w-ere set a little inside the edges of the bottom and front and back walls. Friedel’s door was a very complicated affair, with “stiles,” a lintel, a sill; it was altogether unlike Derman’s. Friedel also provided a number of reinforcing pieces of wood inside and around his wardrobe, making an expensive, cumbersome and inconvenient construction as a whole, although it went upon the market and had a limited success. It will have been observed, however, that the frames embraced the edges of the bottom and front and back walls, like Derman’s “frames,” though they were not fastened to the inner surfaces of the end walls along their edges.
Of the claims in suit claim eleven is for a box, case, chest or wardrobe made of cardboard or the like in which the bottom and front and back walls are in one piece, so hinged that they can be' collapsed ; and in which the two end walls are “provided with peripheral means” which “engage” the edges of the bottom and front and back walls. “Peripheral,” although nowhere defined in the specifications, can only mean that the end walls embrace the edges of the bottom and front and back walls, unlike Manneck and Green, in which the end walls slip within them. Claim thirteen is in the same words as claim eleven, but adds the “frames” as part of the “peripheral means,” and the cover hinged to the back wall at its scored edge and carrying the flap which the front wall holds frictionally when the cover is closed. Claim fourteen is the same as thirteen, except that it adds a member running along the inside of the top edge of the front wall to cooperate with the cover to hold it shut. It was one of those trivial variants which for some inexplicable reason it seems impossible for an examiner to resist, but which add nothing to the claim. For this reason we shall disregard it, and confine our discussion to claims eleven and thirteen. Claim eleven reads upon Friedel and Hofman without exception. Since “frames” are added in claims thirteen and fourteen, and indeed in other claims, this claim must be read to exclude them. Both Hofman and Friedel have “peripheral means”; i.e. the end walls embrace the bottom and front and back walls; Hofman, by means of the channels made by twice folding the edges of the end walls; Friedel, by the slots in the “frames.” It is true that, as we have said, the end walls in each are set a little within the edges of the bottom and front and back walls, unlike Derman where the end walls are flush; but the claims contain no such limitation, and it would not be a patentable variation anyway. The plaintiff seeks to distinguish Hofman as in a “non-analogous art”; but plainly that is not true. Derman’s disclosure was for any kind of “container,” made up according to his directions; a wardrobe was merely one form. He speaks of “boxes,” “cases” and “chests” interchangeably with “wardrobes,” and the claims in suit apply to all equally. To confine them to wardrobes would be to reissue the claims, and that too without the slightest warrant in the specification. Hence, any prior disclosure of a box or “shipping case,” like Hofman, is a good reference. Hofman is not, however, a good reference against claim thirteen for two reasons; because it had no “frames,” and because Hofman’s flaps were not, strictly speaking, a single cover and because neither carried a tab at the end to hold it down. Friedel on the other hand had “frames,” but his cover—door—was altogether different. Also, Friedel’s “frames” were, as we have said, not fastened to the inside surface of the end walls, although, as in the case of claim eleven, that is not important. Any “frames” which are “peripheral” infringe. Moreover, as to the frictional tab on the end of the cover, Green is a complete anticipation, provided any anticipation is necessary for such a trifle.
Thus the case comes down to whether it required invention to combine Friedel’s “frames” with Green’s cover, or Hofman’s double flaps, abandoning Friedel’s door. Derman, as is usual in such cases, points to the long interval between the appearance of Friedel’s and his patent, to Friedel’s very modest sales, and to his own extraordinary and outstanding success. That reasoning has won many an action; nevertheless, it cannot be safely used without careful analysis, for it must always be remembered that the monopoly resides in the claims and the claims depend upon the combination of elements which they prescribe. An article may have an extraordinary success and may indeed be an invention of high merit, and yet that success and that invention may have nothing whatever to do with the combination described in the claims, but may depend upon elements, which, though added to those of the prior art, the patentee did not introduce in his claims, and perhaps could not have introduced. Although there is no better test than history, when used with proper circumspection, it is never safe to accept success alone as the measure of invention. What Derman really did, and what he owed his success to, was to reorganize Friedel’s wardrobe generally. We do not mean that he did this deliberately; but it would have made no difference if he had, for his work must be judged as though it had been before him. All that can be credited to him is making over Friedel by throwing away the inner reinforcing struts or supports and other unnecessary complications, by fastening the “frames” to the inside of the end walls, and by substituting Green’s or Hofman’s cover for Friedel’s door with its ancillary parts. So far as he improved upon Friedel in any other way than by the last of these, he dedicated whatever he did to the public, for he did not get it into his claims. Conceding that he made a cheap, durable wardrobe, easily knocked down, shipped, and set up, in place of Friedel’s cumbersome, expensive wardrobe, hard to take down, to ship, and to set up: that is all irrelevant, if Friedel’s wardrobe already disclosed, hampered by no matter how much unnecessary complication, all the elements of the only claims that Derman succeeded in securing; always provided that Friedel’s embodiment of the patented combination was practicable, as in fact it was.
There remains the fact that claim thirteen does specify Green’s cover, and that Derman is to be credited with whatever ingenuity was necessary to think of substituting it for Friedel’s door. On its face, when one was engaged in simplifying and cheapening Friedel’s disclosure, that substitution would seem to have been an obvious expedient. To suppose that the art waited for the eight years which elapsed between the issue of Friedel’s patent and the filing of Derman’s application for this happy thought would be romance. If Derman had merely substituted Green’s door upon Friedel’s disclosure as it stood, no one will maintain that it would have caught the public fancy, as it did, it would have remained what it was, heavy, expensive, awkward to set up, hard to knock down, cumbersome to ship. It was not the door that made it a success, but the general organization of the whole article; and we may concede for argument, that it took insight out of the common to see what could be stripped away and leave the substance of the invention unimpaired. But that does not change the fact that Friedel had all along embodied all but one of the elements of the claims. We hold claims eleven, thirteen and fourteen invalid for lack of invention, and dismiss the complaint in action 17-347.
The counterclaim in that action charged that Derman “knowingly brought” suit against the defendants “without basis and for the purpose of damaging” their business, and that he and the Decorative Cabinet Corporation—one of the defendants in the two other actions—“furthered” this unlawful purpose “by oral representations to the trade that defendants infringed patents controlled by Harry Derman and that members of the trade * * * would be subject to suit,” and “by written representations * * * that suit had been brought * * * against the defendant Stor-Aid, Inc.” The evidence in support of this is two- advertisements broadcast to the trade, and the fact that Derman originally sued on eleven patents, by amendment reduced these to five—of which he abandoned one—and finally failed to-recover on three of the remaining four. He is a citizen of New York; Stor-Aid, Inc. is a New York corporation; Blechman’,s citizenship does not appear; hence the district court had no jurisdiction, based upon diversity of citizenship;' nor did the cause of action arise out of any law of the United States. If the court had any jurisdiction whatever, it was under the doctrine of Hurn v. Oursler, 289 U.S. 238, 53 S.Ct. 586, 77 L.Ed. 1148. We have very recently discussed this question in an appeal closely similar to that now before us (Zalkind v. Scheinman, 139 F.2d 895), and we can see no valid distinction between that case and this. In each the alleged liability arose from unlawful dealing with an alleged invention: in that case, by unconscionably delaying the prosecution of an application for a patent; in this, by threatening suit upon patents known to be invalid. For the reasons stated at length in that opinion, we dismiss the counterclaim in action 17-347, because it was not within the jurisdiction of the district court.
The other two actions (17-450 and 18-52), were brought by two foreign corporations—organized in New Jersey and Illinois respectively—against two New York corporations, and the district court therefore had jurisdiction because of the diversity of citizenship. The complaints are the same: i.e. that Derman was the president of both the defendant companies and directed their “policies and management” ; that he had licensed them under the eleven patents sued upon in the first complaint; that the defendants had employed salesmen who acted under his direction; that these salesmen, with Derman’s knowledge that the plaintiff’s wardrobes “were free from infringement of said patent of Harry Derman,” made oral representations to the trade that the plaintiff’s products infringed the aforesaid patents; and that in making these representations the salesmen “were acting within the scojie of their employment by the defendant corporations and with the knowledge of the President of each corporation, and under his direction or consent.” We can find no evidence connecting the two New York corporations with any assertion of the patents against the plaintiffs; or with -the offending advertisements. Derman did swear that he supervised and directed the salesmen’s activities, but he denied that he told them what to say to the trade. Besides, there is no evidence of what the salesmen did in fact say, and the advertisements relied upon (Exhibit L and Exhibit O) both spoke in the name of Derman, although the names of the two New York companies appeared as licensees on the bottom of Exhibit L. The companies were not liable merely because, Derman was their president, and in general control of them; the plaintiffs were bound at least to prove that he undertook to act for them. Maybe he did, but that nowhere appears. The judgments in action 17-450 and action T8-52 will be affirmed.
In action 17-347 the judgment will be reversed in toto: judgment will be entered dismissing the complaint upon the merits, and dismissing the counterclaim for lack of jurisdiction in the district court. Costs to the defendants.
In action 17-450 and action 18-52 the judgments will be affirmed with costs.
Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number.
Answer:
|
songer_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.
POLYMER PROCESSES, INC., Plaintiff-Appellant, v. CADILLAC PLASTIC & CHEMICAL CO., Inc., Defendant-Appellee.
No. 15645.
United States Court of Appeals Sixth Circuit.
Nov. 2, 1964.
John T. Synnestvedt, Philadelphia, Pa., William P. Cole, Philadelphia, Pa., on brief; Whittemore, Hulbert & Belknap, Detroit, Mich., Synnestvedt & Lechner, Philadelphia, Pa., of counsel, for appellant.
Charles J. Merriam, Chicago, 111., Basil P. Mann, Chicago, 111., on brief; Merriam, Smith & Marshall, Chicago, 111., Cullen, Sloman & Cantor, Detroit, Mich., of counsel, for appellee.
Before PHILLIPS and EDWARDS, Circuit Judges, and PRETTYMAN, Senior Circuit Judge.
. Senior Circuit Judge E. BARRETT PRETTYMAN, of the District of Columbia Circuit, sitting by designation.
ORDER AFFIRMING JUDGMENT OF THE DISTRICT COURT.
This is an action for patent infringement, involving the continuous production of large diameter rod stock from nylon, on appeal from the United States District Court for the Eastern District of Michigan, Southern Division. The District Judge, the Honorable Talbot Smith, rendered a comprehensive opinion holding that the claims of patent asserted by plaintiff are invalid for lack of patentable invention and have not been infringed by defendant. The case has been presented to this court upon briefs and oral argument.
Upon consideration, we find no error in the judgment of the District Court. It is ordered that the judgment of the District Court be and hereby is affirmed upon, the basis of the opinion of the District. Judge reported in 220 F.Supp. 563.
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_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.
UNITED STATES of America, Plaintiff-Appellee, v. Maximo AVILA-DOMINGUEZ, Albert Perez, Evangeline Salazar and Carolyn Sanchez, Defendants-Appellants.
No. 78-5575.
United States Court of Appeals, Fifth Circuit.
Feb. 1, 1980.
Rehearing and Rehearing En Banc Denied Feb. 28, 1980.
Herbert E. Cooper, Asst. Federal Public Defender, El Paso, Tex., for Avila-Dominguez.
Anthony C. Aguilar, El Paso, Tex., for Perez, Salazar & Sanchez.
LeRoy M. Jahn, Asst. U. S. Atty., San Antonio, Tex., for plaintiff-appellee.
Before WISDOM, AINSWORTH and RO-NEY, Circuit Judges.
RONEY, Circuit Judge:
This case involves multiple convictions for assisting Mexican aliens in illegally entering the United States. The most serious question is whether the convictions should be reversed because the Government deported potential witnesses before defendants’ counsel could interview them. Acknowledging that the Government violated defendants’ constitutional rights, we nevertheless affirm the convictions, partly because the case has an element of waiver of those rights, but more importantly because no suggestion has been made to this Court or the district court as to how the witnesses might have, in the slightest way, helped defendants in the defense of this case.
The facts on this controlling issue are undisputed. Acting on an informant’s tip and surveillance, an Immigration and-Naturalization Service (INS) agent stopped a pickup truck driven by defendant Perez and placed him under arrest. Perez opened the truck’s camper shell at the agent’s request, and twenty-two illegal aliens were discovered within. In the meantime, another INS agent arrested defendants Avila, Salazar and Sanchez in the nearby parking lot from which the truck had departed.
The twenty-two illegal aliens were taken into the custody of the INS and each was interviewed by an INS agent. The United States Attorney determined that eight of them would be detained as material witnesses, and a written statement was taken from each of those eight. The sole woman alien in custody and the two children accompanying her were granted voluntary return to Mexico on the day of defendants’ arrests because of the inadequacy of detention facilities. Deportation proceedings were begun against the other eleven aliens and they were deported to Mexico ten days later. The dates are significant. The arrests occurred on April 22, 1978. Initial appearances were made and bonds were set on April 24. Defendants then had an attorney. The eleven aliens in question were deported on May 2.
At the preliminary hearing on May 3, an INS agent unintentionally misinformed defendants’ counsel that nineteen aliens remained in custody, including the eleven who had actually been deported the previous day. On June 16, defendants moved for dismissal because of the Government’s failure to provide the names of the deported aliens and make them available for interviews. The district court denied the motion to dismiss, but ordered the Government to furnish the names and addresses of the witnesses. The aliens resided in Mexico, however, and were not available to be interviewed or deposed by defendants’ counsel.
Defendants Avila, Perez, Salazar and Sanchez were convicted of conspiracy, 18 U.S.C.A. § 371, to encourage or induce the entry of illegal aliens into the United States in violation of 8 U.S.C.A. § 1324(a)(4), and to transport those aliens within the United States in violation of 8 U.S.C.A. § 1324(a)(2). Avila was also convicted on six counts for violating 8 U.S.C.A. § 1324(a)(4), and Perez was convicted on eight counts for violating 8 U.S.C.A. § 1324(a)(2).
Deportation of Witnesses
Relying on United States v. Mendez-Rodriguez, 450 F.2d 1 (9th Cir. 1971), defendants argue the Government violated their Fifth Amendment right to due process and their Sixth Amendment right to compulsory process by deporting the potential witnesses before defendants were notified of their impending deportation and given an opportunity to interview them. In Mendez-Rodriguez, defendant was charged with violations of 18 U.S.C.A. § 371 and 8 U.S.C.A. § 1324(a)(2) and convicted on the basis of testimony of three aliens who had been detained in the United States pending his trial. In reversing the convictions, the Ninth Circuit held that defendant’s Fifth and Sixth Amendment rights were violated by the deportation to Mexico of three other alien witnesses before defendant had an opportunity to interview them. The court held the defendant was not required to show prejudice resulting from the unavailability of the deported witnesses. See also United States v. Tsutagawa, 500 F.2d 420 (9th Cir. 1974).
The Seventh Circuit adopted the rule of Mendez-Rodriguez in United States v. Calzada, 579 F.2d 1358, cert. dismissed, 439 U.S. 920 (1978). That decision affirmed the district court’s dismissal of indictments against eight defendants because seven of thirteen potential alien witnesses had been made unavailable by the Government for interviewing by defendants. The court based its decision solely on the right to compulsory process, and rejected the Government’s argument that defendants would be entitled to relief only on a showing of either prosecutorial bad faith or prejudice to defendants.
The effect of Government conduct such as this has not heretofore been addressed by our Court. The opinion in Uribe v. United States, 529 F.2d 742 (5th Cir. 1976), specifically reserved the issue for later determination:
Because of our resolution of this question, we need not decide whether we agree with the Ninth Circuit that due process is denied when the Government deports potential witnesses before the defendant has an opportunity to interview them. United States v. Mendez-Rodriguez, 9 Cir. 1971, 450 F.2d 1.
529 F.2d at 743 n. 3.
We agree with the Ninth and Seventh Circuits that a criminal defendant’s constitutional rights are violated if an alien witness is deported before the defendant is given an opportunity to interview the witness. The reasoning of those cases appears sound and we adopt it as our own, without repetition here. We disagree, however, with the automatic reversals and indictment dismissals which occurred in those cases.
We base the affirmance of these convictions on two rationales. First, defendants’ interest in the deported aliens heightened once they were unavailable, and the case is flavored with an element of waiver, even though defendants’ conduct is not clothed with a full-dress waiver of a constitutional right. Cf. United States v. Lujan-Castro, 602 F.2d 877 (9th Cir. 1979) (defendant knowingly waived right to have alien witnesses retained in the United States).
Defendants were arrested and the illegal aliens taken into custody on April 22, 1978. Complaints issued against defendants on April 24, notifying them of the crimes with which they were charged. That same day defendants were represented by counsel at initial appearances before the court. More than a week after the initial appearances, on the tenth day after defendants’ arrests, the eleven aliens were ordered deported to Mexico by a special inquiry officer of the INS.
Although defense counsel asserted that he had inquired about the names and location of the aliens on or about April 24, the district judge noted that defense counsel failed to show that he had made any efforts to follow up that informal inquiry.
A requirement that defendants act diligently to preserve the testimony of illegal aliens must be imposed in the circumstances of these cases. Otherwise, the great burden and expense of detaining and housing alien witnesses is borne by the Government, while defendants delay the simple efforts involved in locating and interviewing them. Although detention methods involving parole or work programs rather than incarceration would be less burdensome to the Government, these entail the risk of escape by the alien, defeating the purposes of both detention for trial and deportation. See United States v. Verduzco-Macias, 463 F.2d 105 (9th Cir.), cert. denied, 409 U.S. 883, 93 S.Ct. 173, 34 L.Ed.2d 139 (1972).
Defendants could have preserved the testimony of the eleven deported aliens by making a prompt formal request for their names and whereabouts. If there had been insufficient time to interview all the witnesses, a postponement of their deportation could have been sought. Any alien believed by defendants to be able to give exculpatory testimony could have been detained in this country until trial.
Since we believe, however, that the better procedure for protecting the constitutional rights here involved would be for the Government to give notice of prospective deportation and a reasonable opportunity for defense counsel to interview the witnesses, we are not comfortable with resting an affirmance on the ground of waiver alone.
The second and more compelling rationale for this decision is that not the slightest suggestion has been made as to what testimony helpful to defendants these witnesses could offer. We are in general accord with the proposition set forth in Mendez-Rodriguez and Calzada that to obtain relief in a case of this kind, the defendant need not show prejudice arising from the violation with “any degree of assuredness.” 579 F.2d at 1362. But we agree with the dissents in both of those cases that reversal is not warranted where the “record is completely devoid of anything which would suggest that the testimony of any one, or more, of the deported persons would have been helpful” to the defendants, 450 F.2d at 6, and that “it does not seem too much to require that they offer at least a plausible theory” of how the testimony of the witnesses would be helpful to the defense. 579 F.2d at 1365. The purpose of a criminal trial is to produce evidence which shows the truth. The purpose of criminal procedure is to assure that end through fair means. It is important to remember that the defendants presumably know the truth in this case. It does not damage the underlying purposes of the Fifth Amendment to require that at least in counsel’s brief or argument, some suggestion be made as to how the deported witnesses might advance the cause of revealing the truth.
Nothing in the record permits an inference that defendants were prejudiced by the unavailability of the alien witnesses. An INS agent testified that each of the aliens related basically the same story, and that the decision as to deportation turned on the superior health and fitness of the aliens chosen for detention. Proof of conspiracy focused on transactions between various defendants and the aliens who testified at trial, not those who were deported. Prosecution of the substantive counts was based on the illegal entry and transportation of the aliens who testified at trial, not those who were deported.
Thus, while adhering to the principles set forth in the Ninth and Seventh Circuit cases, we refuse to blindly apply those principles where there is no suggested suspicion that the deported witnesses could give testimony which would affect the trial in any way at all. We need not here decide with what strength any such theory of helpfulness would need to be advanced by counsel to justify relief. All we do is hold that where there is nothing, reversal is not required.
We especially note that the Government neither acted' in bad faith nor purposefully deprived defendants of their rights. Now that the Government knows we subscribe to the rule that defendants have a constitutional right to interview such witnesses, and must be given reasonable notice before their deportation, this decision will not necessarily immunize subsequent similar conduct. Likewise, our comments here about the need for counsel to act promptly should suggest that purposeful delay which imposes on the Government the hardship of retaining witnesses not needed in good faith by the defense will be of little avail.
Duplicity
Defendants sought dismissal of Count One of the indictment for duplicity because it alleged conspiracy to commit two distinct substantive offenses, the inducement of illegal alien entry and the transport of illegal aliens. “The fact that the alleged conspiracy includes the violation of more than one federal statute does not make [the indictment] duplicitous.” Overstreet v. United States, 321 F.2d 459, 461 (5th Cir. 1963), cert. denied, 376 U.S. 919, 84 S.Ct. 675, 11 L.Ed.2d 614 (1964).
The failure of the guilty verdict to specify which substantive crime was determined to be the object of the conspiracy is not prejudicial. Once a defendant is found guilty of participating in a conspiracy, it is “unnecessary that the verdict specify the particular statutory provision which an individual defendant conspired to violate.” United States v. Bolts, 558 F.2d 316, 325-326 (5th Cir.), cert. denied, 434 U.S. 930, 98 S.Ct. 417, 54 L.Ed.2d 290 (1977).
Search and Seizure
The district court refused to suppress three types of evidence: Salazar’s statements at the time of her arrest, the testimony of the detained alien witnesses, and certain sums of money taken from the defendants upon arrest. Defendants argue this evidence was obtained as the result of illegal arrests and should have been suppressed. United States v. Cruz, 581 F.2d 535, 538 (5th Cir. 1978) (en banc). See United States v. Ceccolini, 435 U.S. 268, 98 S.Ct. 1054, 55 L.Ed.2d 268 (1978).
The Constitution does not require that a warrant issue prior to an arrest based on probable cause, even if no exigent circumstances prevented the obtainment of a warrant. United States v. Watson, 423 U.S. 411, 423-424, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976). The test is whether the INS agents had probable cause at the time the arrests occurred:
Probable cause exists when the facts and circumstances within the arresting officer’s knowledge and of which he had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution to believe that an offense has been or is being committed.
United States v. Lowery, 436 F.2d 1171, 1174 (5th Cir. 1970), cert. denied, 401 U.S. 978, 91 S.Ct. 1208, 28 L.Ed.2d 329 (1971), citing Draper v. United States, 358 U.S. 307, 313, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959).
The INS agents clearly had probable cause to arrest defendants. An agent testified he had dealt with the informant on twenty prior occasions and was convinced of his reliability. Moreover, the informant’s detailed information about the aliens’ whereabouts, Salazar’s appearance, and the presence of a woman alien accompanied by two children was corroborated by the agents’ personal observations soon after surveillance began. See United States v. Tuley, 546 F.2d 1264 (5th Cir.), cert. denied, 424 U.S. 837, 98 S.Ct. 128, 54 L.Ed.2d 99 (1977). Finally, an agent observed through a window that more people were concealed in the camper than he had seen enter. This served to corroborate the informant’s allegation of criminal conduct, especially in view of the lengthy time the truck remained in the parking lot. See United States v. Smith, 598 F.2d 936, 939-940 (5th Cir. 1979).
The searches of defendants incident to their lawful arrests were clearly proper, United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973), even though the searches took place at the courthouse rather than at the sites of the arrests. United States v. Edwards, 415 U.S. 800, 94 S.Ct. 1234, 39 L.Ed.2d 771 (1974); United States v. Castro, 596 F.2d 674, 677 (5th Cir.), cert. denied, — U.S. —, 100 S.Ct. 448, 62 L.Ed.2d 375 (1979). The agent had probable cause for the search of the camper shell, so the testimony of the illegal aliens discovered therein was properly admissible. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); United States v. Wright, 588 F.2d 189, 193 (5th Cir. 1979). Moreover, there was reason for concern that the aliens might flee if not taken promptly into custody. The district court did not err in admitting the evidence resulting from defendants’ arrests and the accompanying searches.
Sufficiency of the Evidence
Defendants challenge the sufficiency of the evidence to support the convictions. The essential elements of criminal conspiracy are an agreement between two or more persons to commit a crime and an overt act in furtherance of the agreement by one of the conspirators. United States v. White, 569 F.2d 263, 266 (5th Cir. 1978), cert. denied, 439 U.S. 848, 99 S.Ct. 148, 58 L.Ed.2d 149 (1979). Once the existence of the conspiracy is established, there must be substantial evidence that each alleged conspirator knew of, intended to join and participated in the conspiracy. United States v. Malatesta, 590 F.2d 1379 (5th Cir.) (en banc), cert. denied, 440 U.S. 962, 99 S.Ct. 1508, 59 L.Ed.2d 777 (1979).
The evidence is viewed in the light most favorable to the Government. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942). In this case the evidence establishing the essential elements of conspiracy and defendants’ knowledge, intent and participation therein is sufficient. Several weeks before their arrests, Salazar, Sanchez and Perez entered Mexico and recruited the aliens in Juarez, arranging to transport them to Chicago or Denver. Perez later returned to Mexico, and on the morning of April 22, 1978, he supervised the transportation of the aliens by municipal bus from downtown Juarez to an abandoned house near the border.
Avila and several unknown persons escorted the aliens to the border, where Avila crossed first, ascertained that no INS patrols were present, and signalled the aliens to follow. He then walked the aliens to a pickup point, from which they were driven into El Paso. Sanchez and Avila collected fees from the aliens for the conspirators’ assistance in bringing them into the United States. Additional payments were to be made after the aliens secured employment in Chicago and Denver.
As thus described by the testimony of the eight alien witnesses, the activities engaged in by defendants were not “random” or “separate,” but rather evinced “continuous planning and cooperation [among] the persons involved.” United States v. Michel, 588 F.2d 986, 995 (5th Cir.), cert. denied, — U.S. —, 100 S.Ct. 47, 62 L.Ed.2d 32 (1979).
Avila also challenges the sufficiency of the evidence by which he was convicted on six counts of encouraging and inducing the aliens’ entry into the United States, in violation of 8 U.S.C.A. § 1324(a)(4). The testimony of the alien witnesses fairly established that Avila met them across the border, assisted their transportation to the river, told them he would signal from the other side when it was safe to cross, scouted the vicinity for law enforcement officers, then called, whistled and waved to the aliens to indicate the right time for crossing. The surreptitious manner in which Avila led the aliens across the border and his subsequent acceptance of cash payments in exchange for that guidance amply support an inference of his knowledge that they were not lawfully entitled to enter the United States, and of the willfulness of his activity. See United States v. Boerner, 508 F.2d 1064, 1068 (5th Cir.), cert. denied, 421 U.S. 1013, 95 S.Ct. 2419, 44 L.Ed.2d 681 (1975). From this evidence, a jury could reasonably conclude that Avila encouraged or induced the entry of illegal aliens into the United States.
Perez met the aliens in Mexico, coordinated their illegal entry into the United States, and was apprehended in El Paso while driving a truck in which they were passengers. The evidence is sufficient to establish his violations of 8 U.S.C.A. § 1324(a)(2), the transportation of illegal aliens within the United States.
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_appbus
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
MURRAY v. RIO GRANDE MOTORWAY, Inc.
No. 3702.
United States Court of Appeals Tenth Circuit.
Nov. 19, 1948.
Delbert M. Draper, of Salt Lake City, Utah (Edgar C. Jensen, of Salt Lake City, Utah, on the brief), for appellant.
A. H. Nebeker, of Salt Lake City, Utah (S. J. Quinney and Paul H. Ray, both of Salt Lake City, Utah, on the brief), for appellee.
Before, BRATTON, HUXMAN and MURRAH, Circuit Judges.
MURRAH, Circuit Judge.
Appellant brought this action against appellee, Rio Grande Motorway, seeking damages for personal injuries, alleging that one of the appellee’s buses, on which he was a standing passenger, “suddenly and violently lurched to one side” and hurled him against a seat with such “force and violence” that he was1 ruptured in his left groin.
At the conclusion of all the evidence, the trial court sustained a motion for a directed verdict on the ground that the movement complained of was no more than the normal jostling or movement of the bus as it traveled along the highway. The appellant appeals from a judgment for the appellee bus company on the directed verdict. Jurisdiction is based upon diversity of citizenship and requisite amount in controversy, and the only question presented here is whether the evidence was sufficient to take the case to the jury on the issue of negligence.
Although the carrier owed the standing passenger the highest degree of care commensurate with the peculiar circumstances involved, the passenger assumed the usual and ordinary jerks and lurches incident to the movement of the bus over the public highways. Wichita Transportation Co. v. Braly, 10 Cir., 150 F.2d 315, 317; United States v. De Back, 9 Cir., 118 F.2d 208; McQuin v. Santa Fe Trail Transportation Co., 155 Kan. 111, 122 P.2d 787; Dempsey v. Market Street Ry. Co., 23 Cal.2d 110, 142 P.2d 929; Waite v. Pacific Gas & Electric Co., 56 Cal.App.2d 191, 132 P.2d 311; McIntosh v. Los Angeles Ry. Corp., 7 Cal.2d 90, 59 P.2d 959; Morrisey v. Union Pacific Railroad Co., 68 Utah 323, 249 P. 1064.
To parapharse the language of the Utah Supreme Court in the Morrisey case, supra, it is common knowledge and experience that passengers on trains and buses may be shaken and jostled by the ordinary lurches and jerks which are unavoidable in the operation of trains and buses over grades and around curves. A permissible inference of actionable negligence arises only when the lurches or jerks .are unusual and extraordinary — such as would not have happened in the ordinary .course of the operation of the bus upon the 'highway. In determining whether the movement of the bus was so unusual as to justify the inference of negligence, the nature of the accident and the effect of the :bus movement upon the passenger may be taken into consideration. McIntosh v. Los Angeles Ry. Corp., 7 Cal.2d 90, 59 P.2d 959, 961; Waite v. Pacific Gas & Electric Co., 56 Cal.App.2d 191, 132 P.2d 311, 316.
In support of his allegations appellant testified that at the time of the accident he was enroute to Salt Lake City as a passenger on appellee’s bus. Not being able to obtain a seat on the bus he was standing in the aisle holding with his left hand onto a %ths inch rope which ran through loops around the baggage shelf above the seats. “While so standing there was a violent motion of the bus. It changed direction or jumped. There was an unusual motion and I was propelled against the seat. I struck Miss Snow (a seated passenger) on the shoulder and feel across her lap,” and “as I fell my left groin struck the corner of -the seat.” After regaining his feet he stated to passenger Snow “that the bump 'hurt like everything,” but he did not complain to the driver or notice whether any .of the other passengers had been disturbed ;by the lurch, because “I didn’t even know I was hurt.” It was his impression that -the bus was traveling about 50 miles per hour because he was being “jostled considerably,” but that when the accident occurred he.could not say whether the speed ;.had “lessened or increased.” That there was just an “unusual motion,” but he did not know what caused it.
Passenger Snow testified that she was seated near the aisle where appellant was standing; that somewhere along the trip “he fell against the seat and nearly fell into my lap.” That he apologized and remarked that the fall had hurt him. She did not testify however concerning any unusual motion of the bus. The driver did not recall any unusual or extraordinary incident.
It is suggested, and the trial court was of the opinion, that there was nothing in the evidence to show that appellant’s fall was the result of a sudden and violent lurch; that it could have been the result of the passenger becoming unbalanced while holding onto the sliding baggage rope. The trial court took the view that the facts in this case were analogous to those in the Morrisey case supra, and required the same conclusion. In that case the descriptipn of the jolt or lurch and its consequences as detailed by the witnesses did not characterize it as unusual or extarordinary, but "rather affirmatively showed it to have been a usual or customary incident of railroad transportation. In our case, however, the motion of the bus was described as “unusual” and “violent,” propelling the standing passenger against the seat and across the lap of a seated passenger.
True, appellant was unable to describe with particularity the place or cause of the motion, which he claimed caused his fall and injury. But, he was standing in the bus with his head above the windows, it was dark and he was unfamiliar with the surroundings; he cannot, therefore, be charged with the duty of describing the nature, the place or the cause of the movement which he testified was of sufficient force to propel him against the seat causing an immediately demonstrable injury. We think these circumstances were sufficient to generate a permissible inference of negligence and an issue of fact for the jury.
It is suggested that the evidence conclusively shows contributory negligence, but we think at most it was a question for the jury. Cf. Waite v. Pacific Gas & Electric Co., 56 Cal.App.2d 191, 132 P.2d 311.
Reversed and remanded, with directions to grant the appellant a new trial in accordance with the views herein expressed.
Question: What is the total number of appellants in the case that fall into the category "private business and its executives"? Answer with a number.
Answer:
|
songer_applfrom
|
B
|
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).
WARK v. ERVIN PRESS CORPORATION.
No. 4492.
Circuit Court of Appeals, Seventh Circuit.
March 20, 1931.
Irving Breakstone, of Chicago, Ill., for appellant.
J. Robert Cohler and Samuel E. Hirsch, both of Chicago, Ill., for appellee.
Before ALSCHULER, EVANS, and SPARKS, Circuit Judges.
ALSCHULER, Circuit Judge.
In this ease bill and answer were filed, and, on motion of plaintiff for a decree pro eonfesso, decree was entered accordingly.
The bill charged that the plaintiff had established a business of creating, manufacturing, and selling an advertising service for those engaged in the business of dry cleaning; that plaintiff had customers and business in all parts of the country; that in December, 1927, appellant, Wark, entered plaintiff’s employ as a traveling sales manager at $85 a week, remaining in such capacity until March, 1929, when the employment ended; that after about six months he re-entered plaintiff’s employ as its special sales executive, under written agreement for service from September 1, 1929, to December 31, 1930, at $150 a week.
The sixth paragraph of the agreement (set out in the margin) provides, in substance, that if, with or without cause, the agreement shall terminate, Wark will not thereafter reveal any of the employer’s trade secrets, nor enter into nor be connected with any other business which sells or supplies advertising material for dry cleaners, and that he will not, for a period of five years from cessation of the employment, engage in the dry cleaning business or be employed in any capacity by any person or corporation engaged in the dry cleaning business, except in the states of New Mexico, Arizona, Montana, North and South Dakota, and Delaware.
The bill further charges that Wark, through his employment and contact with the trade, became acquainted with the plaintiff’s business methods and customers in various parts of the United States through personal calls upon the customers and through meeting them at conventions of the dry cleaning industry, and that on or about January 30, 1930, Wark left plaintiff’s employ, and in February entered the service of C. E. Falls Service Company, another corporation likewise engaged in creating and selling advertising service to dry cleaners; that Wark thereupon availed himself of his knowledge of plaintiff’s business and its business secrets, and of plaintiff’s lists of customers and prospective customers, employing all this knowledge for the benefit of his new employer, and soliciting plaintiff’s customers by personal calls and by correspondence, whereby plaintiff has been and will be greatly damaged; and that such conduct was contrary to Wark’s undertaking in and by 'said agreement.
The bill asks for temporary and permanent injunction restraining Wark from disclosing any of the business methods or secrets of plaintiff, from remaining in the service of his new employer, or from being connected with any such business'for such period of five years in the territory above specified, and from using, or enabling others to use, lists of plaintiff’s customers or prospective customers.
A temporary injunction was granted restraining Wark from disclosing to his then employer, or to any other person, any of the secret business methods or other secrets of the plaintiff, and from soliciting customers or prospective customers of plaintiff whose names were obtained or made known to said Wark while in plaintiff’s employ, and from in any manner using names or lists of names of customers or prospective customers of plaintiff obtained by him while in plaintiff’s employ.
Answer to the bill was filed, in which it was admitted that plaintiff was engaged in the business described in the bill, and that’ plaintiff solicits practically all the leading dry cleaning establishments in the United States. The answer admits the execution of the written agreement, but denies that plaintiff disclosed to Wark any trade or business secrets and lists of customers and prospective customers, but stated that Wark made his own contacts and solicited those engaged in the dry cleaning business wholly from names obtained from trade journals and financial reports. It denies that plaintiff possessed any trade secrets or secret methods of doing business, but stated that its method of designing and producing its products was well known to all those engaged in similar business.
The answer further states that on January 30, 1930, Wark was discharged by plaintiff without cause, and that thereby he was relieved from the obligations of the contract; that he thereafter entered into the service of his then employer as sales manager, and that said employer was and is a competitor of plaintiff and likewise engaged in selling advertising service to dry cleaners, but that its service is in a far broader field, and is not confined exclusively to dry cleaners, as is that of plaintiff; that approximately only half of said employer’s business is devoted to the dry cleaning trade; that Wark does not in any manner participate in designing the advertising service of his employer, nor ip creating and manufacturing it; that said employer solicits the entire dry cleaning trade from its own catalogs and lists of customers, which are compiled as the result of its own efforts, and entirely independent of plaintiff or of any compilation on'the subject by the plaintiff; that said employer was familiar with the entire advertising service and business methods and distribution to the trade of such product long before the time of plaintiff’s employment of Wark; that Wark’s services to plaintiff were not extraordinary or unique; that he has not, since employed by said employer, made use of any trade secrets or methods of plaintiff, or solicited any of plaintiff’s former customers or prospective customers; and that he has not circularized any lists of customers or prospective customers of the plaintiff, or personally solicited any of them. But the answer admits that Wark has sent announcements to personal friends in the trade, advising them of his new connection and employment.
The answer further alleges that Wark’s duties with plaintiff were such that they could be satisfactorily performed, and are being performed, by others, without any difficulty to plaintiff in engaging a successor equally capable, and denies that plaintiff has suffered any damage as a result of Wark’s change in employer. The answer further alleges that paragraph 6 of the agreement is unilateral, unreasonable, unconscionable, and lacking in mutuality, both as to obligation and remedy, and therefore void.
The final decree made permanent the preliminary injunction, and further restrained the defendant, for five years from January 20, 1930, from being associated or employed by or from participating in the business of his then employer, and from being connected with, or entering or engaging in, within the United States, except the above named six states, any business of selling or "supplying •advertising or display service in any form to dry cleaners, and from being engaged or employed in any capacity by any association of dry cleaners. -
Coneededly the plaintiff was not entitled to any relief concerning any allegations of the bill which were sufficiently denied by the answer. The answer sufficiently denied that the plaintiff in its business possessed any trade secrets or secret methods of doing business, and that Wark had imparted to the Falls Service Company any secret information of plaintiff’s business, or had given that employer any list of plaintiff’s customers or information respecting plaintiff’s business, and denied that plaintiff sustained any damage by reason of any of defendant’s alleged acts or doings.
The preliminary injunction was limited to restraining defendant from disclosing to his new employer, or any other person in the dry-cleaning industry, plaintiff’s business secrets and secret business methods, and from soliciting customers or prospective customers of plaintiff whose names became known to defendant while in plaintiff’s employ. Since the answer sufficiently denies that plaintiff had any trade secrets or secret methods of transacting its business whereof Wark became possessed, so much of the final decree •as makes permanent that part of the preliminary injunction against making such revelations is unwarranted, and, to that extent, the final decree should in any event be modified.
The answer, while denying generally the solicitation of plaintiff’s customers, does not specifically deny the writing of letters, one of which the bill sets forth, or the allegation that other letters of similar nature were written by Wark to customers of the plaintiff, with whom Wark had, while in plaintiff’s employ, come in business contact. The letter which the bill sets forth plainly indicates direct solicitation of this customer of plaintiff for the new employer. As to the writing of such letters, the answer admits that Wark sent announcements to personal friends of the trade, advising them of his new connection. It does not deny that such personal friends in the trade were also plaintiff’s customers in the dry cleaning business as alleged, nor that the letters were, to all intents and purposes, a bid for business relations on behalf of the new employer. The answer also admits that the new employer was engaged in the business of supplying advertising matter for dry cleaners, although alleging it was advertising of a different kind. Nevertheless in its relation to dry cleaners it was in direct competition with plaintiff’s advertising business.
To the extent, therefore, that the answer admits, or does not deny, material allegations of the bill, so much of the decree as is predicated upon the allegations so admitted, or not denied, must stand, if the matters are such as, if proved, would entitle plaintiff to the decree.
The answer alleges that there was nothing extraordinary or unique about Wark’s services, and that he could be replaced without injury to his former employer, and that therefore the negative or restraining covenants of paragraph 6 of the contract are not enforceable. The trend of modem authorities is that such covenants, when reasonably limited as to time and place, and when reasonably calculated to protect the lawful business of the employer, will be enforced, even though the service is not of that unique and special nature as has often been the subject of judicial consideration. Erikson v. Hawley, 56 App. D. C. 268,12 F.(2d) 491; Eureka Laundry Co. v. Long, 146 Wis. 205,131 N. W. 412, 35 L. R. A. (N. S.) 119; Walker Coal & Ice Co. v. Westerman, 263 Mass. 235, 160 N. E. 801; 32 C. J. 220.
The circumstances here presented tend to indicate that Wark was considered by plaintiff to be, and he was in fact, a particularly useful and valuable employee. His experience with such business began with his first employment by plaintiff. His salary was comparatively large, but for some reason the employment ceased after somewhat over a year, and then the new contract was made at an initial salary nearly double what it had been.
The mere statement of the fact would indicate that in the course of such employment the good will of plaintiff’s business was, in considerable degree, in the hands of this employee, and it was to protect the good will of the business that paragraph 6 was made a part of the agreement.
It is true that the territorial limit of his restriction is large — all of the United States save six of the less important states — but plaintiff’s trade, as well as that of the competitor, extended all over the United States, and so presumably did the business contacts of Wark, made during his employment with plaintiff. Under the circumstances, we cannot say that the territorial limit of the covenant, nor its tíme limit, were more tfian sufficient reasonably to protect plaintiff’s business and good will. Harrison v. Glucose Sugar Refining Co., 116 F. 304, 58 L. R. A. 915 (C. C. A. 7th); Davis et al. v. A. Booth & Co., 131 F. 31 (C. C. A. 6th).
It is contended that the agreement is unilateral because there was no agreement to give Wark employment for any specified time, but would be effective in case from any cause, .or without cause, the employment ceased. We do not think this is essential to the lawfulness of such covenant.. If such a covenant were made in bad faith, with intent on the part of the employer that the employment would be only long enough to bind the employee to the covenant, and with a view only of preventing him from working elsewhere, a different situation would be presented. The facts disclosed by the pleadings do not raise a suspicion of the bona tides of the contract; and, made as it was in the view of Wark’s previous employment with plaintiff, and his knowledge of its business, we can reach no other conclusion than that there was consideration for Wark’s promise, and that paragraph 6 is valid and enforceable. Meurer Steel Barrell Co., Inc. v. Martin, 1 F.(2d) 687 (C. C. A. 3d); Hunt v. Stimson, 23 F.(2d) 447 (C. C. A. 6th).
The denial in the answer that Wark voluntarily quit the employment, and his allegation that without cause he was discharged by plaintiff, will not affect the merits of the controversy, unless possibly, as above suggested, the discharge was in pursuance of a fraudulent purpose on the part of the employer not to give employment to Wark, but only to prevent him from being employed by others. Under such a covenant it is not important whether the employee was discharged or voluntarily left the employment. Cali v. National Linen Service Corp., 38 F.(2d) 35 (C. C. A. 5th); New York Linen Supply Co. v. Schachter, 125 Misc. Rep. 805, 212 N. Y. S. 72.
We are of opinion that the decree should be limited to enjoining Wark for the five-year period from retaining employment with C. B. Falls Service Company, and from soliciting on behalf of said C. B. Falls Service Company, or any other person or persons directly or indirectly engaged in the business of supplying advertising service to dry cleaners, the names of any customers of plaintiff who, to Wark’s knowledge, were such during the time of his employment with plaintiff, and from directly or indirectly soliciting any such customers on behalf of any person engaged in supplying'advertising service to dry cleaners dpring the period or within the territory as specified and/or in the decree. The decree is directed to be thus modified, and thereupon to be affirmed. Bach party shall pay one-half of the costs of this appeal.
“Sixth: Upon the termination of this agreement or of any modification, renewal or extension thereof. whether such termination takes place in accordance with the provisions of this agreement or for any reason whatsoever, whether with or without cause, the Employee agrees that he will not thereafter reveal the business methods of the Employer or any of the business secrets of the Employer to any one at any time and that he will not practice or make use of them himself, nor will he enter into, engage in, or be connected with any business selling, leasing or supplying advertising, advertising materials or advertising or display services in any form to dry cleaners or men’s or women’s wearing apparel stores, or to any one connected with the dry cleaning industry or with men’s or women’s wearing apparel stores, either directly or indirectly, in his own behalf or for any person, persons, firm or corporation; and the Employee further agrees that he will not go into, or engage in, the dry cleaning business or be employed in any capacity by any person, persons, firm or corporation; and the Employee further agrees that he will not go into, or engage in, the dry cleaning business or be employed in any capacity by any person, firm or corporation engaged in the dry cleaning business, or by any association of dry cleaners, for a period of five years from the date of such termination, any where in the United States, except that he may work for dry cleaners or men’s or women's wearing apparel stores and may sell advertising, advertising materials or advertising service to dry cleaners or men’s or women’s wearing apparel stores, in the States of New Mexico, Arizona, Montana, North Dakota, South Dakota and Delaware.”
Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)?
A. Trial (either jury or bench trial)
B. Injunction or denial of injunction or stay of injunction
C. Summary judgment or denial of summary judgment
D. Guilty plea or denial of motion to withdraw plea
E. Dismissal (include dismissal of petition for habeas corpus)
F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict)
G. Appeal of post settlement orders
H. Not a final judgment: interlocutory appeal
I. Not a final judgment: mandamus
J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment
K. Does not fit any of the above categories, but opinion mentions a "trial judge"
L. Not applicable (e.g., decision below was by a federal administrative agency, tax court)
Answer:
|
sc_caseorigin
|
079
|
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.
UNITED STATES v. JUVENILE MALE
No. 09-940.
Decided June 27, 2011
Per Curiam.
The Court of Appeals in this case held that the requirements of the Sex Offender Registration and Notification Act (SORNA), 42 U. S. C. § 16901 et seq., violate the Ex Post Facto Clause of the Constitution, Art. I, § 9, cl. 3, when applied to juveniles adjudicated as delinquent before SORNA’s enactment. We conclude that the Court of Appeals had no authority to enter that judgment because it had no live controversy before it.
I
Respondent Juvenile Male was 13 years old when he began sexually abusing a 10-year-old boy on the Fort Belknap Indian Reservation in Montana. The abuse continued for approximately two years, until respondent was 15 and his victim 12. In 2005, respondent was charged in the District of Montana with delinquency under the Federal Juvenile Delinquency Act, 18 U. S. C. § 5031 et seq. Respondent pleaded “true” to charges that he knowingly engaged in sexual acts with a child under 12, which would have been a federal crime had respondent been an adult. See §§ 2241(c), 1153(a). The court sentenced respondent to two years of juvenile detention, followed by juvenile supervision until his 21st birthday. Respondent was to spend the first six months of his postcon-finement supervision in a prerelease center. See United States v. Juvenile Male, 560 U. S. 558, 559 (2010) (per curiam).
In 2006, while respondent remained in juvenile detention, Congress enacted SORNA. 120 Stat. 590. Under SORNA, a sex offender must “register, and keep the registration current, in each jurisdiction” where the offender resides, is employed, or attends school. 42 U. S. C. § 16913(a). This registration requirement extends to certain juveniles adjudicated as delinquent for serious sex offenses. § 16911(8). In addition, an interim rule issued by the Attorney General mandates that SORNA’s requirements apply retroactively to sex offenders convicted before the statute’s enactment. 72 Fed. Reg. 8897 (2007) (codified at 28 CFR pt. 72 (2010)); see 42U.S. C. § 16913(d).
In July 2007, the District Court determined that respondent had failed to comply with the requirements of his prere-lease program. The court revoked respondent’s juvenile supervision, imposed an additional 6-month term of detention, and ordered that the detention be followed by supervision until respondent’s 21st birthday. 560 U. S., at 559. At the Government’s urging, and over respondent’s objection, the court also imposed a “special eonditio[n]” of supervision requiring respondent to regisler and keep current as a sex offender. Id., at 560 (internal quotation marks omitted); see Pet. for Cert. 9 (noting the Government’s argument in the District Court that respondent should be required to register under SORNA “ ‘at least until’ ” his release from juvenile supervision on his 21st birthday).
On appeal to the Ninth Circuit, respondent challenged this “special conditio[n]” of supervision. He requested that the Court of Appeals “reverse th[e] portion of his sentence requiring Sex Offender Registration and remand with instructions that the district court... strik[e] Sex Offender Registration as a condition of juvenile supervision.” Opening Brief for Defendant-Appellant in No. 07-30290 (CA9), p. 25. Then, in May 2008, with his appeal still pending in the Ninth Circuit, respondent turned 21, and the juvenile-supervision order requiring him to register as a sex offender expired. 560 U. S., at 560.
Over a year after respondent’s 21st birthday, the Court of Appeals handed down its decision. 581 F. 3d 977 (CA9 2009), amended, 590 F. 3d 924 (2010). No party had raised any issue of mootness in the Ninth Circuit, and the Court of Appeals did not address the issue sua sponte. The court’s opinion discussed only the merits and concluded that applying SORNA to juvenile delinquents who committed their offenses “before SORNA’s passage violates the Ex Post Facto Clause.” Id., at 927. On that basis, the court vacated the District Court’s condition of supervision requiring sex-offender registration and reporting. Id., at 942. The United States petitioned for a writ of certiorari.
. While that petition was pending, this Court entered a per curiam opinion in this case certifying a preliminary question of Montana law to the Montana Supreme Court. 560 U. S. 558. The opinion noted that a “threshold issue of mootness” might prevent us from reviewing the decision below on the merits. Id., at 560. We explained that, because respondent is “no longer . . . subject” to the District Court’s “sex-offender-registration conditions,” respondent must “show that a decision invalidating” those conditions “would be sufficiently likely to redress ‘collateral consequences adequate to meet Article Ill’s injury-in-fact requirement.’ ” Ibid. (quoting Spencer v. Kemna, 523 U. S. 1, 14 (1998)). We noted that by the time of the Ninth Circuit’s decision, “respondent had become registered as a sex offender in Montana.” 560 U. S., at 561 (internal quotation marks omitted). Thus, “[pjerhaps the most likely potential ‘collateral con-sequenc[e]’ that might be remedied by a judgment in respondent’s favor is the requirement that respondent remain registered as a sex offender under Montana law.” Id., at 560-561. In order to ascertain whether a decision invalidating the District Court’s registration conditions would enable respondent to remove his name from the Montana sex-offender registry, the Court certified the following question to the Montana Supreme Court:
“Is respondent’s duty to remain registered as a sex offender under Montana law contingent upon the validity of the conditions of his now-expired federal juvenile-supervision order that required him to register as a sex offender, or is the duty an independent requirement of Montana law that is unaffected by the validity or invalidity of the federal juvenile-supervision conditions?” Id., at 561 (citations omitted).
The Montana Supreme Court has now responded to our certified question. See United States v. Juvenile Male, 2011 MT 104, 360 Mont. 317, 255 P. 3d 110. Its answer is that respondent’s “state law duty to remain registered as a sex offender is not contingent upon the validity of the conditions of his federal supervision order, but is an independent requirement of Montana law.” Id., at 318, 255 P. 3d, at 111.
J — I H-Í
It is a basic principle of Article III that a justiciable case or controversy must remain “extant at all stages of review, not merely at the time the complaint is filed.” Arizonans for Official English v. Arizona, 520 U. S. 43, 67 (1997) (internal quotation marks omitted). “[TJhroughout the litigation,” the party seeking relief “ ‘must have suffered, or be threatened with, an actual injury traceable to the defendant and likely to be redressed by a favorable judicial decision.’” Spencer, supra, at 7 (quoting Lewis v. Continental Bank Corp., 494 U. S. 472, 477 (1990)).
In criminal cases, this requirement means that a defendant wishing to continue his appeals after the expiration of his sentence must suffer some “continuing injury” or “collateral consequence” sufficient to satisfy Article III. See Spencer, 523 U. S., at 7-8. When the defendant challenges his- underlying conviction, this Court’s cases have long presumed the existence of collateral consequences. Id., at 8; see Sibron v. New York, 392 U. S. 40, 55-56 (1968). But when a defendant challenges only an expired sentence, no such presumption applies, and the defendant must bear the burden of identifying some ongoing “collateral consequenc[e]” that is “traceable” to the challenged portion of the sentence and “likely to be redressed by a favorable judicial decision.” See Spencer, supra, at 7, 14 (internal quotation marks omitted).
At the time of the Ninth Circuit’s decision in this case, the District Court’s order of juvenile supervision had expired, and respondent was no longer subject to the sex-offender-registration conditions that he sought to challenge on appeal. 560 U. S., at 560. As a result, respondent’s challenge was moot before the Ninth Circuit unless he could “show that a decision invalidating” the District Court’s order would likely redress some collateral consequence of the registration conditions. Ibid, (citing Spencer, supra, at 14).
As we noted in our prior opinion, one “potential collateral consequence that might be remedied” by an order invalidating the registration conditions “is the requirement that respondent remain registered” under Montana law. 560 U. S., at 560-561 (internal quotation marks and brackets omitted). But as the Montana Supreme Court has now clarified, respondent’s “state law duty to remain registered as a sex offender is not contingent upon the validity of the conditions of his federal supervision order,” 360 Mont., at 318, 255 P. 3d, at 111, and continues to apply regardless of the outcome in this case. True, a favorable decision in this case might serve as a useful precedent for respondent in a hypothetical lawsuit challenging Montana’s registration requirement on ex post facto grounds. But this possible, indirect benefit in a future lawsuit cannot save this case from mootness. See Camreta v. Greene, 563 U. S. 692, 712 (2011); Commodity Futures Trading Comm’n v. Board of Trade of Chicago, 701 F. 2d 653, 656 (CA7 1989) (Posner, J.) (“[0]ne can never be certain that findings made in a decision concluding one lawsuit will not some day . . . control the outcome of another suit. But if that were enough to avoid mootness, no case would ever be moot”).
Respondent also argues that this case “cannot be considered moot in any practical sense” because, under current law, respondent may have “an independent duty to register as a sex offender” under SORNA itself. Brief in Opposition 6. But the duty to register under SORNA is not a consequence — collateral or otherwise — of the District Court’s special conditions of supervision. The statutory duty to register is, as respondent notes, an obligation that exists “independent” of those conditions. That continuing obligation might provide grounds for a preenforcement challenge to SORNA’s registration requirements. It does not, however, render the current controversy regarding the validity of respondent’s sentence any less moot.
Respondent further argues that this case falls within the established exception to mootness for disputes that are “ ‘capable of repetition, yet evading review.’ ” Id., at 8 (quoting Weinstein v. Bradford, 423 U. S. 147, 148-149 (1975) (per curiam,)). This exception, however, applies only where “(1) the challenged action [is] in its duration too short to be fully litigated prior to cessation or expiration, and (2) there [is] a reasonable expectation that the same complaining party [will] be subject to the same action again.” Spencer, supra, at 17 (internal quotation marks omitted). At the very least, respondent cannot satisfy the second of these requirements. He has now turned 21, and he will never again be subject to an order imposing special conditions of juvenile supervision. See, e. g., DeFunis v. Odegaard, 416 U. S. 312 (1974) (per curiam). The capable-of-repetition exception to mootness thus does not apply, and the Ninth Circuit lacked the authority under Article III to decide this case on the merits.
The petition for a writ of certiorari and respondent’s motion to proceed in forma pauperis are granted. The judgment of the Court of Appeals is vacated, and the case is remanded with instructions to dismiss the appeal.
It is so ordered.
Justice Ginsburg, Justice Breyer, and Justice Soto-mayor would remand the case to the Ninth Circuit for that court's consideration of mootness in the first instance.
Justice Kagan took no part in the consideration or decision of this case.
On December 29, 2010, the Attorney General finalized the interim rule. See 75 Fed. Eeg. 81849. In Reynolds v. United States, No. 10-6549, this Court granted certiorari on the qucotion whether cox offenders convicted-before the enactment of SORNA have standing to challenge the validity of the Attorney General’s interim rule. 562 U. S. 1199 (2011); Pet. for Cert. in Reynolds, p. i. Reynolds io elated to be heard next Term.
See 42 U. S. C. § 16911(8) (SORNA applicable if the juvenile was “14 yearc of age or older at the time of the offense and the offense adjudicated was comparablo to or more severe than aggravated sexual abuse (as described in section 2241 of title 18)”); 72 Fed. Reg. 8897 (codified at 28 CFR pt. 72) (SORNA’s requirements extend to sex offenders convicted before the statute’s enactment).
Question: What is the court in which the case originated?
001. U.S. Court of Customs and Patent Appeals
002. U.S. Court of International Trade
003. U.S. Court of Claims, Court of Federal Claims
004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces
005. U.S. Court of Military Review
006. U.S. Court of Veterans Appeals
007. U.S. Customs Court
008. U.S. Court of Appeals, Federal Circuit
009. U.S. Tax Court
010. Temporary Emergency U.S. Court of Appeals
011. U.S. Court for China
012. U.S. Consular Courts
013. U.S. Commerce Court
014. Territorial Supreme Court
015. Territorial Appellate Court
016. Territorial Trial Court
017. Emergency Court of Appeals
018. Supreme Court of the District of Columbia
019. Bankruptcy Court
020. U.S. Court of Appeals, First Circuit
021. U.S. Court of Appeals, Second Circuit
022. U.S. Court of Appeals, Third Circuit
023. U.S. Court of Appeals, Fourth Circuit
024. U.S. Court of Appeals, Fifth Circuit
025. U.S. Court of Appeals, Sixth Circuit
026. U.S. Court of Appeals, Seventh Circuit
027. U.S. Court of Appeals, Eighth Circuit
028. U.S. Court of Appeals, Ninth Circuit
029. U.S. Court of Appeals, Tenth Circuit
030. U.S. Court of Appeals, Eleventh Circuit
031. U.S. Court of Appeals, District of Columbia Circuit (includes the Court of Appeals for the District of Columbia but not the District of Columbia Court of Appeals, which has local jurisdiction)
032. Alabama Middle U.S. District Court
033. Alabama Northern U.S. District Court
034. Alabama Southern U.S. District Court
035. Alaska U.S. District Court
036. Arizona U.S. District Court
037. Arkansas Eastern U.S. District Court
038. Arkansas Western U.S. District Court
039. California Central U.S. District Court
040. California Eastern U.S. District Court
041. California Northern U.S. District Court
042. California Southern U.S. District Court
043. Colorado U.S. District Court
044. Connecticut U.S. District Court
045. Delaware U.S. District Court
046. District Of Columbia U.S. District Court
047. Florida Middle U.S. District Court
048. Florida Northern U.S. District Court
049. Florida Southern U.S. District Court
050. Georgia Middle U.S. District Court
051. Georgia Northern U.S. District Court
052. Georgia Southern U.S. District Court
053. Guam U.S. District Court
054. Hawaii U.S. District Court
055. Idaho U.S. District Court
056. Illinois Central U.S. District Court
057. Illinois Northern U.S. District Court
058. Illinois Southern U.S. District Court
059. Indiana Northern U.S. District Court
060. Indiana Southern U.S. District Court
061. Iowa Northern U.S. District Court
062. Iowa Southern U.S. District Court
063. Kansas U.S. District Court
064. Kentucky Eastern U.S. District Court
065. Kentucky Western U.S. District Court
066. Louisiana Eastern U.S. District Court
067. Louisiana Middle U.S. District Court
068. Louisiana Western U.S. District Court
069. Maine U.S. District Court
070. Maryland U.S. District Court
071. Massachusetts U.S. District Court
072. Michigan Eastern U.S. District Court
073. Michigan Western U.S. District Court
074. Minnesota U.S. District Court
075. Mississippi Northern U.S. District Court
076. Mississippi Southern U.S. District Court
077. Missouri Eastern U.S. District Court
078. Missouri Western U.S. District Court
079. Montana U.S. District Court
080. Nebraska U.S. District Court
081. Nevada U.S. District Court
082. New Hampshire U.S. District Court
083. New Jersey U.S. District Court
084. New Mexico U.S. District Court
085. New York Eastern U.S. District Court
086. New York Northern U.S. District Court
087. New York Southern U.S. District Court
088. New York Western U.S. District Court
089. North Carolina Eastern U.S. District Court
090. North Carolina Middle U.S. District Court
091. North Carolina Western U.S. District Court
092. North Dakota U.S. District Court
093. Northern Mariana Islands U.S. District Court
094. Ohio Northern U.S. District Court
095. Ohio Southern U.S. District Court
096. Oklahoma Eastern U.S. District Court
097. Oklahoma Northern U.S. District Court
098. Oklahoma Western U.S. District Court
099. Oregon U.S. District Court
100. Pennsylvania Eastern U.S. District Court
101. Pennsylvania Middle U.S. District Court
102. Pennsylvania Western U.S. District Court
103. Puerto Rico U.S. District Court
104. Rhode Island U.S. District Court
105. South Carolina U.S. District Court
106. South Dakota U.S. District Court
107. Tennessee Eastern U.S. District Court
108. Tennessee Middle U.S. District Court
109. Tennessee Western U.S. District Court
110. Texas Eastern U.S. District Court
111. Texas Northern U.S. District Court
112. Texas Southern U.S. District Court
113. Texas Western U.S. District Court
114. Utah U.S. District Court
115. Vermont U.S. District Court
116. Virgin Islands U.S. District Court
117. Virginia Eastern U.S. District Court
118. Virginia Western U.S. District Court
119. Washington Eastern U.S. District Court
120. Washington Western U.S. District Court
121. West Virginia Northern U.S. District Court
122. West Virginia Southern U.S. District Court
123. Wisconsin Eastern U.S. District Court
124. Wisconsin Western U.S. District Court
125. Wyoming U.S. District Court
126. Louisiana U.S. District Court
127. Washington U.S. District Court
128. West Virginia U.S. District Court
129. Illinois Eastern U.S. District Court
130. South Carolina Eastern U.S. District Court
131. South Carolina Western U.S. District Court
132. Alabama U.S. District Court
133. U.S. District Court for the Canal Zone
134. Georgia U.S. District Court
135. Illinois U.S. District Court
136. Indiana U.S. District Court
137. Iowa U.S. District Court
138. Michigan U.S. District Court
139. Mississippi U.S. District Court
140. Missouri U.S. District Court
141. New Jersey Eastern U.S. District Court (East Jersey U.S. District Court)
142. New Jersey Western U.S. District Court (West Jersey U.S. District Court)
143. New York U.S. District Court
144. North Carolina U.S. District Court
145. Ohio U.S. District Court
146. Pennsylvania U.S. District Court
147. Tennessee U.S. District Court
148. Texas U.S. District Court
149. Virginia U.S. District Court
150. Norfolk U.S. District Court
151. Wisconsin U.S. District Court
152. Kentucky U.S. Distrcrict Court
153. New Jersey U.S. District Court
154. California U.S. District Court
155. Florida U.S. District Court
156. Arkansas U.S. District Court
157. District of Orleans U.S. District Court
158. State Supreme Court
159. State Appellate Court
160. State Trial Court
161. Eastern Circuit (of the United States)
162. Middle Circuit (of the United States)
163. Southern Circuit (of the United States)
164. Alabama U.S. Circuit Court for (all) District(s) of Alabama
165. Arkansas U.S. Circuit Court for (all) District(s) of Arkansas
166. California U.S. Circuit for (all) District(s) of California
167. Connecticut U.S. Circuit for the District of Connecticut
168. Delaware U.S. Circuit for the District of Delaware
169. Florida U.S. Circuit for (all) District(s) of Florida
170. Georgia U.S. Circuit for (all) District(s) of Georgia
171. Illinois U.S. Circuit for (all) District(s) of Illinois
172. Indiana U.S. Circuit for (all) District(s) of Indiana
173. Iowa U.S. Circuit for (all) District(s) of Iowa
174. Kansas U.S. Circuit for the District of Kansas
175. Kentucky U.S. Circuit for (all) District(s) of Kentucky
176. Louisiana U.S. Circuit for (all) District(s) of Louisiana
177. Maine U.S. Circuit for the District of Maine
178. Maryland U.S. Circuit for the District of Maryland
179. Massachusetts U.S. Circuit for the District of Massachusetts
180. Michigan U.S. Circuit for (all) District(s) of Michigan
181. Minnesota U.S. Circuit for the District of Minnesota
182. Mississippi U.S. Circuit for (all) District(s) of Mississippi
183. Missouri U.S. Circuit for (all) District(s) of Missouri
184. Nevada U.S. Circuit for the District of Nevada
185. New Hampshire U.S. Circuit for the District of New Hampshire
186. New Jersey U.S. Circuit for (all) District(s) of New Jersey
187. New York U.S. Circuit for (all) District(s) of New York
188. North Carolina U.S. Circuit for (all) District(s) of North Carolina
189. Ohio U.S. Circuit for (all) District(s) of Ohio
190. Oregon U.S. Circuit for the District of Oregon
191. Pennsylvania U.S. Circuit for (all) District(s) of Pennsylvania
192. Rhode Island U.S. Circuit for the District of Rhode Island
193. South Carolina U.S. Circuit for the District of South Carolina
194. Tennessee U.S. Circuit for (all) District(s) of Tennessee
195. Texas U.S. Circuit for (all) District(s) of Texas
196. Vermont U.S. Circuit for the District of Vermont
197. Virginia U.S. Circuit for (all) District(s) of Virginia
198. West Virginia U.S. Circuit for (all) District(s) of West Virginia
199. Wisconsin U.S. Circuit for (all) District(s) of Wisconsin
200. Wyoming U.S. Circuit for the District of Wyoming
201. Circuit Court of the District of Columbia
202. Nebraska U.S. Circuit for the District of Nebraska
203. Colorado U.S. Circuit for the District of Colorado
204. Washington U.S. Circuit for (all) District(s) of Washington
205. Idaho U.S. Circuit Court for (all) District(s) of Idaho
206. Montana U.S. Circuit Court for (all) District(s) of Montana
207. Utah U.S. Circuit Court for (all) District(s) of Utah
208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota
209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota
210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma
211. Court of Private Land Claims
212. United States Supreme Court
Answer:
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songer_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.
Franklin Delano LEGG, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
No. 16062.
United States Court of Appeals Sixth Circuit.
Sept. 15, 1965.
Franklin Delano Legg, in pro. per.
Joseph P. Kinneary, U. S. Atty., Robert A. Bell, Asst. U. S. Atty., Columbus, Ohio, for appellee on brief.
Before CECIL, O’SULLIVAN and PHILLIPS, Circuit Judges.
O’SULLIVAN, Circuit Judge.
We deal again with a federal prisoner convicted on a plea of guilty who now seeks relief upon the claim that such plea was “coerced and induced” by promises of his privately retained counsel that the case was “fixed” so that appellant would be given probation. Appellant was convicted upon his plea of guilty to theft of United States mail. He had had two felony convictions before the mail stealing enterprise here involved and was then on parole from the Ohio penitentiary. He was given a prison sentence following his plea of guilty, but at that time he expressed no surprise or claim that the promises allegedly made to him were violated. After opportunity for reflection provided by his stay in prison and possibly with some study of the law, however, he constructed his petition under 28 U.S.C.A. § 2255 setting forth the charged faithlessness of his attorney. Although he now protests his innocence, the presentence colloquy can be read only as containing petitioner’s admission of guilt; such colloquy in our view further bespeaks the voluntariness of his plea of guilty. Appellant’s petition was denied in the District Court without hearing. Affidavits by the United States Attorney and by Legg’s accused counsel denying petitioner’s allegations of unfulfilled promises were filed.These, however, may not be used as a substitute for testimony if a hearing is called for. Machibroda v. United States, 368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962); Scott v. United States, 349 F.2d 641 (CA6, 1965).
Petitioner’s allegations are conclusional and general, and rely primarily on assertions that his attorney’s broken promises were made to petitioner’s wife and father and to another. No affidavits of these alleged promisees-, however, support his petition. On his own, he asserts that “petitioner’s attorney succeeded in persuading petitioner to change his plea after said attorney promised petitioner that he had it ‘fixed’ so that petitioner would receive probation or a suspended sentence.”
No purpose would be served by setting forth verbatim the presentence colloquy between petitioner, his attorney, the government representatives and the sentencing judge. Neither do we think detailed repetition of Legg’s general allegations in his § 2255 petition would add anything to the literature of the law on the subject before us.
While they may be narrow, we find distinctions between the facts of the case before us and those involved in Machibroda v. United States, 368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962), and in our recent decision in Scott v. United States, 349 F.2d 641 (CA6, 1965). Petitioner’s allegations are not characterized by the detail and specificity which prompted those decisions. We are impressed that the observations made by this Court in United States v. Orlando, 327 F.2d 185, 188 (CA6, 1964) and Olive v. United States, 327 F.2d 646 (CA6, 1964) fit the case at bar. We hold that no hearing was required to be held on such general allegations. Finally, we think it appropriate to remark that the current popularity of the type of petition presently before us would be reduced if District Judges would in all cases make careful inquiry of any accused offering to plead guilty whether any promises or assurances of leniency had been made. This could be of such “penetrating and comprehensive” character as to foreclose later repudiation of admissions that no promises had in fact been made. See Von Moltke v. Gillies, 332 U.S. 708, 724, 68 S.Ct. 316, 92 L.Ed. 309 (1948).
Judgment affirmed.
Question: What is the total number of respondents in the case that fall into the category "private business and its executives"? Answer with a number.
Answer:
|
songer_respond1_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 respondent. 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.
EASTERN GREYHOUND LINES, Plaintiff-Appellant, v. Phillip FUSCO, Regional Director, National Labor Relations Board, Defendant-Appellee, and Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, AFL-CIO, Intervenor-Appellee.
No. 15153.
United States Court of Appeals Sixth Circuit.
Oct. 18, 1963.
Theodore Yoorhees, Philadelphia, Pa. (Foster J. Fludine, Cleveland, Ohio, on the brief), for appellant.
Herman M. Levy, N. L. R. B., Washington, D. C. (Stuart Rothman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, James C. Paras and Solomon I. Hirsh, Attys., N. L. R. B., Washington, D. C., on the brief), for defendant-appellee.
Earle W. Putnam, Washington, D. C., for intervenor-appellee.
Before CECIL, Chief Judge, O’SULLIVAN, Circuit Judge, and PECK, District Judge.
O’SULLIVAN, Circuit Judge.
By the action here involved, Plaintiff-Appellant, Eastern Greyhound Lines, sought to have the United States District Court at Cleveland enjoin Defendant-Appellee, Philip Fusco, Regional Director ©f the National Labor Relations Board, from conducting a representation election among the dispatchers and assistant dispatchers' employed by Eastern Greyhound Lines. Upon motion of Defendant-Appel-lee, the complaint was dismissed on a holding that the District Court was without jurisdiction of the cause. The matter was previously before this Court upon Eastern’s motion for an injunction pending this appeal from such order of dismissal. We denied the motion and our decision is reported as Eastern Greyhound Lines v. Fusco, 310 F.2d 632 (C.A. 6,1962). That opinion sets forth the posture of the litigation at the time the aforesaid motion was presented to us. Following dismissal of the complaint, the Regional Director had conducted an election by mail ballot, but had impounded the ballots awaiting our disposition of the motion for injunction pending appeal. After our denial of such motion, the ballots were counted. Thereafter, upon the full hearing of the appeal before us, it was reported that, by a vote of 74 to 49, the Union seeking bargaining rights, to wit: the Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, AFL-CIO, had won the election and had been duly certified as bargaining representative of plaintiff’s dispatchers. It was also reported that upon Eastern’s refusal to bargain with Amalgamated as representative of the dispatchers, Amalgamated had filed an unfair labor practice charge with the Board alleging that Eastern had violated Sections 8(a) (5) and (1) of the Act by its refusal to honor the Board’s certification of the mentioned Union. We have not been advised of the present status of such proceeding.
This controversy began when Amalgamated had petitioned for a representation election to determine a bargaining representative for the group of Eastern’s employees known as dispatchers and assistant dispatchers. The thrust of plaintiff’s complaint was that such dispatchers were not employees within the meaning of Section 2(3) of the National Labor Relations Act, 29 U.S.C.A. § 152(3), and were supervisors as defined in Section 2(11) of said Act, 29 U.S.C.A. § 152(11); and that by virtue of Section 14(a) of the National Labor Relations Act, 29 U.S. C.A. § 164(a), it could not be required to bargain collectively with such supervisors.
Attached to plaintiff’s complaint as an exhibit was the Decision and Direction of Election made by the Board, in which it adopted and affirmed rulings made by its hearing officer. Such Decision discloses that an extensive hearing was had for the purpose of resolving the issue as to whether or not Eastern’s dispatchers were, within the meaning of the statute, supervisors. Upon evidence taken, the issue was decided against Eastern. The Board found that the mentioned dispatchers were not supervisors, and an election was ordered. Plaintiff’s complaint alleged, in part, that the Board had come to an erroneous conclusion on the issue before it; that its decision was in conflict with the overwhelming preponderance of the evidence; that the Board had ignored the “uncontradicted evidence that dispatchers have aways been considered supervisors”; that the Board’s decision was arbitrary and capricious and “in excess of the Board’s delegated powers and not supported by the evidence”; that it constituted an abuse of discretion; that the action of the Board was an invasion of plaintiff’s property rights and denied plaintiff due process of law in violation of the Fifth Amendment to the Constitution of the United States. It further charged that if its dispatchers were found to be other than supervisors, plaintiff would suffer irreparable loss. The District Judge stated:
“The Court is of the opinion that when the Board’s decision purports to follow the statutory requirements, and violates no constitutional rights, the Court does not have jurisdiction to review that decision by reweighing the evidence, even when the allegations of the complaint allege that by an arbitrary and capricious abuse of judgment the Board has flaunted a statuory mandate.”
We agree with the District Judge.
The Board contends that Eastern’s only remedy to review the certification order of the Board is through Sections 9(d) and 10(e) of the Act (§§ 159(d), 160(e) Title 29, U.S.C.A.) whereby an employer may, by resistance to an unfair labor charge, obtain review of such certification. Where a representative election has been held by the Board, and an order entered directing an employer to bargain with a certified bargaining representative, such order is not self-enforcing. Unless it is obeyed, the Board is required by Section 10(e) to apply to the United States Court of Appeals for an order enforcing its order, and under Section 10(f) an employer may likewise petition the Court of Appeals for review of the Board’s order. By Section 9(d) it is provided that upon such a hearing there shall be included in the record the transcript of all proceedings had in connection with a representative election and certification, and the Court of Appeals may, upon its consideration of the matter, review the legality of the election and certification order.
But for one case hereinafter noted, it appears to have become settled law that, unless an employer can bring itself within the limited exceptions of Leedom v. Kyne, 358 U.S. 184, 79 S.Ct. 180, 3 L.Ed. 2d 210, its challenge to a Board’s election or certification orders can be made only when enforcement or review of said orders is sought in the Court of Appeals under § 10(e) or (f) of the Act, 29 U.S. C.A. § 160(e) and (f). Atlas Life Ins. Co. v. Leedom, 109 U.S.App.D.C. 97, 284 F.2d 231, 232 (C.A.D.C.1960); Leedom v. International Brhd. of Elec. Workers, 107 U.S.App.D.C. 357, 278 F.2d 237, 239 (C. A.D.C.1959); Norris, Inc. v. N. L. R. B., 85 U.S.App.D.C. 106, 177 F.2d 26, 27, 28 (C.A.D.C.1949); Volney Felt Mills, Inc. v LeBus, 196 F.2d 497, 498 (C.A.5, 1952); McLeod v. Local 476, United Brhd. of Industrial Workers, 288 F.2d 198, 201 (C.A.2, 1961); International Ass’n. of Tool Craftsmen v. Leedom, 107 U.S.App.D.C. 268, 276 F.2d 514, 516 (C.A.D.C. 1960), cert. denied, 364 U.S. 815, 81 S.Ct. 45, 5 L.Ed.2d 46; National Biscuit Div. v. Leedom, 105 U.S.App.D.C. 117, 265 F.2d 101, 103 (C.A.D.C. 1959), cert. denied 359 U.S. 1011, 79 S.Ct. 1151, 3 L.Ed.2d 1037; Consolidated Edison Co. of N. Y. v. McLeod, 302 F.2d 354, 355 (C.A.2, 1962). It had been held that under § 10(e) of, the Act the Courts of Appeals can review only “final orders” of the Board and that an election and certification order is not such. American Fed. of Labor v. N. L. R. B., 308 U.S. 401, 409, 60 S.Ct. 300, 84 L.Ed. 347.
The above cases thoroughly discuss the reason supporting the rule we follow. We need not here reargue its soundness. It is sufficient to say that these decisions express the view that Congress deliberately designed its statute so that collective bargaining would not be impeded or delayed by allowing injunctions to suspend its beginning until a Board order could be tested by plenary review in the District Courts. Congress, aware of the construction placed on its statute, has refused to so amend it as to provide an earlier and more direct review. See discussion of the relevant legislative history in the dissenting opinion of Justice Brennan in Leedom v. Kyne, 358 U.S. at p. 197, 79 S.Ct. at p. 188, 3 L.Ed.2d 210.
Departure from the unanimity of the decisions above referred to may be found in Boire v. Greyhound Corp., 309 F.2d 397 (C.A. 5, 1962), affirming Greyhound Corp. v. Boire, D.C., 205 F.Supp. 686. While we might contend that its facts distinguish it from the case at bar, we recognize that decision’s disagreement with the rule we follow. We respectfully decline to follow it. The case is pending in the Supreme Court upon certiorari granted (372 U.S. 964, 83 S.Ct. 1090, 10 L.Ed.2d 128).
As in other cases where District Court attack was made on an election and certification order, Eastern places reliance on Leedom v. Kyne, 358 U.S. 184, 79 S.Ct. 180, 3 L.Ed.2d 210. There the Supreme Court sustained District Court jurisdiction where the Board admittedly ignored express provisions of the Act. That case’s distinction from the case at bar is made clear by the court’s following recital:
“On the Board’s appeal it did not contest the trial court’s conclusion that the Board, in commingling professional with nonprofessional employees in the unit, had acted in excess of its powers and had thereby worked injury to the statutory rights of the professional employees” (358 U.S. 187, 79 S.Ct. 183, 3 L.Ed.2d 210).
In the case before us, the Board conducted a hearing and on evidence, some of it conflicting, found that Eastern’s dispatchers were not supervisors. We do not think that by charging that this finding was contrary to the facts, was arbitrary and capricious, and an invasion of Eastern’s constitutional rights, Eastern’s complaint presented a case calling for entertainment by the District ■Court under the rule of Leedom v. Kyne. We find only one case in which the Supreme Court has, since Leedom v. Kyne, held that its facts sustained District Court jurisdiction. In McCulloch v. Sociedad Nacional de Marineras de Honduras, 372 U.S. 10, 83 S.Ct. 671, 9 L.Ed.2d 547, the Supreme Court held that our National Labor Relations Act did not give the Board jurisdiction to order a representation election, sought by an American union, among employees on foreign flag ships, who were aliens and already represented by foreign unions. The Supreme Court there said, “ * * * the presence of public questions particularly high in the scale of our national interest because of their international complexion is a uniquely compelling justification for prompt judicial resolution of the controversy over the Board’s power” (372 U.S. 17, 83 S.Ct. 675, 9 L.Ed.2d 547). District Court jurisdiction was sustained. The Court was careful to say, however, “The exception recognized today is * * * not to be taken as an enlargement of the exception in Kyne.”
We find nothing in the case at bar to warrant its being excepted from the general rule. Eastern’s attack on the election and certification order must be made on the review provided by § 10 (e) of the Act.
Judgment affirmed.
Question: This question concerns the first listed respondent. 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:
|
songer_usc1
|
0
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if no U.S. Code titles are cited. If one or more provisions are cited, code the number of the most frequently cited title.
Patsy Jane LEMONS, by and Through Carlos Lemons, Plaintiff-Appellant, v. STATE AUTOMOBILE MUTUAL INSURANCE COMPANY, Defendant-Appellee.
No. 14184.
United States Court of Appeals Sixth Circuit.
Dec. 22, 1960.
See also 171 F.Supp. 92.
Robert L. Milby, London, Ky. (Frank G. Gilliam, Lexington, Ky., Robert L. Milby, London, Ky., on the brief), for appellant.
Gladney Harville, Lexington, Ky. (R. W. Kennon, Gladney Harville of Stoll, Keenon & Park, Lexington, Ky., on the brief), for appellee.
Before MILLER, CECIL and O’SULLIVAN, Circuit Judges.
SHACKELFORD MILLER, Jr., Circuit Judge.
On May 10, 1956, appellee, State Automobile Mutual Insurance Company, issued its automobile liability insurance policy covering an automobile owned by William J. Moore, Jr., the premium for which was to be paid in three installments, namely, on May 10, 1956, August 10, 1956, and November 10, 1956. The initial installment was paid. Neither of the other two installments was paid. On May 3, 1957, the automobile was involved in an accident, seriously injuring the appellant. On April 8, 1958, appellant filed an action against Moore and subsequently recovered a judgment against him, which was unsatisfied. Appellant thereafter filed this action against the appellee under the insurance policy above referred to. The District Judge found for the appellee, from which judgment this appeal was taken.
In support of the judgment, appellee contends that the policy was not in force or effect at the time of the accident because it had been cancelled for nonpayment of the August 10, 1956, premium installment.
The policy contained the provision that if any premium installment was not paid when due, the insurance would terminate “upon notice mailed by the company to the named insured at the address shown in this policy, stating when not less than ten days thereafter such termination shall be effective. The mailing of notice as aforesaid shall be sufficient proof of notice. The company shall not be liable for any loss occurring after the date and hour of termination specified in said notice.”
Appellant contends that although nonpayment of the premium installment gave the appellee the right to cancel the policy, the evidence failed to show that appellee mailed to the insured the notice of cancellation required by the foregoing provision of the policy, and that, accordingly, the policy was never cancelled.
The .District Judge found that the policy was cancelled as of August 25, 1956.
The evidence shows that twenty days prior to the due date of the August 10th premium installment, notice of the due date was mailed to Moore at the address set out in the policy, which was returned to the company undelivered. The company then forwarded the notice to its agent. Appellee claims that five days after the due date, notice was mailed to Moore at the same address notifying him that the August 10th installment had not been paid and that if payment was not received before noon of August 25, 1956, the insurance would cease and terminate at that time, and that such notice was not returned. A carbon copy of this notice was introduced in evidence. The Assistant Treasurer of the company testified that when a premium installment was not paid, a notice would be mailed by it to the insured five days after the due date allowing an additional period of time and indicating the final payment date. Although this witness testified that he did not mail the notice himself, he testified positively that it was mailed “because we have a carbon copy of it in our files.” No employee testified that he or she actually mailed the notice. It is clear from the policy provision that mailing of the notice of cancellation was sufficient without proof of the receipt of such notice by the insured. Moore testified that he did not receive the notice, but such testimony goes only to the issue of whether the notice was mailed.
There was testimony on behalf of ap-pellee that on July 22, 1956, Moore was involved in an accident while he was driving his brother’s car, and shortly thereafter he went to appellee’s agent to see if the damage was covered by his policy. Upon being told that the damage was not covered, he said to the agent, “Hell, cancel the policy.” The agent told him that since the second installment was due in a very few days, he wouldn’t get any money back because of short rate cancellation and suggested to him to wait until the second installment was due, when the policy would die a natural death.
The evidence also showed that although the accident herein involved happened on May 3, 1957, no notice of the accident was given by the insured to the appellee prior to the filing of the suit against him. The insured was sued in April 1958 and, following the service of summons upon him, he took it to the office of the insurance company. He was told by the secretary in the office that they could do nothing for him because his insurance had been cancelled. Moore laid the summons on the table or desk of the agent and departed. No defense was interposed in the action, which thereafter went to judgment. In its original answer in the present action, appellee pleaded as a defense its cancellation of the policy for nonpayment of the premium installment. It later filed an amended answer pleading as an additional defense Moore’s failure to give written notice of the accident to the company “as soon as practicable” as required by the policy.
There is no merit in appellant’s first contention that the notice of cancellation was merely a notice of intention to cancel if the premium installment was not paid by August 25, 1956, and that a later notice of actual cancellation was also necessary. The notice expressly stated that the insurance would cease and terminate on August 25, 1956, if the premium installment was not paid by that time. The insurance automatically expired on that date without further notice.
Although there was no direct proof of the mailing of the notice of cancellation, there is a permissible inference ■of mailing from the usual custom of the company in handling such matters and the fact that a carbon copy of the notice was in the files of the company with the ■original thereof not in its possession. It is unnecessary to decide whether such ■evidence, without more, is sufficient to sustain appellee’s contention that the notice was mailed, with cancellation resulting therefrom. The contention is supported by the additional evidence that Moore, upon having an accident while driving his brother’s car, notified the company of the accident, thus showing his realization of what should be done if an accident occurs while a policy is in effect. In the present case, no notice of any kind was given the company when the accident occurred on May 3, 1957, ■some nine months after the default in payment of the premium installment and after Moore had told the company to cancel the policy. No claim of protection under the policy was made by Moore for approximately eleven months after the accident. This, coupled with the fact that he had not paid the two premium installments, both long past due, strongly indicates that Moore knew that the policy had been cancelled.
Upon a consideration of all the evidence in the case, we are of the opinion that the finding of the District Judge that the policy was cancelled as of August 25, 1956, is not clearly erroneous and must be accepted on this appeal.
This view of the ease makes it unnecessary to consider appellee’s other defense that failure to give written notice of the accident rendered the insurance invalid, Jefferson Realty Co. v. Employers’ Liability Assurance Corp., 149 Ky. 741, 149 S.W. 1011; National City Bank v. National Security Co., 6 Cir., 58 F.2d 7, 10; Maryland Casualty Co. v. Nellis, 6 Cir., 75 F.2d 23, 25; and appellant’s contention that such failure was waived by appellee’s original denial of liability on the sole ground that the policy had been cancelled. Travelers’ Ins. Co. v. Ohio Farmers Indemnity Co., D.C.W.D.Ky., 157 F.Supp. 54, 60; National Life & Accident Ins. Co. v. O’Brien’s Executrix, 155 Ky. 498, 506-507, 159 S.W. 1134; Continental Casualty Co. v. Matthis, 150 Ky. 477, 479, 150 S.W. 507. See: 45 C.J.S. Insurance § 1005, for a statement of the two rules.
The judgment is affirmed.
Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number.
Answer:
|
songer_respond1_1_2
|
C
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to classify the scope of this business into one of the following categories: "local" (individual or family owned business, scope limited to single community; generally proprietors, who are not incorporated); "neither local nor national" (e.g., an electrical power company whose operations cover one-third of the state); "national or multi-national" (assume that insurance companies and railroads are national in scope); and "not ascertained".
NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SMITH & WESSON, Respondent.
No. 7459.
United States Court of Appeals, First Circuit.
April 21, 1970.
Baruch A. Fellner, Washington, D. C., with whom Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Leonard M. Wagman, Washington, D. C., were on brief, for petitioner.
Martin E. Skoler, Springfield, Mass., with whom Glazier & Skoler, Springfield, Mass., was on brief, for respondent.
Before ALDRICH, Chief Judge, COFFIN, Circuit Judge, and BOWNES, District Judge.
PER CURIAM.
This is a petition to enforce an NLRB order based on violations of section 8(a) (3) and (1) of the act, 29 U.S.C. § 158 (a) (3) and (1). The Board found that the company had engaged in certain threats of reprisals and other related anti-union conduct and that it subsequently discharged one William Dau-plaise because of his union activity. The company’s opposition in this court is based on the claim that the evidence did not warrant the findings.
For reasons not necessary to detail, the single contradicted incident of supervisor Haines’ initially telling Dauplaise that he would be “sorry” if the union lost, does not greatly impress us. In addition, the trial examiner’s finding it unlikely that leadman Parker would joke when he saw the word “Subpoena” on a paper seems, in all candor, unrealistic. Nor are we enthusiastic about holding the company for an isolated remark by an employee of so little authority as Parker. If not jocose, his statement not to pay attention to Board subpoenas seems self-generated, and unauthorized by any general company conduct or policy.
If this were all there were to the Board’s case we would find it of dubious strength. However, this inclination evaporates when we come to the principal issue. The Board’s finding with respect to Dauplaise’s termination is so strongly supported that we cannot regard the company’s resistance thereto as anything but frivolous. In spite of much protesting, there is not only no evidence that any previous employee had been terminated because he made his request for extended leave orally rather than in writing, but no solid reason appears for such rigidity. This is not even a case where there was a question as to the oral request. On the contrary, all witnesses not only agree that it was made, but that the employee was told he could have his job back as soon as he had his doctor’s certificate. Furthermore, on the company’s own evidence, the rule was not self-operating, and might be waived. Finally, apart from anti-union animus, there was a strong reason why Dauplaise should be retained, rather than let go.
This, of course, is the guts of the case. Some penalty should attach to taking up our time with such a meritless contention. The order will be enforced, and pursuant to FRAP 38 the Board will recover, in addition to its regular costs, the sum of $500 for expense.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business?
A. local
B. neither local nor national
C. national or multi-national
D. not ascertained
Answer:
|
songer_r_fed
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
NATIONAL LABOR RELATIONS BOARD v. KARP METAL PRODUCTS, CO., Inc.
No. 175.
Circuit Court of Appeals, Second Circuit.
March 25, 1943.
Proceeding by the National Labor Relations Board, petitioner, against Karp Metal Products Company, Inc., respondent, for enforcement of order against respondent.
Roman Beck, of Washington, D. C., for petitioner.
Lester M. Rosenbloom, of New York City, for respondent.
Before L. HAND, AUGUSTUS N. HAND, and FRANK, Circuit Judges.
PER CURIAM.
The Board’s order, sought to be enforced in this case, was based on findings that on June 3, 1941, a C. I. O. local was the representative of a majority of the respondent’s employees, and that the respondent had evaded its duty in refusing to bargain collectively with it; and further, that it had “demonstrated its favoritism” toward a union of its own employees, which it dominated and with which it bargained collectively. Upon these findings it ordered the respondent to cease from dominating the employees’ union and from continuing to recognize it, and it affirmatively ordered the respondent to bargain with the C. I. O. local.
The respondent raises as its first objection that in counting the membership cards of the C. I. O. local the Board included thirteen employees, who testified that they joined the local because the local’s organizer, or other members of the local, told them that if they did not, they would, or might, lose their jobs. If these thirteen votes were not unlawfully procured, the local had a majority. We have held that this kind of pressure to obtain votes is lawful. National Labor Relations Board v. Dahlstrom Metallic Door Co., 2 Cir., 112 F.2d 756, 758. We reiterate that ruling. A labor union may, if it can, induce an employer to operate a “closed shop”; and that will ipso facto result in taking away the jobs of all who will not join the union. There can be nothing unlawful in threatening to do that which it is lawful to do.
The other point arises as follows: The last determination of a majority of employees was made on June 3, 1941, as we have said, and the Board’s order was entered on July 8, 1942. On March 18, 1942, the respondent and the employees’ union moved the Board to determine whether the C. I. O. local then represented a majority of the employees, and whether it was therefore their lawful representative. The Board denied this motion for the following reasons: “The allegations of these petitions, even if true, are subsequent to and in no way affect the acts complained of, or the legal conclusion to be drawn therefrom.” That was indeed true; nothing in the petitions affected the acts complained of, or the legal conclusion to be drawn from them; nevertheless, they did allege facts which might well affect the continued propriety of recognizing the local. It is not our province to decide how far the respondent’s earlier unfair trade practices continue to vitiate any choice of a representative by its employees: that is for the Board. Nevertheless, the respondent is entitled to the Board’s judgment on that issue and on this record it has been refused any hearing whatever. We have very recently dealt with a similar question in National Labor Relations Board v. New York Merchandising Company, Inc., 2 Cir., 133 F.2d 949; and we need not repeat what we said there. This is not a case where, after the Board has once decided against the employer, he applies to us for a rehearing because of some alleged change in the situation; as we said, such an application “should be scrutinized with jealousy lest it open the door to abuse.” Here the application was made while the matter was still pending before the Board, which should not have dismissed it for the sole reason that it affected a situation alleged to have arisen since the testimony was taken. Nothing in National Labor Relations Board v. P. Lorillard Co., 314 U.S. 512, 62 S.Ct. 397, 86 L.Ed. 380, is to the contrary of this position.
The Board may take an order enforcing all the provisions of its order except that directing it to bargain with the C. I. O. local, and to post notice to that effect. We shall defer enforcing that provision until after it has passed upon the petitions of March 18, 1942. The question should be decided as of the date of the hearing, not as. of the date of the petitions, for the remedy will speak as of the time when it takes effect.
Cause remanded in accordance with the foregoing.
Question: What is the total number of respondents in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number.
Answer:
|
songer_typeiss
|
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.
NATIONAL LABOR RELATIONS BOARD, Petitioner, v. NEWPORT DIV. OF WINTEX KNITTING MILLS, INC., Respondent.
No. 77-1645.
United States Court of Appeals, Sixth Circuit.
Dec. 7, 1979.
Elliott Moore, Marjorie S. Gofreed, Arnold B. Podgorsky, Deputy Associate Gen. Counsel, N. L. R. B., David Zorensky, Washington, D. C., Gilbert Cohen, Regional Atty., Region 10, N. L. R. B., Atlanta, Ga., for petitioner.
Stuart Linnick, Marc L. Silverman, Phillips, Nizer, Benjamin, Krim & Ballon, New York City, for respondent.
Before CELEBREZZE, BROWN and JONES, Circuit Judges.
ORDER
This case is before the Court upon the application of the NLRB, pursuant to § 10(e) of the National Labor Relations Act, for enforcement of its order issued against the Newport Division of Wintex Knitting Mills, Inc. Basically, that order requires the Company to cease and desist from giving effect to a 1974 collective bargaining agreement with the International Ladies Garment Workers Union (ILGWU), and to withdraw recognition from the ILGWU unless and until that union is certified by the Board as the exclusive representative of the employees. The Board’s order is reported at 223 NLRB 1293.
In mid-1973 the Company was confronted with rival organizational campaigns on behalf of both the ILGWU and the United Textile Workers (UTW). In July, 1973, the UTW filed a representation petition with the Board and the ILGWU intervened. In the course of campaigning in the latter part of 1973, both unions filed unfair labor practice charges against the Company. The Board postponed any election until the unfair labor practice charges were resolved.
While the unfair labor practice charges were pending, the ILGWU maintained an intensive organizing effort throughout 1974. Full time organizers were assigned to the Newport plant on a full-time basis. The ILGWU signed up new employees as they were hired, which was important because of the high turnover of the plant’s employees, due to the cyclical nature of the double knit business. In contrast to the ILGWU’s efforts, the organizing efforts of the UTW seemed to have ceased in early 1974.
The basic issue in this case is whether any real question existed concerning representation when the Company certified the ILG-WU as the exclusive bargaining representative. The Board’s position is that a substantial question did exist, and that therefore it was a violation of the Act for the Company to recognize the one union when the other union, the UTW, had shown an interest in representing the employees.
The Board’s position is predicated upon its policy enunciated in Midwest Piping and Supply, 63 NLRB 1060 (1945). Simply stated, the Midwest Piping rule prohibits an employer from recognizing or executing a collective bargaining agreement with one of two or more competing unions at a time when their conflicting claims raise a question concerning representation.
This Circuit has held that when one of two rival unions has convincingly demonstrated its majority status, without any help from the employer, Board orders against the employer finding an unfair labor practice on the basis of recognition and entering into a bargaining agreement will be denied. American Bread Co. v. NLRB, 411 F.2d 147 (6th Cir. 1969).
At the Board’s hearing no evidence was adduced to show any continuing efforts by the UTW to organize the employees. Equally important, no evidence was adduced to rebut the fact that the ILGWU had majority support as evidenced by its having obtained authorization cards from 96 of the 135 employees.
In sum, a review of the record considered as a whole does not contain substantial evidence to support the Board’s conclusion that the Company violated the Act by recognizing and entering into a collective bargaining agreement with the ILGWU. Therefore, it is ORDERED that enforcement of the order of the National Labor Relations Board be and hereby is denied.
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_genresp1
|
C
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed respondent.
UNITED STATES of America, Appellee, v. Bonnie Shearin ANSTEAD, Appellant.
No. 71-1556.
United States Court of Appeals, Fourth Circuit.
Nov. 22, 1971.
J. Michael Anderson, Charleston, W. Va., on brief for appellant.
W. Warren Upton, U. S. Atty., on brief for appellee.
Before WINTER, CRAVEN and BUTZNER, Circuit Judges.
PER CURIAM:
Ronnie Shearin Anstead appeals his conviction in the United States District Court for the Southern District of West Virginia of having unlawfully transported or caused to be transported, in violation of 18 U.S.C.A. § 2312, a stolen motor vehicle which was removed from the State of Ohio to the State of West Virginia. He alleges that the trial judge committed reversible error by instructing the jury as to the inference it could draw from proof of possession of recently stolen property. Anstead considers the instruction to be an unconstitutional burden on the exercise of his right not to testify. We reject this ground of appeal. The trial judge carefully told the jury that possession may be satisfactorily explained by facts independent of testimony from the accused. The trial judge also reiterated that the accused was not required by law to produce any evidence. United States v. Williams, 405 F.2d 14 (4th Cir. 1968); see also, Wilson v. United States, 162 U.S. 613, 16 S.Ct. 895, 40 L.Ed. 1090 (1896); United States v. Smith, 407 F.2d 35 (4th Cir. 1969); United States v. Smith, 446 F.2d 200 (4th Cir. 1971); United States v. Ross, 424 F.2d 1016, 1020 (4th Cir. 1970).
We dispense with oral argument and the conviction below is
Affirmed.
Question: What is the nature of the first listed respondent?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_usc1
|
26
|
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.
L. H. PIERCE, Appellant, v. UNITED STATES of America, Appellee. UNITED STATES of America, Appellant, v. Lena L. PIERCE, Appellee.
Nos. 15461, 15462.
United States Court of Appeals Ninth Circuit.
April 21, 1958.
Jacob, Jones & Brown, Morris J. Galen, Portland, Or., for L. H. and Lena L. Pierce.
Charles K. Rice, Asst. Atty. Gen., Grant W. Wiprud, John N. Stull, I. Henry Kutz, Arthur I. Gould, Attys., Dept. of Justice, Washington, D. C., C. E. Luckey, U. S. Atty., Edward J. Georgeff, Asst. U. S. Atty., Portland, Or., for United States.
Before STEPHENS, Chief Judge, and POPE and CHAMBERS, Circuit Judges.
CHAMBERS, Circuit Judge.
The Pierces of Portland, Oregon, are husband and wife who filed separate federal income tax returns for the years 1946 and 1948. Their net incomes as reported for 1946 were over $65,000 each. In 1948 after deductions they had no net income and were required to pay no tax. Naturally out of their misfortunes in 1948 they are looking for “loss carry-backs” to 1946 as a basis for refunds on their taxes that year. Claiming the loss carry-backs to Í946, the taxpayers in June, 1949, filed claims for refunds which the commissioner never allowed. Consequently the taxpayers filed separate suits for refund against the United States in December, 1954, in the United States District Court for the District of Oregon. In those suits the wife prevailed and the husband was denied relief. The losing party in each case has appealed and the appeals have been consolidated.
Some detail of the financial operations of the Pierces is required. They formed a partnership in 1935 known as the L. H. Pierce Auto Service. The partnership was in continuous existence through 1948, and may still exist. In 1946 and perhaps for some years prior thereto this partnership engaged principally in the manufacture of automobile trailers. About the time the Pierces in 1947 made out their returns for 1946 they decided to form and did form an Oregon corporation known as the Pierce Trailer & Equipment Co. This company took over the trailer manufacturing end of the partnership, husband and wife each owning one half of the corporate stock. The partnership thenceforward conducted a more limited business, leasing its property to the. corporation and doing some other unrelated business, principally farming.
In 1948, although the partnership received $12,000 in rents, there was a net loss for the year of $4,193.12. This was reflected on the returns of the taxpayers as a business loss from the partnership of $2,096.56 each. The Pierces also suffered a personal casualty loss of $6,782.-93 from a 1948 flood. This was entered as a non-business loss in the amount of $3,391.47 for each taxpayer on his return. The next major item on the 1948 individual returns of the Pierces is ths sum of $6,000 paid L. H. Pierce, the husband by the Pierce Trailer and Equipment Co. for his management services. In 1948 the state of Oregon was trying out the community property system. The taxpayers properly divided this salary between their returns, showing receipt of $3,000 each.
To resolve problems presented here it must be decided whether this salary-item was:
1. Business or non-business income as to one half for the husband.
2. Business or non-business income as to one half for the wife.
Then the Pierces have a secondary point. If the salary should be ruled business income, still they say that business income or losses from each business of a taxpayer should be compartmentalized. That is to say, if the taxpayer sustained a loss in business venture “A” and made a gain in business venture “B,” he need not match one against the other but may carry back the loss in venture “A” to a highly profitable year on venture “A” reflected in the return for the better earlier year, thus get a refund. Practically, the taxpayers’ necessity is to disengage the salary (gain) from his or her partnership loss, so that the partnership loss need not be deducted from the salary, but may be carried back to the former year where it is really of some value, the taxes in the former year being substantial.
We are wholly concerned here with the 1939 Internal Revenue Code. Section 122, 26 U.S.C.A. § 122, provides:
“(a) Definition of net operating loss. As used in this section, the term ‘net operating loss’ means the excess of the deductions allowed by this chapter over the gross income, with the exceptions, additions, and limitations provided in subsection (d).
“(b) Amount of carry-back and carry-over.
“(1) Net operating loss carry-back.
“(A) Loss for taxable year begin?-ning before 1950.
“If for any taxable year beginning after December 31, 1941, and before January 1, 1950, the taxpayer has a net operating loss, such net operating loss shall be a net operating loss carry-back for each of the two preceding taxable years, except that the carry-back in the case of the first preceding taxable year shall be the excess, if any, of the amount of such net operating loss over the net income for the second preceding taxable year computed—
“(i) with the exceptions, additions, and limitations provided in subsection (d)(1), (2), (4), and (6), and
“(ii) by determining the net operating loss deduction for such second preceding taxable year without regard to such net operating loss and without regard to any reduction specified in subsection (c).
“(B) Loss for taxable year beginning after 1949. If for any taxable year beginning after December 31, 1949, the taxpayer has a net operating loss, such net operating loss shall be a net operating loss carry-back for the preceding taxable year.
* * * * *
“(d) Exceptions, additions, and limitations.
“The exceptions, additions, and limitations referred to in subsections (a), (b), and (c) shall be as follows:
* * * * * *
“(5) Deductions otherwise allowed by law not attributable to the operation of a trade or business regularly carried on by the taxpayer shall (in the case of a taxpayer other than a corporation) be allowed only to the extent of the amount of the gross income not derived from such trade or business. For the purposes of this paragraph deductions and gross income shall be computed with the exceptions, additions, and limitations specified in paragraphs (1) to (4) of this subsection.”
Insofar as the husband’s one half of the salary is concerned this court is satisfied with the holdings in Folker v. Johnson, 2 Cir., 230 F.2d 906, and Overly v. Commissioner, 3 Cir., 243 F.2d 576, wherein it is held that working for a salary puts one in the business of selling one’s own service; that such salary is not non-business income.
The taxpayer’s second contention that he can separate his businesses and carry back a loss in 1948 from business “A” to the same business “A” profit in 1946, ignoring the profit in business “B” (that is, not matching A against B, before carrying back) has some merit as an argument when Section 122(d) (5) uses the words: “such trade or business’’ (emphasis supplied). Of course, every business is a business and a taxpayer may have many businesses. Thus, he ought to be able to compartmentalize according to the statute, it is argued. But our best judgment is that the draftsman at the moment was thinking of all business of the taxpayer as being his business, as “such business.” Imagine the complications that would arise if a taxpayer operated a dozen separate grocery stores and each were to be considered a separate business for the purpose of the loss carry-back provisions. If that pattern were denied to his separate businesses, then what of him with 40 different resident partners? It is just too hard to believe that the Congress intended to open up any such complications. In Section 29.122-3, Treasury Regulations 111, under the Internal Revenue Code of 1939, the commissioner seems to classify (and rightly) for loss carry-back all businesses of a taxpayer as one business.
The pertinent part of the regulation is as follows:
“Sec. 29.122-3. Computation of Net Operating Loss in Case of a Taxpayer Other Than a Corporation. — (a) General. — A net operating loss is sustained by a taxpayer other than a corporation in any taxable year if and to the extent that, for such year, there is an excess of deductions allowed by chapter 1 over gross income, both computed with the following exceptions and limitations :
*****
“(7) Ordinary nonbusiness deductions (i. .e., exclusive of capital . losses) shall be allowed only to the extent of the amount of ordinary nonbusiness gross income (i. e., exclusive of capital gains), plus (A) for any taxable year beginning after December 31j 1938, and before January 1, 1942, the excess, if any, of nonbusiness long-term and short-term capital gains over nonbusiness long-term and short-term capital losses, respectively, and (B) for any taxable year beginning after December 31, 1941, the excess, if any, of nonbusiness capital gains over non-business capital losses.”
The commissioner’s regulation is sensible and one would think in accord with the probable congressional intent. So this court rejects the right to segregate the businesses for the purposes of this carry-back.
Therefore, the district court is afiirmed as to the husband’s case.
Next is the holding that the wife’s half of the salary is non-business income — because she didn’t earn it. This court disagrees. Of course, community property was an evanescent thing in Oregon, born under federal tax weight and expiring when the weight was shifted. So Oregon has no wealth of community property law. Section 122(d) (5), supra, does use the term “business regularly carried on by the taxpayer.” But the warp and woof of community property law in the old community property states is that when the husband or the wife is at work, the community is at work; at least, in working the worker is carrying on the business of the community. Thus, it was business income. See Poe v. Seaborn, 282 U.S. 101, 51 S.Ct. 58, 75 L.Ed. 239 (Washington community property income); Goodell v. Koch, 282 U.S. 118, 51 S.Ct. 62, 75 L.Ed. 247 (Arizona community property income); Bender v. Pfaff, 282 U.S. 127, 51 S.Ct. 64, 75 L.Ed. 252 (Louisiana community property); and Hopkins v. Bacon, 282 U.S. 122, 51 S.Ct. 62, 75 L.Ed. 249 (Texas community property income).
This court’s decision in Graham v. Commissioner, 9 Cir., 95 F.2d 174, holding that the salary paid the husband for services was “earned income” of both the husband and wife may not be an identical case; therefore, not controlling, but it certainly does not call for a different result.
Really, the explanation of the decisions of Graham and of this case on the nature of the husband’s labor lies in the fundamental community property concept. Of course, the Congress could ignore the state concept and reclassify. It could say the wife’s one half of the wages paid the husband was not business income. See United States v. Kintner, 9 Cir., 216 F.2d 418. Here it has not issued either command or the suggestion that such be done.
Therefore, the judgment in favor of the wife is reversed.
. The life of Oregon community property law began on July 5, 1947, and expired on April 11, 1949. See Chapter 525, Oregon Laws of 1947 and Chapter 349, Oregon Laws of 1949. Therefore, it was in effect during all of the year 1948, the second of the two years involved in the within case.
Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number.
Answer:
|
songer_r_stid
|
34
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Your task is to identify the state of the first listed state or local government agency that is a respondent.
Jimmy Seth PERRY, Petitioner, v. Dr. Stanley BLACKLEDGE, Warden, Central Prison, Raleigh, North Carolina, and State of North Carolina, Respondents.
No. 71-2198.
United States Court of Appeals, Fourth Circuit.
Dec. 27, 1971.
Jimmy Seth Perry, pro se.
Jacob L. Safron, Asst. Atty. Gen. of N. C., Raleigh, N. C., for respondents.
Before SOBELOFF and BRYAN, Senior Circuit Judges, and WINTER, Circuit Judge.
SOBELOFF, Senior Circuit Judge:
Petitioner here seeks review of the District Court’s dismissal of his habeas corpus petition, brought under 28 U.S.C. § 2254, for failure to exhaust state remedies.
In 1969, Perry was brought to trial in the District Court for Northampton County on a misdemeanor charge — assaulting a fellow inmate at the Odem Farm Unit of the North Carolina Department of Corrections. Upon being convicted, petitioner was sentenced to six months, sentence to run consecutively to the sentence he was then serving.
Due to the consecutive nature of the sentence imposed, petitioner appealed his conviction to the Northampton Superior Court where, in accordance with North Carolina law, his earlier conviction and sentence were nullified and he was tried de novo. N. C. Gen. Stat. §§ 7A-290, 15-177.1 (1969). This time, for the same acts underlying the misdemeanor conviction, Perry was charged with the felony of assault with a deadly weapon. Petitioner pleaded guilty and received a sentence of from five to seven years. This sentence was the same length as one that the petitioner was already serving and was imposed concurrently with the preexisting sentence.
Perry now seeks federal habeas corpus, claiming that his constitutional rights were violated when, because he appealed from his misdemeanor conviction, he was subjected to a more severe sentence. See Rice v. North Carolina, 434 F.2d 297 (4th Cir. 1970), cert, granted, North Carolina v. Rice, 401 U.S. 1008, 91 S.Ct. 1256, 28 L.Ed.2d 544 (1971). Admittedly, petitioner has never presented his claim to the North Carolina state courts and, ordinarily, this fact alone would justify the denial of federal habeas corpus relief. Ganger v. Peyton, 379 F.2d 709 (4th Cir. 1967); Whitley v. North Carolina, 357 F.2d 75 (4th Cir. 1966).
However, the requirement that a state prisoner seeking federal post conviction relief must first exhaust his state remedies will not bar federal relief where resort to the state courts is but a futile exercise. 28 U.S.C. § 2254(b); Patton v. North Carolina, 381 F.2d 636 (4th Cir. 1967), cert, denied, 390 U.S. 905, 88 S.Ct. 818, 19 L.Ed.2d 871. This circuit has several times recognized that such futility exists where there are decisions of the highest state court directly against the claim of the petitioner and there appears no indication that the state court is inclined to change its position. Ralph v. Warden, 438 F.2d 786, n. 1 at 788 (4th Cir. 1970); Evans v. Cunningham, 335 F.2d 491, 493 (4th Cir. 1964).
In this case, the highest court of the State of North Carolina has, in the past year, spoken twice in unequivocal rejection of precisely the claim petitioner seeks to raise here. State v. Sparrow, 276 N.C. 499, 173 S.E.2d 897, 901-903 (1970); State v. Spencer, 276 N.C. 535, 173 S.E.2d 765, 770-773 (1970). The requirement of state remedy exhaustion does not compel petitioner to go through the empty formality of offering the Supreme Court of North Carolina an opportunity to reaffirm its already clearly established doctrine.
In view of the foregoing, we hold that the District Court erred when it granted respondent’s motion to dismiss Perry’s petition for failure- to exhaust state remedies. Accordingly, leave to proceed in forma pauperis is granted, a certificate of probable cause to appeal is granted, the judgment of the District Court is vacated and the case is remanded for further consideration of petitioner’s claim upon its merits. Inasmuch as the Supreme Court of the United States has heard argument in North Carolina v. Rice upon the same question as the petitioner raises in this case, the District Court is instructed to defer action until the Supreme Court has decided Rice.
Reversed and remanded.
Question: What is the state of the first listed state or local government agency that is a respondent?
01. not
02. Alabama
03. Alaska
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. Florida
11. Georgia
12. Hawaii
13. Idaho
14. Illinois
15. Indiana
16. Iowa
17. Kansas
18. Kentucky
19. Louisiana
20. Maine
21. Maryland
22. Massachussets
23. Michigan
24. Minnesota
25. Mississippi
26. Missouri
27. Montana
28. Nebraska
29. Nevada
30. New
31. New
32. New
33. New
34. North
35. North
36. Ohio
37. Oklahoma
38. Oregon
39. Pennsylvania
40. Rhode
41. South
42. South
43. Tennessee
44. Texas
45. Utah
46. Vermont
47. Virginia
48. Washington
49. West
50. Wisconsin
51. Wyoming
52. Virgin
53. Puerto
54. District
55. Guam
56. not
57. Panama
Answer:
|
songer_genapel1
|
G
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed appellant.
C. Clinton CARPENTER and Phyllis S. Carpenter, Petitioners-Appellants, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee.
No. 13124.
United States Court of Appeals Fourth Circuit.
Argued June 12, 1969.
Decided Sept. 16, 1969.
Richard B. Spindle, III, Norfolk, Va., for petitioners.
Issie L. Jenkins, Atty., Department of Justice (Johnnie M. Walters, Asst. Atty. Gen., Lee A. Jackson and Elmer J. Kelsey, Attys., Department of Justice, on the brief), for respondent.
Before BOREMAN, BRYAN and BUTZNER, Circuit Judges.
PER CURIAM:
The Carpenters appeal from a decision of the Tax Court upholding an assessment against them by the Commissioner of Internal Revenue of an income tax deficiency for the taxable year 1957 in the amount of $39,687.41.
The facts, some of which were stipulated, were found and stated in the Tax Court’s opinion substantially as follows :
Mr. Carpenter was engaged in the construction business from 1920. Prior to and during the taxable year 1957 he was engaged in the heavy construction business as a sole proprietor, trading under the name of Carpenter Construction Company. He also owned all the outstanding stock of Chesapeake Manor, Inc. (hereinafter referred to as “Man- or”), a corporation which since 1951 had been successfully operating a rental housing project which it owned. Mr. Carpenter also owned all the outstanding stock of Chesapeake Housing, Inc. (hereinafter referred to as “Housing”), a corporation engaged in the business of developing land and building houses for sale.
In accordance with a debenture agreement dated August 15, 1953, First Mortgage Corporation (hereinafter referred to as “First Mortgage”) sold debentures of Housing in the total amount of $82,-500. First Mortgage insisted upon collateral to secure such debentures. Accordingly, on August 15, 1953, the Carpenters entered into an agreement with First Mortgage for the benefit of holders of the debentures, in which the Carpenters agreed to purchase the debentures at maturity at face amount, plus accrued and unpaid interest, “provided, however, that first parties [the Carpenters] may, at their election, cause Chesapeake Housing, Inc., to discharge said debentures according to their tenor in lieu of purchasing” them. By the same agreement Mr. Carpenter, as collateral security for performance of the above obligation, delivered to First Mortgage all the common stock of Manor. It was also provided in the agreement that if Housing should not discharge the debentures and the Carpenters should not repurchase them, then First Mortgage, at the request of any of the holders of the debentures, could sell such collateral by public sale, free from any right of redemption on the part of the Carpenters.
The above debentures were subsequently retired and new debentures were issued under agreements substantially identical to the above agreements. On June 3, 1957, the face amount of Housing’s outstanding debentures was $159,000. The net proceeds from the sale of all debentures had been delivered by First Mortgage to Housing.
By June 3, 1957, Housing was in default on the debentures, and on that date First Mortgage offered the stock of Manor for sale at public auction. At such public auction First Mortgage, as agent, for the owners of the debentures, purchased the stock of Manor for $150,000. Thereupon First Mortgage immediately assigned and delivered Housing’s debentures in the amount of $159,000 to Mr. Carpenter. Thereafter, First Mortgage made no further effort to collect any additional amount from Housing or the Carpenters to satisfy claims with respect to the debentures.
Mr. Carpenter’s basis in the Manor stock sold by First Mortgage was $500.
At the time of the foreclosure sale Mr. Carpenter and his sole proprietorship, Carpenter Construction Company, were indebted to Housing in the total amount of $151,820, which debts were reflected on Housing’s books as accounts receivable. The consideration giving rise to the indebtedness was not shown, Housing’s balance sheet at or about the date of foreclosure was as follows:
Phyllis Carpenter was not liable on any of the debts owing to Housing.
On May 31, 1957, the balance sheet of Mr. Carpenter’s sole proprietorship, Carpenter Construction Company, showed total assets of $268,354.22, total liabilities of $255,431.01, and a resulting net worth of $12,923.21. Mr. Carpenter had no assets other than those shown in the balance sheet of Carpenter Construction Company, except his home which was owned by him and his wife jointly. Included in the assets of Carpenter Construction Company at book value were an account receivable from, and a 40 percent stock investment in Osceola Development Corporation in the respective amounts of $11,285.63 and $45,000, and a stock investment in Housing in the amount of $10,000.
Osceola Development Corporation had been formed prior to 1953 for the purpose of acquiring 600 acres of land in Florida and constructing a housing development thereon. In 1953, following the issuance of debentures by Housing, Osceola Development Corporation made preliminary presentations to the Federal Housing Administration which made tentative commitments to Osceola. Osceola proceeded to spend money for development. However, in 1954 FHA refused a formal commitment. Accordingly, Osceola could not obtain the necessary financing for the development as planned, but nevertheless continued the development insofar as it was able to do so.
In the notice of deficiency the Government increased the Carpenters’ reported income from capital gains by $79,250, stating as follows:
It is held that you realized a gain in the amount of $158,500.00 on the sale of capital stock of Chesapeake Manor Corporation on June 3,1957. The gain has been computed as follows:
Consideration received $159,000.00
Basis of stock surrendered 500.00
Gain realized $158,500.00
Taxable at 50% (long-term) $ 79,250.00
We affirm the holding of the Tax Court for the reasons stated in its opinion.
Affirmed.
. The statement of facts is incorporated herein to disclose the nature of the transactions involved which gave rise to the tax deficiency.
. C. Clinton Carpenter and Phyllis S. Carpenter, T.C.Memo 1968-157, ¶ 68,157 P-H Memo T.C. (1968).
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_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. LOCAL 810, STEEL, METALS, ALLOYS & HARDWARE FABRICATORS & WAREHOUSEMEN, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, Respondent, and Sid Harvey, Inc. and Sid Harvey Brooklyn Corp., Intervenors.
Nos. 574, 575, Dockets 71-1951, 71-2062.
United States Court of Appeals, Second Circuit.
Argued March 24, 1972.
Decided May 11, 1972.
Jack H. Weiner, Washington, D. C. (Peter G. Nash, Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Nancy M. Sherman, Washington, D. C., on the brief), for petitioner.
Thomas Canafax, Jr., Washington, D. C. (Shimmel, Hill & Bishop, Washington, D. C., and Henry Brickman, New York City, on the brief), for respondent.
John T. Redmond, New York City (James H. Tully, Jr., Wood, Redmond & Tully, New York City, on the brief), for intervenors.
Before HAYS, MANSFIELD and MULLIGAN, Circuit Judges.
HAYS, Circuit Judge:
The National Labor Relations Board filed this application for enforcement of its order directing respondent Local 810 to cease and desist from conducting a secondary boycott in violation of Section 8(b) (4) (i) and (ii) (B) of the National Labor Relations. Act, 29 U.S.C. § 158(b) (4) (i) and (ii) (B) (1970). The charging parties, Sid Harvey, Inc. and Sid Harvey Brooklyn Corp., intervened, urging that the application be granted. The Union cross-petitioned to set aside the Board’s order. We deny enforcement of the Board’s order and grant respondent’s cross-petition to set it aside.
I. The Facts
The Trial Examiner’s findings of fact were adopted by the Board and are supported by substantial evidence. These findings establish the following:
A. The Initial Dispute
An employee of Sid Harvey Supply, Inc. was discharged on February 20, 1970, and the Union went on strike after the company refused to reinstate him. The Union began picketing Supply that day, and on March 10 commenced picketing Sid Harvey, Inc. In May and June, members of the Union picketed and distributed handbills in front of stores operated by Sid Harvey Brooklyn Corp., Sid Harvey Nassau, Inc., and Sid Harvey Suffolk, Inc. The picket signs and leaflets, and the verbal exhortations of the pickets, requested the public not to buy Sid Harvey products. The pickets were successful in persuading some of the potential customers of one store operated by Nassau not to patronize that store, and also prevailed on carriers not to make deliveries to Inc. and Brooklyn. On June 11 the Union discontinued the picketing of Inc., Brooklyn, Nassau, and Suffolk after the United States District Court for the Eastern District of New York temporarily enjoined the Union from picketing the four corporations in violation of § 8(b) (4) (i) and (ii) (B).
B. Relationships Among the Sid Harvey Companies
1. Structure and Operations
Supply, the company which the Union struck, and the four companies the Union picketed before the issuance of the temporary injunction, are a part of a complex of interrelated corporations operating on a nationwide basis. The Sid Harvey corporations are engaged in the reconditioning, distribution, and sale of air conditioning and heating equipment to trade users. While the Sid Harvey corporations are not totally interdependent, they constitute what is essentially a vertically integrated operation, or to use the popular term for their relationship to each other, they are engaged in a straight-line operation.
The keystone of the Sid Harvey organization is Inc., located in Valley Stream, Long Island. Inc., and Sid Harvey Midwest, Inc., located in Illinois, are engaged in the business of rebuilding and reconditioning air conditioning and heating equipment and parts for such equipment. Inc. obtains the used equipment that it rebuilds from the sales companies within the Sid Harvey group.
The equipment rebuilt by Inc. is warehoused and then distributed by Supply to the various Sid Harvey sales companies. Supply does not distribute only Inc. goods, but all of Inc.’s goods are distributed by Supply. Supply distributes only to sales companies within the Sid Harvey group.
Although the record is not entirely clear, it appears that there are approximately 20 sales companies in the Sid Harvey group, many of which, like Nassau, Brooklyn, and Suffolk, have corporate names containing the words “Sid Harvey.” These sales companies receive from Inc. via Supply all the rebuilt equipment they sell. The greater part of the new equipment sold by the sales companies is obtained indirectly from the manufacturers through Supply, with the remaining portion obtained directly from manufacturers. Thus, of Nassau’s sales, 40% represents sales of Inc.’s rebuilt equipment, and 60% is of new equipment; 60% of the new equipment sold is obtained through Supply. The corresponding figures for Brooklyn are 20%, 80%, and 85-90%, and for Suffolk are 33%, 67%, and 70%.
2. Control
Stephen Harvey owns 100% of the voting stock of Inc., and is chairman of the board of directors, president, and treasurer. Supply is owned by fourteen Sid Harvey sales companies located in the Northeast. Stephen Harvey has voting control of nine of these sales companies, including Brooklyn and Nassau. Collectively those nine own 73% of the stock of Supply. Stephen Harvey is chairman of the board and an officer of each of these sales companies, and is chairman of the board and treasurer of Supply. Although Stephen Harvey has a commanding position in the interlocking corporate structure of the Sid Harvey group, the Trial Examiner found that he “has no actual day-to-day duties in any of these corporations except Inc.”
3. Corporate Policy and Functional Relationships
Much of the hearing and a large part of the opinion of the Trial Examiner were devoted to an examination of policies, practices, and working conditions within the various Sid Harvey corporations. In view of the basic questions raised by a suit of this nature, a good deal of what the Trial Examiner concerned himself with was of marginal relevance and dubious materiality.
The Trial Examiner found that some of Inc.’s marketing activities are conducted in the building where Supply has its offices, although the areas in which the two corporations are located “are separated by partitions and lockable doors (which are open during working hours), and the employees of each company have separate entrances and separate restrooms.” The two pay rent directly to the landlord, a partnership in which Stephen Harvey “has an interest,” as he does in all the partnerships from which companies in the Sid Harvey group rent land and facilities. The two corporations located in the one building utilize a common switchboard, and Inc. pays Supply a service fee for “some minor services” such as janitorial work. All the companies in the Sid Harvey group have the same hospital, medical, group life, and automobile liability policies. Occasionally an employee of one of the companies will take a job with another Sid Harvey company. One accounting firm served all the Sid Harvey corporations and it “prepared an office manual of standard operating procedures.” However the companies were not required to use the manual.
The Trial Examiner compared the working conditions at Supply and Inc. and found:
“Although [the Union] showed a number of working conditions in common among the employees of Inc. and Supply, [including “the same system of rating jobs, the same work hours and two 10-minute rest periods, the same number of holidays, Christmas bonuses based upon length of service, the same profit-sharing program”] there were also many working conditions that were different between the two groups .... The two groups had different rules for qualification of overtime, different sick pay and disability benefits, and other benefits. Supply has no pension plan; Inc. does. Inc. has a cash attendance award. Supply does not. Inc. has a savings plan for employees; Supply does not. There are differences in the rules on ‘tardiness,’ smoking, making telephone calls, working on Election Day, to mention a few.”
More important for the question presented by this case, the Trial Examiner and the Board found that once a year “the presidents and some other top executives” of the Sid Harvey group of companies meet to discuss problems common to the companies. The Board found that at the May, 1970 meeting the strike at Supply was discussed, but “there was no proof that overall policies resulted from these meetings, particularly no overall labor policy or personnel policy.”
In addition the Board found that Stephen Harvey had personally fired two presidents of two Sid Harvey companies, and that he actively oversaw and controlled the financial aspects of the Sid Harvey companies. Inc. publishes a monthly news letter, “Renews,” which the Trial Examiner termed a “house organ.” This house organ contains news about people in the various Sid Harvey companies as well as corporate news. Its content reveals that the personnel of the companies considered themselves to be engaged in interlocking business activities in an interrelated corporate structure.
II. The Decision of the Board
The Board, adopting the Trial Examiner’s decision, stated that the question of whether the Union had violated § 8(b) (4) (i) and (ii) (B) by picketing Brooklyn, Suffolk, Nassau, and Inc. turned on whether the related companies were so closely allied as not to be “other employer [s]” within the meaning of that section. The Board said:
“On the ‘ally’ issue the precise question is whether the corporations were under the actual control of Stephen Harvey, as distinguished from his potential control.”
The Board found
“[u]pon all. the above facts and considerations and the entire record in the case considered as a whole . . . that despite the cooperation and mutual assistance among the various corporations directly involved herein, there is not that appreciable degree of integration of management and day-to-day operations between Supply, the primary employer, and the others, as to make them allies and deprive Inc., Brooklyn, Nassau, and Suffolk of the protection of Section 8(b) (4) of the Act.” (Emphasis added.)
In so holding, the Board relied heavily on the conclusion, that, despite Stephen Harvey’s dominant position in the corporate structures of Inc., Supply, and the various Sid Harvey sales companies, he did not actually control the daily operations of all these companies. In addition, in considering the differences in the working conditions and benefits of Supply, Inc., and the sales companies, the Board assumed that if the management and operations of the Sid Harvey group were integrated on a day to day basis, all working conditions and benefits — such as smoking rules and disability benefits — would be the same, regardless of the function or size of the individual company.
III. Section 8(b) (4) and the Neutral Secondary Employer
The question presented for decision by the Board was whether the four secondary employers picketed by the Union were in fact the same employer within the meaning of § 8(b) (4) (i) and (ii) (B), which provides:
“(b) It shall be an unfair labor practice for a labor organization or its agents—
******
(4) (i) to engage in, or to induce or encourage any individual employed by any person engaged in commerce or in any industry affecting commerce to engage in, a strike or a refusal in the course of his employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services; or (ii) to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is—
(B) forcing or requiring any person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person, or forcing or requiring any other employer to recognize or bargain with a labor organization as the representative of his employees . Provided, That nothing contained in this clause (B) shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing . . . . ”
The question presented in this case is whether the Board applied the correct legal test and whether it could properly conclude, on the basis of the evidence in the record that the four employers picketed by the Union were “other employer [s]” within the meaning of the Act.
Section 8(b) (4), as amended, was enacted to prevent the widening of a labor dispute to entangle employers who had no concern with the original dispute. To this end Congress prohibited unions from engaging in secondary boycotts, that is “pressure tactically directed toward a neutral employer in a labor dispute not his own.” National Woodwork Mfrs. Ass’n v. N. L. R. B., 386 U.S. 612, 623, 87 S.Ct. 1250, 1257, 18 L.Ed.2d 357 (1967) (footnote omitted). The broad policy objective of this section is “the protection of neutrals against secondary pressure . . . .” Id. at 627, 87 S.Ct. at 1259 (emphasis added) “Congressional concern over the involvement of third parties in labor disputes not their own prompted § 8(b) (4) (B). This concern was focused on the ‘secondary boycott,’ which was conceived of as pressure brought to bear, not ‘upon the employer who alone is a party [to a dispute], but upon some third party who has no concern in it’ ” (footnotes omitted). N. L. R. B. v. Local 825, Int’l Union of Operating Engineers, 400 U.S. 297, 302-303, 91 S.Ct. 402, 406, 27 L.Ed.2d 398 (1971). The basic question in this case is whether in fact Inc., Nassau, Brooklyn, and Suffolk were neutral third parties in the dispute between respondent Union and Supply. N. L. R. B. v. Local 810, Steel Fabricators, 299 F.2d 636, 637 (2d Cir. 1962); N. L. R. B. v. Milk Drivers Local 584, 341 F.2d 29, 32-33 (2d Cir.), cert. denied, 382 U.S. 816, 86 S.Ct. 39, 15 L.Ed.2d 64 (1965).
In determining whether an employer is in fact a neutral in a labor dispute, the courts have considered such factors as the extent to which a corporation is de facto under the control of another corporation, the extent of common ownership of the two employers, the integration of the business operations of the employers, and the dependence of one employer on the other employer for a substantial portion of its business. See, e. g., Carpet Layers Local 419 v. N. L. R. B., 429 F.2d 747, 752 (D.C. Cir. 1970); N. L. R. B. v. General Teamsters Local 126, 435 F.2d 288, 291 (7th Cir. 1970); Truck Drivers Local 728 v. Empire State Express, Inc., 293 F.2d 414, 423 (5th Cir.), cert. denied, 368 U.S. 931, 82 S.Ct. 365, 7 L.Ed.2d 194 (1961); N. L. R. B. v. Somerset Classics, Inc., 193 F.2d 613, 615 (2d Cir.), cert. denied, 344 U.S. 816, 73 S.Ct. 10, 97 L.Ed. 635 (1952).
As the court said in Vulcan Materials Co. v. United Steelworkers of America, 430 F.2d 446, 451, 453 (5th Cir. 1970), cert. denied, 401 U.S. 963, 91 S.Ct. 974, 28 L.Ed.2d 247 (1971):
“In the final analysis, however, the question of neutrality cannot be answered by the application of a set of verbal formulae. Rather, the issue can be resolved only by considering on a case-by-case basis the factual relationship which the secondary employer bears to the primary employer up against the intent of the Congress as expressed in the Act to protect employers who are ‘wholly unconcerned’ and not involved in the labor dispute between the primary employer and the union.
* * * * * *
In determining whether the relationship of a secondary employer and a primary employer is such as to destroy neutrality, the court must look to the essence of the relationship, and not to its incidental trappings.”
See also Local 24, Int’l Bhd. of Teamsters v. N. L. R. B., 266 F.2d 675, 680 (D.C. Cir. 1959). The Supreme Court has cautioned against the mechanical application of tests which obscures the “central theme” — neutrality—of this section. Nat’l Woodwork Mfrs. Ass’n v. N. L. R. B., supra, at 625, 87 S.Ct. 1250. See also Local 761, Intern Union of Electrical, etc., Workers. v. N. L. R. B., 366 U.S. 667, 677, 81 S.Ct. 1285, 6 L.Ed.2d 592 (1961). Cf. N. L. R. B. v. Denver Building & Construction Trades Council, 341 U.S. 675, 71 S.Ct. 943, 95 L.Ed. 1284 (1951).
Neutrality, for purposes of the Act, is not a technical concept. To determine whether an employer is neutral involves a common sense evaluation of the relationship between the two employers who are being picketed. In mechanically applying a “day-to-day” test in this case, the Board engaged in a technical exercise in the intricacies of corporate structure rather than a realistic, common sense evaluation of neutrality.
The Sid Harvey organization is essentially an integrated complex which manufactures, distributes, and sells a limited number of products. Ownership and control of the five corporations is centralized or overlapping. The daily contact among the corporations is extensive, and the operation and success of each is interrelated with and heavily dependent upon the other members of the group performing their assigned tasks. Only in the most strained and technical sense could the picketed employers be characterized as neutral.
The petition for enforcement is denied, and the cross petition for an order vacating the order of the Board is granted.
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_app_stid
|
14
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Your task is to identify the state of the first listed state or local government agency that is an appellant.
CITY OF CHICAGO v. JOSEPH.
Nos. 6246, 6247.
Circuit Court of Appeals, Seventh Circuit.
March 7, 1938.
Barnet Hodes, of Chicago, Ill. (Joseph F. Grossman and J. Herzl Segal, both of Chicago, Ill., of counsel), for City of Chicago.
Emmett J. McCarthy, Robert F. Carey, and Robert R. Hanley, all of Chicago, Ill., for Harry Joseph, receiver.
Before EVANS and MAJOR, Circuit Judges, and LINDLEY, District Judge.
Writ of certiorari denied 58 S.Ct. 1049, 82 L.Ed. —.
LINDLEY, District Judge.
The defendant seeks to reverse a judgment of the District Court rendered upon plaintiff’s complaint, after denial of a motion to strike, defendant having abided by the motion.
The averments of the complaint are substantially as follows: Plaintiff was appointed receiver of the West Side-Atlas-National Bank of Chicago when it closed on October 8, 1931. On April 13, 1931, defendant deposited $160,000 in the bank and, in order to secure the deposit, the bank and certain individuals as sureties executed and delivered to defendant a bond in the sum of $330,000 containing, among others, a recital relied upon by defendant, as follows : “ * * * said surety has deposited with the Comptroller of the City of Chicago-bonds of the face value of -— Dollars, as collateral security for the amount of such deposit.” Simultaneously certain persons, at that time officers of the bank and purporting to act in its behalf, delivered to defendant as collateral security anticipation warrant certificates of the City of Chicago and of the Sanitary District of Chicago, of the face value of $155,000 and bonds of the Sanitary District of Chicago, of the face value of $6,-000. These securities, “as defendant well knew, were property and assets of the bank,” which neither it nor its officers and agents were authorized by law to pledge to secure deposits. The delivery thereof was wholly beyond the legal corporate powers of the bank. On October 30, 1931, following the closing of the bank, defendant sold at private sale the securities realizing $154,070. In the administration of the bank’s affairs, dividends had been declared, as a result of which, after crediting to defendant its proportionate amount thereof and deducting the same from the $154,070 realized by defendant from the sale of securities, there remained due plaintiff $77,-375.61, for which judgment was prayed with interest at the rate of 5 per cent, from April 2, 1936, the date of demand.
• Defendant’s motion to strike asserted that the complaint was insufficient, because the securities were by the bond impliedly warranted to be the property of the sureties and because plaintiff is, by reason of the recital mentioned, estopped from claiming that the securities were those of the bank. The parties stipulated that upon the hearing the court should consider that at the time the bond was given there were in full force and effect in the City of Chicago certain ordinances which provided that a bank might be designated as a city depository upon filing a joint indemnifying bond of the depository and a personal surety of one or more persons, such surety to deposit as collateral security therefor the bonds of governmental agencies.
The court overruled the motion. Defendant elected to abide by its motion, and the court entered judgment in the sum of $77,375.61, but denied the prayer for interest. ' Defendant has appealed from the judgment against it and.the plaintiff from the judgment denying interest.
Under Marion v. Sneeden, 291 U.S. 262, 54 S.Ct. 421, 78 L.Ed. 787; Texas & Pac. R. Co. v. Pottorff, 291 U.S. 245, 54 S.Ct. 416, 78 L.Ed. 777; Sneeden v. City of Marion, 7 Cir., 64 F.2d 721; Granzow v. Village of Lyons, 7 Cir., 89 F.2d 83, 85, if we are permitted to accept the averment that the securities were those of the bank and that defendant was so advised, the pledge was invalid, and, as we said, in the last mentioned case, “being void the transaction could not be confirmed, ratified, enforced or rendered enforceable by the application of any doctrine of estoppel or otherwise. California Bank v. Kennedy, 167 U.S. 362, 17 S.Ct. 831, 42 L.Ed. 198; McCormick v. Market [Nat.] Bank, 165 U. S. 538, 17 S.Ct. 433, 41 L.Ed. 817; Central Transportation Co. v. Pullman’s Palace-Car Co., 139 U.S. 24, 11 S.Ct. 478, 35 L.Ed. 55. This is because, not merely that the bank ought, not to make the contract, but that it could not legally make it. Ratification is impossible if there is no power to contract. Central Transportation Co. v. Pullman’s Palace-Car Co., 139 U.S. 24, 11 S.Ct. 478, 35 L.Ed. 55. And knowledge of the lack of existence of authority is conclusively presumed. McCormick v. Market Bank, 165 U.S. 538, 17 S.Ct. 433, 41 L.Ed. 817.” And as the Supreme Court observed, in Texas & Pac. R. Co. v. Pottorff, supra, the illegal result . of such pledge may not be achieved by circumvention.
Consequently the sole question upon defendant’s appeal is whether an estoppel was created, by the language of the bond, to deny that the securities were those of the sureties and to assert that they were in fact those of the bank. It is undoubtedly the law that, if a recital in a bond is definite, specific, and clear, it may not be denied, and knowledge of the obligee that it is untrue is immaterial, for one may not deny his solemn affirmation of a fact upon which another has relied. But, if the recital is not of definite and clear character, an estoppel does not result, for it is essential to the creation of such a bar to assert the truth that it appear that the parties understood and accepted an unambiguous statement of fact. Such is not the case here.
In the first place, the recital relied upon is part of a provision in a printed blank which has not been filled. There is no recital that the securities actually pledged have been deposited or that any specific securities have been deposited. There is merely the incomplete recital that bonds of the “face value of - dollars” have been deposited by the '“surety” and the averments of the complaint, which must be accepted as true, show, that of the securities deposited $155,000 were not bonds but were anticipation warrants and that only $6,000 were bonds. Furthermore, there was no recital that the bonds were the property of the sureties or that anything was done by the sureties other than deposit “-bonds.” There were sureties upon the bond but only a single surety is included in the recital. The bond provides that upon default and sale defendant shall deliver to the principal any surplus of the proceeds of the sale “and the remaining unsold collateral bonds deposited by said principal, if any,” provided, however, that the surety shall return its receipt for the bonds.
Defendant contends that these facts compel a finding that the plaintiff is es-topped to deny that $160,000 worth of securities mentioned in the complaint -were the property of the surety, even though defendant knew the contrary was true. We do not believe that the recital can be so construed or justifies such a conclusion. It is not sufficiently clear, explicit, and definite. To work an estoppel, a recital must clearly, with particularity, beyond doubt and without ambiguity, affirm or deny some present or past fact or admit some liability definitely stated. It must be certain to every intent and cannot be taken by argument or inference; and, if the fact he not directly or precisely affirmed or recited, it shall not he an estoppel. Before an admission or recital can have such an effect, it must be so certain as to admit of no other conclusion. Courts are not permitted to indulge in supposition or to draw inferences from the language employed. Zimmler v. San Luis Water Co., 57 Cal. 221; Calkins v. Copley, 29 Minn. 471, 13 N.W. 904; Bigelow on Estoppel, 6th Ed., p. 399; Kerns v. Brockway, 96 Ill.App. 273; Independent School Dist. v. Stone, 106 U.S. 183, 1 S.Ct. 84, 27 L.Ed. 90; 21 C.J. 1099; Royal A. B. Mills v. Graves, 38 Ill. 455, 87 Am.Dec. 314; Claflin v. B. & A. Ry. Co., 157 Mass. 489, 32 N.E. 659, 20 L.R.A. 638; Wallace et al. v. McClung et al., 4 Cir., 74 F. 376; 21 C.J. p. 1090 § 69, p. 1091 § 72; Farmers’ Bank & Trust Co. et al. v. Southern Granite Co., 96 S.C. 106, 79 S.E. 985.
The District Court found that in view of Conway v. City of Chicago, 237 Ill. 128, 86 N.E. 619, it could allow to plaintiff no interest. That case holds that, where money is wrongfully obtained or unlawfully or wrongfully withheld, a city is held for interest to the same extent as a private person. The applicable statute is SmithHurd’s Rev.Stat. of Ill.1935, § 2, c. 74, which provides that creditors shall receive interest at 5 per cent, per annum “for all moneys after they become due * * * on money lent or advanced for the use of another; on money due on the settlement of account from the day of liquidating accounts between the parties and ascertaining the balance; * * * on money received to the use of another and obtained- without the owner’s knowledge; and on money withheld by an unreasonable and vexatious delay of payment.” The court found the instant demand governed by the latter clause and concluded there had been no unreasonable delay.
We have seen that the sale of securities by defendant was a conversion of the bank’s property. It was the sale without right, of securities wrongfully pledged. This, defendant was bound to know. Consequently, when it converted the same to its own use, it became liable to plaintiff for the conversion. Plaintiff, by its action in assumpsit, waived the tort, but it did not thereby necessarily waive its right for interest. There having been a wrongful conversion of the securities and withholding of the proceeds after demand, the city became liable for the interest upon the sum withheld. This is clearly within the statute as interpreted by the Supreme Court of Illinois. Thus, in Leigh v. American Brake-Beam Co., 205 Ill. 147, 68 N.E. 713, it was held that, where a contract is ultra vires and one receives money under it which in equity and good conscience belongs to another and which it ought to pay over, it is liable in an action for money had and received, with interest after demand. See, also, Brennan v. Gallagher, 199 Ill. 207, 65 N.E. 227; United States Brewing Co. v. Dolese & S. Co., 282 Ill. 588, 118 N.E. 1006, and Conway v. City of Chicago, 237 Ill. 128, 86 N.E. 619. When the city wrongfully retained the property of plaintiff and converted it into money, it committed a wrongful act and is chargeable with interest from the time of demand.
The jüdgment is reversed, with directions to the District Court to enter one for the same amount with interest at 5 per cent, from the date of demand and the costs in that court. Plaintiff will recover costs in this court on its appeal and also on the appeal of defendant.
Question: What is the state of the first listed state or local government agency that is an appellant?
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_appel2_1_2
|
B
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to classify the scope of this business into one of the following categories: "local" (individual or family owned business, scope limited to single community; generally proprietors, who are not incorporated); "neither local nor national" (e.g., an electrical power company whose operations cover one-third of the state); "national or multi-national" (assume that insurance companies and railroads are national in scope); and "not ascertained".
WINSTON NETWORK, INCORPORATED, a Delaware corporation, Plaintiff-Appellee, v. INDIANA HARBOR BELT RAILROAD COMPANY, an Indiana corporation, Defendant-Cross-Plaintiff-Appellee, v. AETNA INSURANCE COMPANY, a Connecticut corporation, Defendant-Cross-Defendant-Appellant. WINSTON NETWORK, INCORPORATED, a Delaware corporation, Plaintiff-Appellant, v. INDIANA HARBOR BELT RAILROAD COMPANY, an Indiana corporation, Defendant, v. AETNA INSURANCE COMPANY, a Connecticut corporation, Defendant-Appellee. WINSTON NETWORK, INCORPORATED, a Delaware corporation, Plaintiff, v. INDIANA HARBOR BELT RAILROAD COMPANY, an Indiana corporation, Defendant-Cross-Plaintiff-Appellant, v. AETNA INSURANCE COMPANY, a Connecticut corporation, Defendant-Cross-Defendant-Appellee. WINSTON NETWORK, INCORPORATED, a Delaware corporation, Plaintiff, v. INDIANA HARBOR BELT RAILROAD COMPANY, an Indiana corporation, Defendant-Counter-Plaintiff-Appellee, v. AETNA INSURANCE COMPANY, a Connecticut corporation, Defendant-Counter-Defendant-Appellant. WINSTON NETWORK, INCORPORATED, a Delaware corporation, Plaintiff-Appellee, v. INDIANA HARBOR BELT RAILROAD COMPANY, an Indiana corporation, Defendant-Appellant.
Nos. 90-1237, 90-1325, 90-1337, 90-2360, 90-2766 and 90-2796.
United States Court of Appeals, Seventh Circuit.
Argued May 8, 1991.
Decided Sept. 25, 1991.
John A. Dienner, III, argued, Lydon & Griffin, Chicago, Ill., for plaintiff-appellee Winston Network, Inc.
Diane I. Jennings, argued, Alvin E. Do-mash, Lord, Bissell & Brook, David F. Schmidt, Peterson & Ross, Chicago, Ill., for defendant-appellee Indiana Harbor Belt R. Co.
Jay S. Judge, Knight, Hoppe, Fanning & Knight, Des Plaines, Ill., John T. Burke, Burke & Associates, Chicago, Ill., for defendant-appellant Aetna Ins. Co.
Before WOOD, Jr., COFFEY and KANNE, Circuit Judges.
HARLINGTON WOOD, Jr., Circuit Judge.
On June 30, 1981, a train owned by the Indiana Harbor Belt Railroad (“IHB”) toppled a scaffolding erected for the purpose of painting an advertisement on an IHB-owned bridge. A state court jury determined that the negligence of both IHB and Transportation Displays, Inc. (“TDI”), caused the accident, which injured one painter and killed another, and that the resulting damages were in excess of $2.4 million. That verdict was later affirmed on appeal. Carter v. Indiana Harbor Belt R.R., 190 Ill.App.3d 1052, 547 N.E.2d 488, 138 Ill.Dec. 321 (1st Dist.1989).
The state court plaintiffs have since received payment and the only remaining issue is a quarrel between IHB, TDI, and TDI’s insurer, Aetna Insurance Company (“Aetna”), regarding the ultimate liability for the underlying judgment. TDI’s parent corporation, Winston Network, Inc. (“Winston Network”), filed this diversity, declaratory-judgment action seeking to determine the rights and responsibilities of the various parties. IHB thereafter filed a counterclaim against Winston Network and a cross-claim against Aetna. As the caption attests, none of the parties was entirely happy with the disposition below and the resulting appeals, cross-appeals, and protective appeals have been consolidated for more efficient review.
I.
A. The Parties
Winston Network is engaged in the business of outdoor advertising and TDI, its wholly owned subsidiary, specializes in advertising on property owned by railroads. Under the standard scenario, TDI contracts for rights to place advertising on the railroad’s property and then seeks out advertisers. When it finds a willing advertiser, TDI sells that party an advertising license and shares the revenue with the railroad.
On November 15, 1980, Aetna issued a “Commercial Package Policy” that covered both Winston Network and TDI. This policy included general liability coverage for TDI’s own negligence. TDI had significantly more exposure, however, because each of its 300 railroad contracts included a promise to hold harmless .and indemnify the railroad for any negligence on the part of either TDI or the railroad. In order to cover this additional exposure, the policy included coverage for liability assumed under “any contract or agreement relating to the conduct of the named insured’s business.”
IHB, the final party to this action, is a switching railroad that operates approximately forty miles of track. The railroad has always been a subsidiary — presently of the Consolidated Rail System (“Conrail”), which in turn acquired the line from the Penn Central Railroad, which in turn inherited it from the New York Central Railroad. IHB has never functioned independently of its parent, which has, for example, always handled IHB’s real estate transactions.
B. The Business Relationship Between TDI and IHB
On July 17, 1951, the New York Central Railroad granted TDI an exclusive license to place advertising on New York Central’s property in return for, inter alia, TDI’s promise to hold harmless and indemnify New York Central. This base agreement was amended in 1961 to include “additional billboard rights on properties owned, leased, operated or controlled by [New York Central], specifically those of the IHB.” The agreement was further amended in 1971 to include advertising rights on overhead bridges.
TDI and IHB continued to do business under the 1951 agreement even after control of IHB passed by merger to the Penn Central Railroad. When Conrail assumed control of the ailing Penn Central, it, too, was initially satisfied with the 1951 agreement. In 1980, however, Conrail decided to consolidate the motley collection of contracts that it had inherited from bankrupt railroads like Penn Central. It requested bids on an advertising management con-traet that would cover the entire Conrail system. TDI won the bid and a new contract was executed on June 1, 1981.
The 1981 agreement purports to have been “made and entered into” by TDI and “CONSOLIDATED RAIL CORPORATION, a Pennsylvania corporation ... (‘Conrail’).” The agreement thereafter acknowledged that TDI was the successful bidder for the right to advertise “throughout Conrail’s rail system.” It then granted TDI “the exclusive right ... to use, as a license only, Conrail property for sign advertising purposes.”
The remainder of the integrated agreement, which purports to be governed by Pennsylvania law, spelled out the terms under which the advertising license was granted. There are provisions, for example, wherein TDI agreed to procure liability insurance listing Conrail as a named insured. TDI also promised to hold harmless and indemnify “Conrail, its officers, agents, and employees” from “any and all claims, suits, loss, costs, and liability, arising from, or in connection with ... any personal injury, death, or property damage, whatsoever.” Other portions of the contract note that “Conrail” reserved absolute and unconditional discretion over all signs and that “Conrail” could terminate the agreement by giving notice. Finally, the agreement purports to abrogate all prior contracts “between TDI and the various predecessors of Conrail to the extent Conrail inured to the benefits and assumed the obligations of such contracts.”
The 1981 agreement did not separately identify any of the dozens of railroads that make up the Conrail rail system, nor did TDI or Conrail believe it necessary to list each one individually. Prior to June 1, 1981, TDI looked to the 1951 agreement to determine a particular term or condition of its relationship with IHB; after June 1, 1981, TDI looked to the 1981 agreement. There was no change in the course of conduct between TDI and IHB after June 1, 1981, and TDI continued to place advertising on IHB’s property and pay a share of the advertising revenue to IHB.
C. The Accident and the Carter Litigation
Sometime on or before May 15, 1980, a TDI employee prepared an application by Pal Construction Company for an advertising license for the north face of an IHB-owned bridge at 4901 South Western, Chicago, Illinois. A license was issued on May 26, 1981, and Pal Construction made arrangements for B & G Quality Signs to paint its advertisement. The B & G painters had attached their scaffolding to the viaduct and were in the process of painting the advertisement when a passing IHB train with a defective boxcar door snagged a hook on the scaffolding and caused it to collapse, killing one painter and wounding another.
Wrongful death and personal injury actions were thereafter commenced in state court, see Carter v. Indiana Harbor Belt Railroad Co., 190 Ill.App.3d 1052, 547 N.E.2d 488, 138 Ill.Dec. 321 (1989), and both TDI and IHB were named as defendants. TDI tendered its defense of the suit to Aetna, which, pursuant to TDI’s general liability coverage, assumed the defense and eventually paid TDI’s portion of the judgment. IHB tendered its defense of the suit to TDI, which in turn tendered the defense to Aetna under its contractual liability coverage. Aetna refused to defend IHB, arguing generally that there was no indemnity contract between TDI and IHB and arguing specifically that IHB was not expressly named in TDI’s policy and that the indemnity provision in the 1981 agreement did not cover IHB.
D. Proceedings Before the District Court
In 1988, after the jury in Carter returned a $2.4 million verdict against TDI and IHB, Winston Network filed a complaint for declaratory relief seeking an adjudication of the parties’ rights and responsibilities under the 1951 and 1981 agreements. It also sought an adjudication of Aetna's liability under the contractual liability coverage. IHB, which was named as a defendant alongside Aetna, filed a counterclaim against Winston Network for breach of the 1951 and/or 1981 agreement to defend and indemnify. IHB also filed a cross-claim against Aetna for breach of its duty to defend and indemnify under the contractual liability coverage.
Winston Network and IHB initially attempted to resolve the dispute by means of motions for summary judgment. These motions took the position that the indemnity provision of the 1981 agreement covered IHB but that, if it did not, then the indemnity provision of the 1951 agreement was still in force insofar as IHB was concerned. The district court rejected these motions after concluding that a question of fact existed as to which contract applied at the time of the underlying accident. The district court also determined that the term “Conrail” was ambiguous insofar as it was used in the 1981 agreement and therefore agreed that parol evidence was admissible to clarify the intent of those who entered into the agreement.
The case was tried before a jury which, after hearing three days of testimony, answered special interrogatories as follows:
1. The 1981 agreement between Winston Network and IHB’s parent corporation, Conrail, governed the business relationship between Winston Network and IHB at the time of the underlying occurrence;
2. Winston Network did not breach its agreement to defend and indemnify IHB; and
3. Aetna breached its duty to defend and indemnify IHB.
The jury also returned general verdicts in favor of both Winston Network and IHB against Aetna and in favor of Winston Network and against IHB on IHB’s counterclaim. On October 26, 1989, the district court directed entry of judgment on these verdicts and found that there was no just reason to delay enforcement or appeal. See Fed.R.Civ.P. 54(b). Eight days later, an Illinois appellate court affirmed the jury’s verdict in the state court litigation. See Carter, 190 Ill.App.3d 1052, 547 N.E.2d 488, 138 Ill.Dec. 321.
The parties in the federal suit filed timely post-trial motions, to which the district court responded by memorandum opinion dated January 5,1990. That opinion denied motions by Winston Network and IHB to recover their attorneys’ fees in the present litigation. It also denied Aetna’s motion for judgment notwithstanding the verdict or a new trial. The opinion granted IHB’s motion for judgment notwithstanding the verdict on its counterclaim against Winston Network.
Attached to the memorandum opinion was an order retroactively amending the October 26 judgment. That order entered judgment in favor of IHB and Winston Network on their claims against Aetna, entered judgment in favor of IHB on its claim against Winston Network, and declared that:
1. IHB was covered by the June 1, 1981, agreement in its dealings with Winston Network;
2. The 1981 agreement required Winston Network to indemnify IHB in the Carter litigation;
3. Aetna owed duties to both Winston Network and IHB to defend and indemnify IHB in the Carter litigation;
4. Aetna breached its duties to Winston Network and IHB when it refused to defend and indemnify the latter;
5. Winston Network owed a duty to IHB to defend and indemnify it in the Carter litigation; and
6. Winston Network breached its duty to defend and indemnify IHB.
The district court then ordered Aetna to pay IHB’s costs, attorneys’ fees, and share of the judgment in the Carter litigation, retaining jurisdiction for the sole purpose of calculating those amounts. The order failed to state the damages, if any, for which Winston Network was liable. And once again, the district court found that there was no just reason to delay enforcement or appeal. See Fed.R.Civ.P. 54(b). All three parties thereafter filed timely notices of appeal.
On January 31, 1990, IHB moved for entry of judgment on the reserved issue of damages. After further proceedings, the district court directed entry of a $1,681,-193.14 judgment in favor of IHB and against Aetna on June 7, 1990. Aetna filed a notice of appeal from this judgment on June 19, 1990, and thereafter learned that IHB had filed a post-judgment motion on June 18, 1990. That motion, which purported to be filed under rule 59(e) of the Federal Rules of Civil Procedure, asked the district court to amend the June 7 judgment so as to reflect that Winston Network was also liable. The district court concluded that IHB’s motion actually related to the January 5 judgment, not the June 7 judgment, and on August 6, 1990, denied it as untimely. IHB thereafter filed a notice of appeal from the June 7 judgment and the August 7 order. Aetna filed another notice of appeal to insure that its appeal from the June 7 judgment was preserved.
II.
A. Jurisdiction (Appeal Nos. 90-1237, 90-1325, and 90-1337)
After the filing of the initial round of appeals, this court requested briefing on the issue of whether the district court’s January 5 judgment was “final.” In particular, we were concerned about the district court’s decision to retain jurisdiction for the purpose of computing damages. As stated in Parks v. Pavkovic, 753 F.2d 1397, 1401 (7th Cir.1985), cert. denied sub nom. Belletire v. Parks, 473 U.S. 906, 105 S.Ct. 3529, 87 L.Ed.2d 653, and cert. denied sub nom. Parks v. Belletire, 474 U.S. 918, 106 S.Ct. 246, 88 L.Ed.2d 255 (1985):
A district court does not have carte blanche to certify an order for an immediate appeal under Rule 54(b). The order must finally dispose of a separate claim or a separate party. Normally an order that merely decides liability and leaves the determination of damages to future proceedings does not finally dispose of any claim; it is just a preliminary ruling on the plaintiffs damage claim.
Id. at 1401.
After briefing, however, we are satisfied that we have jurisdiction over the first round of appeals. Parks states the general rule but it also states an exception—an immediate appeal from a liability judgment will be allowed if the determination of damages can be characterized as “ministerial.” Id. The computation of damages in this case required nothing more than adding IHB’s predetermined portion of the state court judgment, with statutory interest, to IHB’s defense costs in the state court litigation. That determination is viewed as “mechanical,” see, e.g., McMunn v. Hertz Equip. Rental Corp., 791 F.2d 88, 90-91 (7th Cir.1986); see also Horn v. Transcon Lines, Inc., 898 F.2d 589 (7th Cir.1990), and, in any event, it has already been completed. See Lovellette v. Southern Ry., 898 F.2d 1286, 1289 (7th Cir.1990) (judgment that becomes final while appeal is pending satisfies finality requirement). We therefore proceed to the merits.
B. Aetna’s Appeals
Aetna admits that it is liable to IHB if there was a valid contract of indemnity between IHB and TDI on June 30, 1981. According to Aetna, however, there was no contract of indemnity. And even if there was a contract of indemnity, it was void as against public policy.
1. The Absence of a Contract of Indemnity
Aetna’s first attack on the disposition below is an argument that the district court should not have admitted parol evidence to define the term “Conrad” in the 1981 agreement. “Conrad” means “Consolidated Rail Corporation,” Aetna argues, and nothing more. It does not mean “Conrad, its subsidiaries, and its affiliates,” either as a matter of common sense or as a matter of law. The term is not ambiguous and parol evidence was therefore inadmissible to prove that “Conrad” included IHB.
Aetna, however, has substantially eroded its own argument. In a reply brief, Aetna argues that the 1951 agreement was terminated, insofar as IHB was concerned, by language in the 1981 agreement that abrogated all prior contracts “between TDI and the various predecessors of Conrad (to the extent Conrad inured to the benefits and assumed the obligations of such contracts).” Under the terms of this provision, however, TDI’s contracts with Conrad’s predecessors (i.e., New York Central and Penn Central) were abrogated only insofar as they applied to “Conrad.” Aetna’s reply brief thus abandons the claim that “Conrad” means “Consolidated Rail Corporation” and adopts the position that “Conrad” means “Conrad, its subsidiaries, and its affiliates”—the very argument for which its opening brief criticizes Winston Network and IHB.
Irony aside, Aetna’s argument acknowledges that the term “Conrad” is ambiguous. And under Pennsylvania law, which undisputedly governs the 1981 agreement, parol evidence is admissible to interpret ambiguous terms. Penn-DOT v. Mosites Constr. Co., 90 Pa.Commw. 33, 36-37, 494 A.2d 41, 43 (1985); see Metzger v. Clifford Realty Corp., 327 Pa.Super. 377, 386, 476 A.2d 1, 5 (1984).
The remainder of Aetna’s argument on this issue appears to attack the jury’s verdict. Nowhere, however, does Aetna explain the theory behind this attack (for example, that the district court should have granted a directed verdict or that the district court erred in denying post-trial motions for judgment notwithstanding the verdict and for a new trial). The attack is also puzzling, moreover, because it assumes that this court will engage in de novo review of a jury verdict. Nothing could be farther from the truth. This circuit accords “great deference” to a jury’s decision; “ ‘it is well-settled that a jury verdict will not be set aside if a reasonable basis exists in the record to support that verdict.’ ” A. Kush & Assocs., Ltd. v. American States Ins. Co., 927 F.2d 929, 934 (7th Cir.1991) (quoting Spesco, Inc. v. General Elec. Co., 719 F.2d 233, 237 (7th Cir.1983)). Here, the record indicates that the jury had ample support for concluding that IHB was included in the 1981 agreement.
2. The Invalidity of Any Contract of Indemnity
Aetna’s second attack on the judgment is that any contract of indemnity would be unenforceable under either the anti-indemnity provisions of the Illinois Construction Contract Indemnification for Negligence Act, Ill.Rev.Stat. ch. 29, paras. 61-63,, or the Illinois common law rule that agreements to indemnify a party for his or her own negligence must be clear and explicit. See Westinghouse Elec. Elevator Co. v. La Salle Monroe Bldg. Corp., 395 Ill. 429, 70 N.E.2d 604 (1946). Even assuming, however, that Illinois would apply its anti-indemnity laws to a contract that purports to be governed by Pennsylvania law, neither of these arguments is ultimately meritorious. The indemnity provision of the 1981 agreement does not fall victim to the Illinois anti-indemnity statute, and it is also sufficiently clear and explicit to satisfy Illinois common law.
“Stripped to its bare essentials, the Illinois [anti-indemnity] statute prevents indemnity against a party’s own negligence in. construction contracts.” Lovellette, 898 F.2d at 1290. A construction contract, in turn, is defined as a contract “for the construction, alteration, repair or maintenance” of a structure. Ill.Rev.Stat., ch. 29, para. 61.
Aetna’s briefs focus primarily on the accident and argue that the painting of an advertisement on a railroad bridge is arguably “maintenance” or at least “alteration.” The focus of the statute, however, is “contracts or agreements,” not accidents, and the 1981 agreement does not obligate anyone to engage in activity that is even remotely construction-related. The agreement does envision that TDI will issue a license to a third party and that this third party may decide to paint an advertisement on a bridge, but this connection to construction (if painting an advertisement is, in fact, construction) is simply too attenuated. The statute, after all, applies to contracts "for the construction, alteration, repair or maintenance” of a structure, not to contracts “having some connection with the construction, alteration, repair or maintenance” of a structure. The 1981 agreement is an agency contract in which TDI agreed to solicit third parties to advertise on IHB property; it did not involve construction and the Illinois statute is therefore inapplicable.
Aetna also argues that we should apply the Illinois statute even if no construction contract was involved. Yet Aetna offers no case law to justify this extension, and our review of Illinois law suggests that Aetna has it backwards. As we noted in Rutter v. Arlington Park Jockey Club, 510 F.2d 1065, 1069 (7th Cir.1975), Illinois courts will generally enforce contracts of indemnity against one’s own negligence. See also Davis v. Commonwealth Edison Co., 61 Ill.2d 494, 496, 336 N.E.2d 881, 883 (1975); Burlington N.R.R. v. Pawnee Motor Serv. Co., 171 Ill.App.3d 1043, 1045, 525 N.E.2d 910, 912, 121 Ill.Dec. 603, 605 (1st Dist.), appeal denied, 123 Ill.2d 556, 535 N.E.2d 399, 128 Ill.Dec. 888 (1988).
This brings us to Aetna’s contention that the indemnity clause is void because it fails to articulate in a clear and explicit manner that TDI must indemnify IHB for IHB’s own negligence. See Westinghouse, 395 Ill. 429, 70 N.E.2d 604. There is little mystery, however, in the terms of the relevant provision: the 1981 agreement provides for indemnification “without regard to the acts, omissions, or negligence of any party.” Aetna finds solace in the clause’s failure to specify that TDI will provide indemnification for the negligent operation of a boxcar, but Illinois law does not require an indemnity provision to specify the cause of the injury. It only requires the provision to specify the indemnitor’s duty to indemnify against the indemnitee’s own negligence. Burlington N.R.R., 171 Ill.App.3d at 1047-49, 525 N.E.2d at 913-14, 121 Ill.Dec. at 606-07 (soundly rejecting same argument advanced by Aetna). The indemnity provision in the 1981 agreement meets that requirement, and it is therefore enforceable. See, e.g., id. at 1043, 525 N.E.2d 910, 121 Ill.Dec. 603 (finding specific and enforceable a contract providing for indemnification regardless of whether injury was “contributed to by the sole or partial negligence” of indemnitee).
C. Winston Network’s Cross-Appeal
Winston Network appeals only from the district court’s denial of its request for attorneys’ fees under section 155 of the Illinois Insurance Code. Ill.Rev.Stat., ch. 73, para. 767 (allowing insured to recover attorneys’ fees from insurer under specified circumstances). As Winston Network is well aware, however, section 155 applies only when an insurance company’s delay in settling a claim is “vexatious and unreasonable,” id., and the district court found that Aetna’s conduct was neither. That finding “ ‘will not be disturbed unless an abuse of discretion is demonstrated on the record,’ ” and there is no indication on this record that such an abuse of discretion has occurred. We therefore affirm the district court’s refusal to award attorneys’ fees to Winston Network.
As an initial matter, we note that Winston Network itself has never taken a firm stance on which agreement — 1951 or 1981 — governed TDI’s relations with IHB. Yet that should not matter, under Winston Network’s argument, because at least one of the agreements must have applied and because both agreements contained indemnity provisions. The only way that both agreements would not apply is if “Conrail” meant “Consolidated Rail Corporation” in the indemnity clause of the 1981 agreement but “Conrail, its subsidiaries, and its affiliates” in the clause canceling all prior agreements. And there is no possibility, according to Winston Network, that the same word could have two different meanings in the same agreement.
As Aetna pointed out in its briefs and at oral argument, and as should be evident from our discussion so far, the 1981 agreement is not an example of good draftsmanship. One of the clauses, for example, permits “Conrail” to terminate the agreement by giving timely notice. Another clause reserves to “Conrail” an absolute and unconditional discretion over all signs. Under Winston Network’s approach (in which Conrail must mean “Conrail, its subsidiaries, and its affiliates”), it appears that any one subsidiary or affiliate, no matter how lowly, had the right to cancel the entire agreement simply by giving the requisite notice. It also appears that any subsidiary or affiliate had the right to exercise an absolute veto power over any advertisement, wherever located. Surely, Aetna claims, this cannot be the intent of the parties to the agreement.
All of this suggests that maybe Winston Network and IHB, too, were relying on a theory in which “Conrail” had different meanings depending on the clause in which it was found. This realization, in turn, suggests that Aetna’s position may not be so unreasonable after all. Aetna may not be correct — the jury, in fact, concluded that Aetna was incorrect — but an insurer need not be correct in order to avoid liability under section 155. The inquiry should determine whether the insurer had good faith, and there is evidence of good faith on this record.
Another theme of Winston Network’s argument is that the parties to the 1981 agreement knew what it meant, that those dealing with railroads would know what it meant and, therefore, that Aetna should have known what the agreement meant. Aetna was not a party to the agreement, however, and it is in the insurance business, not the railroad business. Aetna cannot be held, therefore, to have the knowledge that Winston Network would seek to impute to it.
Most important, Winston Network’s arguments appear too focused. A proper inquiry under section 155 must look at “the totality of the circumstances,” not just a select portion. Rosenburg, 883 F.2d at 1335. This particular conflict developed gradually and the parties' present arguments went through periods of significant development before they achieved their present complexity. The district court, which was able to observe the entire course of this litigation, concluded that Aetna had not been “unreasonable and vexatious” in delaying settlement, and Winston Network has offered no real basis for undermining that conclusion. Although Winston Network blames this litigation entirely on Aet-na, it would do well to remember that this suit might have been unnecessary had the parties to the 1981 agreement been more precise in their language.
D. IHB’s Cross-Appeals
1. Attorneys’ Pees (No. 90-1337)
IHB, too, has asked for its attorneys’ fees and costs in this litigation, although under different theories than the one advanced by Winston Network. Instead of the Illinois Insurance Code, IHB claims litigation expenses under both Pennsylvania common law and Pennsylvania contract law. IHB also claims that both Winston Network and Aetna are responsible for its expenses.
The easiest place to begin is the 1981 agreement, which in relevant part states:
9. TDI, as part of the consideration of the rights granted by this Agreement, and without regard to the acts, omissions, or negligence of any party, and while acting under color of this Agreement, hereby covenants and agrees to hold Conrail, its officers, agents and employees, harmless from, and to indemnify and defend Conrail, its officers, agents, and employees, against any and all claims, suits, loss, costs, and liability, arising from, or in connection with:
(b) any personal injury, death, or property damage whatsoever;
(e) the inclusion of Conrail in, or addition of Conrail to, any civil or criminal action [besides any such action arising from (a), (b), (c), or (d) of this section 9] arising from the contractual relationship with TDI under this Agreement.
IHB argues that the emphasized portions of this clause are sufficiently specific to allow the recovery of its attorneys’ fees and costs in this litigation. In support of that argument, it cites Fidelity-Philadelphia Trust Co. v. Philadelphia Transportation Co., 404 Pa. 541, 173 A.2d 109 (1961), in which the Pennsylvania Supreme Court held that a clause requiring the in-demnitor to "reimburse the Trustee for all its expenditures, and to indemnify and save the Trustee harmless against any liabilities which it may incur” was sufficiently specific to include attorneys’ fees. Id. at 548, 173 A.2d at 113-14.
It is unclear whether the district court addressed this argument, but it involves a question of law and is therefore fair game for an appellate court. And in light of the Pennsylvania Supreme Court’s conclusion in Fidelity-Philadelphia Trust Co., the language in the 1981 agreement certainly appears broad enough to include attorneys’ fees and costs (even though they are not expressly mentioned). If there were any doubts, however, the briefs before this court present no meaningful resistance to IHB’s argument. Winston Network, for example, does not even address this portion of IHB’s cross-appeal. Aetna has responded to IHB’s claim but maintains only that a party cannot by express contract agree to indemnify another for litigation expenses incurred in an action to obtain indemnification. But the case cited to support this proposition, Aetna Cas. & Surety Co. v. Nationwide Mut. Ins. Co., 471 F.Supp. 1059 (M.D.Pa.1979), aff'd, 620 F.2d 287 (3d Cir.1980), simply does not support Aetna’s argument. It does suggest that Pennsylvania common law might not support IHB’s request for attorneys’ fees and costs, id. at 1067, but it does not in any way prohibit IHB from expressly contracting for payments that the common law might not otherwise imply. Under these circumstances, it is appropriate that IHB receive from Winston Network and Aetna its attorneys’ fees and costs in this litigation.
2. Money Judgment Against Winston Network (No. 90-2796)
The second issue in IHB’s cross-appeal raises another jurisdictional question. Specifically, what was the effect of IHB’s June 18 motion? If IHB’s motion was a timely rule 59(e) motion to alter or amend the judgment, then Aetna’s first notice of appeal from the June 7 judgment (No. 90-2360) “is not worth the paper it is written on.” Fed.R.App.P. 4(a)(4); see Alerte v. McGinnis, 898 F.2d 69, 71 (7th Cir.1990). Aetna has wisely prepared for this possibility, however, by filing a protective notice of appeal after the district court denied IHB’s motion (No. 90-2766). If IHB’s motion was not a timely rule 59(e) motion, then Aetna’s first notice of appeal from the June 7 judgment is valid and the protective notice of appeal is mere surplusage.
With this background in mind, we turn to the motion itself, which asked the district court to add the following paragraph to its June 7 judgment:
It is further ordered that Plaintiff-Coun-terdefendant Winston Network, Inc., shall be liable to the Indiana Harbor Belt Railroad Company for payment of any amount of said judgment that Aetna fails or is unable to pay... ,
As the district court pointed out, however, jurisdiction was retained only to determine the actual dollar amount due IHB, and IHB
Question: This question concerns the second listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business?
A. local
B. neither local nor national
C. national or multi-national
D. not ascertained
Answer:
|
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