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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).
UNITED STATES ex rel. TRINLER v. CARUSI.
No. 9461.
Circuit Court of Appeals, Third Circuit.
Argued Dec. 15, 1947.
Decided Feb. 16, 1948.
O’CONNELL, Circuit Judge, dissenting.
Abram Orlow, of Philadelphia, Pa. (Lemuel B. Schofield, of Philadelphia, Pa., on the brief), for appellant.
Maurice A. Roberts, of Philadelphia, Pa. (Gerald A. Gleeson, U. S. Atty., and James P. McCormick, Asst. U. S. Atty., both of Philadelphia, Pa., on the brief), for ap-pellee.
Before GOODRICH, McLAUGHLIN and O’CONNELL, Circuit Judges.
GOODRICH, Circuit Judge.
This case raises an interesting question concerning the right to judicial review under the Administrative Procedure Act, hereinafter referred to as the Act.
The appellant, Trinler, is.an alien who was admitted to the United States in 1942 as a “treaty merchant”. He was subsequently convicted for the violation of a Presidential war order, paid his fine and served the sentence imposed on him. Still later he has been made the unhappy subject of a deportation order issued by the Commissioner of Immigration and Naturalization, the person to whom the authority of the Attorney General to deport has been delegated. This order was issued on the ground that he had failed to maintain his “treaty merchant” status. Claiming that the Act gave him a right to judicial review of this order, he filed in the District Court of the United States for the Eastern District of Pennsylvania a document labelled “Petition for Review”. On motion of the respondent the petition was dismissed. 72 F.Supp. 193 (E.D.Pa.1947) noted in 96 U. of Pa.L.Rev. 268 (1947). He has appealed.
The first question raised is whether, assuming all other questions are answered in favor of the appellant, this case is ripe for review. It was suggested in the argument in this Court that the administrative process had not yet come to an end and until it had, review was premature. This point was evidently not made in the District Court and, indeed, was not taken seriously in the briefs submitted to us. But it was stressed in oral argument and has made us some difficulty.
We think this objection does not impose any substantial obstacle to review. The administrative process has come to an end. The statute says “the decision of the Attorney General shall be final.” That decision has been made by the Commissioner of Immigration and Naturalization, the duly delegated official, and this deportation order has been issued thereupon. It is true that Trinler has not been taken into custody and, obviously, has not been put on a ship for deportation, nor has the ship sailed. But these three things are no part of the administrative process. That ended when, intermediate proceedings provided for by the regulations issued by the Attorney General having been gone through with, the order of deportation was issued. There is nothing more to do now than the purely ministerial act of taking the man into custody, putting him on a ship bound for the designated port.
No inconsistency between this view and that of the selective service cases is present. In fact they furnish a persuasive analogy here, as shown by the following language of Mr. Justice Douglas in Estep v. United States: “Falbo v. United States, supra [320 U.S. 549, 64 S.Ct. 346, 88 L.Ed. 305], does not preclude such a defense in the present cases. In the Falbo case the defendant challenged the order of his local board before he had exhausted his administrative remedies. Here these registrants had pursued their administrative remedies to the end. All had been done which could be done. Submission to induction would be satisfaction of the orders of the local boards, not a further step to obtain relief from them.”
To conclude that the administrative proc-ess has ceased with the issuance of the deportation order by the delegatee of the Attorney General does not, however, settle the question of whether Trinler has a right of judicial review or the nature of that right, if any he has. Attention has already been called to the language of the statute which says that the “decision of the Attorney General shall be final.” Nevertheless, and in spite of such language, it is perfectly clear that it is not final in the sense that courts cannot do anything about it. The petitioner points out, and the Government agrees, that the legality of deportation orders may be tested in habeas corpus proceedings. The Government also points out and the petitioner agrees, that such orders have been tested successfully only in such proceedings and subject to whatever limitations as there are inherent in such proceedings as to the scope of those questions which may be raised by habeas corpus. Such review is not available to this petitioner because he has not yet been taken into custody.
We have, therefore, a situation where in spite of statutory language of finality for an administrative order there is judicial review of long standing, albeit of a limited nature. The new question presented in this litigation is whether that review has been enlarged by Section 10 of the Administrative Procedure Act. Paragraph (a) of Section 10 gives judicial review to “Any person * * * adversely affected * * * by such action.” We do not need to labor the point that petitioner is adversely affected by the deportation order. His difficulty comes, however, in the “excepting” clause with which Section 10 opens. That clause says “Except so far as (1) statutes preclude judicial review or (2) agency action is by law committed to agency discretion” the right of judicial review is given.
The Commissioner says that this case is an instance under the first exception because the basic statute precludes judicial review and it precludes it in the already quoted phrase that the “decision of the Attorney General shall be final.” Trinler says this phrase does not settle the question because in spite of that language courts have judicially reviewed deportation orders for many years through the habeas corpus proceedings. It is admitted, says Trinler, that at this particular stage of his deportation matter habeas corpus would not be available. Nevertheless, his argument runs, since there is a court created judicial review for deportation orders it cannot be said that the case is one where judicial review is precluded. Therefore, the argument continues, he has the right to review which Section 10 of the statute gives and the right accrues when the order is issued without his having to wait for the court created right of review by habeas corpus.
The Commissioner argues that such a result would upset long established administrative procedure in the handling of deportation cases. The petitioner argues that to permit a right of review upon the issuance of the deportation order instead of compelling .a man to wait until arrested is ever so much fairer to him and prevents the hardship of his having to sacrifice his American possessions and be prepared to be taken out of the country if his habeas corpus proceedings fail. We can grant the truth of the foregoing statements by each side without being helped in the- solution of our problem here. If the Act creates new rights for aliens by providing an earlier review of deportation orders, the Attorney General will have to modify his administrative practice. If it does not, the alien will have to continue to suffer whatever hardships that accompany his right to habeas corpus. The nub of the question seems to us to be whether these deportation proceedings are such as to fall within the first exception to Section 10 as a proceeding provided by a statute which “preclude[s] judicial review”.
Our conclusion is that the case does not fall within the exception. Therefore the judicial review provisions found in Section 10 of the Act are applicable. We are impressed by the fact that in spite of the basic statute’s wording habeas corpus proceedings have always been available. Since they have been available the situation cannot be one where judicial review in the past has been precluded. In this we are supported, we think, by discussion found in the legislative history of the Act. In that discussion it was pointed out that statutes which preclude judicial review are unusual. Congressman Walter pointed out to the House of Representatives that this clause was simply put in to provide for the unusual situation where judicial review of administrative action was actually precluded.
It may be granted that the area covered by Section 10 of the statute is not very wide. Counsel for petitioner has given us a long list of important statutes in which judicial review is expressly provided for. It may well be that the instances where it is expressly precluded are few. But whether the new law made by Section 10 be wide or narrow, the instant case seems to us to be one which fits into it.
While it might look as though judicial review were precluded by the giving to the deportation order the air of finality, in practice such finality never existed because of the availability of habeas corpus. The fact that review has been judge-made out of the concept of due process does not make it any less a qualification of the statute than if the legislators had put the provision in it when the statute was first drawn.
Since we conclude that petitioner is entitled to judicial review following the issuing of the order which adversely affects him, we think the form in which he has asked for such review is proper enough. The respondent pointed out to us that a bill in equity, declaratory judgment, and similar remedies were not available in these deportation cases. That is agreed to as the law stood prior to the Administrative Procedure Act. What we are here deciding is that the Act did enlarge the rights of people against whom deportation orders have been issued and that they are now entitled to judicial review after the issuing of a deportation order. That being so, a document headed “Petition for Review” is an appropriate enough form in which to ask for the relief.
It will be noted that the caption of this case is the type which customarily appears in habeas corpus proceedings. It seems to us inappropriate here. The United States is not the complaining party nor is Trin-ler a “relator”. He is a petitioner and a public official is the respondent. These points do not go to the merits of the controversy but should be observed in the interest of neat presentation.
We express at this point no opinion whatever upon the merits -of the petitioner’s case. All we are deciding is that under the Administrative Procedure Act of 1946 he is entitled to have judicial review as one adversely affected by the deportation order after its promulgation but before he has been taken into custody.
The judgment of the District Court will be reversed and the case remanded for further proceedings in accordance with this opinion.
60 Stat. 237, Act June 11, 1946, 5 U.S.C.A. § 1001 et seq.
43 Stat. 154, Act May 26, 1924, 8 U.S.C.A. § 203.
The deportation of aliens has by law been committed to the Attorney General. He has, however, delegated that authority to the Commissioner of Immigration and Naturalization with a right of review of the Commissioner’s order to the Board of Immigration Appeals in those cases in which the Commissioner determines that the alien should be deported. 8 C.F.R. 90.1 (Supp.1943); 8 C.F.R. 90.3 (Supp. 1945); see Warren, The Federal Administrative Procedure Act and The Administrative Agencies (1947) pp. 294-295. If the Board’s conclusions conflict with those of the Commissioner the case may be certified to the Attorney General upon the Commissioner’s request or the Attorney General may request that the record in any case be certified to him. 8 C.F.R. 90.3 (Supp.1945).
The allegations in the petition, which for the purpose of this appeal we must take to be true, do not state which procedure was followed in the case at bar. But the following paragraphs of that petition state the authority of the Commissioner and that he issued the final order. They state:
“2. That the Defendant is the Commissioner of Immigration and Naturalization duly authorized by law to carry into effect the provisions of the Immigration Act of February 5, 1917 and all amendments thereto, and authorized by law to enter final orders thereunder.”
“4. That by virtue of the provisions of the ‘Administrative Procedure Act’ above referred to, this Court has jurisdiction to review the proceedings in which the Commissioner of Immigration and Naturalization is a party in his final capacity as a designated officer of the Government of the United States who enters a final order in administrative proceedings by an Agency of the Government of the United States.”
“8. That thereafter the defendant issued a warrant of arrest in proceedings for deportation by virtue of the authority of the defendant under the Immigration Act of 1924 and after hearing and review, the said defendant directed the deportation of your petitioner and advised him that a final order had been entered by the defendant under the proceedings whereby the petitioner was to make himself ready for deportation at the convenience of the Defendant.”
§ 19 of the Immigration Act of 1917, 39 Stat. 889, amended by 54 Stat. 1238, Reorganization Plan No. 5, June 14, 1940, 54 Stat. 671, Act June 28, 1940, 8 U.S.C.A. § 155.
When the Commissioner determines that there is cause to suspect that a person is in the country in violation of the Immigration statute he causes a warrant to be issued. It is the issuance of the warrant which starts the administrative process and the hearing afforded the alien comes after the warrant is issued. See Warren, The Federal Administrative Procedure Act and The Administrative Agencies (1947) pp. 294-295. The regulations of the Attorney General provide that the alien shall be accorded a hearing before an immigration inspector to determine whether he is subject to deportation on the charges stated in the warrant of arrest, at which hearing the alien is entitled to representation by counsel and to offer evidence in his behalf. After the conclusion of the hearing, the inspector is required to prepare a memorandum setting forth a summary of the evidence adduced at the hearing, his proposed findings of fact and conclusions of law and a proposed order, which are to be furnished to the alien, or his counsel who may file exception thereto and submit a brief. 8 C.F.R. 150.6 (Supp.1941). The decision is then made by the Commissioner. The alien then has a right of appeal to the Board of Immigration Appeals, a body authorized by the Attorney General to perform his functions in relation to deportation but responsible solely to him. 8 C.F.R. 90.3 (Supp.1945). If one member of the Board dissents the proceedings are reviewed by the Attorney General, 8 C.F.R. 90.5, 90.12 (Supp.1945). Otherwise, the warrant of deportation is issued by the Commissioner.
Once the order is issued the Commissioner would be recreant to his duty and disobeying the law if he did not deport the alien unless the matter came within the exception contained in the Immigration Act which is not involved here. 39 Stat. 889, Act Feb. 5, 1917, amended 54 Stat. 1238, Reorganization Plan No. 5, Juné 14, 1940, 54 Stat. 671, Act June 28, 1940, 8 U.S.C.A. § 155; see United States v. Commissioner of Immigration, S.D.N. Y.1936, 14 F.Supp. 484,487.
1946, 327 U.S. 114, 123, 66 S.Ct. 423, 428, 90 L.Ed. 567.
In Japanese Immigration Case, 1903, 189 U.S. 86, 23 S.Ct. 611, 47 L.Ed. 721, it was Feld that in habeas corpus proceedings a court could inquire into the ■deportation proceedings to ascertain if a fair hearing was had, notwithstanding that the statute contained no provision for a judicial review. Congress was aware of this case when it wrote the present immigration law. Sen.Rep.No. 352, 64th Cong., 1st Sess., Vol. 2, Misc. ii. p. 16 (1916); see 96 U. of Pa.L.Rev. 268 (1947).
Petitioner, however, states that other proceedings have failed because the remedy employed was not the proper one rather than due to the fact that ha-beas corpus was the exclusive remedy. See 96 U. of Pa.L.Rev. 268 (1947). In this connection it is interesting to note that the Attorney General’s Committee indicated that the Declaratory Judgment Act of 1934 may afford a method to review deportation orders. See Administrative Procedure Act — Legislative History, Sen.Doc.No.248, 79th Cong., 2d. Sess. p. 37.
60 Stat. 243, Act June 11, 1946, 5 U.S.C.A. § 1009(a).
60 Stat. 243, Act June 11, 1946, 5 U. S.C.A. § 1009.
The Immigration Act of 1917, 39 Stat. 889, Act Feb. 5, 1917, amended by 54 Stat. 1238, Reorganization Plan No. 5, June 14, 1940, 54 Stat. 671, Act June 28, 1940, 8 U.S.C.A § 155.
An example is the Economy Act of 1933, 48 Stat. 9, Act March 20, 1933, 38 U.S.O.A. § 705. In that Act such prohibition is expressly stated in clear and unequivocal language. United States v. Mroch, 6 Cir., 1937, 88 F.2d 888. The language used in the Selective Service Act, on the other hand, caused the court to hold that review of a Board’s order was permissible. Estep v. United States, 1946, 327 U.S. 114, 66 S.Ct. 423, 90 L.Ed. 567. Congress, itself, recognized that such language was not strong enough to prohibit all review for it indicated that habeas corpus would be available after the registrant was inducted. H. Rep.No.36, 79th Cong., 1st Sess. (1945) 5.
See Administrative Procedure Act— Legislative History, Sen.Doc.No.248, 79th Cong., 2d Sess. p. 380. In five of the six bills introduced the original phrase in the section prescribing judicial review was “expressly preclude”. The elimination of the word “expressly” in the bill which finally became law has no significance other than to indicate that the failure of the basic statute to contain the exact words “precludes review” is not conclusive. But the words of the Act when given their ordinary meaning and reference to the legislative history makes it clear that a mere failure to provide for review or an intent to limit the review granted does not place a statute within the “excepting clause” of the Act. See Administrative Procedure Act — Legislative History, supra pp. 131-183 (various bills introduced), 311, 318, 325, 212.
That it was the Congressional intent to make new law in this connection is evident from the answers given by the sponsor of the bill when it was being presented to the Senate. See Administrative Procedure Act — Legislative History, Sen.Doe.No.248, 79th Cong., 2d Sess. pp. 311, 318, 325.
gee Freund, Administrative Powers Over Persons and Property 240-1 (1928).
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:
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songer_usc2
|
28
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What follows is an opinion from a United States Court of Appeals.
The most frequently cited title of the U.S. Code in the headnotes to this case is 28. Your task is to identify the second most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if fewer than two U.S. Code titles are cited. To choose the second title, the following rule was used: If two or more titles of USC or USCA are cited, choose the second most frequently cited title, even if there are other sections of the title already coded which are mentioned more frequently. If the title already coded is the only title cited in the headnotes, choose the section of that title which is cited the second greatest number of times.
T. O. BRADBURY and N. B. Burt, Appellants, v. Frank DENNIS, Appellee.
No. 6978.
United States Court of Appeals Tenth Circuit.
Oct. 15, 1962.
Fred M. Winner, Denver, Colo. (Emory L. O’Connell and Robert J. Enochs, Denver Colo., were with him on brief), for appellants.
Clyde J. Watts, Oklahoma City, Old. (Yegge, Hall & Schulenberg, Denver, Colo., was with him on brief), for appel-lee.
Before MURRAH, Chief Judge, and PICKETT and HILL, Circuit Judges.
MURRAH, Chief Judge.
This interlocutory appeal under Section 1292(b) Title 28 U.S.C., squarely presents the question of the trial court’s diversity jurisdiction. It is contended that the assignment of the asserted cause of action by a wholly owned resident corporation to its nonresident stockholder-plaintiff was “improperly or collusively” made to invoke federal court jurisdiction within the meaning of Section 1359, 28 U.S.C., which denies diversity jurisdiction in such cases. The trial court sustained its diversity jurisdiction, but certified the question here as one as to which “there is substantial grounds for difference of opinion.”
The complaint affirmatively asserts diversity of citizenship and requisite amount in controversy, and alleges in substance that by the challenged assignment of the asserted cause of action, the plaintiff-appellee merely acquired that which he already owned since he alone had provided the funds for payment of the usurious interest, which is the subject matter of this lawsuit.
If, as suggested, the appellee was the actual owner of the cause of action before the purported assignment, he was of course the real party in interest, and we have no occasion to consider the propriety of the assignment. Pursuant to a hearing to determine jurisdiction, the trial court found, and the record indicates, that the plaintiff and others entered into a partnership for the development of certain real estate in Colorado, the appellee advancing all of the partnership capital. The partnership entered into a contract with the appellants which provided for the payments now claimed to include usurious interest. The partnership organized a Colorado corporation and assigned all of the partnership assets to it, and the corporation assumed all of the partnership liabilities, including an indebtedness to the appellee for capital advancements to the partnership. Some of the payments made under the alleged usurious contract were made by the partnership and some by the corporation. After the appellee became the sole stockholder of the corporation, he caused it to execute the assignment in question, purporting to assign to him all claims and demands which the corporation had or might have against the appellants. At the time of the assignment, the corporation was insolvent, but the plaintiff had paid or orally promised to pay a substantial part of the corporation’s indebtedness. It is thus plain that the appellee was not the sole owner of the asserted cause of action before the challenged assignment, and was not therefore the real party in interest.
This brings us to the question whether the assignment was “improperly or collusively” made within the meaning of Section 1359. We start with the presumption against diversity jurisdiction, and the burden is and always has been upon the one asserting it to affirmatively sustain it; and the court is under the duty to dismiss the action if at any stage of the proceeding it becomes apparent that j urisdietion is lacking. City of Lawton, Oklahoma v. Chapman, 10 Cir., 257 F.2d 601.
Originally, one section of the Judicial Code (§ 24(1), 36 Stat. 1091) specifically denied federal jurisdiction to an assignee of a cause of action if it was not available to his assignor. Sowell v. Federal Reserve Bank of Dallas, Tex., 268 U.S. 449, 45 S.Ct. 528, 69 L.Ed. 1041. Another section of the same Code (§ 37, 36 Stat. 1098) denied federal jurisdiction if, at any time after suit had been brought or removed to the federal court, it appeared that the parties to the suit had been “improperly or collusively made or joined * * * for the purpose of creating a case cognizable or removable * * * ” to the federal court. The revisors of the 1948 Judicial Code conjoined the two sections to form Section 1359, under which diversity jurisdiction by assignment became eonferrable provided it was not improperly or collusively made for that purpose. See Revisors’ Note to 28 U.S.C. § 1359; and Steinberg v. Toro, D.C., 95 F.Supp. 791. Indeed, the appellants freely concede as much.
The critical words “improperly or col-lusively,” having been imported from old Section 37 into the Revised Section 1359, we will assume that Congress intended for them to have the same meaning and connotation which had been given them at the time of incorporation into the Revised Code. Our difficult problem is one of ascertaining their true jurisdictional meaning at the time of the revision. As words used to delineate jurisdiction, they ought to be cast in black and white, but we find them in the decisional gray zone. Though words of general import, and no strangers to the law, they are nevertheless words of art when used to define or delineate federal court jurisdiction. They are used in the disjunctive and are evidently intended to define different and varying jurisdictional boundaries; Pre-revision case law did not draw a distinction between the two, but was content to say that an assignment or transfer was not improper or collusive unless it could be said to be “fictitious or pretended,” Miller & Lux, Inc. v. East Side Canal & Irrigation Co., 211 U.S. 293, 29 S.Ct. 111, 53 L.Ed. 189; or “feigned or merely col-orable,” Black & White Taxicab & Transfer Co. v. Brown & Yellow Taxicab & Transfer Co., 276 U.S. 518, 48 S.Ct. 404, 72 L.Ed. 681; or for the purpose of creating a temporary or spurious citizenship, Amalgamated Clothing Workers v. Curlee Clothing Co., 8 Cir., 19 F.2d 439; Tower Realty Co. v. City of East Detroit, Mich., 6 Cir., 185 F.2d 590. It was enough that the assignee or transferee was the real party in interest. Black & White Taxicab & Transfer Co. v. Brown & Yellow Taxicab & Transfer Co., supra. If we accept the dictionary definition, as did the Third Circuit, (i.e. Corabi v. Auto Racing, Inc., 3 Cir., 264 F.2d 784, 75 A.L. R.2d 711) the word “improperly” broadly covers any act or conduct deemed unsuited to the circumstances of the case, while the word “collusively” is a stronger word with a more restricted meaning indicating a secret agreement for a bad purpose.
Particularly, we need to know by what standards we shall determine when an assignment or transfer is “fictitious,” “colorable” or “spurious,” hence imprdper or collusive. The trial court sustained its jurisdiction on the legal premise that the insolvency at the time of the assignment, or the failure of the corporate minutes to reflect authorization for the assignment, or that the assignment might be voidable upon collateral attack by the creditors, did not render the assignment either improper or collusive or prevent the plaintiff from maintaining the action thereunder. In short, the trial court confined its inquiry to the validity of the transfer as between the parties, that is, between the corporation and its sole stockholder, and finding adequate consideration, went no further. The appellant takes the position that the assignment is improperly or collusively made if it is subject to attack by anyone, and contends that the assignment amounted to a partial liquidation by an insolvent corporation which is prohibited by Colorado statute. See C.R.S.1953 Supp. 31-31-11. He says this position is supported by Lehigh Mining & Mfg. Co. v. Kelly, 160 U.S. 327, 16 S.Ct. 307, 40 L.Ed. 444; and Miller & Lux, Inc. v. East Side Canal & Irrigation Co., supra.
In Lehigh Mining, stockholders of a Virginia corporation organized a Pennsylvania corporation and transferred real property located in Virginia to the Pennsylvania corporation for the purpose of conferring diversity jurisdiction upon the federal court in Virginia to entertain an asserted cause of action. The court sustained a denial of diversity jurisdiction, saying “The arrangement by which, without any valuable consideration, the stockholders of the Virginia corporation organized a Pennsylvania corporation and conveyed these lands to the new corporation for the express purpose — and no other purpose is stated or suggested — of creating a case for the Fedei’al court, must be regarded as a mere device to give jurisdiction to a Circuit Court of the United States and as being, in law, a fraud upon that court, as well as a wrong to the defendants. Such a device cannot receive our sanction.” (p. 339,16 S.Ct. p. 312)
More than a decade later, the stockholders of a California corporation in Miller & Lux organized a Nevada corporation and transferred all of the assets of the California corporation to it. The California corporation became the owners of all of the stock of the Nevada corporation, with full power of control in the California stockholders. A suit instituted by the California corporation in the California state court was dismissed and refiled in the federal court by the Nevada corporation, based upon diversity jurisdiction. The writer of the Lehigh case, also writing for the court in Miller & Lux, reemphasized the right and power of the resident stockholders in either case to require the foreign corporation to reconvey the property to the resident corporation at their convenience; and that in each case, the transfer of the property was a mere sham or device to invoke federal jurisdiction.
The appellees rely on the much later case of B & W Taxi, and say that while it did not expressly overrule Lehigh, it is conceptually different. In that case, the stockholders of a Kentucky corporation organized a Tennessee corporation to which it transferred all of its assets. The Kentucky corporation was dissolved. The Tennessee corporation made new contracts similar to those held by the Kentucky corporation, and in all respects succeeded to that company’s business. Suit was brought on the new contracts based on diversity of citizenship. Diversity jurisdiction was sustained, the court saying, “The succession and transfer were actual, not feigned or merely colorable. In these circumstances, courts will not inquire into motives when deciding concerning their jurisdiction.” The court thought the distinction between that case and Lehigh and Miller & Lux was too clear for discussion, and we agree. The obvious distinction lies in the fact that in Lehigh and Miller & Lux, the resident corporation remained in existence, and in full control of the foreign corporation, while in the Taxi case, the resident corporation was dissolved.
The appellees also seem to rely on Corabi v. Auto Racing, Inc., 3 Cir., 264 F.2d 784, 75 A.L.R.2d 711 a post-revision case involving diversity jurisdiction based upon the appointment of a foreign administrator. The foreign administrator was appointed for the avowed purpose of invoking federal jurisdiction. The court thought the facts of that case fell outside the ruling of Lehigh and within the ambit of the Taxi case. While the reasoning is not entirely clear, it is significant, we think, that under applicable state law, a foreign administrator had standing to maintain the suit, and the decree of the probate court appointing the administrator was not subject to collateral attack. And see Mecom v. Fitzsimmons Drilling Co., 10 Cir., 284 U.S. 183, 52 S.Ct. 84, 76 L.Ed. 233, 77 A.L.R. 904. But compare Martineau v. City of St. Paul, 8 Cir., 172 F.2d 777, where the court, looking at state law, concluded that an administrator was without standing to maintain the suit in the state court, and -therefore could not maintain it in the federal court based on diversity of citizenship.
As we view the cases, none of them control in our situation. Our transaction is not merely colorable or a sham as in Lehigh and Miller & Lux. The assignment is supported by adequate consideration, and while it is infected with the self dealings of a sole stockholder with his insolvent corporation, there was nothing surreptitious or fictitious about the transaction. While it may lack the sanctions of state law which underlie the Taxi and Corabi cases, at the same time no one can say that it operates to the prejudice of any third party, including the creditors of the corporation, for whose protection state law is invoked. Indeed, if our inquiry should go so far, we may very well conclude that the assignment was for the benefit of all interested parties, except perhaps the appellants.
Certainly diversity jurisdiction should not be made to depend on whether some one can pick a legal flaw in the transaction by which jurisdiction is conferred. It should not be made to depend upon or await adjudication of the legality of the transaction under state law. All this means that the state of the law is left in the gray zone where we found it. Certainly no rule of thumb is suggested or stated. But, after all, it is the words of a federal statute we construe in the context of an historical purpose to deny diversity jurisdiction when it would operate to serve a purpose which is unsuited to the good order of federal court administration. Viewed in this context, we cannot say that the assignment was either improper or collusive, or that the suit is not being prosecuted in the name of the real party in interest. The judgment is affirmed.
. § 1359. “A district court shall not have • jurisdiction of a civil action in which any party, by assignment or otherwise, has been improperly or collusively made or joined to invoke the jurisdiction of such court.”
Question: The most frequently cited title of the U.S. Code in the headnotes to this case is 28. What is the second most frequently cited title of this U.S. Code in the headnotes to this case? Answer with a number.
Answer:
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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 the Matter of A & B HEATING & AIR CONDITIONING, Debtor. UNITED STATES of America, Plaintiff-Appellant, v. A & B HEATING & AIR CONDITIONING, INC., Defendant-Appellee.
No. 86-3440.
United States Court of Appeals, Eleventh Circuit.
Aug. 4, 1987.
Robert W. Merkle, Jr., U.S. Atty., Virginia M. , Covington, Asst. U.S. Atty., Tampa, Fla., Gary D. Gray, Wynette J. Hewett, Roger M. Olsen, Asst. Atty. Gen., Tax Div., Dept, of Justice, Michael L. Paup, Chief, Appellate Section, Tax Div., Dept, of Justice, Washington, D.C., for plaintiff-appellant.
Straske, Farfante, Segall & Arcuri, Patti W. Medearis, Tampa, Fla., for defendant-appellee.
Before HILL and HATCHETT, Circuit Judges, and HENDERSON, Senior Circuit Judge.
HILL, Circuit Judge:
On February 17,1984, the Internal Revenue Service levied upon the assets of A & B Heating & Air Conditioning, Inc. for failure to pay withheld trust fund taxes and other delinquent taxes. Ten days later, A & B Heating filed a petition for reorganization under Chapter 11 of the Bankruptcy Code. The proposed bankruptcy plan provided for the payment of the debtor’s federal tax liability over a period not to exceed six years, with the first payments being allocated towards the trust fund taxes. By paying off the trust fund taxes, the corporate president and sole shareholder would be relieved of his separate liability under 26 U.S.C. § 6672 (1982) for these trust fund taxes. The government objected to the debtor’s reorganization plan,' arguing that the debtor had no right to allocate its payment of taxes. The bankruptcy court overruled the government’s objection to the plan. The district court affirmed.
As a general rule, when a taxpayer directs the manner in which a payment is to be allocated among various taxes due, the Internal Revenue Service must comply with the taxpayer’s request. Wood v. United States, 808 F.2d 411, 416 (5th Cir.1987). When, however, a payment is involuntary, the government is free to allocate the payment as it chooses. Muntwyler v. United States, 703 F.2d 1030, 1032 (7th Cir.1983). The definition of involuntary payments is set forth in Amos v. Commissioner, 47 T.C. 65, 69 (1966): “An involuntary payment of federal taxes means any payment received by agents of the United States as a result of distraint or levy or from a legal proceeding in which the Government is seeking to collect its delinquent taxes or file a claim therefor.” The courts are equally divided as to whether tax payments made pursuant to a bankruptcy plan are voluntary.
The rationale of the courts which have found payments in bankruptcy to be involuntary was succinctly summarized in In re Frost, 47 B.R. 961, 965 (D.Kan.1985) (payments under Chapter 13 held involuntary):
In order to determine whether a payment to the IRS is voluntary or involuntary, it must be determined whether or not the payment was received through court or administrative action which resulted in an actual seizure of the property or money. The instant bankruptcy proceeding filed by the debtors is a legal action in which the IRS has filed a claim for delinquent taxes. The payments to be made by the debtors are under the bankruptcy court’s jurisdiction and are made pursuant to a plan which must comply with the requirements of the bankruptcy code. Thus, we conclude that payments made by the debtors to the IRS are not voluntary and the IRS has the right to allocate the payments as it sees fit.
The Seventh Circuit in dicta expressed a similar sentiment. See Muntwyler v. United States, 703 F.2d 1030, 1034 n. 2 (7th Cir.1983). In Avildsen v. United States (In re Avildsen), 40 B.R. 253, 256 (N.D.Ill.1984), the court found such reasoning to be equally applicable to all bankruptcy proceedings: “[T]he fact that this case deals with a reorganization rather than a liquidating bankruptcy does not change the involuntary nature of the payments.” Additionally, the government’s position is strengthened by the argument that allowing the debtor to allocate the payment of taxes solely benefits the responsible officers of the corporation without benefitting the corporation or Internal Revenue Service. Accordingly, a strong argument is made that the separate liability imposed under 26 U.S.C. § 6672 (1982) should remain upon the heads of the corporate officers whose actions, or inaction, resulted in the dissipation of the trust fund taxes. In re Tam Specialty Co., 57 B.R. 37 (Bankr. N.D.Cal.1985).
Equally strong precedent can be found supporting the argument that payments in bankruptcy, particularly in the context of a non-liquidating Chapter 11 proceeding, constitute voluntary payments. The bankruptcy court’s decision in this case points to several aspects of the Chapter 11 proceeding which allow the debtor great latitude in making tax payments:
Court involvement in the context of a Chapter 11 reorganization case is not the type which results in seizure of property or money as in a levy. Unlike a taxpayer faced with a government instituted collection proceeding which may lead ultimately to levy upon the taxpayer’s assets, a Chapter 11 debtor enjoys great latitude in how and if a plan is proposed and thus how and when the IRS will be paid. § 1129 requires only that a plan provide for payment of pre-petition taxes over a period not to exceed 6 years from the date of assessment in order that it may be confirmed. The debtor propounding a plan has a number of options with respect to treatment of a claim by the IRS and it is the freedom afforded by these options which dictates the conclusion that payments to the IRS pursuant to a confirmed Chapter 11 plan of reorganization are voluntary.
In re A & B Heating & Air Conditioning, 53 B.R. 54, 57 (Bankr.M.D.Fla.1985), aff'd, No. 85-1552-Civ-T-13 (M.D.Fla. May 7, 1986). Similarly, the United States Bankruptcy Court for the District of Colorado has concluded: “The fact that payments are made pursuant to a plan which must comply with the requirements of the Bankruptcy Code does not rise to a level of court action equivalent to a levy, judicial order, execution or judicial sale.” In re Lifescape, Inc., 54 B.R. 526, 529 (Bankr.D.Colo. 1985) (Chapter 11).
These contradictory court holdings are a direct result of the conflicting policies behind the Bankruptcy Code and Internal Revenue Code. On the one hand, Congress, by enacting 26 U.S.C. § 6672 (1982) intended to impose liability upon corporate officers who allow trust fund taxes to be used for any purpose other than the payment of withheld taxes:
The laws of the United States require all employers to withhold from their employees’ gross wages a scheduled amount representing the employees’ FICA and income tax obligations. As to the amount representing income tax with-holdings, the Internal Revenue Code states that these amounts “shall be held to be a special fund in trust for the United States.” 26 U.S.C. § 7501 (1982). If the employer violates this fiduciary obligation and misappropriates these withholding funds (even if in a purported good faith effort to keep the business afloat), the United States must nevertheless extend a credit to the employees as if the funds were properly paid over to the government.... Because the government bears the loss caused by an employer’s defalcation, Congress has provided the government with several remedies, one of which lies against the individual personally responsible for the misappropriated funds. [26 U.S.C. § 6672 (1982)] was intended to “cut through the shield of organizational form” and impose liability upon those individual persons actually responsible for an employer’s failure to withhold and pay over the taxes.
United States v. Huckabee Auto Co., 46 B.R. 741, 743 (M.D.Ga.1985) (citations omitted), aff'd, 783 F.2d 1546 (11th Cir.1986). Furthermore, we have consistently recognized that the Internal Revenue Service is charged with the responsibility to collect all taxes due. Public policy dictates that the Internal Revenue Code be interpreted in such a manner as to maximize the public fisc.
On the other hand, Congress has enacted a detailed Bankruptcy Code which sets forth an orderly process by which creditors of a bankrupt entity are to be repaid. In doing so, Congress “has provided bankrupts with extensive protection from their creditors and a reasonable opportunity to rehabilitate not only for their benefit but for that of the public as well.” In re Energy Resources Co., 59 B.R. 702, 706 (Bankr.D.Mass.1986). The Code expresses a preference toward reorganization rather than liquidation; a viable reorganization plan typically provides greater payment to creditors while preserving the economic life of the entity. Permitting the Internal Revenue Service to allocate tax payments in all Chapter 11 proceedings runs contrary to this policy. In numerous Chapter 11 reorganizations, the failure to allow the debtor to allocate tax payments is detrimental to the reorganization plan:
If corporate officers are pressured to pay the taxes out of their own pockets, the incentive to continue successful reorganization is reduced, and it becomes more likely that the responsible officers will convert to Chapter 7 liquidation. Under Chapter 7, as in Chapter 11, taxes have priority; the government will be paid in full whether sufficient funds remain for other unsecured creditors or not. The responsible officers are guaranteed that no tax penalty will be assessed against them personally.
Note, Bankruptcy Court Jurisdiction and the Power to Enjoin the IRS, 70 Minn.L. Rev. 1279, 1299-1300 (1986). Frequently, the efforts put forth by these officers during the reorganization is the corporation’s only hope for future viability. In the absence of an express congressional statement that the Internal Revenue Code is to take priority over the Bankruptcy Code with regard to the allocation of tax payments, we decline to accept the argument of the IRS that all payments made under a Chapter 11 reorganization are involuntary and thus properly allocated by the IRS.
In weighing the competing public policy considerations of the Internal Revenue and Bankruptcy Codes, we are persuaded by the court’s reasoning in In re B & P Enterprises, Inc., 67 B.R. 179, 183 (Bankr.W.D. Tenn.1986): “the allocation question in a Chapter 11 case under the Bankruptcy Code should be left to judicial discretion to be decided on a case-by-case basis.” In making this determination, the bankruptcy court is to consider the “equitable reasons warranting such allocations.” Typically, the court should look to
the history of the debtor, the absence or existence of prebankruptcy collection or “enforced collection measures” of the I.R.S. against the corporation and responsible corporate officers; the nature and contents of a Chapter 11 plan (e.g., last resort liquidation or reorganization); the presence, extent and nature of administrative and/or court action; the presence of pre-or post-bankruptcy agreements between the debtor (or trustee) and the I.R.S.; and the existence of exceptional or special circumstances or equitable reasons warranting such allocation.
Id. at 184. Most importantly, the bankruptcy judge should consider whether the proposed plan is merely a stop gap scheme to hold the taxing authority at bay with little chance that the debtor will fulfill its obligation under the plan. We recognize that the bankruptcy judge has previously considered and passed on the feasibility of the plan. In light of our pronouncement herein, we think it best to remand to the district court with directions that the bankruptcy court weigh the impact the proposed allocation would have upon the debtor, Internal Revenue Service, and other creditors. Should the bankruptcy court conclude that the interests of all parties would be best served by allowing the debtor to allocate the payment of taxes, then that determination should stand in the absence of abuse of discretion. Accordingly, we REMAND to the district court for further proceedings consistent with this opinion.
. "Trust fund" taxes consist of social security and federal income taxes withheld by an employer from the wages of the employees. See 26 U.S.C. § 3102 (1982) (placing duty of collection upon employer). These funds are to be held in a special trust for the United States. 26 U.S.C. § 7501 (1982). The Internal Revenue Code imposes personal liability on responsible corporate officers who fail to remit these funds to the government. 26 U.S.C. § 6672 (1982).
. Ten courts have found tax payments made pursuant to a bankruptcy plan to be involuntary. In re Frost, 47 B.R. 961 (D.Kan.1985); In re Mister Marvins, Inc., 48 B.R. 279 (E.D.Mich.1984); Avildsen v. United States, (In re Avild-sen), 40 B.R. 253 (N.D.Ill.1984), aff’d, 794 F.2d 1248 (7th Cir.1986); In re Herald, 66 B.R. 169 (Bankr.E.D.N.C.1986); In re Tam Specialty Co., 57 B.R. 37 (Bankr.N.D.Cal.1985); In re Office Dynamics, Inc., 39 B.R. 760 (Bankr.N.D.Ga. 1984); In re Obie Elie Wrecking Co., 35 B.R. 114 (Bankr.N.D.Ohio 1983); Hannan Trucking, Inc. v. United States (In re Hannan Trucking, Inc.), 17 B.R. 475 (Bankr.N.D.Tex. 1981); Hubler v. Gutman (In re Hubler Rentals, Inc.), 79-2 U.S.Tax Cas. (CCH) If 9621 (Bankr.E.D.Pa.1979); In re Vincent-McCall Co., 68-2 U.S.Tax.Cas. (CCH) ¶ 9591 (Bankr.E.D.Wis.1968). Six decisions have found payments made pursuant to a Chapter 11 reorganization to be voluntary. Tom LeDuc Enter. v. United States (In re Tom LeDuc Enter.), 47 B.R. 900 (W.D.Mo.1984); In re Energy Resources Co., 59 B.R. 702 (Bankr.D. Mass. 1986); Hineline v. Household Finance Corp. (In re Hineline ), 57 B.R. 248 (Bankr.W.D. Ohio 1986); In re Lifescape, Inc., 54 B.R. 526 (Bankr.D.Colo.1985); In re Franklin Press, Inc., 52 B.R. 151 (Bankr.S.D.Fla. 1985); In re Hartley Plumbing Co., 32 B.R. 8 (Bankr.M.D.Ala.1983).
. The conflicting goals of tax collection and rehabilitation of bankruptcy entities was specifically recognized by Congress in drafting the Bankruptcy Code:
In a broad sense, the goals of rehabilitating debtors and giving equal treatment to private voluntary creditors must be balanced with the interests of governmental tax authorities who, if unpaid taxes exist, are also creditors in the proceeding.
A three-way tension thus exists among (1) general creditors, who should not have the funds available for payment of debts exhausted by an excessive accumulation of taxes for past years; (2) the debtor, whose "fresh start” should likewise not be burdened with such an accumulation; and (3) the tax collector, who should not lose taxes which he has not had reasonable time to collect or which the law has restrained him from collecting.
S.Rep. No. 989, 95th Cong., 2d Sess. 13-14, reprinted in 1978 U.S.Code Cong. & Admin.News 5787, 5799-800.
. In B & P Enterprises, the court set forth a requirement that the debtor must demonstrate "exceptional or special circumstances" justifying the allocation. Id. at 184. The court proceeded to conclude that the debtor had not overcome this hurdle. We decline to adopt this "exceptional circumstances” test; rather, we hold that the determination of whether a debtor should be permitted to allocate taxes in a Chapter 11 reorganization is best left to the bankruptcy court upon consideration of the bankruptcy plan as a whole.
Question: What is the total number of respondents in the case? Answer with a number.
Answer:
|
songer_appfiduc
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "fiduciaries". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Chanel ALLEN, a minor child By and Through her mother, next friend and natural guardian, Vickie M. ALLEN, Plaintiff-Appellant, v. A.J. HORINEK and Marjorie Horinek, Defendants-Appellees.
No. 86-1822.
United States Court of Appeals, Tenth Circuit.
Aug. 26, 1987.
Susan R. Schrag of Morris, Laing, Evans, Brock & Kennedy, Wichita, Kan., for plaintiff-appellant.
Before LOGAN and TACHA, Circuit Judges and O’CONNOR, District Judge.
The Honorable Earl E. O'Connor, Chief Judge, United States District Court for the District of Kansas, sitting by designation.
PER CURIAM.
After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed.R. App.P. 34(a); 10th Cir.R. 34.1.8(c) and 27.1.-2. The cause is therefore ordered submitted without oral argument.
The parties to this appeal were advised that the court was considering summary dismissal for lack of appellate jurisdiction. The question before us is whether the notice of appeal was prematurely filed and is thus a nullity. Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 103 S.Ct. 400, 74 L.Ed.2d 225 (1982).
Following the entry of judgment on a jury verdict, plaintiff timely filed a motion for new trial pursuant to Fed.R.Civ.P. 59. The trial judge held a hearing on the motion, at the conclusion of which he denied the motion from the bench. The courtroom minute sheet also reflects the denial of the motion. The docket entry for the May 6, 1986, hearing date reads as follows: “Hearing on motion for new trial — denied. Order to follow.” Plaintiff filed her notice of appeal on May 28. On June 19 an order issued denying the motion for new trial; the docket entry of that order was made June 20.
In Acosta v. Louisiana Department of Health & Human Resources, — U.S. -, 106 S.Ct. 2876, 92 L.Ed.2d 192 (1986), the Supreme Court held that Fed.R.App.P.4(a)(4) constitutes an exception to the general rule that a notice of appeal filed after announcement of an order but before its entry in the docket will be deemed timely filed. The provisions of Fed.R.App.P.4(a)(2) specifically require that if a timely motion for new trial is filed, “the time for appeal for all parties shall run from the entry of the order denying a new trial.”
In this case no separate order was set forth as required by Fed.R.Civ.P.58 until June 19 and no entry made in accordance with Fed.R.Civ.P.79(a) until June 20. We reject plaintiff’s suggestion that the courtroom minute sheet and docket entry reflecting the substance of the hearing can suffice as meeting the requirements of these rules. See Herrera v. First N. Sav. & Loan Ass’n, 805 F.2d 896, 898-899 (10th Cir.1986) (appeal period computed from entry of order on civil docket); Beaudry Motor Co. v. Abko Properties, Inc., 780 F.2d 751 (9th Cir.), cert. denied, — U.S.-, 107 S.Ct. 100, 93 L.Ed.2d 51 (1986) (minute order prepared at direction of judge, noted on civil docket, signed by deputy clerk, and mailed to counsel satisfies rules).
This court has long held that when a tolling motion is made and a notice of appeal filed before its determination, a new notice must be filed within the prescribed time measured from the date of the entry of the order disposing of the motion. A.O. Smith Corp. v. Sims Consol., Ltd., 647 F.2d 118, 120 (10th Cir.1981) (emphasis added). See also Stallworth v. Shuler, 758 F.2d 1409, 1410 (11th Cir.1985) (new notice of appeal must be filed after date district court enters order disposing of Rule 59 motion); Trinidad Corp. v. Maru, 781 F.2d 1360, 1362 (9th Cir.1986) (same).
The Supreme Court did not announce a different rule in Acosta, but merely chose the opportunity to state that section 4(a)(4) is a specifically drafted exception to section 4(a)(2), requiring the filing of a new notice of appeal after the entry of a dispositive order. Section 4(a)(4) is not to be construed as permitting an appeal to be taken after announcement of the court’s decision but before the entry of an order.
This case cannot be distinguished factually from Acosta. Plaintiff was twice alerted to the lack of an order denying the Rule 59 motion: once by the notation on the docket following the May 6 hearing that an order would follow, and later by opposing counsel who subsequently drafted the order denying the motion at the court’s request and sent plaintiff’s counsel a copy for her approval. Finally, when this court notified the parties of the potential jurisdictional defect, there remained time for plaintiff to seek in the district court an extension to file the notice of appeal. Fed.R. App.P. 4(a)(5).
DISMISSED. The mandate shall issue forthwith.
Question: What is the total number of appellants in the case that fall into the category "fiduciaries"? Answer with a number.
Answer:
|
songer_procedur
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant.
Dorothy L. BUCKINGHAM, in her own right and as Administratrix of the Estate of Elvin E. Buckingham, Deceased, Appellant, v. UNITED STATES of America, Appellee.
No. 12073.
United States Court of Appeals Fourth Circuit.
Argued April 1, 1968.
Decided April 29, 1968.
Israel Steingold, Norfolk, Va. (Steingold, Steingold & Chovitz, Norfolk, Va., and Charles Henry Gordon, Hampton, Va., on the brief), for appellant.
Leonard Schaitman, Atty., Dept. of Justice (Edwin L. Weisl, Jr., Asst. Atty. Gen., Morton Hollander, Atty., Dept. of Justice, and C. Vernon Spratley, Jr., U. S. Atty., on the brief), for appellee.
Before HAYNSWORTH, Chief Judge, and BOREMAN and BUTZNER, Circuit Judges.
PER CURIAM:
In this case plaintiff has brought suit against the United States under the Federal Tort Claims Act. The District
Court granted summary judgment for defendant. Finding this case to be controlled by Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152, we affirm the judgment- below.
Plaintiff’s decedent, a Master Sergeant in the United States Air Force stationed at Langley Air Force Base, Virginia, became ill while on duty on August 5, 1966. On August 6 he reported to the emergency room of the base hospital where he was treated, given a prescription, and sent home. His condition having worsened, he returned to the hospital on August 7, was given further directions for treatment, and again sent home. He finally gained admission to the hospital on August 9 but died the next day.
Plaintiff alleges that the failure to admit the sergeant earlier constituted negligence on the part of the hospital personnel, and for purposes of this appeal the allegation is accepted as true. Thus, the issue becomes whether or not the negligent failure of a military hospital to admit a soldier on active duty is actionable under the Federal Tort Claims Act. Feres v. United States, supra, requires a negative reply.
Of the three eases decided sub nom. Feres v. United States, two were concerned with alleged medical malpractice at army hospitals. As in the case at bar, the victims of the alleged malpractice were soldiers on active duty. After considering the unique relationship of military personnel to their government and the fact that Congress had provided a uniform system of compensation for the injury or death of those in the armed forces, the Court determined that the injuries in question were not actionable under the Tort Claims Act. We perceive no meaningful distinction between the claims there asserted and the instant claim and, accordingly, affirm the judgment below.
There is no merit to the contention that the Feres doctrine is bankrupt and that the case should be confined narrowly to the precise factual situation there presented. Courts confronted with situations not meaningfully distinguishable from Feres or from the one presently before us have attested to its continued viability.
Affirmed.
. 28 U.S.C. §§ 1346(b), 2671 et seq.
. In the case at bar plaintiff is entitled to and is presently receiving $187 per. month under 38 U.S.C. § 401 et seq.
. See, e. g., Norris v. United States, 2 Cir., 229 F.2d 439, aff’g 137 F.Supp. 11 (E.D.N.Y.); Sheppard v. United States, 3 Cir., 369 F.2d 272.
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:
|
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.
Keanu D.W. ORTIZ, Petitioner
v.
UNITED STATES.
No. 16-1423.
Supreme Court of the United States
Argued Jan. 16, 2018.
Decided June 22, 2018.
Brian L. Mizer, Johnathan D. Legg, Lauren-Ann L. Shure, Appellate Defense Counsel, Air Force Legal Ops. Agency, MD, Eugene R. Fidell, New Haven, CT, Stephen I. Vladeck, Austin, TX, Mary J. Bradley, Christopher D. Carrier, Defense Appellate Division, Army Legal Services Agency, Fort Belvoir, VA, for Petitioners.
Noel J. Francisco, Solicitor General, Dana J. Boente, Acting Assistant Attorney General, Edwin S. Kneedler, Deputy Solicitor General, Brian H. Fletcher, Assistant to the Solicitor General, Joseph F. Palmer, Danielle S. Tarin, Attorneys, Department of Justice, Washington, DC, for Respondent.
Justice KAGAN delivered the opinion of the Court.
This case is about the legality of a military officer serving as a judge on both an Air Force appeals court and the Court of Military Commission Review (CMCR). The petitioner, an airman convicted of crimes in the military justice system, contends that the judge's holding of dual offices violated a statute regulating military service, as well as the Constitution's Appointments Clause. The Court of Appeals for the Armed Forces (CAAF) rejected those claims, and we granted a petition for certiorari. We hold first that this Court has jurisdiction to review decisions of the CAAF, even though it is not an Article III court. We then affirm the CAAF's determination that the judge's simultaneous service was lawful.
I
In the exercise of its authority over the armed forces, Congress has long provided for specialized military courts to adjudicate charges against service members. Today, trial-level courts-martial hear cases involving a wide range of offenses, including crimes unconnected with military service; as a result, the jurisdiction of those tribunals overlaps substantially with that of state and federal courts. See Solorio v. United States, 483 U.S. 435, 436, 107 S.Ct. 2924, 97 L.Ed.2d 364 (1987) ; United States v. Kebodeaux, 570 U.S. 387, 404, 133 S.Ct. 2496, 186 L.Ed.2d 540 (2013) (ALITO, J., concurring in judgment). And courts-martial are now subject to several tiers of appellate review, thus forming part of an integrated "court-martial system" that closely resembles civilian structures of justice.
United States v. Denedo, 556 U.S. 904, 920, 129 S.Ct. 2213, 173 L.Ed.2d 1235 (2009) ; see Weiss v. United States, 510 U.S. 163, 174, 114 S.Ct. 752, 127 L.Ed.2d 1 (1994).
That system begins with the court-martial itself, an officer-led tribunal convened to determine guilt or innocence and levy appropriate punishment, up to lifetime imprisonment or execution. See 10 U.S.C. §§ 816, 818, 856a. The next phase of military justice occurs at one of four appellate courts: the Court of Criminal Appeals (CCA) for the Army, Navy-Marine Corps, Air Force, or Coast Guard. Those courts, using three-judge panels of either officers or civilians, review all decisions in which the sentence imposed involves a punitive discharge, incarceration for more than one year, or death. See §§ 866(a)-(c). Atop the court-martial system is the CAAF, a "court of record" made up of five civilian judges appointed to serve 15-year terms. § 941 ; see §§ 942(a)-(b). The CAAF must review certain weighty cases (including those in which capital punishment was imposed), and may grant petitions for review in any others. See § 867. Finally, this Court possesses statutory authority to step in afterward: Under 28 U.S.C. § 1259, we have jurisdiction to review the CAAF's decisions by writ of certiorari.
Petitioner Keanu Ortiz's case has run the gamut of this legal system. Ortiz, an Airman First Class in the Air Force, was charged with knowingly possessing and distributing child pornography, in violation of the Uniform Code of Military Justice. A court-martial found Ortiz guilty as charged and imposed a sentence of two years' imprisonment and a dishonorable discharge. On appeal, an Air Force CCA panel, including Colonel Martin Mitchell, summarily affirmed the court-martial's decision. The CAAF then granted Ortiz's petition for review to consider whether Judge Mitchell was disqualified from serving on the CCA, thus entitling Ortiz to an appellate do-over.
That issue arose from Judge Mitchell's simultaneous service on the CMCR. Congress created the CMCR as an appellate tribunal to review the decisions of military commissions, particularly those operating in Guantanamo Bay. The Secretary of Defense put Judge Mitchell on that court shortly after he became a member of the CCA, under a statutory provision authorizing the Secretary to "assign [officers] who are appellate military judges" to serve on the CMCR as well. 10 U.S.C. § 950f(b)(2). Around the same time, a military-commission defendant argued to the Court of Appeals for the D.C. Circuit that the Appointments Clause requires the President and Senate (rather than the Secretary) to place judges on the CMCR. The D.C. Circuit avoided resolving that issue, but suggested that the President and Senate could "put [it] to rest" by appointing the very CMCR judges whom the Secretary had previously assigned. In re al-Nashiri, 791 F.3d 71, 86 (2015). The President decided to take that advice, and nominated each of those judges-Mitchell, among them-under an adjacent statutory provision authorizing him to "appoint, by and with the advice and consent of the Senate," CMCR judges. § 950f(b)(3). The Senate then confirmed those nominations. About a month later, Judge Mitchell-now wearing his CCA robe-participated in the panel decision rejecting Ortiz's appeal.
In Ortiz's view, Judge Mitchell's appointment to the CMCR barred his continued service on the CCA under both a statute and the Constitution. First, Ortiz invoked 10 U.S.C. § 973(b). That statute, designed to ensure civilian preeminence in government, provides that unless "otherwise authorized by law," an active-duty military officer like Judge Mitchell "may not hold, or exercise the functions of," certain "civil office[s]" in the Federal Government. § 973(b)(2)(A). According to Ortiz, a CMCR judgeship is a covered civil office, and no other law allowed the President to put Mitchell in that position: Thus, his appointment to the CMCR violated § 973(b). See Brief in Support of Petition Granted in No. 16-0671 (CAAF), pp. 17-22. And the proper remedy, Ortiz argued, was to terminate Judge Mitchell's military service effective the date of his CMCR appointment and void all his later actions as a CCA judge-including his decision on Ortiz's appeal. See ibid. Second and independently, Ortiz relied on the Appointments Clause to challenge Judge Mitchell's dual service. See id., at 27-40. The premise of his argument was that CMCR judges are "principal officers" under that Clause, whereas CCA judges (as this Court has held) are "inferior officers." Edmond v. United States, 520 U.S. 651, 666, 117 S.Ct. 1573, 137 L.Ed.2d 917 (1997). Ortiz claimed that the Appointments Clause prohibits someone serving as a principal officer on one court (the CMCR) from sitting alongside inferior officers on another court (the CCA). Because Judge Mitchell had done just that, Ortiz concluded, the CCA's ruling on his appeal could not stand.
The CAAF rejected both grounds for ordering another appeal. See 76 M.J. 189 (2017). In considering the statutory question, the court chose not to decide whether § 973(b) precluded Judge Mitchell from serving on the CMCR while an active-duty officer. Even if so, the CAAF held, the remedy for the violation would not involve terminating the judge's military service or voiding actions he took on the CCA. See id., at 192. Turning next to the constitutional issue, the CAAF "s[aw] no Appointments Clause problem." Id., at 193. Even assuming Judge Mitchell was a principal officer when sitting on the CMCR, the court held, that status in no way affected his service on the CCA: "When Colonel Mitchell sits as a CCA judge, he is no different from any other CCA judge." Ibid. The CAAF thus upheld the CCA's affirmance of Ortiz's convictions.
This Court granted Ortiz's petition for certiorari to consider whether either § 973(b) or the Appointments Clause prevents a military officer from serving, as Judge Mitchell did, on both a CCA and the CMCR. 582 U.S. ----, 138 S.Ct. 54, 198 L.Ed.2d 780 (2017). We now affirm the decision below.
II
We begin with a question of our own jurisdiction to review the CAAF's decisions. Congress has explicitly authorized us to undertake such review in 28 U.S.C. § 1259. See ibid. ("Decisions of the [CAAF] may be reviewed by the Supreme Court by writ of certiorari"). Both the Federal Government and Ortiz view that grant of jurisdiction as constitutionally proper. But an amicus curiae, Professor Aditya Bamzai, argues that it goes beyond what Article III allows. That position is a new one to this Court: We have previously reviewed nine CAAF decisions without anyone objecting that we lacked the power to do so. Still, we think the argument is serious, and deserving of sustained consideration. That analysis leads us to conclude that the judicial character and constitutional pedigree of the court-martial system enable this Court, in exercising appellate jurisdiction, to review the decisions of the court sitting at its apex.
Bamzai starts with a proposition no one can contest-that our review of CAAF decisions cannot rest on our original jurisdiction. Brief for Aditya Bamzai as Amicus Curiae 11. Article III of the Constitution grants this Court original jurisdiction in a limited category of cases: those "affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party." § 2, cl. 2. That list, of course, does not embrace Ortiz's case, or any other that the CAAF considers. And ever since Marbury v. Madison, 1 Cranch 137, 2 L.Ed. 60 (1803), this Court has recognized that our original jurisdiction cannot extend any further than the cases enumerated: If Congress attempts to confer more on us, we must (as Chief Justice Marshall famously did, in the pioneer act of judicial review) strike down the law. Id., at 174-180. As a result, Bamzai is right to insist that § 1259 could not authorize this Court, as part of its original jurisdiction, to hear military cases like Ortiz's.
The real issue is whether our appellate jurisdiction can cover such cases. Article III's sole reference to appellate jurisdiction provides no apparent barrier, but also no substantial guidance: Following its specification of this Court's original jurisdiction, Article III says only that in all "other Cases" that the Constitution comprehends (including cases, like this one, involving federal questions), "the supreme Court shall have appellate Jurisdiction, both as to Law and Fact." § 2, cl. 2. The Constitution's failure to say anything more about appellate jurisdiction leads Bamzai to focus on Chief Justice Marshall's opinion in Marbury . See Brief for Bamzai 2-4, 12-14. In that case (as you surely recall), William Marbury petitioned this Court-without first asking any other-to issue a writ of mandamus to Secretary of State James Madison directing him to deliver a commission. After holding (as just related) that the Court's original jurisdiction did not extend so far, Chief Justice Marshall also rejected the idea that the Court could provide the writ in the exercise of its appellate jurisdiction. "[T]he essential criterion of appellate jurisdiction," the Chief Justice explained, is "that it revises and corrects the proceedings in a cause already instituted, and does not create that cause." 1 Cranch, at 175. Marbury's petition, Chief Justice Marshall held, commenced the cause-or, to use the more modern word, the case; hence, it was not a matter for appellate jurisdiction.
Bamzai contends that the same is true of Ortiz's petition.
On any ordinary understanding of the great Chief Justice's words, that is a surprising claim. Ortiz's petition asks us to "revise and correct" the latest decision in a "cause" that began in and progressed through military justice "proceedings." Ibid. Or, as the Government puts the point, this case fits within Chief Justice Marshall's standard because "it comes to th[is] Court on review of the Court of Appeals for the Armed Forces' decision, which reviewed a criminal proceeding that originated in [a] court[ ]-martial." Tr. of Oral Arg. 47-48. So this Court would hardly be the first to render a decision in the case. Unless Chief Justice Marshall's test implicitly exempts cases instituted in a military court-as contrasted, for example, with an ordinary federal court-the case is now appellate.
The military justice system's essential character-in a word, judicial-provides no reason to make that distinction. Accord post, at 2186 - 2188 (THOMAS, J., concurring). Each level of military court decides criminal "cases" as that term is generally understood, and does so in strict accordance with a body of federal law (of course including the Constitution). The procedural protections afforded to a service member are "virtually the same" as those given in a civilian criminal proceeding, whether state or federal. 1 D. Schlueter, Military Criminal Justice: Practice and Procedure § 1-7, p. 50 (9th ed. 2015) (Schlueter). And the judgments a military tribunal renders, as this Court long ago observed, "rest on the same basis, and are surrounded by the same considerations[, as] give conclusiveness to the judgments of other legal tribunals." Ex parte Reed, 100 U.S. 13, 23, 25 L.Ed. 538 (1879). Accordingly, we have held that the "valid, final judgments of military courts, like those of any court of competent jurisdiction [,] have res judicata effect and preclude further litigation of the merits." Schlesinger v. Councilman, 420 U.S. 738, 746, 95 S.Ct. 1300, 43 L.Ed.2d 591 (1975). In particular, those judgments have identical effect under the Double Jeopardy Clause. See Grafton v. United States, 206 U.S. 333, 345, 27 S.Ct. 749, 51 L.Ed. 1084 (1907).
The jurisdiction and structure of the court-martial system likewise resemble those of other courts whose decisions we review. Although their jurisdiction has waxed and waned over time, courts-martial today can try service members for a vast swath of offenses, including garden-variety crimes unrelated to military service. See 10 U.S.C. §§ 877 - 934 ; Solorio, 483 U.S., at 438-441, 107 S.Ct. 2924 ; supra, at 2170 - 2171. As a result, the jurisdiction of those tribunals overlaps significantly with the criminal jurisdiction of federal and state courts. See Kebodeaux, 570 U.S., at 404, 133 S.Ct. 2496 (ALITO, J., concurring in judgment). The sentences meted out are also similar: Courts-martial can impose, on top of peculiarly military discipline, terms of imprisonment and capital punishment. See § 818(a) ; post, at 2186 - 2187 (THOMAS, J., concurring) ("[T]hese courts decide questions of the most momentous description, affecting even life itself" (quotation marks and ellipses omitted)). And the decisions of those tribunals are subject to an appellate process-what we have called an "integrated system of military courts and review procedures"-that replicates the judicial apparatus found in most States. Councilman, 420 U.S., at 758, 95 S.Ct. 1300. By the time a case like Ortiz's arrives on our doorstep under 28 U.S.C. § 1259, it has passed through not one or two but three military courts (including two that can have civilian judges).
And just as important, the constitutional foundation of courts-martial-as judicial bodies responsible for "the trial and punishment" of service members-is not in the least insecure. Dynes v. Hoover, 20 How. 65, 79, 15 L.Ed. 838 (1858). The court-martial is in fact "older than the Constitution," 1 Schlueter § 1-6(B), at 39; the Federalist Papers discuss "trials by courts-martial" under the Articles of Confederation, see No. 40, p. 250 (C. Rossiter ed. 1961). When it came time to draft a new charter, the Framers "recogni[zed] and sanction[ed] existing military jurisdiction," W. Winthrop, Military Law and Precedents 48 (2d ed. 1920) (emphasis deleted), by exempting from the Fifth Amendment's Grand Jury Clause all "cases arising in the land or naval forces." And by granting legislative power "[t]o make Rules for the Government and Regulation of the land and naval Forces," the Framers also authorized Congress to carry forward courts-martial. Art. I, § 8, cl. 14. Congress did not need to be told twice. The very first Congress continued the court-martial system as it then operated. See Winthrop, supra, at 47. And from that day to this one, Congress has maintained courts-martial in all their essentials to resolve criminal charges against service members. See 1 Schlueter § 1 -6, at 35-48.
Throughout that history, and reflecting the attributes described above, courts-martial have operated as instruments of military justice, not (as the dissent would have it) mere "military command," post, at 2199 (opinion of ALITO, J.). As one scholar has noted, courts-martial "have long been understood to exercise 'judicial' power," of the same kind wielded by civilian courts. Nelson, Adjudication in the Political Branches, 107 Colum. L. Rev. 559, 576 (2007) ; see W. De Hart, Observations on Military Law 14 (1859) (Military courts are "imbued or endowed with the like essence of judicial power" as "ordinary courts of civil judicature"); accord post, at 2186 - 2188 (THOMAS, J., concurring). Attorney General Bates, even in the middle of the Civil War, characterized a court-martial "proceeding, from its inception, [a]s judicial," because the "trial, finding, and sentence are the solemn acts of a court organized and conducted under the authority of and according to the prescribed forms of law." Runkle v. United States, 122 U.S. 543, 558, 22 Ct.Cl. 487, 7 S.Ct. 1141, 30 L.Ed. 1167 (1887) (quoting 11 Op. Atty. Gen. 19, 21 (1864)). Colonel Winthrop-whom we have called the "Blackstone of Military Law," Reid v. Covert, 354 U.S. 1, 19, n. 38, 77 S.Ct. 1222, 1 L.Ed.2d 1148 (1957) (plurality opinion)-agreed with Bates. He regarded a court-martial as "in the strictest sense" a "court of law and justice"-"bound, like any court, by the fundamental principles of law" and the duty to adjudicate cases "without partiality, favor, or affection." Winthrop, supra, at 54.
Despite all this, Bamzai claims that "Marbury bars th[is] Court from deciding" any cases coming to us from the court-martial system. Brief for Bamzai 3. He begins, much as we did above, by explaining that under Marbury the Court can exercise appellate jurisdiction only when it is "supervising an earlier decision by a lower court." Brief for Bamzai 13. The next step is where the argument gets interesting. The CAAF, Bamzai contends, simply does not qualify as such a body (nor does any other military tribunal). True enough, "the CAAF is called a 'court' "; and true enough, it decides cases, just as other courts do. Id., at 3 ; see id., at 28. But the CAAF, Bamzai notes, is "not an Article III court," id., at 3 (emphasis added): As all agree, its members lack the tenure and salary protections that are the hallmarks of the Article III judiciary, see 10 U.S.C. §§ 942(b), (c). Congress established the CAAF under its Article I, rather than its Article III, powers, and Congress located the CAAF (as we have previously observed) within the Executive Branch, rather than the judicial one. See § 941 ; Edmond, 520 U.S., at 664, and n. 2, 117 S.Ct. 1573. Those facts, in Bamzai's view, prevent this Court from exercising appellate jurisdiction over the CAAF. "For constitutional purposes," Bamzai concludes, the members of the CAAF "stand on equal footing with James Madison in Marbury ." Brief for Bamzai 4. (With variations here and there, the dissent makes the same basic argument.)
But this Court's appellate jurisdiction, as Justice Story made clear ages ago, covers more than the decisions of Article III courts. In Martin v. Hunter's Lessee, 1 Wheat. 304, 4 L.Ed. 97 (1816), we considered whether our appellate jurisdiction extends to the proceedings of state courts, in addition to those of the Article III federal judiciary. We said yes, as long as the case involves subject matter suitable for our review. Id., at 338-352. For our "appellate power," Story wrote, "is not limited by the terms of [Article III] to any particular courts." Id., at 338. Or again: "[I]t will be in vain to search in the letter of the [C]onstitution for any qualification as to the tribunal" from which a given case comes. Ibid. The decisions we review might come from Article III courts, but they need not.
The same lesson emerges from two contexts yet more closely resembling this one-each involving a non-Article III judicial system created by Congress. First, in United States v. Coe, 155 U.S. 76, 15 S.Ct. 16, 39 L.Ed. 76 (1894), this Court upheld the exercise of appellate jurisdiction over decisions of federal territorial courts, despite their lack of Article III status. We observed there that the Constitution grants Congress broad authority over the territories: to "make all needful Rules and Regulations respecting" those areas. Art. IV, § 3, cl. 2 ; see Coe, 155 U.S., at 85, 15 S.Ct. 16. And we recognized that Congress, with this Court's permission, had long used that power to create territorial courts that did not comply with Article III. See ibid. Chief Justice Marshall had held such a court constitutional in 1828 even though its authority was "not a part of that judicial power which is defined in the 3d article." American Ins. Co. v. 356 Bales of Cotton, 1 Pet. 511, 546, 7 L.Ed. 242 (1828) ; see Coe, 155 U.S., at 85, 15 S.Ct. 16 (describing that opinion as having "settled" that Article III "does not exhaust the power of Congress to establish courts"). The exception to Article III for territorial courts was thus an established and prominent part of the legal landscape by the time Coe addressed this Court's role in reviewing their decisions. And so the Court found the issue simple. "There has never been any question," we declared, "that the judicial action of [territorial courts] may, in accordance with the Constitution, be subjected to [our] appellate jurisdiction." Id., at 86, 15 S.Ct. 16.
Second, we have routinely, and uncontroversially, exercised appellate jurisdiction over cases adjudicated in the non-Article III District of Columbia courts. Here too, the Constitution grants Congress an unqualified power: to legislate for the District "in all Cases whatsoever." Art. I, § 8, cl. 17. Under that provision, we long ago determined, "Congress has the entire control over the [D]istrict for every purpose of government," including that of "organizing a judicial department." Kendall v. United States ex rel. Stokes, 12 Pet. 524, 619, 9 L.Ed. 1181 (1838). So when Congress invoked that authority to create a set of local courts, this Court upheld the legislation-even though the judges on those courts lacked Article III protections. See Palmore v. United States, 411 U.S. 389, 407-410, 93 S.Ct. 1670, 36 L.Ed.2d 342 (1973). We relied on the Constitution's "plenary grant [ ] of power to Congress to legislate with respect to" the national capital. Id., at 408, 93 S.Ct. 1670. And several years later, we referred as well to the "historical consensus" supporting congressional latitude over the District's judiciary. Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 70, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982) (plurality opinion); see id., at 65, n. 16, 102 S.Ct. 2858. To be sure, we have never explicitly held, as we did in the territorial context, that those same considerations support our appellate jurisdiction over cases resolved in the D.C. courts. But some things go unsaid because they are self-evident. And indeed, even Bamzai readily acknowledges that this Court can review decisions of the D.C. Court of Appeals. See Brief for Bamzai 23, 25.
The non-Article III court-martial system stands on much the same footing as territorial and D.C. courts, as we have often noted. The former, just like the latter, rests on an expansive constitutional delegation: As this Court early held, Article I gives Congress the power-"entirely independent" of Article III-"to provide for the trial and punishment of military and naval offences in the manner then and now practiced by civilized nations." Dynes, 20 How., at 79 ; see supra, at 2174 - 2175. The former has, if anything, deeper historical roots, stretching from before this nation's beginnings up to the present. See supra, at 2174 - 2175. And the former, no less than the others, performs an inherently judicial role, as to substantially similar cases. See supra, at 2174 - 2176. So it is not surprising that we have lumped the three together. In Palmore, the Court viewed the military, territories, and District as a triad of "specialized areas having particularized needs" in which Article III "give[s] way to accommodate plenary grants of power to Congress." 411 U.S., at 408, 93 S.Ct. 1670. And in Northern Pipeline, the plurality said of all three that "a constitutional grant of power [as] historically understood" has bestowed "exceptional powers" on Congress to create courts outside Article III. 458 U.S., at 66, 70, 102 S.Ct. 2858. Given those well-understood connections, we would need a powerful reason to divorce military courts from territorial and D.C. courts when it comes to defining our appellate jurisdiction.
And Bamzai fails to deliver one. His initial attempt relies on a simple fact about territorial and D.C. courts: They exercise power over "discrete geographic areas." Brief for Bamzai 23. Military courts do not; they instead exercise power over discrete individuals-i.e., members of the armed forces. So Bamzai gives us a distinction: places vs. people. What he does not offer is a good reason why that distinction should matter in our jurisdictional inquiry-why it is one of substance, rather than convenience. He mentions that the territorial and D.C. courts are "functional equivalents of state courts." Id., at 24; see Tr. of Oral Arg. 33, 35. But for starters, that could be said of courts-martial too. As we have described, they try all the "ordinary criminal offenses" (murder, assault, robbery, drug crimes, etc., etc., etc.) that state courts do.
Kebodeaux, 570 U.S., at 404, 133 S.Ct. 2496 (ALITO, J., concurring in judgment); see supra, at 2170 - 2171, 2174 - 2175. And more fundamentally, we do not see why geographical state -likeness, rather than historical court -likeness, should dispose of the issue. As we have shown, the petition here asks us to "revise[ ] and correct[ ] the proceedings in a cause already instituted" in a judicial system recognized since the founding as competent to render the most serious decisions. Marbury, 1 Cranch, at 175 ; see supra, at 2174 - 2176. That should make the case an appeal, whether or not the domain that system covers is precisely analogous to, say, Alabama.
So Bamzai tries another route to cleave off military courts, this time focusing on their location in the Executive Branch. See Brief for Bamzai 26-30. Bamzai actually never says in what branch (if any) he thinks territorial and D.C. courts reside. But he knows-because this Court has said-that the CAAF is an "Executive Branch entity." Edmond, 520 U.S., at 664, and n. 2, 117 S.Ct. 1573 ; see supra, at 2176 - 2177. And in Bamzai's view, two of our precedents show that we may never accept appellate jurisdiction from any person or body within that branch. See Brief for Bamzai 2-4. The first case he cites is Ex parte Vallandigham, 1 Wall. 243, 17 L.Ed. 589 (1864), in which the Court held that it lacked jurisdiction over decisions of a temporary Civil War-era military commission. See id ., at 251-252. The second is Marbury itself, in which the Court held (as if this needed repeating) that it lacked jurisdiction to review James Madison's refusal to deliver a commission appointing William Marbury a justice of the peace. See 1 Cranch, at 175-176 ; supra, at 2173 - 2174.
As to the first, Vallandigham goes to show only that not every military tribunal is alike. The commission the Court considered there was established by General Ambrose Burnside (he of the notorious facial hair) for a time-limited, specialized purpose-to try persons within the military Department of Ohio (Burnside's then-command) for aiding the Confederacy. See 1 Wall.,
Question: What is the ideological direction of the decision?
A. Conservative
B. Liberal
C. Unspecifiable
Answer:
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songer_treat
|
C
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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, Appellant, v. RABB, Wade Lee.
No. 81-3104.
United States Court of Appeals, Third Circuit.
Submitted Under Third Circuit Rule 12(6) April 28, 1982.
Decided May 27, 1982.
Rehearing and Rehearing In Banc Denied June 28, 1982.
Certiorari Denied Oct. 4,1982.
See 103 S.Ct. 162.
J. Alan Johnson, U. S. Atty., Paul J. Brysh, Asst. U. S. Atty., Pittsburgh, Pa., for appellant.
Bart M. Beier, Pittsburgh, Pa., for appel-lee.
Before ALDISERT, WEIS and BECKER, Circuit Judges.
OPINION OF THE COURT
ALDISERT, Circuit Judge.
This appeal by the United States from the district court’s order dismissing an indictment with prejudice requires us to decide whether a timely indictment returned by a grand jury whose term has expired, later superseded by an indictment returned by a valid grand jury, satisfies the Speedy Trial Act requirement that indictment occur within thirty days of arrest, 18 U.S.C. § 3161(b). We conclude that it does and therefore reverse.
I.
Appellee Wade Lee Rabb, who had been arrested on August 3, 1981, was indicted by a federal grand jury on August 10,1981, on charges of robbing a postal carrier and jeopardizing the carrier’s life with a dangerous weapon, 18 U.S.C. § 2114, and unlawful possession of stolen government checks, 18 U.S.C. § 1708. The United States Attorney subsequently discovered that the charging grand jury’s term had expired on May 8, 1981. On October 2, 1981, the government sought and obtained from an unexpired grand jury a superseding indictment identical in all material respects to the first, and advised defense counsel on October 4 of the reasons for this action. The district court dismissed the first indictment on the government’s motion.
Arguing that he had not been indicted within thirty days of his arrest as required by the Speedy Trial Act, 18 U.S.C. § 3161(b), Rabb moved for dismissal on November 5, 1981. The following day the court held a hearing which it focused on “the government’s mistake,” and at the close of the hearing it dismissed the indictment with prejudice pursuant to 18 U.S.C. § 3162(a)(1). Citing the jury supervisor’s testimony that she had advised the Assistant United States Attorney in charge of the grand jury to seek an extension of the grand jury’s term, the court found that the government’s failure to heed the advice was “gross negligence.”
On November 12, 1981, the government filed a notice of appeal from the order of dismissal, properly invoking our jurisdiction under 18 U.S.C. § 3731. The next day the district court, acting on its own motion, calendared for November 19 a “Hearing To Supplement The Record.” At that hearing the court summoned and interrogated witnesses, produced evidence and ordered it admitted into the record, and argued legal and factual issues with counsel and witnesses. At the close of testimony and without hearing formal argument, the court announced that it would reaffirm its previous decision to dismiss Rabb’s indictment with prejudice, concluding that the August 10 indictment was a nullity.
II.
The issue before us is solely one of statutory construction of the Speedy Trial Act. The Act requires speedy indictments as well as speedy trials following indictments: “Any information or indictment charging an individual with the commission of an offense shall be filed within thirty days from the date on which such individual was arrested or served with a summons in connection with such charges.” 18 U.S.C. § 3161(b). Section 3162 implements the command of § 3161(b) by requiring dismissal of charges upon which no indictment has been filed within the time limits. But whether an indictment returned by a grand jury whose term has expired satisfies § 3161(b) is apparently a question of first impression in the courts of appeal.
To discern Congress’ intent in § 3161(b), we begin with the language of the statute itself because we presume that the words Congress has chosen best reflect the legislative purpose. Consumer Products Safety Comm’n. v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 2056, 64 L.Ed.2d 766 (1980); Richards v. United States, 369 U.S. 1, 9, 82 S.Ct. 585, 591, 7 L.Ed.2d 492 (1962). Nevertheless, the approach is not one of slavish literalism, for “[a] word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used.” Towne v. Eisner, 245 U.S. 418, 425, 38 S.Ct. 158, 159, 62 L.Ed. 372 (1918) (Holmes, J.). We reject a view that would make “a fortress out of a dictionary,” remembering instead that “statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.” Cabell v. Markham, 148 F.2d 737, 739 (2d Cir.) (Learned Hand, J.), aff’d, 326 U.S. 404, 66 S.Ct. 193, 90 L.Ed. 165 (1945). Thus, although the literal meaning of the words chosen by Congress is respected, we no longer follow a rigid, semantic approach to statutory construction, lest we construe a statute within its letter, but beyond Congress’ intent.
The specific task before us is to determine whether the term “indictment” in § 3161(b) is broad enough to encompass an indictment returned by a grand jury whose term had expired, but regular in all other respects. Thus the specific question is to interpret an unclear norm; we are not faced with a lacuna, or a nonexistent norm. Viewed in light of its purpose in the statutory schema and with “an eye to the surrounding statutory landscape,” United States v. Bass, 404 U.S. 336, 344, 92 S.Ct. 515, 521, 30 L.Ed.2d 488 (1971), we conclude that appellee’s reading of § 3161(b), although literally correct, is unsound, and that the August 10 indictment met the requirements of § 3161(b).
III.
In United States v. Goldstein, 502 F.2d 526, 529 (3d Cir. 1974) (in banc), this court identified the three functions of an indictment; the August 10 indictment performed all three. It put the defendant on notice of the exact nature of the charges he would be required to defend against; it would have protected him from a second trial on the same offense had he been acquitted, see United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896); and it was returned by an independent body upon a finding of probable cause. The superseding indictment was identical to the one returned by the first grand jury, and there was no allegation that the government obtained either indictment fraudulently or in bad faith. Once Rabb was arraigned on that indictment he could begin to prepare his defense knowing exactly what the government had to prove. With this knowledge he could intelligently decide whether to face trial or attempt to plea bargain. The government, also considering the August 10 indictment to be valid, proceeded with the ease on the assumption that it was bound to bring it to trial within the time permitted by § 3161(c). Thus, Rabb has suffered no prejudice as a result of the defect in the indictment.
IV.
The legislative history of § 3161(b) reveals that its purpose was to accelerate the indictment phase of criminal proceedings, which at times did not occur until months after arrest. As originally proposed, the Speedy Trial Act provided for a blanket 120 day period from arrest (or indictment if returned before arrest) to trial but Congress eventually determined that pre-indictment delays required segmentation of this period to insure orderly disposition of criminal cases. As enacted, the statute prohibits indictments or informations brought more than 30 days after arrest, with trial to commence within 70 days thereafter, plus excludable time. Recognizing that § 3161(b) is essentially a congressional directive for the orderly conduct of criminal proceedings, we have not been convinced that Congress intended its bar to apply to superseding indictments made necessary by the type of defect present here. Cf. United States v. Wilks, 629 F.2d 669 (10th Cir. 1980) (§ 3161(b) time limitations do not apply to superseding indictments generally); see also United States v. Budzyna, 666 F.2d 666 (1st Cir. 1981) (holding that date of original indictment, not that of superseding indictment, controls for purposes of determining whether Speedy Trial Act sanctions apply).
Our interpretation of Congress’ intent in § 3161(b) is supported by our examination of the surrounding “statutory landscape.” 18 U.S.C. § 3288 provides that an indictment dismissed because of “any error, defect, or irregularity with respect to the grand jury” is nevertheless sufficient to toll the statute of limitations for an offense and re-indictments are possible. The second circuit held in United States v. Macklin, 535 F.2d 191 (2d Cir. 1976), that an indictment returned by a grand jury whose term had expired, the precise situation present here, was sufficient under § 3288 to toll the statute of limitations. A construction of § 3161(b) that would render ineffective for Speedy Trial Act purposes a defective indictment that tolls the statute of limitations hardly makes for a pleasing statutory landscape.
V.
Appellee argues, however, that a more proximate feature of the statutory landscape is Speedy Trial Act § 3161(d)(1), which provides:
If any indictment ... is dismissed upon motion of the defendant ... and thereafter ... [an] indictment is filed charging such defendant with the same offense or an offense based on the same conduct or arising from the same criminal episode, the provisions of [subsection] (b) ... of this section shall be applicable with respect to such subsequent .. . indictment. .. .
Rabb contends that under § 3161(d)(1) the second indictment had to be returned within 30 days of his arrest, as required by § 3161(b). We find § 3161(d)(l)’s mandate less than crystal clear, however, because of its failure to indicate the starting date for the time limits. It therefore becomes necessary to resort to the legislative history of this section which reveals that Congress intended that the time limits of subsection (b) would begin to run anew from the date of the defendant’s second arrest or charge, if any, and not from the date of the first arrest or charge. See A. Partridge, Legislative History of Title I of the Speedy Trial Act of 1974 78-79 (1980). See also United States v. Dennis, 625 F.2d 782, 793 (8th Cir. 1980). Thus, rather than being inconsistent, § 3161(d) reinforces our construction of § 3161(b).
VI.
We therefore hold that in the absence of bad faith on the part of the government or prejudice to the defendant, an indictment returned by a grand jury whose term has expired is sufficient to toll Speedy Trial Act § 3161(b) if it is followed by a valid indictment, identical in all material respects. Because the Speedy Trial Act was not violated by the government in this case, the district court’s dismissal was erroneous and we need not decide whether the dismissal with prejudice was appropriate.
The judgment of the district court will be reversed.
. Because this was a special grand jury, 18 U.S.C. § 3331, its term could have been extended before its expiration by order of the court; the U. S. Attorney had failed to obtain such an order.
. Section 3162(a)(1) provides:
If, in the case of any individual against whom a complaint is filed charging such individual with an offense, no indictment or information is filed within the time limit required by section 3161(b) as extended by section 3161(h) of this chapter, such charge against that individual contained in such complaint shall be dismissed or otherwise dropped. In determining whether to dismiss the case with or without prejudice, the court shall consider, among others, each of the following factors: the seriousness of the offense; the facts and circumstances of the case which led to the dismissal; and the impact of a reprosecution on the administration of this chapter and on the administration of justice.
. 18 U.S.C. § 3288 provides:
Whenever an indictment is dismissed for any error, defect, or irregularity with respect to the grand jury, .. . after the period prescribed by the applicable statute of limitations has expired, a new indictment may be returned in the appropriate jurisdiction within six calendar months of the date of the dismissal of the indictment . .. which new indictment shall not be barred by any statute of limitations.
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_caseorigin
|
160
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court in which the case originated. Focus on the court in which the case originated, not the administrative agency. For this reason, if appropiate note the origin court to be a state or federal appellate court rather than a court of first instance (trial court). If the case originated in the United States Supreme Court (arose under its original jurisdiction or no other court was involved), note the origin as "United States Supreme Court". If the case originated in a state court, note the origin as "State Court". Do not code the name of the state. The courts in the District of Columbia present a special case in part because of their complex history. Treat local trial (including today's superior court) and appellate courts (including today's DC Court of Appeals) as state courts. Consider cases that arise on a petition of habeas corpus and those removed to the federal courts from a state court as originating in the federal, rather than a state, court system. A petition for a writ of habeas corpus begins in the federal district court, not the state trial court. Identify courts based on the naming conventions of the day. Do not differentiate among districts in a state. For example, use "New York U.S. Circuit for (all) District(s) of New York" for all the districts in New York.
PHILLIPS v. NEW YORK.
No. 497.
Argued April 18, 1960.
Decided April 25, 1960.
Henry W. Schober argued the cause for petitioner. With him on the brief were Anthony T. Antinozzi and Frank A. Fritz, Jr.
Joseph I. Heneghan argued the cause for respondent. With him on the brief was Manuel W. Levine.
Per Curiam. .
After hearing oral argument and fully examining the record which was only partially set forth in the petition for certiorari, we conclude that the totality of circumstances as the record makes them manifest did not warrant bringing the case here. Accordingly, the writ is dismissed as improvidently granted.
Question: What is the court in which the case originated?
001. U.S. Court of Customs and Patent Appeals
002. U.S. Court of International Trade
003. U.S. Court of Claims, Court of Federal Claims
004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces
005. U.S. Court of Military Review
006. U.S. Court of Veterans Appeals
007. U.S. Customs Court
008. U.S. Court of Appeals, Federal Circuit
009. U.S. Tax Court
010. Temporary Emergency U.S. Court of Appeals
011. U.S. Court for China
012. U.S. Consular Courts
013. U.S. Commerce Court
014. Territorial Supreme Court
015. Territorial Appellate Court
016. Territorial Trial Court
017. Emergency Court of Appeals
018. Supreme Court of the District of Columbia
019. Bankruptcy Court
020. U.S. Court of Appeals, First Circuit
021. U.S. Court of Appeals, Second Circuit
022. U.S. Court of Appeals, Third Circuit
023. U.S. Court of Appeals, Fourth Circuit
024. U.S. Court of Appeals, Fifth Circuit
025. U.S. Court of Appeals, Sixth Circuit
026. U.S. Court of Appeals, Seventh Circuit
027. U.S. Court of Appeals, Eighth Circuit
028. U.S. Court of Appeals, Ninth Circuit
029. U.S. Court of Appeals, Tenth Circuit
030. U.S. Court of Appeals, Eleventh Circuit
031. U.S. Court of Appeals, District of Columbia Circuit (includes the Court of Appeals for the District of Columbia but not the District of Columbia Court of Appeals, which has local jurisdiction)
032. Alabama Middle U.S. District Court
033. Alabama Northern U.S. District Court
034. Alabama Southern U.S. District Court
035. Alaska U.S. District Court
036. Arizona U.S. District Court
037. Arkansas Eastern U.S. District Court
038. Arkansas Western U.S. District Court
039. California Central U.S. District Court
040. California Eastern U.S. District Court
041. California Northern U.S. District Court
042. California Southern U.S. District Court
043. Colorado U.S. District Court
044. Connecticut U.S. District Court
045. Delaware U.S. District Court
046. District Of Columbia U.S. District Court
047. Florida Middle U.S. District Court
048. Florida Northern U.S. District Court
049. Florida Southern U.S. District Court
050. Georgia Middle U.S. District Court
051. Georgia Northern U.S. District Court
052. Georgia Southern U.S. District Court
053. Guam U.S. District Court
054. Hawaii U.S. District Court
055. Idaho U.S. District Court
056. Illinois Central U.S. District Court
057. Illinois Northern U.S. District Court
058. Illinois Southern U.S. District Court
059. Indiana Northern U.S. District Court
060. Indiana Southern U.S. District Court
061. Iowa Northern U.S. District Court
062. Iowa Southern U.S. District Court
063. Kansas U.S. District Court
064. Kentucky Eastern U.S. District Court
065. Kentucky Western U.S. District Court
066. Louisiana Eastern U.S. District Court
067. Louisiana Middle U.S. District Court
068. Louisiana Western U.S. District Court
069. Maine U.S. District Court
070. Maryland U.S. District Court
071. Massachusetts U.S. District Court
072. Michigan Eastern U.S. District Court
073. Michigan Western U.S. District Court
074. Minnesota U.S. District Court
075. Mississippi Northern U.S. District Court
076. Mississippi Southern U.S. District Court
077. Missouri Eastern U.S. District Court
078. Missouri Western U.S. District Court
079. Montana U.S. District Court
080. Nebraska U.S. District Court
081. Nevada U.S. District Court
082. New Hampshire U.S. District Court
083. New Jersey U.S. District Court
084. New Mexico U.S. District Court
085. New York Eastern U.S. District Court
086. New York Northern U.S. District Court
087. New York Southern U.S. District Court
088. New York Western U.S. District Court
089. North Carolina Eastern U.S. District Court
090. North Carolina Middle U.S. District Court
091. North Carolina Western U.S. District Court
092. North Dakota U.S. District Court
093. Northern Mariana Islands U.S. District Court
094. Ohio Northern U.S. District Court
095. Ohio Southern U.S. District Court
096. Oklahoma Eastern U.S. District Court
097. Oklahoma Northern U.S. District Court
098. Oklahoma Western U.S. District Court
099. Oregon U.S. District Court
100. Pennsylvania Eastern U.S. District Court
101. Pennsylvania Middle U.S. District Court
102. Pennsylvania Western U.S. District Court
103. Puerto Rico U.S. District Court
104. Rhode Island U.S. District Court
105. South Carolina U.S. District Court
106. South Dakota U.S. District Court
107. Tennessee Eastern U.S. District Court
108. Tennessee Middle U.S. District Court
109. Tennessee Western U.S. District Court
110. Texas Eastern U.S. District Court
111. Texas Northern U.S. District Court
112. Texas Southern U.S. District Court
113. Texas Western U.S. District Court
114. Utah U.S. District Court
115. Vermont U.S. District Court
116. Virgin Islands U.S. District Court
117. Virginia Eastern U.S. District Court
118. Virginia Western U.S. District Court
119. Washington Eastern U.S. District Court
120. Washington Western U.S. District Court
121. West Virginia Northern U.S. District Court
122. West Virginia Southern U.S. District Court
123. Wisconsin Eastern U.S. District Court
124. Wisconsin Western U.S. District Court
125. Wyoming U.S. District Court
126. Louisiana U.S. District Court
127. Washington U.S. District Court
128. West Virginia U.S. District Court
129. Illinois Eastern U.S. District Court
130. South Carolina Eastern U.S. District Court
131. South Carolina Western U.S. District Court
132. Alabama U.S. District Court
133. U.S. District Court for the Canal Zone
134. Georgia U.S. District Court
135. Illinois U.S. District Court
136. Indiana U.S. District Court
137. Iowa U.S. District Court
138. Michigan U.S. District Court
139. Mississippi U.S. District Court
140. Missouri U.S. District Court
141. New Jersey Eastern U.S. District Court (East Jersey U.S. District Court)
142. New Jersey Western U.S. District Court (West Jersey U.S. District Court)
143. New York U.S. District Court
144. North Carolina U.S. District Court
145. Ohio U.S. District Court
146. Pennsylvania U.S. District Court
147. Tennessee U.S. District Court
148. Texas U.S. District Court
149. Virginia U.S. District Court
150. Norfolk U.S. District Court
151. Wisconsin U.S. District Court
152. Kentucky U.S. Distrcrict Court
153. New Jersey U.S. District Court
154. California U.S. District Court
155. Florida U.S. District Court
156. Arkansas U.S. District Court
157. District of Orleans U.S. District Court
158. State Supreme Court
159. State Appellate Court
160. State Trial Court
161. Eastern Circuit (of the United States)
162. Middle Circuit (of the United States)
163. Southern Circuit (of the United States)
164. Alabama U.S. Circuit Court for (all) District(s) of Alabama
165. Arkansas U.S. Circuit Court for (all) District(s) of Arkansas
166. California U.S. Circuit for (all) District(s) of California
167. Connecticut U.S. Circuit for the District of Connecticut
168. Delaware U.S. Circuit for the District of Delaware
169. Florida U.S. Circuit for (all) District(s) of Florida
170. Georgia U.S. Circuit for (all) District(s) of Georgia
171. Illinois U.S. Circuit for (all) District(s) of Illinois
172. Indiana U.S. Circuit for (all) District(s) of Indiana
173. Iowa U.S. Circuit for (all) District(s) of Iowa
174. Kansas U.S. Circuit for the District of Kansas
175. Kentucky U.S. Circuit for (all) District(s) of Kentucky
176. Louisiana U.S. Circuit for (all) District(s) of Louisiana
177. Maine U.S. Circuit for the District of Maine
178. Maryland U.S. Circuit for the District of Maryland
179. Massachusetts U.S. Circuit for the District of Massachusetts
180. Michigan U.S. Circuit for (all) District(s) of Michigan
181. Minnesota U.S. Circuit for the District of Minnesota
182. Mississippi U.S. Circuit for (all) District(s) of Mississippi
183. Missouri U.S. Circuit for (all) District(s) of Missouri
184. Nevada U.S. Circuit for the District of Nevada
185. New Hampshire U.S. Circuit for the District of New Hampshire
186. New Jersey U.S. Circuit for (all) District(s) of New Jersey
187. New York U.S. Circuit for (all) District(s) of New York
188. North Carolina U.S. Circuit for (all) District(s) of North Carolina
189. Ohio U.S. Circuit for (all) District(s) of Ohio
190. Oregon U.S. Circuit for the District of Oregon
191. Pennsylvania U.S. Circuit for (all) District(s) of Pennsylvania
192. Rhode Island U.S. Circuit for the District of Rhode Island
193. South Carolina U.S. Circuit for the District of South Carolina
194. Tennessee U.S. Circuit for (all) District(s) of Tennessee
195. Texas U.S. Circuit for (all) District(s) of Texas
196. Vermont U.S. Circuit for the District of Vermont
197. Virginia U.S. Circuit for (all) District(s) of Virginia
198. West Virginia U.S. Circuit for (all) District(s) of West Virginia
199. Wisconsin U.S. Circuit for (all) District(s) of Wisconsin
200. Wyoming U.S. Circuit for the District of Wyoming
201. Circuit Court of the District of Columbia
202. Nebraska U.S. Circuit for the District of Nebraska
203. Colorado U.S. Circuit for the District of Colorado
204. Washington U.S. Circuit for (all) District(s) of Washington
205. Idaho U.S. Circuit Court for (all) District(s) of Idaho
206. Montana U.S. Circuit Court for (all) District(s) of Montana
207. Utah U.S. Circuit Court for (all) District(s) of Utah
208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota
209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota
210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma
211. Court of Private Land Claims
212. United States Supreme Court
Answer:
|
sc_caseorigin
|
117
|
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. CERTAIN PARCELS OF LAND IN THE COUNTY OF FAIRFAX, VIRGINIA, et al.
No. 253.
Argued January 9, 1953.
Decided April 6, 1953.
Assistant Attorney General Kirks argued the cause for the United States. With him on the brief were Solicitor General Cummings and Assistant Attorney General Mclnerney.
Frederick A. Ballard argued the cause for respondents. With him on the brief was Joseph W. Wyatt.
Mr. Justice Clark
delivered the opinion of the Court.
This nine-year-old proceeding is for the condemnation of certain easements in land and title to sewer mains which together comprise the sewerage system of Belle Haven, a residential subdivision in Fairfax County, Virginia. It was brought under the authority of Title II, § 202 of the Act of June 28, 1941, 55 Stat. 361, and a rider on the Appropriation Act of July 15, 1943, 57 Stat. 565, both amendments to the Lanham Act of October 14, 1940, 54 Stat. 1125, 42 U. S. C. § 1521 et seq. Questions important in the administration of the Act moved us to grant certiorari, 344 U. S. 812, to review the dismissal of the government petition. 196 F. 2d 657, aff’g 101 F. Supp. 172.
During World War II, defense housing needs in the Washington area led the government to construct a large sewer project to serve defense housing properties in Fair-fax County. It sought to utilize, as a part of its trunk-line sewer, existing easements containing sewer pipes in the system originally constructed by respondent Belle Haven Realty Corporation. Negotiations produced an agreement under which the corporation, still holder of the fee, was to accept nominal compensation for its sewer properties on the condition that the government take the entire system and that the final order protect the Belle Haven householders against any future charges for its use. The government then filed a condemnation petition together with a declaration of taking and deposited estimated just compensation of $2. Possession was taken under court order, Belle Haven’s outfalls into the Potomac River blocked off, and its sewage diverted into the government’s trunk-line system. In .1948, a group of Belle Haven householders intervened as defendants, alleging that the government had leased the integrated system to the Fairfax County Board of Supervisors and that the latter had undertaken to assess a use charge of $2 per month against each householder in Belle Haven subdivision. The intervenors claimed that they were the equitable owners in fee of the Belle Haven system since the developing corporation had included its construction cost in the purchase price of their lots, that they had been granted easements of user in that system and that the use charges assessed exceeded reasonable maintenance and operation costs. The prayer was that the court, in lieu of direct compensation for their interests, protect them against having to contribute to the amortization of the integrated system. The court decided that the householders had acquired implied easements in the Belle Haven system for which they were entitled to claim compensation, and intervention was granted. 89 F. Supp. 571. But the district judge held that he could not make an award in the form of a limitation on future use charges and he denied a temporary injunction against the collection of current bills. 89 F. Supp. 567. The in-tervenors then amended their answer to attack the taking as unauthorized under the Lanham Act. The Belle Haven Realty Corporation, which had not previously answered the government’s petition, did so in 1950, claiming it was the legal owner of the system and entitled to its present reproduction cost, less depreciation, as just compensation.
The District Court dismissed the petition on the ground that the Lanham Act, as amended, required the consent of the intervenors as well as the realty corporation, that the corporation had only conditionally consented to the taking and that the householders had not consented at all. While the Court of Appeals approved the trial court’s reading of the statutory consent requirement, it declined to base its affirmance on that ground because, “It is perfectly clear . . . that the power of condemnation given by the Lanham Act extends only to lands or interests in lands; . . . there is nothing in the act which authorizes the condemnation of a public works system such as this.” 196 F. 2d 657, 662, relying on Puerto Rico R. Light & Power Co. v. United States, 131 F. 2d 491.
The original Lanham Act of October 14,. 1940, 54 Stat. 1125, was designed to provide relief for defense areas found by the President to be suffering from an existing or impending housing shortage. In such cases, the Federal Works Administrator was empowered to acquire “improved or unimproved lands or interests in lands” for construction sites by purchase, donation, exchange, lease or condemnation. The quoted language describing the kind of property which the Administrator could condemn was carried over into Title II of the Act, added in 1941, which extended the statute to public works shortages in defense areas. “Public work,” as defined, included sewers and sewage facilities. § 201. While the general language “improved or unimproved lands or interests in lands” included within § 202 of Title II of the Lanham Act appears to authorize the taking here, United States v. Carmack, 329 U. S. 230, 242, 243, n. 13 (1946), it is not necessary to depend on that section alone. In 1943, the Act was amended to provide that “none of the funds authorized herein shall be used to acquire public works already operated by public or private agencies, except where funds are allotted for substantial additions or improvements to such public works and with the consent of the owners thereof . . . .” 57 Stat. 565, 42 U. S. C. § 1534, note. The 1943 amendment was in effect when the present petition was filed and its applicability here is common ground among the parties. It explicitly authorized the condemnation of such property subject to the conditions stated.
In this connection, we do not believe that the consent requirement bars acquisitions by condemnation. This interpretation would strip it of significance since the other means of acquiring property described in the statute necessarily rest on consensual transactions. Although condemnation is sometimes regarded as a taking without the owner’s consent, 1 Lewis, Eminent Domain (3d ed.), § 1, it is not anomalous to provide for such consent which can, in effect, represent an election to have value determined by a court rather than by the parties. In addition, “friendly” condemnation proceedings are often used to obtain clear title where price is already settled. Cf. Danforth v. United States, 308 U. S. 271 (1939). Thus construed, all of the statutory terms are given effect.
Here, the consent of Belle Haven Realty Corporation was implicit in its promise to accept-nominal damages. That consent cannot be characterized as conditional. Indeed, the corporation’s answer, filed six years later, recognized this; rather than resisting the taking, it merely asserted a claim for more than nominal compensation.
Whether the intervening householders were “owners” whose consent was required is a different matter. Their interests were regarded by both courts below as implied easements or rights of user in the sewer system. It is true that easement holders have been held to be “owners” as that term is used in condemnation statutes. Swanson v. United States, 156 F. 2d 442, 445; United States v. Welch, 217 U. S. 333 (1910); cf. United States v. General Motors Corp., 323 U. S. 373, 378 (1945). But the relevant question in those cases is whether the holders of such interests are entitled to compensation under the Constitution. The compensability of these interests is not in issue here; it follows that the cases on which inter-venors rely are not controlling. In deciding who are “owners” here, we look to the scheme of the Act itself. We think it unlikely that, in providing for the condemnation of public works, Congress at the same time intended to make preliminary negotiations so cumbersome as to virtually nullify the power granted. Yet the interpretation pressed by respondents would have that effect. It would compel the government, before taking public works, to deal with the holder of every servitude to which the property might be subject. We hold that intervenors were not “owners” under the 1943 amendment and that the government was not required before condemning to engage in a round robin to secure from each of them a self-serving “Barkis is willin’.”
We do not pass on other issues raised by respondents, some of which if decided adversely to the government might be cured by amendment, and others we deem not ripe for adjudication because of factual questions not yet resolved.
Reversed.
Mr. Justice Jackson took no part in the consideration or decision of this case.
“Sec. 202. Whenever the President finds that in any area or locality an acute shortage of public works or equipment for public works necessary to the health, safety, or welfare of persons engaged in national-defense activities exists or impends which would impede national-defense activities, and that such public works or equipment cannot otherwise be provided when needed, or could not be provided without the imposition of an increased excessive tax burden or an unusual or excessive increase in the debt limit of the taxing or borrowing authority in which such shortage exists, the Federal Works Administrator is authorized, with the approval of the President, in order to relieve such shortage—
“(a) To acquire, . . . improved or unimproved lands or interests in lands by purchase, donation, exchange, lease ... or condemnation ... for such public works.”
“. . . none of the funds authorized herein shall be used to acquire public works already operated by public or private agencies, except where funds are allotted for substantial additions or improvements to such public works and with the consent of the owners thereof . . . .”
Since the district judge deemed himself unable to order the government to restore the Belle Haven system to its original condition, the householders were remitted by dismissal of the condemnation petition to a separate action for any compensable damage they suffered because of the taking. Under this ruling, the property taken would remain part of the integrated system whether title is in the government or the realty corporation. In each case, the rights of the householders, if any, to an award remain to be determined. One effect of upholding the condemnation is to have that question tried on remand in this proceeding.
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
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191. Pennsylvania U.S. Circuit for (all) District(s) of Pennsylvania
192. Rhode Island U.S. Circuit for the District of Rhode Island
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195. Texas U.S. Circuit for (all) District(s) of Texas
196. Vermont U.S. Circuit for the District of Vermont
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201. Circuit Court of the District of Columbia
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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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sc_adminaction_is
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B
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether administrative action occurred in the context of the case prior to the onset of litigation. The activity may involve an administrative official as well as that of an agency. To determine whether administration action occurred in the context of the case, consider the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
UNITED STATES v. FIRST CITY NATIONAL BANK OF HOUSTON et al.
No. 914.
Argued February 20-21, 1967.
Decided March 27, 1967.
Assistant Attorney General Turner argued the cause for the United States in both cases. With him on the brief were Solicitor General Marshall and Richard A. Posner.
David T. Searls argued the cause for appellees First City National Bank of Houston et al. in No. 914. With him on the brief were Harry M. Reasoner, Leon M. Payne and William R. Lummis. Frederic L. Ballard argued the cause for appellees Provident National Bank et al. in No. 972. With him on the brief were Charles I. Thompson, Jr., Tyson W. Coughlin and Richard C. Bull. Eugene J. Metzger in No. 914 and Joseph J. O’Malley in No. 972 argued the- cause for appellee Comptroller of the Currency. With them on the brief were Robert Bloorh, Charles H. McEnerney, Jr., and Philip L. Roache, Jr.
Together with No. 972, United States v. Provident National Bank et al., on appeal from the United States District Court for the Eastern District- of Pennsylvania, argued February 21, 1967.
Mr. Justice Douglas
delivered the opinion of the Court.
These civil suits were filed by the United States under § 7 of the Clayton Act, 38 Stat. 731, as amended, 64 Stat. 1125, 15 U. S. C. § 18, to prevent two bank mergers — one in Texas between the First City National Bank of Houston and the Southern National Bank of Houston, and one in Pennsylvania between the Provident National Bank and the Central Penn National Bank, both in Philadelphia.
The Comptroller of the Currency approved the mergers under the Bank Merger Act of 1966, 80 Stat. 7,12 U. S. C. § 1828 (e) (1964 ed., Supp. II). The United States thereupon brought these suits in the respective District Courts and the Comptroller intervened in them. The District Courts dismissed the complaints. No. 914 (unreported) ; No. 972, 262 F. Supp. 397. The United States appealed, 32 Stat. 823, as amended, 15 U. S. C. § 29, and we noted probable jurisdiction, 385 U. S. 1023, 1024.
I. ■
It is suggested that the complaints are defective in that they fail to state that the actions are brought under the Bank Merger Act of 1966, do not even mention the Act, and that, therefore, these cases should be remanded to allow the Government to amend the complaints.
The Bank Merger Act of 1966 provides that “[a]ny action brought under the antitrust laws” shall be brought within a specified time (12 U. S. C. § 1828 (c)(7)(A)); it also specifies the standards to be applied by a court in a judicial proceeding challenging a bank merger “on the ground that the merger . . . constituted a violation of any antitrust laws other than section 2 of [the Sherman Act]” (12 U. S. C. § 1828 (c)(7)(B)); and it provides immunity from such an attack if those standards are met. Section 1828 (c)(8) provides that, “[f]or the purposes of [§ 1828 (c) ], the term ‘antitrust laws’ means . . . [the Sherman Act, the Clayton Act], and any other Acts in pari materia.” (Emphasis added.) Thus, an action challenging a bank merger on the ground of its anticompeti-tive effects is brought under the antitrust laws. Once an action - is brought under the antitrust laws, the Bank Merger Act provides a new defense or justification to the merger’s proponents — “that the anticompetitive effects of the proposed transaction are clearly outweighed in the public interest by the probable effect of the transaction in meeting the convenience and needs of the community to be served.” 12 U. S. C. § 1828 (c)(5)(B). There is no indication that an action challenging a merger on the ground of its anticompetitive effects is bottomed on the Bank Merger. Act rather than on the antitrust, laws. What is apparent is that Congress intended that a defense or justification be available once it had been determined that a transaction would have anticompetitive effects, as judged by the standards normally applied in antitrust actions. Thus, the Government’s failure to base the actions on the Bank Merger Act of 1966 does not constitute a defect in its pleadings. Nor is the Government’s failure to mention the Bank Merger Act fatal, for, as we shall see, the offsetting community “convenience and needs,” as, specified in 12 U. S. C. § 1828 (c)(5)(B), must be pleaded and proved by the defenders of the merger.
. - n.
An application for approval of- the Texas merger was made to the Comptroller of the Currency pursuant to 12 U. S. C. § 1828 (c)(5)(B), which provides that he shall not approve the merger “whose effect in any section of*the country may be substantially to lessen competition, or to tend to create a monopoly, or which in any other manner would be-in restraint of trade, unless [he] finds that the - anticompetitive effects of the proposed transaction are clearly outweighed in the public interest by the probable effect of the transaction in meeting the convenience and needs of the community to be served.” Requests were made of the Attorney General and the Federal Reserve Board pursuant to 12 U. S. C. § 1828 (c) (4) for their views- and both submitted reports to the Comptroller that the merger would have serious anticompetitive effects. The Comptroller nonetheless approved it.
The same procedure was followed in the Pennsylvania case, and the Attorney General and Federal Reserve, submitted adverse reports. Nonetheless the Comptroller approved this merger also. And, as we have said, these civil suits were instituted to enjoin the mergers under § 7 of the Clayton Act.
Section 7 of the Clayton^ Act condemns mergers where “the effect of such acquisition may be substantially to lessen competition.” The Bank Merger Act of 1966 did not change that standard or the machinery for obtaining the prior approval of the Comptroller and a preliminary expression of views by the Attorney General and the Federal Reserve, but it added an additional standard for the Comptroller. Section 1828 (c)(5)(B) says, as already noted, that no merger shall be approved where the effect “may be substantially to lessen competition” unless the responsible agency, in this case the Comptroller, “finds that the anti-competitive effects of the proposed transaction are clearly outweighed in the public interest by the probable effect of the transaction in meeting the convenience and needs of the community to be served.” And that subsection goes on to say: “In every case, the responsible agency shall take into consideration the financial and managerial resources and future prospects of the existing and proposed institutions, and the convenience and needs of the community! to be served.”
Section 1828 (c) (7) (B) provides that in a judicial proceeding attacking a merger on the ground that it violates the antitrust laws “the standards applied by the court shall be identical with” those the banking agencies must apply. Arid 12 U. S. C. § 1828 (c)(7)(A) states that “In any such action, the court shall review de novo the issues presented.” (Emphasis added.)
Section 1828 (c)(7)(A) also provides that the commencement of an antitrust action in the courts “shall stay the effectiveness of the agency’s approval unless the court shall otherwise specifically order.”
It is around these new provisions of the 1966 Aet and their interplay with §.7 of the Clayton Act that the present controversy turns.
First is the question whether the burden of proof is on the defendant banks to establish that an anticom-petitive merger is within the exception of 12 U, 8. C. § 1828 (c) (5) (B) or whether it is on the Government. We think it plain that the banks carry , the burden.' That is the general rule where one claims the benefits of an exception to the prohibition of a statute, Federal Trade Commission v. Morton Salt Co., 334 U. S. 37, 44-45. The House Report (No. 1221, 89th Cong., 2d Sess.) makes clear that antitrust standards were the norm and anticompetitive bank mergers, the exception: “. . . the bill acknowledges that the general principle of the antitrust- laws — that substantially anticompetitive mergers are prohibited — applies to banks, but permits an exception in cases where it is clearly shown that a given merger is so beneficial to the convenience and needs of the community to be served . . . that it would be in the public interest to permit it ” (Emphasis added.) Id., at 3-4.
The sponsor of the bill that was finally enacted, Congressman Patman, flatly stated: “It should be clearly noted that the burden of establishing such 'convenience and needs' is on the banks seeking to merge; and when we say clearly outweighed we mean outweighed' by the preponderance of the evidence.” 112 Cong. Rec.' 2333-2334 (Feb. 8, 1966).
We therefore disagree with the views ■ of the lower courts to the contrary. *
This problem is, of course, subtly merged with the question whether judicial review of the Comptroller’s decision is in the category of other administrative rulings which are sustained unless a court is persuaded that the agency’s action is clearly unsupported or not supported by substantial evidence.
The 1966 Act was the product of powerful contending forces, each of which in the aftermath claimed more of a victory than it deserved, leaving the controversy that finally abated in Congress to be finally resolved in the courts. So far as review of administrative agency action is concerned, we have only this to say. Prior to the 1966 Act administrative approval of bank mergers was necessary. Yet in an antitrust action later brought to enjoin them we never stopped to consider what weight, if any, the agency’s determination should have in the antitrust case. See United States v. Philadelphia National Bank, 374 U. S. 321; United States v. First Nat. Bank, 376 U. S. 665. Traditionally in antitrust actions involving regulated industries, the courts have never given presumptive weight to a prior agency decision, for the simple reason that Congress put such suits on a different axis than was familiar in administrative procedure. United States v. Radio Corporation of America, 358 U. S. 334; United States v. El Paso Natural Gas Co., 376 U. S. 651; United States v. Philadelphia National Bank, supra; United States v. First Nat. Bank, supra. We have found no indication that Congress designed judicial review differently under the 1966 Act than had earlier obtained.
In fact, as already noted, “the standards applied by the court shall be identical with those that the banking agencies are directed to apply.” 12 U. S. C. § 1828 (c) (7)(B). This language does not express the conventional standard, i. e., whether the agency’s action is supported by substantial evidence. In the latter instance it is the agency’s function to determine whether the law has been violated, while it is the court’s function to ascertain whether, absent error in statutory construction, the agency’s action has substantial support in the evidence.
There is no indication that Congress took that course here. Indeed the 1966 Act provides that the court in an antitrust action “shall review de novo the issues presented.” (Emphasis added.) 12 U. S. C. § Í828 (c)(7)(A). It is argued that the use of the word “review” rather than “trial” indicates a more limited scope to judicial action. The words “review” and “trial” might conceivably be used interchangeably. The critical words seem to us to be “de novo” and “issues presented.” They mean to us that the court should make an independent determination of the issues. Congressman Patman, the Chairman of the House Committee that drafted the Act, in speaking of this de novo review, said that the court would “completely and On its own make a determination as to whether the challenged bank merger should .be approved under the standard set forth in paragraph 5 (B) of the bill.” He added that the “court is not to give any special weight to the determination of the bank supervisory agency on this, issue.” 112 Cong.' Rec. 2335 (Feb. 8, 1966). Indeed the momentum of judicial precedents is in .that direction. For immunity from antitrust laws “is not lightly implied.” California v. Federal Power Commission, 369 U. S. 482, 485. And .the grant of administrative power to give immunity unless the agency's decision is arbitrary; 'capricious, or unsupported by substantial evidence, would be a long step in that direction. • Moreover, the Comptrollér’s action is informal, no hearings in the customary sense having been held prior to the 1966 Act (United States v. Philadelphia National Bank, supra, at 351) and none being required by Congress in the 1966 Act. We would therefore have to assume that Congress made a revolutionary innovation by making administrative action well nigh conclusive, even though no hearing had been held and no record in the customary sense created.
The courts may find the Comptroller’s reasons persuasive or well nigh conclusive. But it is the court’s judgment, not the Comptroller’s, that finally determines whether the merger is legal. That was the practice prior to the 1966 Act; and we cannot find a purpose on the part of Congress to change the rule. This conclusion does not raise serious constitutional questions by making the courts perform non judicial tasks. The “rule of reason,” long prevalent in the antitrust field (see, e. g., Chicago Board of Trade v. United States, 246 U. S. 231), has been administered by the courts. A determination of tiie effect on competition within the meaning of § 7 of the Clayton Act is a familiar judicial task. The area of “the convenience and needs of the community to be served,” now in focus as part of the defense under the 1966 Act, is related, though perhaps remotely, to the failing-company, doctrine, long known to the courts in antitrust merger cases. United States v. Diebold, Inc., 369 U. S. 654. The appraisal of competitive factors is grist for the antitrust mill. See, e. g., United States v. Philadelphia National Bank, supra, 357-367. The courts are not left at-large as planning agencies. The effect on competition is the standard; and it is a familiar one. If the anticompeti-tive effect is adverse, then it is to be excused only if “the convenience and needs of the community to be served” clearly outweigh it. We see no problems in bringing these standards into the area of judicial competence. There are no constitutional problems here not present in the “rule of reason” cases.
There is left only the stay issue; As we have seen, the 1966 Act provides that a timely antitrust action “shall stay the effectiveness of the agency’s approval unless the court shall otherwise specifically order.” 12 U. S. C. § 1828 (c)(7)(A). The lower courts dissolved the statutory stays on dismissing the antitrust suits.
Our remand will direct that the stays continue until the hearings below are completed and any appeal is had. A stay of course is not mandatory under any and all circumstances. But absent a frivolous complaint by the United States, which we presume will be infrequent, a stay is essential until the judicial remedies have been exhausted. The caption of the 1966 Act states that it is designed “[t]o establish a procedure for the review of proposed bank mergers so as to eliminate the necessity for the dissolution of merged banks.” Moreover, bank mergers may not, absent emergency conditions, be consummated until 30 days after approval by the Comptroller in order to enable the Attorney General to commence an antitrust action, 12 U. S. C. § 1828 (c)(6), which, apart from emergency situations, must be started within 30 days of the agency’s approval, 12 U. S. C. § 1828 (c)(7)(A). The legislative history is replete with references to the difficulty of unscrambling two or more banks after their merger. The normal procedure therefore should be maintenance of the status quo until the antitrust litigation has run its course, lest consummation take place and the unscrambling process that Congress abhorred in the case of banks be necessary.
Reversed.
Mr. Justice Clark took no part in the consideration or decision of these cases.
12 U. S. C. §1828 (e)(5)(B) provides, as we have seen, that a merger shall not be approved “whose effect.in any section of the country may be substantially to lessen competition.” It is pointed out that that standard omits the phrase “in-any line of commerce” which is present in § 7 of the Clayton Act. It is argued that Con-' gress meant that commercial banking is no longer to be considered as an area of effective competition and that the Act establishes in banking “a market test measürable only by larger commercial realities.”
We do not reach this question and we intimate no opinion on it nor any views on the merits of these mergers or on the justifications that are urged in their support. All questions except the procedural ones treated in the opinion are reserved.
The Chairman of the Federal Reserve System testified in the hearings that preceded enactment of the Bank Merger Act of 1966 that “a Federal court order cannot recreate the two banks that formerly existed .... [N]o matter how one may feel about whether the merger should have taken place in the first instance, there is no turning back. To unscramble the resulting bank clearly'poses serious problems not only for the bank but for its customers and the community.” Hearings on S. 1698 and related bills before the Subcommittee on Domestic Finance of the Hous§. Committee on Banking and Currency, 89th Cong., 1st Sess., 11. The president of the American Bankers Association declared that “ ‘[u]nmerging’ a bank after the two banks have operated as a single unit is nightmarish even in the abstract.” Hearings on S. 1698 before a Subcommittee of the Senate Committee on Banking and Currency, 89th Cong., 1st Sess., 63.. Senator Robertson stated, “you are dealing with a physical impossibility,” and “the community gets hurt,” when divestiture is attempted in a bank merger case. Id., at 4. Senator Proxmire spoke of “the agony and the inequity and the financial loss, disruption of the economy in the community, of being required . . . to unscramble.” Id., at 202.
Question: Did administrative action occur in the context of the case?
A. No
B. Yes
Answer:
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sc_respondent
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127
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the respondent of the case. The respondent is the party being sued or tried and is also known as the appellee. Characterize the respondent as the Court's opinion identifies them.
Identify the respondent by the label given to the party in the opinion or judgment of the Court except where the Reports title a party as the "United States" or as a named state. Textual identification of parties is typically provided prior to Part I of the Court's opinion. The official syllabus, the summary that appears on the title page of the case, may be consulted as well. In describing the parties, the Court employs terminology that places them in the context of the specific lawsuit in which they are involved. For example, "employer" rather than "business" in a suit by an employee; as a "minority," "female," or "minority female" employee rather than "employee" in a suit alleging discrimination by an employer.
Also note that the Court's characterization of the parties applies whether the respondent is actually single entitiy or whether many other persons or legal entities have associated themselves with the lawsuit. That is, the presence of the phrase, et al., following the name of a party does not preclude the Court from characterizing that party as though it were a single entity. Thus, identify a single respondent, regardless of how many legal entities were actually involved. If a state (or one of its subdivisions) is a party, note only that a state is a party, not the state's name.
FEDERAL POWER COMMISSION v. AMERADA PETROLEUM CORP. et al.
No. 585.
Decided February 1, 1965.
Solicitor General Cox, Richard A. Solomon, Howard E. Wahrenbrock, Robert L. Russell and Peter H. Schiff for petitioner.
William H. Webster, Edwin S. Nail and Joseph W. Morris for Amerada Petroleum Corp., and William R. Allen and Cecil E. Munn for Signal Oil & Gas Co., respondents.
Per Curiam
Montana-Dakota (MDU) is an interstate natural gas pipeline company, selling and transporting gas in Montana, North Dakota, South Dakota, and Wyoming. The lines involved here run to the east and west from the Tioga processing plant in North Dakota, jointly owned by. Amerada and Signal, producers of natural gas in North Dakota. Also, running north from the Tioga point is a line extending to the gasoline extraction plants of Hunt-Herbert and TXL (now Texaco), both in North Dakota.
On a peak winter day in 1962-1963 MDU was expected to purchase a total of 70,000 Mcf of North Dakota-produced gas from these four producers: 55,000 Mcf from Amerada-Signal, 10,000 Mcf from TXL, and 5,000 Mcf from Hunt-Herbert. Of the 55,000 Mcf from Amerada-Signal, 50,000 Mcf would flow to the east and be consumed in North Dakota. All of the Hunt-Herbert and TXL gas, plus the remaining 5,000 Mcf of the Amerada; Signal gas, would flow to the west — a total of 20,000 Mcf. Of this westward-flowing gas, 10,200 Mcf would be consumed in North Dakota; the remaining 9,800 Mcf would flow across the state boundary into Montana for consumption outside of North Dakota.
On an average summer day MDU would take about 45,000 Mcf from Amerada-Signal, while continuing to take about 15,000 Mcf from Hunt-Herbert and TXL. Of the Amerada-Signal gas, 13,000 Mcf would flow westward, commingled with the 15,000 Mcf from Hunt-Herbert and TXL. Only 1,680 Mcf of this stream would be consumed in North Dakota; the remaining 26,320 Mcf would flow into Montana to be held in storage for ultimate redelivery to all parts of MDU’s interstate system. 32,000 Mcf of gas would flow eastward, all from .Amerada-Signal. In contrast to the situation on a peak winter day, only 7,280 Mcf of this eastward-flowing gas would be consumed in North Dakota, while 24,720 Mcf would cross the state boundary and go into storage.
The contracts for the purchase of gas from Hunt-Herbert .and TXL admittedly constitute sales of gas for resale within the meaning of § 1 (b) of the Natural Gas Act, 15 U. S. C. § 717. These sellers applied for and were granted certificates of public convenience and necessity by the Commission. 27 F. P. C. 1092.
Prior to entering into the Hunt-Herbert-TXL contracts, MDU entered into contracts with Amerada and Signal which are here in issue. First, MDU concluded the so-called “North Dakota Contracts" with both Amerada and Signal. Under these contracts MDU must buy at least two-thirds of its annual North Dakota requirements from Amerada-Signal, and it may buy up to all of its North Dakota requirements from them if it só elects. The contracts recite that “all gas purchased by Buyer under this agreement shall be transported, used and consumed entirely within the State of North Dakota.” Soon thereafter, MDU entered its separate “Interstate Contracts” With Amerada and Signal. These contracts provide that MDU must take or pay for a certain number of Mcf per year (and per day) if available, “less the quantity of gas which Buyer shall pay for with respect- to such calendar year under the Amerada [or Signal] North Dakota Contract.”
Respondents Amerada and Signal contended before the Federal Power Commission that sales to MDU under the “North Dakota Contracts” would be “nonjurisdictional” since they were not sales in interstate commerce for resale. Relying on its decision in Lo-Vaca Gathering Co., 26 F. P. C. 606 (reversed, 323 F. 2d 190, reversed, ante, p. 366), the Commission rejected the contention and asserted its jurisdiction over the sales. 30 F. P. C. 200. The Court of Appeals reversed. 334 F. 2d 404. The Commission has petitioned for writ of certiorari.
All of the gas purchased by MDU from Amerada-Signal under both sets of contracts is delivered into the pipeline at the-Tioga plant. According to the testimony of MDU’s engineer, on a peak winter day the pipeline would elect to purchase all of the Amerada-Signal. gas under the “North Dakota Contracts.” Yet, as previously shown, on such a day some of the Amerada-Signal gas flows westward, in a commingled stream with gas from other sources, and is resold outside of North Dakota. On an average summer day MDU would elect to purchase about 9,000 Mcf of the Amerada-Signal gas under the “North Dakota Contracts,” and the remaining 36,000 Mcf under the “Interstate Contracts.” Yet, as previously shown, 1,680 Mcf of the 9,000 Mcf consumed in North Dakota would have to be metered off from the westward-flowing commingled stream that is destined in major part for resale out-of-state.
Factually, therefore, the present case is on all fours with California v. Lo-Vaca Gathering Co., ante, p. 366.
The Court of Appeals thought that its decision in North Dakota v. Federal Power Comm’n, 247 F. 2d 173, brought collateral estoppel into play in the present case. 334 F. 2d 404, 411-412. But that rule has no place here for no judgment governing past events is in jeopardy, only the scope of future regulation that involves different events and transactions. See Commissioner v. Sunnen, 333 U. S. 591, 601-602.
Accordingly, the writ of certiorari is granted, and the judgment of the Court of Appeals is reversed.
It is so ordered.
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_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.
CERTAIN BRITISH UNDERWRITERS AT LLOYDS OF LONDON, ENGLAND, etc., et al., Plaintiffs-Appellants, v. JET CHARTER SERVICE, INC., and Aeroservice International, Inc., Defendants-Appellees.
No. 84-5213.
United States Court of Appeals, Eleventh Circuit.
Aug. 3, 1984.
Opinion on Rehearing Dec. 13, 1984.
Thornton, David & Murray, P.A., J. Thompson Thornton, Miami, Fla., for plaintiffs-appellants.
Robert G. David, Jr., McDonald & McDonald, Miami, Fla., for Jet Charter Service.
William E. Sadowski, Akerman, Senterfitt & Eidson, Miami, Fla., for Aeroservice Intern.
Before GODBOLD, Chief Judge, RONEY and TJOFLAT, Circuit Judges.
BY THE COURT:
While Aeroservice was servicing one of Jet Charter’s jets, the jet fell off its supporting jacks and suffered damage. Aeroservice’s insurer, Underwriters, filed this diversity action against Jet Charter and Aeroservice seeking a declaratory judgment that the incident was not covered under its contract of insurance with Aeroservice. The district court granted Jet Charter's and Aeroserviee’s motions for summary judgment but reserved jurisdiction to consider an award of attorney’s fees against Underwriters and in favor of Aeroservice. Florida law allows the award of attorney’s fees in favor of the insured upon rendition of a judgment against the insurer and in favor of the insured.
Aeroservice moves to dismiss Underwriters’ appeal. Aeroservice contends that the grant of summary judgment without an award of attorney’s fees is not a final, appealable order under 28 U.S.C. § 1291. As this court recognized in McQurter v. City of Atlanta, 724 F.2d 881, 882 (11th Cir.1984), whether an order that resolves all issues in a case but leaves the award of fees open is a final, appealable order depends on the circumstances:
“When attorney’s fees are similar to costs ... or collateral to an action ..., a lack of determination as to the amount does not preclude the issuance of a final, appealable judgment on the merits. When, however, the attorney’s fees are an integral part of the merits of the case and the scope of relief, they cannot be characterized as costs or as collateral and their determination is a part of any final, appealable judgment.”
(quoting Holmes v. J. Ray McDermott & Co., 682 F.2d 1143, 1146 (5th Cir.1982)), cert. denied, 459 U.S. 1107, 103 S.Ct. 732, 74 L.Ed.2d 956 (1983).
In Oxford Production Credit Association v. Duckworth, 689 F.2d 587, 588-89 (5th Cir.1982), the Fifth Circuit considered whether an order resolving all issues in the ease but postponing an award of contractual attorney’s fees for suit on a promissory note was a final, appealable order. The court looked to state law in that diversity case to determine that fees arising by contract were a part of the controversy and “an integral part of the merits,” in the language of Holmes. Id. at 589 & n. 3.
We thus look to Florida law to determine whether the award of fees to a prevailing insured under the statute is part of the costs and collateral to the main claim or “an integral part of the merits of the case and the scope of relief” and “part of any final, appealable judgment.” McQurter, 724 F.2d at 882. In Prudential Insurance Co. v. Lamm, 218 So.2d 219, 220 (Fla.Dist.Ct.App.) (citing State ex rel. Royal Insurance Co. v. Barrs, 87 Fla. 168, 99 So. 668, 669 (1924)), cert. denied, 225 So.2d 529 (Fla.1969), the court noted that “attorney’s fees recoverable by statute are to be regarded as ‘costs’ only when made so by statute. Otherwise, they are to be treated as an element of damages.” Here the statute provides that “fees of the attorney shall be included in the judgment or decree rendered in the case.” See supra note 1. The attorney’s fees are not costs and are not collateral to the main action. Rather .fees awarded under section 627.428 are an integral part of the merits of the case and must be part of any final judgment.
The appeal is DISMISSED.
Certain British Underwriters at Lloyds of London, England, etc., et al, petition this court for a rehearing of the panel’s decision dismissing Underwriters’ appeal for lack of a final judgment. 739 F.2d 534. The parties have briefed the issues raised by the petition. We deny the petition but modify the panel decision by deleting the final two paragraphs and substituting the following:
This test, then, creates three categories of attorney’s fees. First is “costs.” A recent Florida case defines costs as “statutory allowances recoverable by a successful party as an incident to the main adjudication [which] need not be specifically pled or claimed.” River Road Construction Co. v. Ring Power Corp., 454 So.2d 38 (Fla.App.1st Dist.1984). Second, the fees may be “collateral.” The Eighth Circuit case which Holmes, 682 F.2d 1143 (5th Cir.1982), relies on to illustrate this concept, Obin v. District No. 9 of the International Association of Machinists, 651 F.2d 574 (8th Cir. 1981), decided that the fees there were collateral because they (a) were not available simply because a party prevailed but further required proof that the plaintiff had brought a frivolous, unreasonable or bad faith action, (b) therefore required a consideration of factors entirely distinct from the underlying judgment, and (c) were discretionary. Id. at 581. Finally, fees may be “an integral part of the merits.” Holmes suggested that such fees are “part of the relief sought,” or “an element of damages.” 682 F.2d at 1147.
In this diversity action state law governs which. of these three categories applies. See Duffer v. American Home Assurance Co., 512 F.2d 793, 800 (5th Cir.1975); see also Oxford Production Credit Association v. Duckworth, 689 F.2d 587, 588-89 (5th Cir.1982). We thus turn to Prudential Insurance Co. v. Lamm, 218 So.2d 219 (Fla.App. 3d Dist.), cert, denied, 225 So.2d 529 (Fla.1969), the Florida case most directly on point. Prudential considered whether an award of attorney’s fees should be included in calculating the amount of the judgment. If so, the trial court had exceeded its jurisdictional limitation of $5,000, exclusive of interests and costs. The court ruled that the fees must be included, stating that “attorney’s fees recoverable by statute are to be regarded as ‘costs’ only when made so by statute. Otherwise, they are to be treated as an element of damages.” Thus, concluded the court, since Fla.Stat. Sec. 627.0127 “does not specifically provide that attorney’s fees are to be regarded as costs, we must consider them as an element of the plaintiff’s damages____” Id. at 220. Sec. 627.0127 is the predecessor of 627.428 and the provisions of both do not significantly differ.
Under the Holmes test, then, an award of attorney’s fees under Sec. 627.428 is “an integral part of the merits” and must be part of any final judgment. Florida cases holding that the finality of the judgment is affected neither by the reservation of jurisdiction in regard to attorney’s fees, General Accident Fire & Life Assurance Corp., Ltd. v. Kellin, 391 So.2d 305 Fla.App. 4th Dist. 1980), nor by the filing of notice of appeal, Roberts v. Askew, 260 So.2d 492 (Fla.1972), are not to the contrary. These cases establish rules of state procedure which, unlike the rule of substantive law in Prudential, are not binding in a federal diversity case.
Accordingly, the appeal is DISMISSED.
. See Fla.Stat.Ann. § 627.428 (1972 & West Supp.1984):
627.428. Attorney's fee
(1) Upon the rendition of a judgment or decree by any of the courts of this state against an insurer and in favor of any named or omnibus insured or the named beneficiary under a policy or contract executed by the insurer, the trial court or, in the event of an appeal in which the insured or beneficiary prevails, the appellate court shall adjudge or decree against the insurer and in favor of the insured or beneficiary a reasonable sum as fees or compensation for the insured’s or beneficiary’s attorney prosecuting the suit in which the recovery is had.
(2) As to suits based on claims arising under life insurance policies or annuity contracts, no such attorney fee shall be allowed if such suit was commenced prior to expiration of sixty days after proof of the claim was duly filed with the insurer.
(3) Where so awarded, compensation or fees of the attorney shall be included in the judgment or decree rendered in the case.
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_respond2_7_3
|
D
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine the race or ethnic identity of this litigant as identified in the opinion. Names may be used to classify a person as hispanic if there is little ambiguity. All aliens are coded as "not ascertained".
Duane GOODFACE; Winona Long; Charles Langdeau; Patrick Spears and William Ziegler, Appellees, v. Garfield GRASSROPE, Kay Gourneau; Debra Isburg; Orville C. Langdeau and Michael Jandreau; Darrell Middletent, Appellants. Donald Dodge, in his official capacity as Acting Area Director for the Bureau of Indian Affairs for the Aberdeen Area Office and William C. Gipp, in his official capacity as acting superintendent of the Bureau of Indian Affairs for Lower Brule Agency. Duane GOODFACE; Winona Long; Charles Langdeau; Patrick Spears and William Ziegler, Appellees, v. Garfield GRASSROPE; Mike Jandreau; Kay Gourneau; Debra Isburg; Orville C. Langdeau; Darrell Middletent, Donald Dodge, Individually and in his official capacity as Acting Area Director for the Bureau of Indian Affairs for the Aberdeen Area Office; William Gipp, Individually and in his official capacity as Acting Superintendent of the Bureau of Indian Affairs for Lower Brule Agency; Edwin Miller, in his official capacity as Superintendent of the Bureau of Indian Affairs for Lower Brule Agency; Jerry Jaeger, in his official capacity as Area Director for the Bureau of Indian Affairs for the Aberdeen Area Office; and the United States of America, Appellants.
Nos. 83-1542, 83-1641.
United States Court of Appeals, Eighth Circuit.
Submitted May 18, 1983.
Decided May 31, 1983.
Mario Gonzalez, Pine Ridge, Sidney C. Flores, Flores, Estremera & Barrios, San Jose, Cal., for appellees.
Martin W. Matzen, Blake A. Watson, At-tys., Dept, of Justice, Washington, D.C., for federal appellants.
R. Dennis Ickes, and Tristan C. Cannon of R. Dennis Ickes, P.C., Salt Lake City, Utah, and William J. Srstka, Jr., of Dunan, Olinger, Srstka, Lovald & Robbennolt, Pierre, S. D., for appellants.
Before BRIGHT, McMILLIAN and FAGG, Circuit Judges.
BRIGHT, Circuit Judge.
The controversy underlying these appeals concerns a dispute over a tribal election held by the Lower Brule Sioux Tribe on November 17, 1982. The district court, in a judgment filed April 22, 1983, directed that the defendant officials of the Bureau of Indian Affairs (hereinafter collectively referred to as the BIA) recognize the newly elected council as the governing body of the tribe over the rights of the 1980 council, which claimed that its successors had not been duly elected because the November election was invalid. This court temporarily stayed the district court’s judgment pending appeal. After considering the questions of jurisdiction and of the propriety of the stay, we hereby vacate our stay order dated April 25, 1983 and remand this case to the district court for entry of a modified judgment, requiring the BIA to recognize the council newly elected in the 1982 election until the election dispute is resolved in a tribal court. We conclude the district court lacked jurisdiction to enter a judgment based on a final resolution of the underlying election dispute, but determine that the district court possessed limited jurisdiction to review the BIA’s final decision which, in effect, declined to recognize either faction. The district court shall enter an appropriate modified judgment in conformity with this opinion.
I. Background.
The Lower Brule Sioux Tribe (the Tribe) is a federally-recognized tribe under the Indian Reorganization Act, 25 U.S.C. § 461 et seq. In 1960, the Tribe adopted a tribal constitution vesting the powers of governing the Tribe in a seven-member tribal council, to be elected every two years. In the fall of 1982, the 1980 tribal council appointed an election board to conduct the biennial election. The election took place on November 17, 1982, and resulted in the reelection of three incumbents and the election of four newcomers. Following the election, the election board received and considered several complaints of improprieties in the election process, and then certified the election results to the tribal council. The 1980 tribal council rejected the election board’s certification of the election, deciding that a new election should be held in April of 1983.
Considering themselves the duly-elected and certified tribal council, the 1982 council requested the BIA to recognize them as the legally-elected tribal council, arguing that under the tribal constitution and bylaws, the tribal council may not invalidate election results certified by an election board. The BIA Local Superintendent and Area Director, however, rejected the 1982 council’s request and decided to continue dealing with the 1980 council.
Before exhausting the BIA appeals process, members of the 1982 council filed suit in federal court on January 14, 1983, seeking an order to require the BIA to recognize them. The district court took jurisdiction, and on February 28, 1983, temporarily enjoined the 1980 council from holding a new election. Thereafter, the district court began hearing the case on the merits. In the meantime, the BIA reached a final decision, declaring on March 23, 1983, that the election dispute was an intratribal matter which must be resolved by the Tribe. On April 11, 1983, the BIA clarified that decision by explaining that it took no position on the merits and would not officially recognize either council. Instead, the BIA declared, until the Tribe resolved the dispute, it would deal with both councils on a de facto basis as necessary to maintain basic services to the Tribe.
On April 20,1983, the district court issued its judgment from the bench. After examining the tribal constitution and bylaws, the district court concluded that the 1982 council was entitled to recognition, and entered injunctive orders to achieve that result. The district court decided that under the tribal constitution and bylaws, election results which have been certified by an election board are final and not reviewable by the tribal council. Upon application by the 1980 council members, this court granted a stay of the district court’s orders. Both the 1980 council and the BIA representatives have filed notices of appeal.
All parties have agreed that this court may consider whether to continue or dissolve its stay on the basis of the parties’ briefs and oral arguments and the files and records of the district court, without waiting for preparation of the transcript of the testimony at trial. The parties have also agreed that this court may address the merits of the appeals on the same basis, to the extent that the merits are to be resolved on jurisdictional grounds.
II. Issues.
A. Appellate Jurisdiction.
The first question we must address is whether the 1980 council’s stay request and appeal are properly before this court. The 1982 council argues that the members of the 1980 council have no right to challenge the district court’s judgment, because they are not aggrieved parties under that judgment. Of the two claims brought by the 1982 council, one was against the federal defendants alone, based on 28 U.S.C. § 1331 (federal question) and 5 U.S.C. §§ 701 et seq. (the Administrative Procedure Act or APA). The other claim, based on 42 U.S.C. § 1985(3), included both the federal defendants and the 1980 council members, but the district court dismissed it for failure to state a constitutional deprivation. The 1982 council contends that because the 1980 council members prevailed on the only claim against them, they are not aggrieved by the district court’s judgment and may not appeal.
Examination of the district court’s judgment reveals that the 1980 council members are aggrieved parties despite the dismissal of the section 1985 claim. In its initial oral findings of fact and conclusions of law entered April 28, 1983, the district court specifically “ordered that no member of the 1980 council or any of their employees or agents shall do any act whatsoever to frustrate or to harrass [sic] or to interfere with the orderly assumption to office of the 1982 Tribal Council * * *.” Although the district court’s subsequent memorandum opinion did not order relief against the 1980 council, the order requiring the BIA to recognize the 1982 council had a direct and adverse impact on the 1980 council. Accordingly, we conclude that we have jurisdiction over both the appeals and the stay request.
B. District Court Jurisdiction.
We must next consider whether jurisdiction exists in the district court to resolve the election controversy — a matter the 1980 council characterizes as an intratribal dispute. If the only parties to this action were the 1980 and 1982 councils and the only question presented was one of interpreting the tribal constitution and bylaws, we doubt whether a federal court would have jurisdiction. However, the 1982 council named various BIA officials as defendants in addition to the 1980 council members. We hold that the district court did have jurisdiction under 28 U.S.C. § 1331 to review, pursuant to the APA, the action taken by the BIA in refusing to recognize either tribal council. Although the APA may not be used as an independent grant of subject matter jurisdiction to review agency actions, the Supreme Court stated in Califano v. Sanders, 430 U.S. 99, 105, 97 S.Ct. 980, 984, 51 L.Ed.2d 192 (1977), that 28 U.S.C. § 1331 confers general jurisdiction on federal courts to review federal agency actions “subject only to preclusion-of-review statutes.” We know of no statute precluding judicial review of BIA actions, and therefore we determine that the district court could review the agency action under the arbitrary or capricious standard enunciated in 5 U.S.C. § 706(2)(A).
C. Review of BIA Action.
The final BIA action subject to judicial review is its decision to recognize both tribal councils only on a de facto basis. Such a recognition of both councils amounts to a recognition of neither. Thus, the district court correctly found that the BIA acted arbitrarily and capriciously by effectively creating a hiatus in tribal government which jeopardized the continuation of necessary day-to-day services on the reservation. The BIA, in its responsibility for carrying on government relations with the Tribe, is obligated to recognize and deal with some tribal governing body in the interim before resolution of the election dispute. We commend the BIA for its reluctance to intervene in the election dispute, but it was an abuse of discretion for the BIA to refuse to recognize one council or the other until such time as Indian contestants could resolve the dispute themselves. We conclude that, for the time being, the BIA should be required to deal with the 1982 council as the certified and sworn winners of the tribal election.
Although we agree with the district court that the BIA should recognize the 1982 council, at least on an interim basis, the district court should not have addressed the merits of the election dispute in reaching that decision. We recognize that the district court faced a practical problem. The BIA’s action effectively recognized a two-headed administration with no real power to govern. Although it was necessary to remedy the situation by ordering the BIA to recognize one governing body, the district court overstepped the boundaries of its jurisdiction in interpreting the tribal constitution and bylaws and addressing the merits of the election dispute.
The district court relied heavily on an as yet unpublished opinion, Milam v. United States Department of Interior, No. 82-3099 (D.D.C. Dec. 23, 1982), in deciding that it would address the merits of the election dispute, notwithstanding that unexhausted tribal remedies remained available. Milam is distinguishable from the case at bar, because in Milam no tribal remedies existed. Here, the Tribe has a functioning tribal court, which the parties recognize as a court of competent jurisdiction to resolve tribal election disputes. The tribal court has handled election disputes in the past, and is available to handle this dispute as well. It is essential that the parties seek a tribal remedy, for as previously noted, substantial doubt exists that federal courts can intervene under any circumstances to determine the rights of the contestants in a tribal election dispute.
III. Conclusion.
We conclude that the district court possessed jurisdiction only to order the BIA to recognize, conditionally, either the new or old council so as to permit the BIA to deal with a single tribal government. That recognition should continue only so long as the dispute remains unresolved by a tribal court. Moreover, the district court in deciding which council to recognize as a preliminary matter could, by applying equitable principles, determine that the newly elected council, whose successful election received certification from the tribal election board, should govern in the interim period until the dispute reaches initial resolution by a tribal court.
Accordingly, we vacate our stay (and clarification thereof filed May 9, 1983) to take effect forty-eight hours after the filing of this order. As of that date, in accordance with the district court order as affirmed in part herein, the BIA shall recognize the members of the tribal council who were elected in 1982 as the governing officials of the tribe.
On the merits, we affirm in part and reverse in part on jurisdictional grounds and remand this case to the district court with directions to modify its order to conform with this opinion. Once the modified order is on file, the district court should enter no further orders addressing the merits of the election dispute, except to modify its judgment to direct the BIA officials, if necessary to do so, to recognize as tribal officials those persons who are recognized as the tribal council entitled to govern the Tribe pursuant to a judgment entered by a tribal court.
Let our mandate issue forthwith.
. Two of the incumbents reelected in the 1982 election, Jandreau and Gourneau, have taken the side of the 1980 council members in this action.
. The appeal by the 1980 council members Gourneau, Grassrope, Jandreau, Langdeau, Is-burg and Middletent carries number 83-1542. The appeal by the federal (BIA) defendants carries number 83-1641. At oral argument, the court ordered consolidation of the appeals.
. We clearly have jurisdiction over the BIA’s appeal, because the district court’s judgments run directly against the federal defendants.
. Although in the past this court has found federal jurisdiction over such disputes based on the Indian Civil Rights Act, 25 U.S.C. §§ 1301 et seq., see e.g., Rosebud Sioux Tribe of South Dakota v. Driving Hawk, 534 F.2d 98 (8th Cir. 1976), Means v. Wilson, 522 F.2d 833 (8th Cir. 1975), cert. denied, 424 U.S. 958, 96 S.Ct. 1436, 47 L.Ed.2d 364 (1976), the Supreme Court has held that the only federal relief available under the Indian Civil Rights Act is a writ of habeas corpus. Santa Clara Pueblo v. Martinez, 436 U.S. 49, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978). Thus, actions seeking other sorts of relief for tribal deprivations of rights must be resolved through tribal forums. See also Shortbull v. Looking Elk, 677 F.2d 645, 650 (8th Cir.), cert. denied,-U.S.-, 103 S.Ct. 211, 74 L.Ed.2d 168 (1982).
. The issuance of the mandate is without prejudice to the rights of the parties under Fed.R. App.P. 35(b) and 40.
Question: This question concerns the second listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". What is the race or ethnic identity of this litigant as identified in the opinion?
A. not ascertained
B. caucasian - specific indication in opinion
C. black - specific indication in opinion
D. native american - specific indication in opinion
E. native american - assumed from name
F. asian - specific indication in opinion
G. asian - assumed from name
H. hispanic - specific indication in opinion
I. hispanic - assumed from name
J. other
Answer:
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sc_lcdispositiondirection
|
A
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine whether the decision of the court whose decision the Supreme Court reviewed was itself liberal or conservative. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. The lower court's decision direction is unspecifiable if the manner in which the Supreme Court took jurisdiction is original or certification; or if the direction of the Supreme Court's decision is unspecifiable and the main issue pertains to private law or interstate relations
James L. KISOR, Petitioner
v.
Robert WILKIE, Secretary of Veterans Affairs
No. 18-15
Supreme Court of the United States.
Argued March 27, 2019
Decided June 26, 2019
Paul W. Hughes, Washington, DC, for the petitioner.
Solicitor General Noel G. Francisco, for the respondent.
Kenneth M. Carpenter, Carpenter Chartered, Topeka, KS, Eugene R. Fidell, Yale Law School Supreme Court Clinic, New Haven, CT, Paul W. Hughes, Michael B. Kimberly, Andrew J. Pincus, Charles A. Rothfeld, E. Brantley Webb, Andrew A. Lyons-Berg, Mayer Brown LLP, Washington, DC, Rachel R. Siegel, Mayer Brown LLP, New York, NY, for Petitioner.
Noel J. Francisco, Solicitor General, Joseph H. Hunt, Assistant Attorney General, Jeffrey B. Wall, Deputy Solicitor General, Hashim M. Mooppan, Deputy Assistant Attorney General, Matthew Guarnieri, Assistant to the Solicitor General, Mark B. Stern, Daniel Aguilar, Joshua Revesz, Attorneys, Department of Justice, Washington, D.C., for Respondent.
Justice KAGAN announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II-B, III-B, and IV, and an opinion with respect to Parts II-A and III-A, in which Justice GINSBURG, Justice BREYER, and Justice SOTOMAYOR join.
This Court has often deferred to agencies' reasonable readings of genuinely ambiguous regulations. We call that practice Auer deference, or sometimes Seminole Rock deference, after two cases in which we employed it. See Auer v. Robbins , 519 U.S. 452, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997) ; Bowles v. Seminole Rock & Sand Co. , 325 U.S. 410, 65 S.Ct. 1215, 89 L.Ed. 1700 (1945). The only question presented here is whether we should overrule those decisions, discarding the deference they give to agencies. We answer that question no. Auer deference retains an important role in construing agency regulations. But even as we uphold it, we reinforce its limits. Auer deference is sometimes appropriate and sometimes not. Whether to apply it depends on a range of considerations that we have noted now and again, but compile and further develop today. The deference doctrine we describe is potent in its place, but cabined in its scope. On remand, the Court of Appeals should decide whether it applies to the agency interpretation at issue.
I
We begin by summarizing how petitioner James Kisor's case made its way to this Court. Truth be told, nothing recounted in this Part has much bearing on the rest of our decision. The question whether to overrule Auer does not turn on any single application, whether right or wrong, of that decision's deference doctrine. But a recitation of the facts and proceedings below at least shows how the question presented arose.
Kisor is a Vietnam War veteran seeking disability benefits from the Department of Veterans Affairs (VA). He first applied in 1982, alleging that he had developed post-traumatic stress disorder (PTSD) as a result of his participation in a military action called Operation Harvest Moon. The report of the agency's evaluating psychiatrist noted Kisor's involvement in that battle, but found that he "d[id] not suffer from PTSD." App. 12, 14. The VA thus denied Kisor benefits. There matters stood until 2006, when Kisor moved to reopen his claim. Based on a new psychiatric report, the VA this time agreed that Kisor suffered from PTSD. But it granted him benefits only from the date of his motion to reopen, rather than (as he requested) from the date of his first application.
The Board of Veterans' Appeals-a part of the VA, represented in Kisor's case by a single administrative judge-affirmed that timing decision, based on its interpretation of an agency rule. Under the VA's regulation, the agency could grant Kisor retroactive benefits if it found there were "relevant official service department records" that it had not considered in its initial denial. See 38 C.F.R. § 3.156(c)(1) (2013). The Board acknowledged that Kisor had come up with two new service records, both confirming his participation in Operation Harvest Moon. But according to the Board, those records were not "relevant" because they did not go to the reason for the denial-that Kisor did not have PTSD. See App. to Pet. for Cert. 43a ("[The] documents were not relevant to the decision in May 1983 because the basis of the denial was that a diagnosis of PTSD was not warranted, not a dispute as to whether or not the Veteran engaged in combat"). The Court of Appeals for Veterans Claims, an independent Article I court that initially reviews the Board's decisions, affirmed for the same reason.
The Court of Appeals for the Federal Circuit also affirmed, but it did so based on deference to the Board's interpretation of the VA rule. See Kisor v. Shulkin , 869 F.3d 1360, 1368 (2017). Kisor had argued to the Federal Circuit that to count as "relevant," a service record need not (as the Board thought) "counter[ ] the basis of the prior denial"; instead, it could relate to some other criterion for obtaining disability benefits. Id., at 1366 (internal quotation marks omitted). The Federal Circuit found the regulation "ambiguous" as between the two readings. Id., at 1367. The rule, said the court, does not specifically address "whether 'relevant' records are those casting doubt on the agency's prior [rationale or] those relating to the veteran's claim more broadly." Ibid. So how to choose between the two views? The court continued: "Both parties insist that the plain regulatory language supports their case, and neither party's position strikes us as unreasonable." Id. , at 1368. Because that was so, the court believed Auer deference appropriate: The agency's construction of its own regulation would govern unless "plainly erroneous or inconsistent with the VA's regulatory framework." Ibid. (internal quotation marks omitted). Applying that standard, the court upheld the Board's reading-and so approved the denial of retroactive benefits.
We then granted certiorari to decide whether to overrule Auer and (its predecessor) Seminole Rock . 586 U. S. ----, 139 S.Ct. 657, 202 L.Ed.2d 491 (2018).
II
Before addressing that question directly, we spend some time describing what Auer deference is, and is not, for. You might view this Part as "just background" because we have made many of its points in prior decisions. But even if so, it is background that matters. For our account of why the doctrine emerged-and also how we have limited it-goes a long way toward explaining our view that it is worth preserving.
A
Begin with a familiar problem in administrative law: For various reasons, regulations may be genuinely ambiguous. They may not directly or clearly address every issue; when applied to some fact patterns, they may prove susceptible to more than one reasonable reading. Sometimes, this sort of ambiguity arises from careless drafting-the use of a dangling modifier, an awkward word, an opaque construction. But often, ambiguity reflects the well-known limits of expression or knowledge. The subject matter of a rule "may be so specialized and varying in nature as to be impossible"-or at any rate, impracticable-to capture in its every detail. SEC v. Chenery Corp. , 332 U.S. 194, 203, 67 S.Ct. 1760, 91 L.Ed. 1995 (1947). Or a "problem[ ] may arise" that the agency, when drafting the rule, "could not [have] reasonably foresee[n]." Id., at 202, 67 S.Ct. 1760. Whichever the case, the result is to create real uncertainties about a regulation's meaning.
Consider these examples:
• In a rule issued to implement the Americans with Disabilities Act (ADA), the Department of Justice requires theaters and stadiums to provide people with disabilities "lines of sight comparable to those for members of the general public." 28 C.F.R. pt. 36, App. A, p. 563 (1996). Must the Washington Wizards construct wheelchair seating to offer lines of sight over spectators when they rise to their feet? Or is it enough that the facility offers comparable views so long as everyone remains seated? See Paralyzed Veterans of Am. v. D. C. Arena L. P. , 117 F.3d 579, 581-582 (CADC 1997).
• The Transportation Security Administration (TSA) requires that liquids, gels, and aerosols in carry-on baggage be packed in containers smaller than 3.4 ounces and carried in a clear plastic bag. Does a traveler have to pack his jar of truffle pâté in that way? See Laba v. Copeland , 2016 WL 5958241, *1 (WDNC, Oct. 13, 2016).
• The Mine Safety and Health Administration issues a rule requiring employers to report occupational diseases within two weeks after they are "diagnosed." 30 C.F.R. § 50.20(a) (1993). Do chest X-ray results that "scor[e]" above some level of opacity count as a "diagnosis"? What level, exactly? See American Min. Congress v. Mine Safety and Health Admin. , 995 F.2d 1106, 1107-1108 (CADC 1993).
• An FDA regulation gives pharmaceutical companies exclusive rights to drug products if they contain "no active moiety that has been approved by FDA in any other" new drug application. 21 C.F.R. § 314.108(a) (2010). Has a company created a new "active moiety" by joining a previously approved moiety to lysine through a non-ester covalent bond? See Actavis Elizabeth LLC v. FDA , 625 F.3d 760, 762-763 (CADC 2010) ; Tr. of Oral Arg. 12, 35.
• Or take the facts of Auer itself. An agency must decide whether police captains are eligible for overtime under the Fair Labor Standards Act. According to the agency's regulations, employees cannot receive overtime if they are paid on a "salary basis." 29 C.F.R. § 541.118(a) (1996). And in deciding whether an employee is salaried, one question is whether his pay is "subject to reduction" based on performance. Ibid. A police department's manual informs its officers that their pay might be docked if they commit a disciplinary infraction. Does that fact alone make them "subject to" pay deductions? Or must the department have a practice of docking officer pay, so that the possibility of that happening is more than theoretical? 519 U.S. at 459-462, 117 S.Ct. 905.
In each case, interpreting the regulation involves a choice between (or among) more than one reasonable reading. To apply the rule to some unanticipated or unresolved situation, the court must make a judgment call. How should it do so?
In answering that question, we have often thought that a court should defer to the agency's construction of its own regulation. For the last 20 or so years, we have referred to that doctrine as Auer deference, and applied it often. But the name is something of a misnomer. Before the doctrine was called Auer deference, it was called Seminole Rock deference-for the 1945 decision in which we declared that when "the meaning of [a regulation] is in doubt," the agency's interpretation "becomes of controlling weight unless it is plainly erroneous or inconsistent with the regulation." 325 U.S. at 414, 65 S.Ct. 1215.
And Seminole Rock itself was not built on sand. Deference to administrative agencies traces back to the late nineteenth century, and perhaps beyond. See United States v. Eaton , 169 U.S. 331, 343, 18 S.Ct. 374, 42 L.Ed. 767 (1898) ("The interpretation given to the regulations by the department charged with their execution ... is entitled to the greatest weight"); see Brief for Administrative Law Scholars as Amici Curiae 5, n. 3 (collecting early cases); Brief for AFL-CIO as Amicus Curiae 8 (same).
We have explained Auer deference (as we now call it) as rooted in a presumption about congressional intent-a presumption that Congress would generally want the agency to play the primary role in resolving regulatory ambiguities. See Martin v. Occupational Safety and Health Review Comm'n , 499 U.S. 144, 151-153, 111 S.Ct. 1171, 113 L.Ed.2d 117 (1991). Congress, we have pointed out, routinely delegates to agencies the power to implement statutes by issuing rules. See id., at 151, 111 S.Ct. 1171. In doing so, Congress knows (how could it not?) that regulations will sometimes contain ambiguities. See supra, at 2410. But Congress almost never explicitly assigns responsibility to deal with that problem, either to agencies or to courts. Hence the need to presume, one way or the other, what Congress would want. And as between those two choices, agencies have gotten the nod. We have adopted the presumption-though it is always rebuttable-that "the power authoritatively to interpret its own regulations is a component of the agency's delegated lawmaking powers." Martin , 499 U.S. at 151, 111 S.Ct. 1171. Or otherwise said, we have thought that when granting rulemaking power to agencies, Congress usually intends to give them, too, considerable latitude to interpret the ambiguous rules they issue.
In part, that is because the agency that promulgated a rule is in the "better position [to] reconstruct" its original meaning. Id., at 152, 111 S.Ct. 1171. Consider that if you don't know what some text (say, a memo or an e-mail) means, you would probably want to ask the person who wrote it. And for the same reasons, we have thought, Congress would too (though the person is here a collective actor). The agency that "wrote the regulation" will often have direct insight into what that rule was intended to mean. Mullins Coal Co. of Va. v. Director, Office of Workers' Compensation Programs , 484 U.S. 135, 159, 108 S.Ct. 427, 98 L.Ed.2d 450 (1987). The drafters will know what it was supposed to include or exclude or how it was supposed to apply to some problem. To be sure, this justification has its limits. It does not work so well, for example, when the agency failed to anticipate an issue in crafting a rule (e.g., if the agency never thought about whether and when chest X-rays would count as a "diagnosis"). See supra, at 2410. Then, the agency will not be uncovering a specific intention; at most (though this is not nothing), it will be offering insight into the analogous issues the drafters considered and the purposes they designed the regulation to serve. And the defense works yet less well when lots of time has passed between the rule's issuance and its interpretation-especially if the interpretation differs from one that has come before. All that said, the point holds good for a significant category of "contemporaneous" readings. Lyng v. Payne , 476 U.S. 926, 939, 106 S.Ct. 2333, 90 L.Ed.2d 921 (1986). Want to know what a rule means? Ask its author.
In still greater measure, the presumption that Congress intended Auer deference stems from the awareness that resolving genuine regulatory ambiguities often "entail[s] the exercise of judgment grounded in policy concerns." Thomas Jefferson Univ. v. Shalala , 512 U.S. 504, 512, 114 S.Ct. 2381, 129 L.Ed.2d 405 (1994) (internal quotation marks omitted). Return to our TSA example. See supra, at 2410. In most of their applications, terms like "liquids" and "gels" are clear enough. (Traveler checklist: Pretzels OK; water not.) But resolving the uncertain issues-the truffle pâtés or olive tapenades of the world-requires getting in the weeds of the rule's policy: Why does TSA ban liquids and gels in the first instance? What makes them dangerous? Can a potential hijacker use pâté jars in the same way as soda cans? Or take the less specialized-seeming ADA example. See supra, at 2410. It is easy enough to know what "comparable lines of sight" means in a movie theater-but more complicated when, as in sports arenas, spectators sometimes stand up. How costly is it to insist that the stadium owner take that sporadic behavior into account, and is the viewing value received worth the added expense? That cost-benefit calculation, too, sounds more in policy than in law. Or finally, take the more technical "moiety" example. See supra, at 2410 - 2411. Or maybe, don't. If you are a judge, you probably have no idea of what the FDA's rule means, or whether its policy is implicated when a previously approved moiety is connected to lysine through a non-ester covalent bond.
And Congress, we have thought, knows just that: It is attuned to the comparative advantages of agencies over courts in making such policy judgments. Agencies (unlike courts) have "unique expertise," often of a scientific or technical nature, relevant to applying a regulation "to complex or changing circumstances." Martin , 499 U.S. at 151, 111 S.Ct. 1171 ; see Thomas Jefferson , 512 U.S. at 512, 114 S.Ct. 2381. Agencies (unlike courts) can conduct factual investigations, can consult with affected parties, can consider how their experts have handled similar issues over the long course of administering a regulatory program. See Long Island Care at Home, Ltd. v. Coke , 551 U.S. 158, 167-168, 127 S.Ct. 2339, 168 L.Ed.2d 54 (2007). And agencies (again unlike courts) have political accountability, because they are subject to the supervision of the President, who in turn answers to the public. See Free Enterprise Fund v. Public Company Accounting Oversight Bd. , 561 U.S. 477, 499, 130 S.Ct. 3138, 177 L.Ed.2d 706 (2010) ; Pauley v. BethEnergy Mines, Inc. , 501 U.S. 680, 696, 111 S.Ct. 2524, 115 L.Ed.2d 604 (1991) (discussing as a matter of democratic accountability the "proper roles of the political and judicial branches" in filling regulatory gaps). It is because of those features that Congress, when first enacting a statute, assigns rulemaking power to an agency and thus authorizes it to fill out the statutory scheme. And so too, when new issues demanding new policy calls come up within that scheme, Congress presumably wants the same agency, rather than any court, to take the laboring oar.
Finally, the presumption we use reflects the well-known benefits of uniformity in interpreting genuinely ambiguous rules. We have noted Congress's frequent "preference for resolving interpretive issues by uniform administrative decision, rather than piecemeal by litigation." Ford Motor Credit Co. v. Milhollin , 444 U.S. 555, 568, 100 S.Ct. 790, 63 L.Ed.2d 22 (1980). That preference may be strongest when the interpretive issue arises in the context of a "complex and highly technical regulatory program." Thomas Jefferson , 512 U.S. at 512, 114 S.Ct. 2381. After all, judges are most likely to come to divergent conclusions when they are least likely to know what they are doing. (Is there anything to be said for courts all over the country trying to figure out what makes for a new active moiety?) But the uniformity justification retains some weight even for more accessible rules, because their language too may give rise to more than one eminently reasonable reading. Consider Auer itself. See supra, at 2411 - 2412. There, four Circuits held that police captains were "subject to" pay deductions for disciplinary infractions if a police manual said they were, even if the department had never docked anyone. Two other Circuits held that captains were "subject to" pay deductions only if the department's actual practice made that punishment a realistic possibility. See Auer , 519 U.S. at 460, 117 S.Ct. 905. Had the agency issued an interpretation before all those rulings (rather than, as actually happened, in a brief in this Court), a deference rule would have averted most of that conflict and uncertainty. See Christopher v. SmithKline Beecham Corp. , 567 U.S. 142, 158, n. 17, 132 S.Ct. 2156, 183 L.Ed.2d 153 (2012) (noting for this reason that Auer deference imparts "predictability to the administrative process" (internal quotation marks omitted)). Auer deference thus serves to ensure consistency in federal regulatory law, for everyone who needs to know what it requires.
B
But all that said, Auer deference is not the answer to every question of interpreting an agency's rules. Far from it. As we explain in this section, the possibility of deference can arise only if a regulation is genuinely ambiguous. And when we use that term, we mean it-genuinely ambiguous, even after a court has resorted to all the standard tools of interpretation. Still more, not all reasonable agency constructions of those truly ambiguous rules are entitled to deference. As just explained, we presume that Congress intended for courts to defer to agencies when they interpret their own ambiguous rules. See supra, at 2411 - 2414. But when the reasons for that presumption do not apply, or countervailing reasons outweigh them, courts should not give deference to an agency's reading, except to the extent it has the "power to persuade." Christopher , 567 U.S. at 159, 132 S.Ct. 2156 (quoting Skidmore v. Swift & Co. , 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944) ). We have thus cautioned that Auer deference is just a "general rule"; it "does not apply in all cases." Christopher , 567 U.S. at 155, 132 S.Ct. 2156. And although the limits of Auer deference are not susceptible to any rigid test, we have noted various circumstances in which such deference is "unwarranted." Ibid . In particular, that will be so when a court concludes that an interpretation does not reflect an agency's authoritative, expertise-based, "fair[, or] considered judgment." Ibid. (quoting Auer , 519 U.S. at 462, 117 S.Ct. 905 ); cf. United States v. Mead Corp. , 533 U.S. 218, 229-231, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001) (adopting a similar approach to Chevron deference).
We take the opportunity to restate, and somewhat expand on, those principles here to clear up some mixed messages we have sent. At times, this Court has applied Auer deference without significant analysis of the underlying regulation. See, e.g., United States v. Larionoff , 431 U.S. 864, 872, 97 S.Ct. 2150, 53 L.Ed.2d 48 (1977) (stating that the Court "need not tarry" over the regulation's language given Seminole Rock ). At other times, the Court has given Auer deference without careful attention to the nature and context of the interpretation.
See, e.g., Thorpe v. Housing Authority of Durham , 393 U.S. 268, 276, and nn. 22-23, 89 S.Ct. 518, 21 L.Ed.2d 474 (1969) (deferring to an agency's view as expressed in letters to third parties). And in a vacuum, our most classic formulation of the test-whether an agency's construction is "plainly erroneous or inconsistent with the regulation," Seminole Rock , 325 U.S. at 414, 65 S.Ct. 1215 -may suggest a caricature of the doctrine, in which deference is "reflexive." Pereira v. Sessions , 585 U. S. ----, ----, 138 S.Ct. 2105, 2120, 201 L.Ed.2d 433 (2018) (KENNEDY, J., concurring). So we cannot deny that Kisor has a bit of grist for his claim that Auer "bestows on agencies expansive, unreviewable" authority. Brief for Petitioner 25. But in fact Auer does no such thing: It gives agencies their due, while also allowing-indeed, obligating-courts to perform their reviewing and restraining functions. So before we turn to Kisor's specific grievances, we think it worth reinforcing some of the limits inherent in the Auer doctrine.
First and foremost, a court should not afford Auer deference unless the regulation is genuinely ambiguous. See Christensen v. Harris County , 529 U.S. 576, 588, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000) ; Seminole Rock , 325 U.S. at 414, 65 S.Ct. 1215 (deferring only "if the meaning of the words used is in doubt"). If uncertainty does not exist, there is no plausible reason for deference. The regulation then just means what it means-and the court must give it effect, as the court would any law. Otherwise said, the core theory of Auer deference is that sometimes the law runs out, and policy-laden choice is what is left over. See supra, at 2412 - 2413. But if the law gives an answer-if there is only one reasonable construction of a regulation-then a court has no business deferring to any other reading, no matter how much the agency insists it would make more sense. Deference in that circumstance would "permit the agency, under the guise of interpreting a regulation, to create de facto a new regulation." See Christensen , 529 U.S. at 588, 120 S.Ct. 1655. Auer does not, and indeed could not, go that far.
And before concluding that a rule is genuinely ambiguous, a court must exhaust all the "traditional tools" of construction. Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc. , 467 U.S. 837, 843, n. 9, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) (adopting the same approach for ambiguous statutes). For again, only when that legal toolkit is empty and the interpretive question still has no single right answer can a judge conclude that it is "more [one] of policy than of law." Pauley , 501 U.S. at 696, 111 S.Ct. 2524. That means a court cannot wave the ambiguity flag just because it found the regulation impenetrable on first read. Agency regulations can sometimes make the eyes glaze over. But hard interpretive conundrums, even relating to complex rules, can often be solved. See id., at 707, 111 S.Ct. 2524 (SCALIA, J., dissenting) (A regulation is not ambiguous merely because "discerning the only possible interpretation requires a taxing inquiry"). To make that effort, a court must "carefully consider[ ]" the text, structure, history, and purpose of a regulation, in all the ways it would if it had no agency to fall back on. Ibid. Doing so will resolve many seeming ambiguities out of the box, without resort to Auer deference.
If genuine ambiguity remains, moreover, the agency's reading must still be "reasonable." Thomas Jefferson , 512 U.S. at 515, 114 S.Ct. 2381. In other words, it must come within the zone of ambiguity the court has identified after employing all its interpretive tools. (Note that serious application of those tools therefore has use even when a regulation turns out to be truly ambiguous. The text, structure, history, and so forth at least establish the outer bounds of permissible interpretation.) Some courts have thought (perhaps because of Seminole Rock 's "plainly erroneous" formulation) that at this stage of the analysis, agency constructions of rules receive greater deference than agency constructions of statutes. See, e.g., Ohio Dept. of Medicaid v. Price , 864 F.3d 469, 477 (CA6 2017). But that is not so. Under Auer , as under Chevron , the agency's reading must fall "within the bounds of reasonable interpretation." Arlington v. FCC , 569 U.S. 290, 296, 133 S.Ct. 1863, 185 L.Ed.2d 941 (2013). And let there be no mistake: That is a requirement an agency can fail.
Still, we are not done-for not every reasonable agency reading of a genuinely ambiguous rule should receive Auer deference. We have recognized in applying Auer that a court must make an independent inquiry into whether the character and context of the agency interpretation entitles it to controlling weight. See Christopher , 567 U.S. at 155, 132 S.Ct. 2156 ; see also Mead , 533 U.S. at 229-231, 236-237, 121 S.Ct. 2164 (requiring an analogous though not identical inquiry for Chevron deference). As explained above, we give Auer deference because we presume, for a set of reasons relating to the comparative attributes of courts and agencies, that Congress would have wanted us to. See supra, at 2411 - 2414. But the administrative realm is vast and varied, and we have understood that such a presumption cannot always hold. Cf. Mead , 533 U.S. at 236, 121 S.Ct. 2164 ("tailor[ing] deference to [the] variety" of administrative action); Arlington , 569 U.S. at 309-310, 133 S.Ct. 1863 (BREYER, J., concurring in part and concurring in judgment) (noting that "context-specific[ ] factors" may show that "Congress would [not] have intended the agency to resolve [some] ambiguity"). The inquiry on this dimension does not reduce to any exhaustive test. But we have laid out some especially important markers for identifying when Auer deference is and is not appropriate.
To begin with, the regulatory interpretation must be one actually made by the agency. In other words, it must be the agency's "authoritative" or "official position," rather than any more ad hoc statement not reflecting the agency's views. Mead , 533 U.S. at 257-259, and n. 6, 121 S.Ct. 2164 (SCALIA, J., dissenting). That constraint follows from the logic of Auer deference-because Congress has delegated rulemaking power, and all that typically goes with it, to the agency alone. Of course, the requirement
Question: What is the ideological direction of the decision reviewed by the Supreme Court?
A. Conservative
B. Liberal
C. Unspecifiable
Answer:
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songer_respond2_1_4
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E
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "other". Your task is to determine what subcategory of business best describes this litigant.
ESCHER v. HARRISON SECURITIES CO. et al. (SPINKS REALTY CO. et al., Interveners).
No. 7236.
Circuit Court of Appeals, Ninth Circuit.
Oct. 15, 1935.
Barker & Keithly, Barker, Smiley & Keithly, and Donald Barker, all of Los Angeles, Cal., for appellant.
O’Melveny, Tuller & Myers and Pierce Works, and J. W. Chance, all of Los Angeles, Cal., for appellee Roberts.
Fredericks & Fredericks and John D. Fredericks, Jr., all of Los Angeles, Cal., for appellee Rivers.
Before WILBUR, GARRECHT, and DENMAN, Circuit Judges.
DENMAN, Circuit Judge.
This is an appeal from an order denying appellant’s petition as intervening lessor for an order (1) terminating the receivership in the suit instituted by the plaintiff, Myrtle R. Escher, respecting the lessor’s Pershing Square building and property in the city of Los Angeles, and (2) allowing appellant to enforce its rights as such lessor arising from admitted long-standing defaults in the lease legally warranting repossession.
Appellant, Spinks Realty Company, in-, tervener, is lessor of the ground and improvements thereon known as the Pershing Square building situated at the northeast corner of Fifth and Hill streets in the city of Los Angeles. Appellee, plaintiff Myrtle R. Escher, is an unsecured creditor of defendant. Appellee, defendant Harrison Securities Company, is lessee of the property above mentioned. Appellee Ernest Roberts, defendant in intervention, is trustee under a certain indenture securing a bonded indebtedness of Fifth and Hill Building Company through means of which bonded indebtedness said improvements were constructed. Appellee Henry E. Rivers is receiver of defendant appointed by the court below in the suit instituted by the plaintiff.
The principal considerations appearing in the lease were the erection of a thirteen-story building on the land and a monthly rental of $7,500. There is no evidence of the value of the land at the time of the execution of the leáse and no evidence of or method of determining how much higher the rental would have been if the lessee had not agreed that the building would become at once the property of the lessor upon its creation and also had not specifically agreed that it should be subject to the forfeiture provisions of the lease. Each of the parties to the appeal acquired his interest in or claim upon the receivership with notice of the following agreement concerning that portion of the consideration for the lease represented by the building:
“Ownership of Building.
“16. Any and every building constructed on said leased premises by the lessees as hereinbefore provided shall remain on said premises and shall be and remain the absolute property of the lessor, without cost to it, upon any, termination of this lease, whether by lapse of time or by forfeiture or otherwise. Nothing in this section or in the section of this lease entitled ‘Forfeiture for Default/ or elsewhere in this lease, shall be construed as placing the title of any buildings or improvements constructed on said premises in the lessees; but the said buildings and improvements shall always be a part of the land, and the title to the same and every part thereof shall at all times be in the lessor, subject only to the leasehold interest of the lessees.”
So far as the claimed equities of creditors or bondholders are concerned, the position of such appellees is the same as if a $1,000,000 premium had been paid for the lease; and, so far as the lessee is concerned, its claimed equity does not differ from that of a merchant lessee who, through default in rent, is threatened with the loss of a good will worth $1,000,000, based upon an advantageous business location. So far as the lessor is concerned, the extreme claim of appellees is the same as where a forfeiture of lease would enable a lessor at some future time to secure a new lease at a better rental, the record here demonstrating that, even with the building, the property for eighteen months has yielded very much less than $7,500 per month above the taxes agreed to be paid by the lessee. These analogies are suggested (a) in view of the claim of appellees that a court in restoring its property to the lessor, after months of default in the rent and in other forfeiting breaches of the contract, with no tender of the rent or provision for its payment, or curing-of the other defaults in- any reasonable time, would violate some equity on some theory of unjust enrichment; and (b) in view of appellant’s position that its bargain was a clear one to all the present litigants, that it has waited eighteen months for its rental, and that even with the repossession of the building such repossession has not been shown to create an unjust enrichment over the values when the bargain was made.
A bond issue, provided for in the lease, secured by lessee’s transfer of its interest, was created, and $1,030,000 in bonds were issued and outstanding at the commencement of the suit.
The lessee became insolvent and, on the suit of a single unsecured creditor, consented to the appointment of a receiver. The usual injunction was issued restraining, inter alios, the lessor from taking any action against the receiver or the lessee for the repossession of the leased property. The bondholders intervened through their trustee, alleged default in payment of installments of principal, interest, and breaches of covenants to pay taxes and insurance premiums, and claimed possession of and right, to administer the property under- a usual trust' indenture provision.
After the receiver had had ten months’ administration of the property, on October 17, 1932, appellant intervened and sought to modify the injunction restraining it by asking permission to make the demands on the receiver and lessee necessary to establish its rights under the lease and to commence proceedings in the California courts, or the court below, to recover possession of the property because of default in the rental, taxpaying, and insurance covenants of the lease, and to make the receiver a party to the action. Order to show cause was issued, hearing had and, on December 12, 1932, the court denied the lessor the exercise of its right to recover possession. Lessor renewed its application.
On May 8, 1933, at the hearing of the second order to show cause why the permission should not be granted, it appeared that the rent was $82,500 in arrears; that no rent had been paid in full for twelve months; that unpaid insurance amounted to $7,184.28; that the taxes were in arrears $15,000; that $5,000 taxes had been paid from a loan from the lessor; that there was a supply of building space for rent in buildings in Los Angeles competing with lessor’s greatly in excess of demand, and hence no immediate prospect of an increase of rentals from the subtenants or decrease in vacancies in the building sufficient to discharge the current obligations of the lease, much less the lease arrearages on the bond obligations: and, substantially, that the only hope of an increase in assets of the receiver’s estate to meet the obligations of the lease was the recovery of Los Angeles from a long real estate slump, heightened by the economic depression of the United States since 1929.
No testimony as to the value of the lease to the lessee or the receiver was offered; the statement of a balance sheet of a prior receiver, based upon some other balance sheet not appearing, of a value of $464,590 not being supported by any evidence. The claim of the brief of the bond trustee that the evidence shows such a value in the lessee or in the receiver must have been made with “tongue in cheek.” The trustee asserts his right to possess and administer the lease, that is, the only asset in the receiver’s estate, because of defaults sufficient to warrant demand of payment of the remaining principal. In March, 1933, these defaults amounted to $198,293.50, interest, Installments of principal, and, approximately, $7,000 insurance. By August of the succeeding year 1934, through which period the search for a purchaser for a lease might well continue, the obligations would amount to at least $74,000 more.
In May, 1933, the unpaid rent and taxes were $82,500 and $15,000, respectively. The accrual of rental from May, 1933, to August 1, 1934, is $112,500. The lowest estimate of operating costs and taxes, exclusive of rental, is $71,120 per annum; extended to that date it is approximately $94,-800.
The above items total as of August 1, 1934, $584,093.50. Against this total the receiver hopes to collect rentals to that date of $256,000. The net arrearage is $328,-093.50; that is to say, the receiver must get from the purchaser $328,093.50 to re-establish the trust of the lease and the lease itself and, says the bond trustee, the purchaser will pay $440,636 more or in all $768,-729.50 to secure a lease having bonds still outstanding against it of $827,000. It is needless to say that such an argument to a federal appellate court by the bond trustee seeking to end the receivership, by taking from it its only asset, because the income from the subtenants of the lease is so small, does not appeal. Its flavor is not bettered by the fact that the committee for the bondholders, though having at stake this alleged enormous value, announces that it cannot raise enough to pay the balance between the collections from the subtenants and the $7,500 per month.
The District Court, without finding of fact or opinion, made its order denying the second petition of the lessor appellant' to modify the injunction and permit lessor to make the statutory and lease provision demands on the receiver and lessee for the establishment of its right under the lease and sue in the state court or the court below. The order reserved to the lessor the right to make a third application. Appeal here followed:
Appellant's position is (1) that, in the absence of any tender of the arrearages of rent or offer presently to perform the other broken covenants of the lease, its right to proceed at once to take steps by demand and, if necessary, by litigation for possession of its property, is fully created; (2) that the only equity in the lessee or the receiver and the subordinate secured and unsecured creditors, where, as here, the lessor is seeking a judicial determination of its lease, is to have its forfeiture prevented by a tender of the rent and performance of other broken covenants prior to the final judicial or other restoration of the property to the lessor; and hence (3) that the court erred in denying it permission to initiate proceedings by demand or litigation, based on its legal right to seek repossession — an error equally or more grave than a refusal to allow, on default, the initiation of a proceeding to foreclose a mortgage or lien on property- in a receivership estate.
The contention of the appellees, in final analysis, is (1) that the right to repossession is a mere “security for the payment of the rent” and the performance of other lease covenants which are defaulting in character if not performed, and that, although the rent is unpaid and other covenants not performed, the lessor may be restrained from taking any action or prosecuting proceedings to recover its property so long as it is shown that the consideration for the lease, other than the fixed rental portion thereof — here the building — has a value to the landlord more than the amount of the arrearages of rent and damages from other defaulted covenants, since otherwise the landlord would be “unjustly enriched”; . (2) that, in determining the existence of this claimed unjust enrichment, the value of this other consideration for the lease shall not be determined with a view to the present value of the property, after eighteen months’ proved inability to pay the rent or cure the defaults, but the court is entitled to withhold lessor’s proceedings to recover the property until the court has decided the time of continuance of a drop in Los Angeles real estate values, caused or heightened by a general economic depression, already of three years’ existence, and of unknown further continuance; (3) that the lessor should be restrained until the resolving by the court of the uncertainty as to the lessee’s ability to pay, expressed in the brief of the receiver, speaking as an officer of the court, as follows :
“That concerning said Pershing Square Building there has not as yet been a fair opportunity to determine whether or not it is possible, under efficient and economic management and even with the prevailing high ground rental, to operate said property so that the same will pay its operating costs and ground rental and some return to the bondholders whose funds erected and constructed said building and, as this appellee understands, the order appealed from only deferred the exercise of appellant’s legal right of forfeiture pending a time when it may be determined either that said building may be successfully operated or it be conclusively determined that it is impossible to do so.”
Consent receiverships such as this, the Supreme Court says, are “watched with jealous eyes lest their function be perverted.”
“This court has had occasion to point out the abuses that can arise from friendly receiverships forestalling the normal process of administration in bankruptcy and enabling a tottering business to continue while creditors are held at -bay. Harkin v. Brundage, 276 U. S. 36, 52, 54, 48 S. Ct. 268, 72 L. Ed. 457; cf. Kingsport Press v. Brief English Systems (C. C. A.) 54 F.(2d) 497, 499, 500. Receiverships for conservation have at times a legitimate function,.but they are to be watched with jealous eyes lest their function be perverted”. Michigan, by Haggerty v. Michigan Trust Co., 286 U. S. 334, 345, 52 S. Ct. 512, 515, 76 L. Ed. 1136.
Whatever may have been the formally declared purposes in initiating the receivership, its paramount purpose at the time the lessor intervened was to prevent its assertion of its legal right to repossess its property — the only asset in the receivership estate. So far as concerns the lease, the receivership proceeding is no more than a bill to restrain the assertion of this legal right.
(1) Landlord’s right to repossess for failure to pay rent and nonperformance of other forfeiting covenants as a “security for the rents.” The bond trustee asserts this doctrine of the right to repossess as a security for the rent is properly stated by Pomeroy as follows:
“Pomeroy’s Equity Jurisprudence, § 453, says: ‘Where a lease contains a condition that the lessor may reenter and put an end to the lessee’s estate, or even that the lease shall be void, upon the lessee’s failure to pay the rent at the time specified, it is well settled that a Court of Equity will relieve the lessee and set aside a forfeiture incurred by his breach of the condition, whether the lessor has or has not entered and dispossessed the tenant. This rule is based upon the notion that such condition and forfeiture are intended merely as a security for th.e payment of money.’ ”
The bond trustee’s brief, however, fails to mention or consider the Supreme Court case of Sheets v. Selden, 7 Wall. 416, 422, 19 L. Ed. 166, first enunciating the doctrine cited by Pomeroy under the quoted section, or any of six Circuit Court of Appeals cases expressly relying on the doctrine of that decision. Davis v. Taylor, 51 App. D. C. 97, 276 F. 619, 622; Bonfils v. Ledoux (C. C. A. 8th) 266 F. 507, 510; Peirce v. N. Y. Dock Co. (C. C. A. 2d) 265 F. 148, 156; Saks v. B. H. Stinemetz & Son Co., 54 App. D. C. 38, 293 F. 1005, 1009; Robertson v. Langdon (C. C. A. 7th) 72 F.(2d) 148, 149; Empress Theatre Co. v. Horton (C. C. A. 8th) 266 F. 657, 662. It seems to have been composed on the cockpit theory that briefs are spurs to undercut the opposing bird rather than to advise a court, known to he laboring under the excessive litigation of a community which has outgrown the number oí its judges.
In Sheets v. Selden, 7 Wall. 416, 19 L. Ed. 166, the lease provided that all the rights and privileges of the lessee should cease and determine if any rent should remain unpaid for one month from the time it became due, and the lessor was given the right to enter and take possession of the premises. The tenant having defaulted and having refused to yield possession, an ejectment was brought against him and judgment for possession was rendered in favor of the lessor. Some time thereafter the tenant brought a suit in equity to restrain the enforcement of the judgment in the ejectment suit, hut failed to tender payment of the amount found by the court necessary to make good the deficiency in rentals. The court held that in not alleging in his bill a tender of this amount the bill was fatally defective.
“Courts of equity are governed by the same rules in the exercise of this jurisdiction as courts of law. All arrears of rent, interest, and costs must be paid or tendered. If there be no special reason to the contrary, an injunction thereupon goes to restrain further steps to enforce the forfeiture. The grounds upon which a court of equity proceeds are, that the rent is the object of the parties, and the forfeiture only an incident intended to secure its payment; that the measure of damages is fixed and certain, and that when the principal and interest are paid the compensation is complete.” Sheets v. Selden, 7 Wall. 416, 421, 422, 19 L. Ed. 166.
The principle thus laid down is again approved by the Supreme Court in Prout v. Roby, 15 Wall. 471, 477, 21 L. Ed. 58, and in Kann v. King, 204 U. S. 43, 54, 27 S. Ct. 213, 51 L. Ed. 360. As established in these cases, the tender of the rent, interest, and costs may .be made before or after judgment but, if after judgment, it must be made “before the execution is executed.”
We can find no case in which the Circuit Court of Appeals has varied from the principles established in these cases. In the following cases relief was denied because of failure to make a tender of rent or because the breach was of a character not susceptible of money valuation, such as the violation of a covenant to comply with municipal regulations. Peirce v. N. Y. Dock Co. (C. C. A. 2d) 265 F. 148, 156; Bonfils v. Ledoux (C. C. A. 8th) 266 F. 507, 510, where no tender of accrued rent was made; Saks v. B. H. Stinemetz & Son Co., 54 App. D. C. 38, 293 F. 1005, 1009, where right of re-entry was predicated upon breach oí a forfeiting covenant against bankruptcy or receivership of lessee, and the court held that, compensation for the breach not being capable of definite pecuniary ascertainment, as in the case of rent, equitable relief would be denied. See, also, Empress Theatre Co. v. Horton (C. C. A. 8th) 266 F. 657, 662.
In the following the relief was granted where the tender was made in proper time: Davis v. Taylor, 51 App. D. C. 97, 276 F. 619, 622, where the court said “Of course, the tender must be kept good, as it is here.”
In the case of Odell v. H. Batterman Co. (C. C. A. 2d) 223 F. 292, the leased property had come into the possession of the lessee’s receivers. The lessor sought permission to litigate in a state court his right of re-entry for breach of a defaulting covenant to pay rent. The District Court (217 F. 305) denied the lessor this right, and it was contended that the order as made merely postponed the right of the lessor to maintain his litigation for repossession. The Circuit Court of Appeals held that the right was to an “immediate” suit to determine lessor’s claims and that the lower court erred in failing either to permit the suit to be brought in the state court or to entertain the lessor’s claim as an ancillary proceeding in the receivership. In reversing it gave leave to commence and prosecute the action in the Supreme Court of the state of New York as prayed for by the lessor. In the course of the opinion the court holds that the lessor has the same right to an immediate determination of his claim of right to re-entry as has a mortgagee to prosecute his foreclosure.
“A trustee in bankruptcy gets the title of the bankrupt, and a chancery receiver, as we pointed out in Durand & Co. v. Howard & Co., 216 F. 585, 591, 132 C. C. A. 589 [L. R. A. 1915B, 998] (1914), takes no title, but simply the possession as an officer of the court. It does not, however follow that the receiver can retain possession as receiver of A.’s property when it appears that A.’s right in the property is gone and that B. is entitled thereto. There can be no reason why B. is not entitled to show that A. has lost his right to the possession of the property, and that he (B.) is entitled to enjoy it. In other words, a chancery receiver can have no better right to retain possession of a leasehold than a trustee in bankruptcy has. The landlord’s right to enforce a forfeiture of the lease is not less when a chancery receiver is in possession than it is when a trustee in bankruptcy has possession.
“In this case the alleged breach of the lease occurred more than seven weeks before the appointment of the receivers. The landlord’s right to end the tenancy was therefore complete, if the allegations are supported by the facts, before the receivers came into possession of the property. The receivers have no greater rights in the property than the insolvent corporation itself possessed. The appointment of the receivers in ,no wise abrogated the contract. And if under the lease after breach the landlord is entitled upon giving proper notice to the immediate possession of the property as against the tenant he certainly must have .the same right as against the receivers. Receivers are not appointed to keep persons out of their rights. The law does not tolerate so rank an injustice.” Odell v. H. Batterman Co. (C. C. A.) 223 F. 292, 296, 297.
We consider the decision in this case peculiarly applicable to the case at bar.
In the case of In re Hool Realty Co. (C. C. A, 7th) 2 F. (2d) 334, the lessor sought in a receivership proceeding to have the lease declared forfeited because of the nonpayment of rent. The court found that the lessor had in his possession sufficient funds of the lessee to pay the defaulted amount and denied the forfeiture of the lease. In that case, as in the case before us, it appeared that valuable improvements had been made to the leased property and the court found that these improvements increased the value of the property of which the lessor sought repossession. It speaks of this fact as being “most persuasive,” but does not indicate of what the fact is persuasive, and the case certainly does not hold that the recovery by the lessor, of a property more valuable than at the day it was leased is a ground for refusing to consider the lessor’s claim of a right to re-entry based upon a default in the payment of rent. It is our opinion that in all cases of forfeiture the court should jealously regard the legal and equitable rights of all parties, but this does not mean that we can rewrite the lease with new legal provisions or create equitable rights allowing an indefinite postponement of the legal right of repossession, without provision for payment of the defaulted rental. In this respect we see no difference between refusing the lessor his right to litigate claims to immediate repossession, and the denial to a mortgagee of his right to commence foreclosure proceedings upon the mortgagor’s default.
However, even if hardship to the lessee or advantage to the lessor could be the foundation of an equitable defense, an assertion of such hardship or advantage must be viewed with reference to the conditions prevailing at the time of the execution of the lease. The consideration for the lease, that a valuable building must be erected by a tenant, may well have caused a lower rental. Nothing definite concerning the conditions then existing as affecting the nature of the bargain, as a good or bad one for either of the parties, appears in the record. It may well be that, if the building had not been a part of the consideration, another lease contemplating a-smaller and less permanent improvement would have been made to a tenant able to remain solvent at a much larger rental of, say, $12,500 per month. So far as the proofs are concerned, the drop in real estate values in general, and the competition-of the excess supply of office buildings may have caused the present combined value of the land and new building to be less than that of the land and older building on it when the lease was made. Hence, assuming that unjust enrichment of the lessor were in issue, with the burden upon the party offering against lessor’s admitted legal right to prove facts showing affirmatively such an equitable defense, the absence of such proof compels our finding that the lessor will not be unjustly enriched by repossession. .
Nor can we discern any merit in the contention that, because there exists a deep financial and economic depression, judicially recognized as affecting all interests in-'the community, the lessor, as likely as any one to be faced with the financial embarrassment of the times, and as likely to be in immediate need of its resources in money and property, should be deprived either of the immediate right to its rentals or to its property. So far as the depression is-concerned, this court has no right to assume that its effects lie any less heavily on the lessor than on the lessee.
Concerning the effects of a depression as justifiable grounds of preventing a lien-holder from asserting his rights, the Circuit Court of Appeals for the Second Circuit has held that, although the foreclosure of a first mortgage on premises held by a receiver will, because of general financial distress, preclude any hope of enough being realized to pay more than the amount of the mortgage so secured, the first mortgagee cannot, for that reason, be denied the right to commence foreclosure proceedings even if denial, continued for “two or three years,” will bring the property to a value sufficient to pay junior encumbrances. Judge Lacombe’s opinion holds: “But, although a court of equity will be astute to protect all equitable interests, there is a limit beyond which it may not go. In the case of successive mortgages upon a single piece of real estate, it may often be a great hardship to the holder of a junior mortgage to have the property sold under foreclosure of the first mortgage at a time when general financial distress will preclude any hope of enough being realized to pay more than the amount secured under the first mortgage, while, if all action could be suspended for two or three years, the property would sell for a price sufficient to pay both mortgages in full. But there is no power in a court of equity to abrogate the right of foreclosure and sale for which the first creditor stipulated, which is incorporated in the contract and on the strength of which he lent his money.” Gay v. Hudson River Elec. Power Co. (C. C. A.) 184 F. 689, 693, 694.
Hardship on the mortgagor does not seem a ground for transferring the burden to the mortgagee, of whom it may well be presumed that in times of financial hardship his funds may be as necessary to him as the mortgagor’s equity is to the latter. Judge Lacombe’s opinion goes on to say that, even if the mortgagee is better off by the transaction than the mortgagor, this does not change either the legal or equitable rule applying.
“So, in the case at bar, it may be ‘selfish’ for these bondholders to insist upon a present sale of the property, at a time when junior incumbrancers and unsecured creditors deeply interested financially are ‘so tied up by this litigation that it is impossible for them to protect themselves.’ It may be a ‘grievous wrong’ to them to permit such sales; but, if it is the clear right of the mortgagee to have such a sale go on, the court may not deny him his right, however great may be the hardship to others. Nor must it be forgotten that these others gave credit with full knowledge; the mortgage with its two paragraphs was on file advising them of the situation of the debt- or at the time they trusted it.” Gay v. Hudson River Elec. Power Co., supra (C. C. A.) 184 F. 689, 694.
The court certainly has no more right to alter the obligations of a contract because of an economic depression than has the Congress. See Louisville Joint Stock Land Bank v. Radford, 295 U. S. 555, 55 S. Ct. 854, 79 L. Ed. 1593, 97 A. L. R. 1106.
In the recent case of Robertson v. Langdon (C. C. A. 7th) 72 F.(2d) 148, 149, the doctrine of Sheets v. Selden, 7 Wall. 416, 19 L. Ed. 166, is reaffirmed and the dismissal of a bill by the lessee’s trustee in bankruptcy for want .of equity where it appeared that there had been no tender of the defaulted rent until after the lessor had repossessed the property was sustained. In that case the defaulted rent amounted to $150; the value of the unexpired term of the leasehold lost was $4,000 — that is to say, the lessee’s alleged loss relative to the rental due exceeded in proportion that of the case at bar. In addition, the landlord on repossessing had made a profit from the crop planted by the lessee. Neither fact caused an enlargement of the equitable rights of the lessee. The court considers certain nisi prius cases in which the restoration of the premises has been ordered on a tender of rent after the lessor is finally repossessed, but nevertheless adheres to the doctrine of Sheets v. Selden, supra, that the lessee’s equity is lost where the premises are restored to the lessor.
Appellees have cited a number of state court cases from which selected language appears to suggest a greater equitable power than that established in the federal cases. An analysis of these state opinions shows that in but one has it been held that the lessor will be denied his right to initiate proceedings for repossession, in the absence of a provision for making good to him the defaulted rentals. As to the single exception, the rule established is not applicable here.
In the case of Parr v. Blue Ridge Coal Company, 72 W. Va. 174, 77 S. E. 894, 897, a receiver of the lessee moved the court to dissolve an injunction restraining him and hts wife from declaring a forfeiture of the lease. The court denied the motion saying: “If there was right of forfeiture and reentry, the remedy of appellants, we think, was not by way of motion to dissolve the injunction but by application to the court below to require the reqeiver to yield possession of the property.” This is not a •holding that unjust enrichment is a ground for denying or postponing lessor’s right to repossession. There is a dictum in the case that the interests of other creditors subordinate to the lease give the receiver a better right to resist the provisions of the lease for re-entry on nonpayment of rent than the lessee, which is clearly contra to the federal cases.
In Fleming v. Fleming Hotel Co., 69 N. J. Eq. 715, 61 A. 157, 158, 159, the court apparently holds that the receiver has a higher equitable right to resist the legal claim of the lessor than exists in the lessee. In that case the lessor applied to the court for an order requiring the receiver to surrender the property to him. The Vice Chancellor held that the lessor “should not be allowed to forfeit this lease upon the first ground stated [i. e. non-payment of rent] until it shall appear that the receiver is unable or unwilling to pay the accrued rent — a condition not likely to exist, in view of the amount of property in the receiver’s hands applicable to this purpose. * * * It is the duty of the receiver to act with all reasonable promptness, and he should dispose of this property, including the leasehold interest, without unnecessary delay, and satisfy the petitioner for the ■rent due to him.”
In so far as the New Jersey Vice Chancellor’s opinion asserts that receivership, merely because of a multiplicity of creditors, creates an equitable right beyond that recognized in the federal cases above cited, it cannot control tliis case. It should be noted, however, that the rule stated supports the decision in the case before us since it appears here “that the -receiver is unable * * * to pay the accrued rent.”
In all the other New Jersey cases cited in which injunctive , relief was granted, there had been either tender of performance after breach, substantial performance of the condition, or waiver of breach by equitable conduct by the lessor warranting the prevention of the forfeiture'. However, in Bergman v. Fortescue, 74 N. J. 266, 69 A. 474, foreclosure of a mortgage was decreed because of the breach of a covenant to pay taxes, thus following the dictum in Sheets v. Selden, 7 Wall, 416, 421; 19 L. Ed. 166. In Blake & Co. v. Smidth (N. J. Ch.) 119 A. 306, 307, and Gunning v. Sorg, 214 Ill. 616, 73 N. E. 870, the granting of an injunction restraining forfeiture was conditioned on the tender of the full rent, in one within ten days and the other within seven days; -that is to
Question: This question concerns the second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "other". What subcategory of business best describes this litigant?
A. medical clinics, health organizations, nursing homes, medical doctors, medical labs, or other private health care facilities
B. private attorney or law firm
C. media - including magazines, newspapers, radio & TV stations and networks, cable TV, news organizations
D. school - for profit private educational enterprise (including business and trade schools)
E. housing, car, or durable goods rental or lease
F. entertainment: amusement parks, race tracks, for profit camps, record companies, movie theaters and producers, ski resorts, hotels, restaurants, etc.
G. information processing
H. consulting
I. security and/or maintenance service
J. other service (including accounting)
K. other (including a business pension fund)
L. unclear
Answer:
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songer_opinstat
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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 whether the opinion writter is identified in the opinion or whether the opinion was per curiam.
FORD MOTOR CREDIT COMPANY, Appellant, v. L. Dean MINGES et al., Appellees.
No. 72-1564.
United States Court of Appeals, Fourth Circuit.
Argued Nov. 1, 1972.
Decided Feb. 7, 1973.
J. 0. Tally, Jr., Fayetteville, N. C. (Robert F. Page, David F. Stover, and Tally, Tally & Bourknight, Fayetteville, N. C., on brief), for appellant.
James R. Nance and Heman R. Clark, Fayetteville, N. C. (David A. Harlow, Wilmington, N. C., on brief), for appel-lees.
Before BUTZNER, FIELD and WIDENER, Circuit Judges.
BUTZNER, Circuit Judge:
Ford Motor Credit Company appeals from a judgment dismissing its claims against the president and directors of Fayetteville Tractor and Equipment Co., Inc., notwithstanding a jury verdict in Ford’s favor. Ford asserts that the district court misconstrued North Carolina law governing Ford’s standing to sue, erred in determining that there was insufficient evidence to support the verdict, improperly applied the statute of limitations, and abused its discretion in granting a conditional new trial. We vacate the judgment notwithstanding the verdict and remand the ease for a new trial.
Until shortly before Fayetteville Tractor was placed in receivership, Ford furnished it wholesale credit by financing its inventory through trust receipts. Ford also provided retail credit by accepting assignments of customers’ retail contracts with recourse. Ford brought this action against the president and directors of the company to recover losses it suffered on both types of its secured extensions of credit. It asserted two bases of liability — fraud and gross negligence. The jury returned a special verdict against Ford on the fraud theory, but in Ford’s favor on the negligence theory. The district court, holding that the evidence was insufficient to sustain the verdict as to losses that were not barred by the statute of limitations, set aside the verdict and granted final judgment in favor of the corporate officers. In the alternative, the district court granted a new trial.
Drawing on several North Carolina cases, the district court correctly formulated the following rules for a creditor’s standing to sue corporate directors for fraud or negligent mismanagement:
“1. Where a creditor of a corporation has sustained an identifiable loss peculiar and personal to himself by reason of the fraud or negligent mismanagement of the corporation’s business by its directors, he has a cause of action against the directors for the recovery of his personal loss, and such recovery will inure to him personally and not to the other creditors of the corporation.
“2. Where the alleged fraud or negligent mismanagement has resulted in loss to the corporation and its creditors generally, the right of action belongs to the corporation and it may be maintained only in the name of the corporation or its receiver if it is insolvent. It is only where the corporation or its receiver declines upon request to bring the action that it may be maintained by an individual creditor, but even then the proceeds of any recovery are held for the benefit of all creditors of the corporation.”
These principles grant Ford standing to sue to recover losses, if any, resulting from a failure to account for sales of equipment out of trust which were authorized by the president. Ford also has standing to recover losses, if any, resulting from misrepresentations that retail paper was secured by first liens on equipment or from forged or altered retail contracts that were represented to be genuine.
Ford cannot sue the directors merely because it is a secured creditor. It does not have standing to sue for deficiencies in payment of wholesale financing when the equipment secured by the trust receipts was lawfully disposed of by the receiver. Nor may Ford recover damages from the directors simply because the corporation failed to honor its obligation to repurchase defaulted paper.
The court submitted Ford’s negligence claim to the jury on the theory that Ford could recover against the president for losses caused by his gross negligence and mismanagement. It charged that Ford could recover against the directors on the theory that they would be liable if Ford suffered losses because of their serious mismanagement or gross negligence or because they entrusted the president with the entire management of the corporation when they knew, or in the exercise of reasonable care, should have known of his wrongdoing. The jury found for Ford on these issues.
Viewing the evidence, as we must, in the light most favorable to Ford, McClure v. Price, 300 F.2d 538, 543 (4th Cir. 1962), the proof presented a question for the jury, and it was error to enter judgment notwithstanding the verdict. Without describing in detail the company’s tangled affairs, we believe that from the president’s guilty plea to a charge of false pretenses, from his written statements to an officer of the State Bureau of Investigation, and from other testimony, the jury could have found that he was guilty not only of gross negligence, but also of fraud. Quite properly, the district court did not admit evidence of his plea or statements against the other directors. But from other evidence, the jury could have found that the directors knew, or should have known, that the president had embarked on a course of cheating, false dealing, and mismanagement. From this evidence, the jury could have found gross negligence and serious mismanagement, which foreseeably led to the sales out of trust and the spurious retail financing that resulted in Ford’s losses.
There was other evidence, however, which tended to show that the officers of the corporation were not responsible for Ford's losses. Moreover, the president, claiming that he was coerced by state officers, repudiated his plea of guilty and his written statement. He also testified that shortly before he was removed from active - control of the business, the corporation settled with Ford for all equipment sold out of trust. But the jury was not bound to accept this testimony. In sum, since reasonable men could differ over the conflicting evidence and the inferences to be drawn from it, a jury must be permitted to resolve the controversy. Beaty Shopping Center, Inc. v. Monarch Ins. Co., 315 F. 2d 467, 469 (4th Cir. 1963).
We find no merit in Ford’s complaints that the district court misconstrued North Carolina’s statute of limitations and applied it unconstitutionally. The limitation for actions based on fraud or on negligence is three years. N.C.Gen.Stat. § 1-52 (1969). With respect to claims based on negligence, the cause of action accrues when the wrong is committed. Shearin v. Lloyd, 246 N. C. 363, 98 S.E.2d 508 (1958). In contrast, a cause of action based on fraud, including forgery, does not accrue until discovery. N.C.Gen.Stat. § 1-52(9) (1969); Cooper v. Floyd, 9 N.C.App. 645, 177 S.E.2d 442 (1970).
With respect to Ford’s negligence claims, therefore, the statute of limitations began to run on losses arising, out of wholesale financing when the equipment was sold out of trust. On losses from retail financing caused by negligence, the statute began to run when Ford purchased customer’s contracts that were improperly secured. On Ford’s fraud claims, the statute began to run when Ford discovered, or should have discovered, the facts constituting the fraud. B-W Acceptance Corp. v. Spencer, 268 N.C. 1, 149 S.E.2d 570, 575 (1966).
Ford contends that the application of the three-year negligence statute of limitations to its losses from defaulted retail paper unconstitutionally deprives it of due process of law. It argues that the three-year statute could run before it actually suffered any loss through nonpayment of the balance due. Analysis of the facts, however, demonstrates that Ford’s claim is not well founded. Under North Carolina law, as we have previously mentioned, Ford has no cause of action against the corporate officers simply because the corporation did not honor its commitment to repurchase defaulted retail paper. With respect to claims of this type, Ford stands as any other creditor of the corporation. The gravamen of Ford’s negligence claim with respect to the retail contracts is Fayetteville Tractor’s failure to exercise due care to secure the paper by valid first liens. Ford could readily have ascertained whether the liens were invalid by searching the appropriate records to determine whether prior liens existed, by contacting the customers, and by identifying the equipment pledged as security. If it had found that the retail paper was improperly secured, it could have brought suit immediately without awaiting nonpayment. Of course, if a retail transaction was fraudulent, the cause of action would not accrue until Ford discovered, or should have discovered, the fraud.
The district court ordered separate trials on the issues of liability and damages. Ford interpreted the court’s order to permit it to present additional specific contracts on which it claimed losses at the time of the trial of the damage issue. Ford contends, therefore, that it was premature to consider the application of the statute of limitations to any claims because many of them were not in evidence. The district court interpreted the liability issue to encompass the question of the statute of limitations. We need not comment on this unfortunate misunderstanding other than to say that on retrial, if the issues are separated, a pretrial order should carefully delineate the division so all parties will know what is expected of them.
The grant of a new trial requires only brief comment. We defer to the district judge’s conscientious appraisal of his charge. The jury may have been confused by the instructions and interrogatories concerning the complex issues of fraud and negligence and the legal significance of the disparate roles played by the president and the other directors. Under these circumstances, the trial judge must be allowed wide discretion in granting a new trial. See Cone v. West Virginia Pulp & Paper Co., 330 U.S. 212, 216, 67 S.Ct. 752, 91 L.Ed. 849 (1947); Lind v. Schenley Industries, Inc., 278 F.2d 79, 90 (3d Cir. 1960).
The judgment is vacated, and the case is remanded for a new trial. Each party shall bear its own costs.
. Underwood v. Stafford, 270 N.C. 700, 155 S.E.2d 211 (1967) ; Goodwin v. Whitener, 262 N.C. 582, 138 S.E.2d 232 (1964) ; Minnis v. Sharpe, 202 N.C. 300, 162 S.E. 606 (1932) ; Bane v. Powell, 192 N.C. 387, 135 S.E. 118 (1926) ; Douglass v. Dawson, 190 N.O. 458, 130 S.E. 195 (1925) ; Coble v. Beall, 130 N.C. 533, 41 S.E. 793 (1902).
. Fayetteville Tractor’s receiver had previously brought an action against the directors in state court. Ford, therefore, had no right to maintain this action for the benefit of all creditors.
. This rule was modified in 1971 by an amendment to N.C.Gen.Stat. § 1-15. The amendment does not affect this case.
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:
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sc_issuearea
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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 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.
UNITED STATES v. SWANK et al.
No. 79-1515.
Argued December 9, 1980
Decided May 18, 1981
Stevens, J., delivered the opinion of the Court, in which BuegeR, C. J., and BrenNan, Marshall, Blackmun, Powell, and Rehnquist, JJ., joined. White, J., filed a dissenting opinion, in which Stewart, J., joined, post, p. 585.
Stuart A. Smith argued the cause for the United States. With him on the briefs were Solicitor General McCree, Assistant Attorney General Ferguson, and Michael L. Paup.
LeRoy Katz argued the cause for respondents and filed a brief for respondent Black Hawk Coal Corp., Inc. Lloyd R. Persun and Howell C. Mette filed a brief for respondents Swank et al. Woodrow A. Potesta and Robert Lathrop filed a brief for respondent Bull Run Mining Co., Inc.
Justice Stevens
delivered the opinion of the Court.
The owner of an economic interest in a mineral deposit is allowed a special deduction from taxable income measured by a percentage of his gross income derived from exhaustion of the mineral. This deduction, codified in §§611 and 613 of the Internal Revenue Code of 1954, is designed to compensate such owners for the exhaustion of their interest in a wasting asset, the mineral in place. This case presents the question whether that “percentage depletion” allowance must be denied to otherwise eligible lessees of underground coal because their leases were subject to termination by the lessor on 30 days’ notice.
This question arises out of three different tax refund suits that were decided by the Court of Claims in a single opinion. 221 Ct. Cl. 246, 602 F. 2d 348. The controlling facts are essentially the same in all three cases. Each taxpayer operated a coal mine pursuant to a written lease; in exchange for a fixed royalty per ton, the lessor granted the lessee the right to extract coal and to sell it at prices determined by the lessee. Each lease contained a clause permitting the lessor to terminate the lease on 30 days’ notice. In fact, however, none of the lessors exercised that right; each lessee mined a substantial tonnage of coal during an uninterrupted operation that continued for several years. The proceeds from the sale of the coal represented the only revenue from which the lessees recovered the royalties paid to the lessors.
In each of the cases, certain additional facts help to illuminate the issue. In the Black Hawk case the lease was to continue “during the term commencing on the first day of March, 1964, and terminating when LESSEE shall have exhausted all of The Feds Creek (or Clintwood) Seam of coal, ... or until said tenancy shall be earlier terminated . . . .” App. 77a. The lease required Black Hawk to pay a royalty of 25 cents per ton of coal or $5,000 per year, whichever was larger. Id., at 77a-78a. In addition, the lease required Black Hawk to pay all taxes on the underground coal, as well as the taxes on its plant and equipment and on mined coal. Id., at 79a. Black Hawk paid independent contractors a fixed price per ton to remove the coal, and Black Hawk was free to sell the coal to any party at whatever price it could obtain. Black Hawk mined the seam to exhaustion, operating continuously under the lease for 13 years. Id., at 70a-71a. The Government stipulated that Black Hawk was the sole claimant to the percentage depletion deduction; no claim had been made by the lessor or by any independent mining contractor employed by Black Hawk. Id., at 71a.
The Swank case involves two separate leases executed by Swank and Northumberland County, Pa., pursuant to which Swank operated mines on land owned by the county. The first lease, a deep-mining lease executed in 1964, was terminated in 1968 after a mountain slide forced Swank to close the mine. Id., at 52a. The second, a strip-mining lease executed in 1966, was still being operated by Swank’s successor in interest in 1977 when the case was tried. During the tax years in dispute, Swank’s royalty payments to the county at the rate of 35 cents per ton amounted to $7,545.10 in 1966 and $6,854.05 in 1967. Id., at 53a. The deduction for depletion, which was based on the gross income received from the sale of the coal, was significantly larger. The record also indicates that Swank invested significant sums in the construction of access roads, the acquisition of equipment, and the purchase and improvement of a “tipple” — the surface structure that is used to remove slate and rock from the mined product and to sort the coal into specific sizes for marketing. Id., at 55a-56a.
The Bull Run case involves a 5-year lease executed in 1967 and renewed in 1972. Id., at 90a-91a. Unlike the leases in the other cases, it gave the lessor a right of first purchase if it was willing to meet the lessee’s price, and in the tax year in dispute the lessor did purchase all of the coal mined by Bull Run. 221 Ct. Cl., at 249, n. 4, 602 F. 2d, at 350, n. 4. The lease did not, however, limit the lessee’s right to set selling prices or to sell to others who were willing to pay more than the lessor. Ibid. Like the lease in Black Hawk, the lease provided for a royalty of 25 cents per ton. App. 91a. As is also true in both Black Hawk and Swank, there is no suggestion that any other party has made any claim to any part of the percentage depletion allowance at issue in this case. See id., at 92a. The Bull Run lease, like the others, contained a provision giving the lessor the right to cancel on 30 days’ written notice.
I
Since 1913 the Internal Revenue Code or its predecessors have provided special deductions for depletion of wasting assets. We have explained these deductions as resting “on the theory that the extraction of minerals gradually exhausts the capital investment in the mineral deposit/’ and therefore the depletion allowance permits “a recoupment of the owner’s capital investment in the minerals so that when the minerals are exhausted, the owner’s capital is unimpaired.” Commissioner v. Southwest Exploration Co., 350 U. S. 308, 312. The percentage depletion allowance, however, is clearly more than a method of enabling the operator of a coal mine to recover the amount he has paid for the unmined coal. Because the deduction is computed as a percentage of his gross income from the mining operation and is not computed with reference to the operator’s investment, it provides a special incentive for engaging in this line of business that goes well beyond a purpose of merely allowing the owner of a wasting asset to recoup the capital invested -in that asset. As the Court said in Southwest Exploration Co., supra:
“The present allowance, however, bears little relationship to the capital investment, and the taxpayer is not limited to a recoupment on his original investment. The allowance continues so long as minerals are extracted, and even though no money was actually invested in the deposit. The depletion allowance in the Internal Revenue Code of 1939 [the forerunner of the present statute] is solely a matter of congressional grace . . . .” 350 U. S., at 312.
Hence eligibility for the deduction is determined not by the amount of the capital investment but by the mine operator’s “economic interest” in the coal.
A recognition that the percentage depletion allowance is more than merely a recovery of the cost of the unmined coal is especially significant in this case. The question here is whether a deduction for the asset depleted by respondents will be received by anyone. The tax consequences of the lessors’ receipt of royalties will not be affected, either favorably or unfavorably, by our decision in this case. The Government therefore is not contending that the wrong party is claiming the percentage depletion allowance. Rather, the Government takes the position that no such deduction shall be allowed to any party if the legal interest of the lessee-operator is subject to cancellation on short notice.
II
The language of the controlling statute makes no reference to the minimum duration of the interest in mineral deposits on which a taxpayer may base his claim to percentage depletion. The relevant Treasury Regulation merely requires the taxpayer to have an “economic interest” in the unmined coal. That term is broadly defined by regulation as follows:
“(b) Economic interest. (1) Annual depletion deductions are allowed only to the owner of an economic interest in mineral deposits or standing timber. An economic interest is possessed in every case in which the taxpayer has acquired by investment any interest in mineral in place or standing timber and secures, by any form of legal relationship, income derived from the extraction of the mineral or severance of the timber, to which he must look for a return of his capital.”
The Government’s argument that the termination clause deprived the lessees of an economic interest is advanced in two forms. First, the Government notes that the regulation distinguishes a mere “economic advantage” from a depleta-ble “economic interest,” and argues that two cases — Parsons v. Smith, 359 U. S. 215, and Paragon Jewel Coal Co. v. Commissioner, 380 U. S. 624 — in which the Court concluded that mining contractors had only an “economic advantage” rather than an “economic interest” in coal deposits — support the conclusion that these lessees also had a mere “economic advantage.” Second, the Government argues as a matter of “practical economics” that the right to terminate gives the lessor the only significant economic interest in the coal. Neither submission is persuasive.
The- Parsons opinion covered two consolidated cases with similar facts. In each the owner of coal-bearing land entered into a contract with the taxpayer providing that the taxpayer would strip-mine the coal and deliver it to the owner for a fixed price per ton. Neither of the contracts purported to give the mining contractor any interest in the coal, either before or after it was mined, or any right to sell it to third parties. See 359 U. S., at 216-219. The contracts were terminable on short notice and terminability was one of the seven factors the Court listed to support its conclusion that the independent contractors did not have an economic interest in the coal. It is perfectly clear, however, that the Court would have reached the same conclusion if that factor had not been present.
The facts in the Paragon Jewel case were much like those in Parsons, except that the mining contractors dealt with lessees instead of the owners of the underground coal. As in Parsons, the contractors agreed to mine the coal at their own expense and deliver it to Paragon’s tipple at a fixed fee per ton. The contractors had no control over the coal after delivery to Paragon, had no responsibility for its sale or in fixing its price, and did not even know the price at which Paragon sold the coal. 380 U. S., at 628. The Court stated that the Commissioner took the position that
“only a taxpayer with a legally enforceable right to share in the value of a mineral' deposit has a depletable capital or economic interest in that deposit and the contract miners in this case had no such interest in the unmined coal.” Id., at 627.
The Court agreed that the miners did not have an economic interest in the coal:
“Here, Paragon was bound to pay the posted fee regardless of the condition of the market at the time of the particular delivery and thus the contract miners did not look to the sale of the coal for a return of their investment, but looked solely to Paragon to abide by its covenant.” Id., at 635.
Thus in Paragon Jewel Coal Co., as in Parsons, the termina-bility of the agreements was not the dispositive factor, and neither case answers the narrow question before us in this case.
The contrast between the interest of the contractors in Parsons and Paragon Jewel and the lessees in these cases is stark. Whereas those contractors never acquired any legal interest in the coal, the lessees in these cases had a legal interest in the mineral both before and after it was mined, and were free to sell the coal at whatever price the market could bear. Indeed, the Government does not contend that, absent the termination clauses, the lessees would not have had an economic interest in the coal. In contrast, it seems clear that the contract miners’ interest in the Parsons and Paragon Jewel cases would have been insufficient even if their agreements had been for a fixed term.
The Government, however, does argue that the lessors’ right to terminate the leases alone made the taxpayers’ interest so tenuous as to defeat a claim to the percentage depletion deduction. According to the Government, as a matter of “practical economics” an increase in the price of the minerals will “assuredly” lead to an exercise of the lessors’ right to terminate; accordingly, the only significant economic interest is controlled by the lessor. We find this theoretical argument unpersuasive for at least three reasons.
First, the royalty rate is a relatively small element of the mine operator’s total cost. Therefore, even if the price of coal increases, the lessor cannot be certain that he will be able to negotiate a more favorable lease with another lessee. Moreover, the quantity of coal extracted by the operator each year may be as important in providing royalties for the lessor as the rate per ton. Purely as a theoretical matter, it therefore is by no means certain that an increase in the price of coal will induce a lessor to terminate a satisfactory business relationship. Indeed, the only evidence in the record — the history of three different operations that were uninterrupted for many years — tends to belie the Government’s entire argument.
Second, from the standpoint of the taxpayer who did in fact conduct a prolonged and continuous operation, it would seem rather unfair to deny him a tax benefit that is available to his competitors simply because he accepted a business risk — the risk of termination — that his competitors were able to avoid when they negotiated their mining leases. It is unlikely that Congress intended to limit the availability of the percentage depletion deduction to the mining operations with the greatest bargaining power.
Third, and most important, the Government has not suggested any rational basis for linking the right to a depletion deduction to the period of time that the taxpayer operates a mine. If the authorization of a special tax benefit for mining a seam of coal to exhaustion is sound policy, that policy would seem equally sound whether the entire operation is conducted by one taxpayer over a prolonged period or by a series of taxpayers operating for successive shorter periods. The Government has suggested no reason why the efficient removal of a great quantity of coal in less than 30 days should have different tax consequences than the slower removal of the same quantity over a prolonged period.
The Court of Claims correctly concluded that the mere existence of the lessors’ unexercised right to terminate these leases did not destroy the taxpayers’ economic interest in the leased mineral deposits.
The judgment is
Ҥ 611. Allowance of deduction for depletion
“(a) General Rule
“In the case of mines, oil and gas wells, other natural deposits, and timber, there shall be allowed as a deduction in computing taxable income a reasonable allowance for depletion and for depreciation of improvements, according to the peculiar conditions in each case; such reasonable allowance in all cases to be made under regulations prescribed by the Secretary. . . .” 26 U. S. C. §611 (a).
Ҥ 613. Percentage depletion
“(a) General Rule
“In the case of the mines, wells, and other natural deposits listed in subsection (b), the allowance for depletion under section 611 shall be the percentage, specified in subsection (b), of the gross income from the property excluding from such gross income an amount equal to any rents or royalties paid or incurred by the taxpayer in respect of the property. Such allowance shall not exceed 50 percent of the taxpayer’s taxable income from the property (computed without allowance for depletion). . . . In no case shall the allowance for depletion under section 611 be less than it would be if computed without reference to this section.
“(b) Percentage depletion rates
“The mines, wells, and other natural deposits, and the percentages, referred to in subsection (a) are as follows:
“(4) 10 percent
“Asbestos, . . . brucite, coal, lignite, perlite, sodium chloride, and wollastonite.” 26 U. S. C. §§613 (a), (b)(4).
Black Hawk Coal Corp., Inc., operated drift mines in Pike County, Ky. Its refund suit covered the tax years 1970-1972.
The Government states that the depletion deductions claimed by Swank in 1966 and 1967 amounted to $41,371.24 and $15,204.32. Brief for United States 3. See also App. 8a-9a. No other party claimed the depletion deduction on coal mined by Swank.
Bull Run Mining Co. operated in West Virginia. In its brief, Bull Run states that the leased coal was mined to exhaustion in September 1978. Brief for Respondent Bull Run Mining Co. 2.
Bull Run claimed a depletion deduction of $39,981.41 for 1974, the tax year in question. App. 92a.
The relevant section of the lease provides:
“5. CANCELLATION. It is agreed between the parties that either party to this agreement may cancel this lease upon giving to the other party a written notice at least thirty (30) days prior to the effective date of said cancellation. If any coal is mined during said thirty (30) day period, the same shall be paid for the same as if said notice were not given, and upon the expiration of said thirty (30) days, Lessee agrees to deliver the possession of said premises to the Lessor. Upon such cancellation becoming effective, Lessor shall reasonably compensate Lessee for the then fair market value of track, conveyors, dumps, bins, motors and other equipment which Lessee shall have affixed to the premises, and if the parties cannot agree upon such compensation, Lessee shall have a period of four (4) months within which to remove his equipment, from the effective date of cancellation.” Id., at 96a.
In Helvering v. Bankline Oil Co., 303 U. S. 362, 366, the Court explained that the deduction “is permitted in recognition'of the fact that the mineral deposits are wasting assets and is intended as compensation to the owner for the part used up in production.”
The Swank case is illustrative of the nature of the depletion deduction. We can determine from the fact that Swank paid royalties of $7,545.10 in 1966 and $6,854.05 in 1967 that Swank mined roughly the same amount of coal in both years, 21,557 tons in 1966 and 19,585 tons in 1967. Thus Swank could apparently claim a depletion allowance of about $1.92 per ton in 1966 and about 78 cents per ton in 1967. Inasmuch as the depletion allowance is a percentage of gross income, these figures — which suggest that the selling price of the coal may have been almost as high as $20 a ton — indicate the lack of any specific relationship between the lessee’s cost of the raw coal and the value of the depletion allowance.
In the Revenue Act of 1918, the capital to be recovered through the depletion allowance was not determined by the owner’s investment in the minerals but rather was measured by the fair market value of the property at the date the mineral deposits were “discovered.” See Revenue Act of 1918, ch. 18, §§214 (a) (10), 234 (a)(9), 40 Stat. 1068, 1078. Although this method of determining the depletion allowance was changed to the percentage depletion method for oil and gas in 1926, Revenue Act of 1926, ch. 27, §204 (c), 44 Stat. (part 2) 16, and for coal in 1932, Revenue Act of 1932, ch. 209, § 114 (b)(4), 47 Stat. 203, this Court, in Helvering v. Bankline Oil Co., su-pra, at 366-367, recognized that “[t]he granting of an arbitrary deduction ... of a percentage of gross income was in the interest of convenience and in no way altered the fundamental theory of the allowance.” Thus since 1918 the depletion deduction has not been limited to a recoupment of the operator’s investment.
The Court developed the “economic interest” test in Palmer v. Bender, 287 U. S. 551. In Palmer, the Court stated:
“The language of the statute is broad enough to provide, at least, for every case in which the taxpayer has acquired, by investment, any interest in the oil in place, and secures, by any form of legal relationship, income derived from the extraction of the oil, to which he must look for a return of his capital.” Id., at 557.
The Government argues that the Court of Claims erred in concluding that a consequence of the Government’s position is that no one will receive the percentage depletion deduction. See 221 Ct. Cl. 246, 251, 602 F. 2d 348, 351; Brief for United States 22-23. This argument is not persuasive.
Under § 631 (c) of the Internal Revenue Code, the lessor is required to treat his royalty income as a capital gain and is not entitled to claim a percentage depletion deduction. Section 631 (c) provides in pertinent part:
“In the case of the disposal of coal (including lignite), or iron ore mined in the United States, held for more than 1 year before such disposal, by the owner thereof under any form of contract by virtue of which such owner retains an economic interest in such coal or iron ore, the difference between the amount realized from the disposal of such coal or iron ore and the adjusted depletion basis thereof plus the deductions disallowed for the taxable year under section 272 shall be considered as though it were a gain or loss, as the case may be, on the sale of such coal or iron ore. Such owner shall not be entitled to the allowance for percentage depletion provided in section 618 with respect to such coal or iron ore. This subsection shall not apply to income realized by any owner as a co-adventurer, partner, or principal in the mining of such coal or iron ore, and the word 'owner’ means any person who owns an economic interest in coal or iron ore in place, including a sublessor.” 26 U. S. C. § 631 (c) (1976 ed., Supp. Ill) (emphasis added).
Unlike the percentage depletion deduction, the capital gains treatment required by § 631 (c) is directly related to the lessor’s capital investment in the mine. Because the lessor’s gain is measured by the difference between his cost, computed on a per ton basis, and his royalty, he of course recoups his capital investment as the coal is mined. In this sense, he receives “cost depletion.” The difference between the lessor’s “cost depletion” and the lessee’s “percentage depletion” is indicated by the record in the Swank case. In 1966 the royalty payments amounted to $7,545.10; a part of that amount was the lessor’s capital gain and the remainder was his “cost depletion.” In contrast, the “percentage depletion” claimed by the lessee amounted to $41,371.24. The amounts are not in dispute. Thus, contrary to the Government’s argument, the provision of capital gains treatment to the lessor does not indicate that the percentage depletion deduction, which we have characterized as a form of “congressional grace,” will be available to some other party if it cannot be claimed by the lessee. See n. 12, infra.
The Government conceded at oral argument that the lessor’s entitlement to the capital gain treatment of the royalty proceeds would be the same regardless of whether the lessee is entitled to percentage depletion. Tr. of Oral Arg. 16. Moreover, the Government also conceded that even if the lessees had a long-term lease and were clearly entitled to the depletion allowance, the lessors would nevertheless have .a retained economic interest in the coal. Id., at 16-18. Therefore, the lessors would be required by § 631 (c) to take capital gains rather than a depletion deduction regardless of whether we hold that the lessee is entitled to the percentage depletion deduction.
Although these cases involve provisions for cancellation on 30 days’ notice, the Government advises us that it takes the same position with respect- to any lease cancellable on less than one year’s notice. Tr. of Oral Arg. 8. This position has its genesis in G. C. M. 26290, 1950-1 Cum. Bull. 42, declared obsolete, Rev. Rui. 70-277, 1970-1 Cum. Bull. 280. See also Rev. Rui. 74-507, 1974-2 Cum. Bull. 179.
See n. 1, supra.
The Court early recognized that lessees had an economic interest in the mines:
“It is, of course, true that the leases here under review did not convey title to the unextracted ore deposits . . . ; but it is equally true that such leases, conferring upon the lessee the exclusive possession of the deposits and the valuable right of removing and reducing the ore to ownership, created a very real and substantial interest therein. . . . And there can be no doubt that such an interest is property.” Lynch v. Alworth-Stephens Co., 267 U. S. 364, 369.
Treas. Reg. §1.611-1 (b), 26 CFR § 1.611-1 (b) (1980).
The regulation provides an example of such an “economic advantage”:
“[A]n agreement between the owner of an economic interest and another entitling the latter to purchase or process the product upon production or entitling the latter to compensation for extraction or cutting does not convey a depletable economic interest.” Ibid.
The Court listed the seven factors in this paragraph:
“To recapitulate, the asserted fiction is opposed to the facts (1) that petitioners’ investments were in their equipment, all of which was movable — not in the coal in place; (2) that their investments in equipment were recoverable through depreciation — not depletion; (3) that the contracts were completely termmable without cause on short notice; (4) that the landowners did not agree to surrender and did not actually surrender to petitioners any capital interest in the coal in place; (5) that the coal at all times, even after it was mined, belonged entirely to the landowners, and that petitioners could not sell or keep any of it but were required to deliver all that they mined to the landowners; (6) that petitioners were not to have any part of the proceeds of the sale of the coal, but, on the contrary, they were to be paid a fixed sum for each ton mined and delivered, which was, as stated in Huss, agreed to be in 'full compensation for the full performance of all work and for the furnishing of all [labor] and equipment required for the work’; and (7) that petitioners, thus, agreed to look only to the landowners for all sums to become due them under their contracts. The agreement of the landowners to pay a fixed sum per ton for mining and delivering the coal 'was a personal covenant and did not purport to grant [petitioners] an interest in the [coal in place].’ Helvering v. O’Donnell, 303 U. S. 370, 372. Surely these facts show that petitioners did not actually make any capital investment in, or acquire any economic interest in, the coal in place, and that they may not fictionally be regarded as having done so.” 359 U. S., at 225 (emphasis added).
Although this fee varied depending on the general trends of the market price and labor costs, the Court noted that such changes “were always prospective, the contractors being notified several days in advance of any change so that they always knew the amount they would get for the mining of the coal upon delivery.” 380 U. S., at 628.
With respect to the terminability issue, although no specific right to terminate was mentioned in the-agreement, the Paragon Jewel Court concluded that because the contractors had apparently been able to terminate at will, such a power should also be imputed to Paragon. The Court indicated, however, that even if the agreements were not terminable at will, the “right to mine to exhaustion, without more, does not constitute an economic interest under Parsons.” Id., at 634.
Another distinguishing feature of Paragon Jewel is that that case really presented an issue respecting which taxpayer — the contract miner or the lessee — should receive the depletion allowance. See id., at 626, 630; id., at 639-649 (Goldberg, J., dissenting). The fact that the existence of a right to terminate is relevant in what is essentially a dispute between the parties to the contract surely does not support the conclusion that such an unexercised right has any bearing on the question whether any taxpayer may claim percentage depletion.
“Although he has a potential right to benefit from a rise in the market, that right is illusory for practical economies will compel the lessor to terminate the lease and conclude a more favorable arrangement if market conditions so dictate.” Brief for United States 19.
“As we have pointed out (supra, page 19), if the market price of the minerals rises above the lessor’s royalty, the lessor will assuredly exercise his right to terminate the lease on short notice and will either enter into a more profitable lease or extract the mineral himself and sell it. In these circumstances, the lease provision permitting termination on short notice gives the lessor the unilateral right to assume complete and unfettered dominion over the mineral deposit, viz., an economic interest in the minerals in place. The unexercised termination clause therefore has profound economic significance, rather than, as the decision below erroneously concluded (Pet. App. 5a), 'mere existence.’ ” Id., at 21-22 (footnotes omitted).
In Swank, for example, the royalty payment was 35 cents per ton, while the price of coal apparently approached $20 per ton. See n. 8, supra.
The Court of Claims opinion also recognized the weakness of this argument. The court stated that counsel for one of the taxpayers at oral argument had noted that the lessors had not terminated even though the value of coal had increased markedly. The taxpayer argued that lessors would be reluctant to terminate because “the costs of continuing with an existing mine are usually so great, comparatively, that it is difficult for a lessor to obtain new lessees at terms more favorable to the lessors than the existing leases.” 221 Ct. Cl., at 251, n. 9, 602 F. 2d, at 351, n. 9. The court did not accept these representations as evidence but indicated that “the record contains nothing to contradict this explanation for what seems to be the fact that leases of this type have not been regularly cancelled by lessors in recent years.” Ibid.
As we have indicated, the depletion deduction is geared to the depletion of the mineral in place, and not to the taxpayer’s capital investment. Therefore, we can perceive no reason to impose duration requirements on the availability of the deduction for taxpayers who admittedly otherwise have an “economic interest” in the coal, are dependent on the market to recover their costs, and are actually depleting the mineral in place.
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_majvotes
|
3
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the number of judges who voted in favor of the disposition favored by the majority. Judges who concurred in the outcome but wrote a separate concurring opinion are counted as part of the majority. For most cases this variable takes the value "2" or "3." However, for cases decided en banc the value may be as high as 15. Note: in the typical case, a list of the judges who heard the case is printed immediately before the opinion. If there is no indication that any of the judges dissented and no indication that one or more of the judges did not participate in the final decision, then all of the judges listed as participating in the decision are assumed to have cast votes with the majority. The number of majority votes recorded includes district judges or other judges sitting by designation who participated on the appeals court panel. If there is an indication that a judge heard argument in the case but did not participate in the final opinion (e.g., the judge died before the decision was reached), that judge is not counted in the number of majority votes.
Theodore WAY, Appellant, v. UNITED STATES of America, Appellee.
No. 6305.
United States Court of Appeals Tenth Circuit.
March 30, 1960.
Donald W. Madole, Denver, Colo., for appellant.
Charles M. Stoddard, Denver, Colo., Asst. U. S. Atty., District of Colorado (Donald G. Brotzman, U. S. Atty., Boulder, Colo., District of Colorado, on the brief), for appellee.
Before PICKETT and BREITENSTEIN, Circuit Judges, and SAVAGE, District Judge.
PER CURIAM.
Way was convicted of stealing money in violation of 18 U.S.C. § 2113(b) from a bank insured by the Federal Deposit Insurance Corporation and was sentenced to a term of three years. Upon appeal to this court his conviction was affirmed. Way v. United States, 10 Cir., 268 F.2d 785. Thereafter he applied under 28 U.S.C. § 2255 for a vacation of sentence. This appeal is from the denial of that application.
Way first asserts that evidence secured by an unlawful search was improperly admitted at his trial. The trial court expressly found that the search was lawful and the evidence properly admitted. Be that as it may, the reception of such evidence was not objected to at the trial and no point thereof was made in the subsequent appeal. This objection may not be raised for the first time in a proceeding under Section 2255.
The next contention is that the conviction was secured upon evidence establishing entrapment which entitled Way to an acquittal. This defense was not raised in either the trial court or in the appeal. A motion under Section 2255 to vacate a sentence is a collateral proceeding in which errors in procedure on the initial trial of the case are not open for review. Here the defense of entrapment is raised for the first time in this Section 2255 proceeding and, hence, comes too late.
The last point is that Way did not have effective representation of counsel because such counsel in the trial court did not raise the aforementioned issues. The issue of ineffective counsel was not raised by the motion to vacate and was not considered by the trial court. It cannot now be raised for the first time on appeal. The court notes that the retained trial counsel was a lawyer experienced in criminal trials. He may have had adequate reason for failing to raise these points. In any event if appropriate motions had been made, the propriety of the denial could not be questioned in a Section 2255 proceeding.
Affirmed.
. Barber v. United States, 10 Cir., 197 F.2d 815, certiorari denied 344 U.S. 857, 73 S.Ct. 94, 97 L.Ed. 665, and cases cited in footnote 1.
. Horne v. United States, 5 Cir., 264 F.2d 40, certiorari denied 360 U.S. 934, 79 S.Ct. 1460, 3 L.Ed.2d 1549.
. Stanley v. United States, 9 Cir., 239 F.2d 765.
. It appears from the briefs that Way was represented by retained counsel at the trial and appointed counsel in the appeal.
. Plummer v. United States, 104 U.S.App.D.C. 211, 260 F.2d 729.
. See Barber v. United States, 10 Cir., 227 F.2d 431.
. White v. United States, 98 U.S.App.D.C. 274, 235 F.2d 221.
Question: What is the number of judges who voted in favor of the disposition favored by the majority?
Answer:
|
songer_realresp
|
B
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine whether or not the formally listed respondents in the case are the "real parties." That is, are they the parties whose real interests are most directly at stake? (e.g., in some appeals of adverse habeas corpus petition decisions, the respondent is listed as the judge who denied the petition, but the real parties are the prisoner and the warden of the prison) (another example would be "Jones v A 1990 Rolls Royce" where Jones is a drug agent trying to seize a car which was transporting drugs - the real party would be the owner of the car). For cases in which an independent regulatory agency is the listed respondent, the following rule was adopted: If the agency initiated the action to enforce a federal rule or the agency was sued by a litigant contesting an agency action, then the agency was coded as a real party. However, if the agency initially only acted as a forum to settle a dispute between two other litigants, and the agency is only listed as a party because its ruling in that dispute is at issue, then the agency is considered not to be a real party. For example, if a union files an unfair labor practices charge against a corporation, the NLRB hears the dispute and rules for the union, and then the NLRB petitions the court of appeals for enforcement of its ruling in an appeal entitled "NLRB v Widget Manufacturing, INC." the NLRB would be coded as not a real party. Note that under these definitions, trustees are usually "real parties" and parents suing on behalf of their children and a spouse suing on behalf of their injured or dead spouse are also "real parties."
MEMPHIS LIGHT, GAS AND WATER DIVISION, Petitioner, v. FEDERAL POWER COMMISSION, Respondent, Texas Gas Transmission Corporation, Tennessee Valley Municipal Gas Assoc., etc., Intervenors. MEMPHIS LIGHT, GAS AND WATER DIVISION, Petitioner, v. FEDERAL POWER COMMISSION, Respondent, Texas Gas Transmission Corporation, American Public Gas Association, Intervenors. TENNESSEE VALLEY MUNICIPAL GAS ASSOCIATION et al., Petitioners, v. FEDERAL POWER COMMISSION, Respondent, Texas Gas Transmission Corporation, Intervenor. PUBLIC SERVICE COMMISSION OF the STATE OF NEW YORK, Petitioner, v. FEDERAL POWER COMMISSION, Respondent, Texas Gas Transmission Corporation, Intervenor.
Nos. 24517, 24518, 24602 and 24632.
United States Court of Appeals, District of Columbia Circuit.
Argued Oct. 28, 1971.
Decided Feb. 18, 1972.
Rehearings Denied in Nos. 24517 and 24632 May 11, 1972.
Mr. George E. Morrow, Memphis, Tenn., with whom Mr. Reuben Goldberg, Washington, D. C., was on the briefs, for petitioner in Nos. 24517 and 24518.
Mr. Morton L. Simons, Washington, D. C., for petitioner in No. 24632.
Mr. J. Richard Tiano, Asst. Sol. F. P. C., with whom Messrs. Gordon Gooch, Gen Counsel, and Abraham R. Spalter, Asst. Gen. Counsel, F. P. C., were on the brief, for respondent. Mr. Israel Convisser, Atty., F. P. C., also entered an appearance for respondent.
Mr. Christopher T. Boland, Washington, D. C., with whom Mr. Richard J. Connor, Washington, D. C., was on the brief, for intervenor Texas Gas Transmission Corp. Mr. George J. Meiburger, Washington, D. C., also entered an appearance for intervenor Texas Gas Transmission Corp. in Nos. 24517 and 24518.
Mr. Reuben Goldberg, Washington, D. C., entered an appearance for petitioner in No. 24602.
Mr. Charles F. Wheatley, Jr., Washington, D. C., was on the brief for in-tervenor American Public Gas Assn, in No. 24518.
Before FAHY, Senior Circuit Judge, and ROBINSON and WILKEY, Circuit Judges.
WILKEY, Circuit Judge:
These two sets of cases, consolidated for review, involve a determination as to the impact of Section 441(a) of the Tax Reform Act of 1969, relating to the methods of depreciation for regulated utilities, on two types of utility property: (1) post-1969 expansion property and (2) pre-1970 and post-1969 non-expansion property. The impact of Section 441(a) on post-1969 expansion property — the subject of FPC Orders No. 404 and 404-A, issued, respectively, 15 May 1970 and 9 July 1970, and cases no. 24,-518 and 24,602 here — will be considered first, followed by a determination of its effect on pre-1970 and post-1969 non-expansion property — the subject of FPC Opinions No. 578 and 578-A and accompanying orders, issued 3 June 1970 and 21 July 1970, respectively, and cases no. 24,517 and 24,632 here.
I.
A.
Congress specifically provided for the proper depreciation treatment of post-1969 utility expansion property in Section 441(a) of the Tax Reform Act of 1969 as follows:
(A) Election as to new property representing growth in capacity. — If the taxpayer makes an election under this subparagraph within 180 days after the date of the enactment of this sub-paragraph in the manner prescribed by the Secretary or his delegate, in the case of taxable years beginning after December 31, 1970, paragraph (2)(C) [concerning liberalized depreciation with flow-through] shall not apply with respect to any post-1969 public utility property, to the extent that such property constitutes proper * ty which increases the productive or operational capacity of the taxpayer with respect to the goods or services described in paragraph (3) (A) and does not represent the replacement of existing capacity.
This provision indicates that Congress intended to, and did, prescribe specifically the appropriate tax depreciation treatment for post-1969 expansion property of utilities such as is involved in the cases here. It permits a regulated utility such as Texas Gas Transmission Corporation, an intervenor in these cases, to make an election, within 180 days after enactment of this provision, not to have liberalized depreciation with flow-through apply with respect to its post-1969 expansion property. That is, such a method would no longer be considered a “reasonable allowance” for tax depreciation purposes within the meaning of the Internal Revenue Code of 1954.
The legislative history accompanying Section 441(a) of the 1969 Tax Reform Act supports this interpretation. The report of the Senate Finance Committee states in relevant part:
The [Senate] committee amendments, while in most respects the same as the House provisions, differ in one principal area. The amendments permit an election to be made within 180 days after the date of enactment of the bill for a utility covered by this provision to shift from the flow-through to the straight-line method, with or without the permission of the appropriate regulatory agency, or permit it with the permission of the regulatory agency to shift to the normalization method (that is, come under general rules of the bill).
This election applies both as to new and existing property. . . . Since the company would no longer be permitted to use accelerated depreciation (unless the agency later permits it to normalize), the agency would not be able to impute the use of accelerated depreciation with flow-through.
In conference, the election right was restricted to apply only to post-1969 expansion property. As the Conference Report indicates:
The conference substitute (sec. 441 of the substitute and sec. 167(Í) of the code) follows the Senate amendment except that the special provision referred to in (e) above is stricken and the 180-day election (item (d), above) is modified to apply to new property and not to replacement property. Even in the case of new property, however, the right to change over from the flowthrough method is to be available only to the extent the new property increases the productive or operational capacity of the company.
It is clear, then, that Congress intended to, and did in fact, provide regulated utilities such as Texas Gas with an option to abandon flow-through for rate-making purposes in regard to post-1969 expansion property and substitute in its place either (1) straight-line depreciation, with or without the permission of the relevant regulatory agency or (2) accelerated depreciation with normalization, with the permission of the appropriate regulatory agency. It is also clear that Congress intended thereby to preclude regulatory agencies from imputing flow-through to any regulated utility exercising this election with respect to its post-1969 expansion property.
B.
The basic issue in this set of cases, therefore, is whether the FPC was correct in its Orders No. 404 and 404-A in interpreting the Tax Reform Act of 1969 as depriving it of the power to impute the use of liberalized depreciation with flow-through for rate-making purposes to a utility making the election under Section 441(a) to abandon flow-through with respect to its post-1969 expansion property. Clearly, it is the duty of the FPC, under its Congressional mandate, the Natural Gas Act, to ensure the continued availability of natural gas in interstate commerce for eventual sale to consumers at the lowest practicable rater, As the Fifth Circuit had occasion to observe:
The central principle in the regulation of the natural gas industry around which all ratemaking revolves is
“the intention of Congress that natural gas shall be sold in interstate commerce for resale for ultimate public consumption ... at the lowest possible reasonable rate-consistent with the maintenance of adequate service on the public interest”.
This is the language of Section 7(c) of the Natural Gas Act as originally enacted in 1938. The provision was deleted when the subsection was amended in 1942 but, as the Supreme Court has held, the amendment was not ■ intended to change the congressional purpose of the Act; the “primary aim of this legislation was to protect consumers against exploitation at the hands of natural gas companies.” Federal Power Commission v. Hope Natural Gas Company, 1944, 320 U.S. 591, 611, 64 S.Ct. 281, 291, 88 L.Ed. 333. . Again, as Justice Clark reiterated twenty-five years later: “The Act was so framed as to afford consumers a complete, permanent and effective bond of protection from excessive rates and charges”. Atlantic Refining Company v. Public Service Commission, 1959, 360 U.S. 378, 388, 79 S.Ct. 1246, 1253, 3 L.Ed.2d 1312. .
However, the FPC may not remain oblivious to the wishes of Congress as expressed in forms other than amendments to or deletions from the Natural Gas Act. By means of Section 441(a) of the 1969 Tax Reform Act, Congress has provided regulated utilities such as Texas Gas with an absolute right of election to abandon flow-through with respect to their post-1969 expansion property. Furthermore, we do not have the situation presented in Alabama-Tennessee Natural Gas Co. v. FPC, supra, where the court was able to find “no evidence that at the time Section 167 [of the Internal Revenue Code] was enacted Congress even focused on the problem in terms of reducing the dimensions of the Federal Power Commission’s regulatory responsibility to protect consumers from excessive rates. . . . ” Rather, investigation of the legislative history regarding Section 441(a) of the Tax Reform Act of 1969 reveals that Congress was well aware of the implications of permitting regulated utilities an election to abandon liberalized depreciation with flow-through with respect to their post-1969 expansion property. As such, the FPC was not remiss in the performance of its statutory duty in permitting Texas Gas to abandon flow-through in regard to its post-1969 expansion property, as expressly provided by the language of Section 441(a) of the 1969 Tax Reform Act.
C.
The FPC’s Orders No. 404 and 404-A, indicating that it would continue the policy adopted in Alabama-Tennessee Natural Gas Co., of deducting the amounts in the accrued deferred tax account from the rate base and not considering such balances as part of capitalization in rate proceedings before it, is a statement of policy based essentially on an interpretation of Section 441(a) of the 1969 Tax Reform Act. Thus, under the pertinent provisions of the Administrative Procedure Act, it was properly issued without notice or opportunity for hearing, since it was not the result of a rulemaking proceeding.
While Memphis Light contends that Orders No. 404 and 404-A of the Commission denied them the benefits of liberalized depreciation with flow-through accounting and ratemaking in regard to their post-1969 expansion property, they misdirect their attack. Instead of the Commission’s orders here, what resulted in the denial of liberalized depreciation with flow-through was the election by Texas Gas to abandon such depreciation, as it was specifically entitled to do under Section 441(a) of the 1969 Tax Reform Act. Texas Gas made this election in a letter to the Commissioner of Internal Revenue dated 8 June 1970, a copy of which was transmitted to the FPC dated 10 June 1970. At this juncture, the only options available to the Commission were either to do nothing and thereby leave Texas Gas on straight-line depreciation or to permit it to use liberalized depreciation with normalization. The FPC chose the latter.
The Commission’s Orders No. 404 and 404-A, then, were nothing more than statements of FPC policy interpreting the mandate of Congress as expressed in Section 441(a) of the Tax Reform Act of 1969. As such, they were clearly exempt from the notice and opportunity for hearing requirements for rulemaking provided under the Administrative Procedure Act. While it is true that the FPC’s interpretative rulings here may have significant economic consequences on Memphis Light and other ratepayers in the long run, such a statement of policy is specifically exempted by the Administrative Procedure Act from the need for prior notice or opportunity for a hearing:
Except when notice or hearing is required by statute [not relevant here], this subsection does not apply — (A) to interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice. .
D.
The case law does not support the petitioners’ assertion that notice and opportunity for hearing were required in this set of cases — 24,518 and 24,602. While interested parties might argue the validity of the FPC’s interpretation of Congressional purpose as expressed in Section 441(a) of the Tax Reform Act of 1969, such an opportunity is not required by the Administrative Procedure Act pri- or to issuance of such interpretations by an administrative agency.
The petitioners’ argument that the FPC, as a result of the issuance of its Orders No. 404 and 404-A, has changed its policy in Alabama-T-ennessee Natural Gas Co., is incorrect. Only those utilities that made the election provided by Section 441(a) of the 1969 Tax Reform Act to abandon flow-through with respect to their post-1969 expansion property are affected by the Commission orders here at issue. The case of Texaco, Inc. v. FPC is inapposite, since the switch from simple to compound interest which the Commission ordered in that case was one involving consideration of, inter alia, current interest rates and trends, the impace on individual companies and the effect of increased contingent liabilities on the ability of the companies affected to acquire new equity or debt capital. In contrast, the instant set of cases, aside from the question of the validity of the FPC’s interpretation of Section 441(a) of the 1969 Tax Reform Act, involved no need for further consideration by the Commission as to what regulatory policy would result in a lower rate for Memphis Light and other ratepayers. The impact of liberalized depreciation with normalization as opposed to that of straight-line depreciation — the only choice open to the FPC under the election provision for regulated utilities such as Texas Gas contained in Section 441(a) of the 1969 Tax Reform Act, had already been fully considered and resolved in prior cases in favor of liberalized depreciation with normalization.
The other principal case relied upon by the petitioners here, National Motor Freight Traffic Association v. United States, is likewise inapposite. In that case, the Interstate Commerce Commission, after Congress had vested reparations authority in the courts in cases involving motor carriers, had announced an informal process for restoring to shippers past charges which were currently agreed by the carrier to have been illegal. This procedure did not relate to any substantive power specifically granted the ICC and the court in that case held that a rulemaking process was required to ascertain whether such authority existed in the first place and, if so, whether it should be exercised. In such a situation, unlike that presented by the set of cases at hand, the creation of procedures was an integral part of a substantive determination that could not be made without notice and opportunity for hearing. Here, however, since the only option open to the FPC was a choice between leaving a utility electing to abandon flow-through with respect to its post-1969 expansion property under Section 441(a) -of the 1969 Tax Reform Act on straight-line depreciation, permitting it to use liberalized depreciation with normalization, there was no need for pri- or notice or a hearing. Prior decisions of the Commission had already resolved this issue in favor of liberalized depreciation with normalization.
II.
The second set of cases — 24,517 and 24,632 — involves the validity of the FPC’s decision in its Opinions No. 578 and 578-A and accompanying orders, permitting Texas Gas to change from liberalized depreciation with flow-through to such depreciation with normalization in regard to its pre-1970 and post-1969 •nure-expansion property.
Section 441(a) of the Tax Reform Act of 1969 amended the Internal Revenue Code of 1954 by adding subsection (1), “Reasonable allowance in case of property of certain utilities,” to Section 167 of the IRC. Section 441(a) distinguishes between two types of utility property: (1) pre-1970 and post-1969 non-expansion property and (2) post-1969 expansion property. With respect to the latter type, Section 441(a) permits utilities using liberalized depreciation with flow-through to elect within 180 days of the enactment of Section 441(a) to shift either to straight-line depreciation of their own volition or to liberalized depreciation with normalization with the permission of the appropriate regulatory agency. Texas Gas exercised this option with respect to its post-1969 expansion property and received the FPC’s permission to employ liberalized depreciation with normalization — the validity of which is treated in I., above.
In the instant set of cases, the determination of whether the FPC was correct in permitting Texas Gas to shift from liberalized depreciation with flow-through to similar depreciation with normalization with respect to its pre-1970 and post-1969 non-expansion property requires, first, a review of Section 441 (a) and its legislative history to ascertain the intent of Congress here and, second, a consideration of the validity of the Commission’s decision in light of this Congressional intent.
A.
Section 167(a) of the Internal Revenue Code of 1954 provides that a taxpayer is entitled to a “reasonable allowance” for a tax depreciation deduction. Section 441(a) of the 1969 Tax Reform Act specifies the appropriate methods for computing this “reasonable allowance” for pre-1970 and post-1969 non-expansion property in the case of regulated utilities such as Texas Gas. Under Section 441(a), a “reasonable allowance” may be computed in either of two ways: one, a “subsection (Z) method,” refers to the straight-line method of depreciation, while the other is “the applicable 1968 method for such property,” but “only if the taxpayer uses a normalization method of accounting.” Section 441(a), however, provides an exception to the normalization requirement for using the second method by allowing a utility using the flow-through method to continue doing so.
The right conferred on regulated utilities such as Texas Gas by Section 441(a) of the 1969 Tax Reform Act to make an election within 180 days of the enactment of Section 441(a) to shift from liberalized depreciation with flow-through to either straight-line depreciation or, with the approval of the appropriate regulatory agency, liberalized depreciation with normalization with respect to their post-1969 expansion property, as discussed in I., swpra, does not, however, apply to pre-1970 and post-1969 non-expansion property.
The legislative history accompanying the enactment of Section 441(a) clearly reveals the intent of Congress that the right of election provided utilities to shift from liberalized depreciation with flow-through either to straight-line or to liberalized depreciation with normalization be confined simply to post-1969 expansion property. While the progress of Section 441(a) through both houses of Congress and in conference reveals the existence of differences as to what types of property should be made eligible under the election provision, the final version of the bill limits the applicability of the right of election to post-1969 expansion (non-replacement) property alone.
At the first stage, the House Report indicated:
Your committee’s bill provides that, in the case of existing property, the following rules are to apply:
(1) If straight line depreciation is presently being taken, then no faster depreciation is to be permitted as to that property.
(2) If the taxpayer is taking accelerated depreciation and is “normalizing” its deferred taxes, then it must go to the straight line method unless it continues to normalize as to that property.
(3) If the taxpayer is taking accelerated depreciation and is flowing through to its customers the benefits of the deferred taxes, then the taxpayer must continue to do so, unless the appropriate regulatory agency permits a change as to that property. U.S.Code Cong. & Admin. News, p. 1783.
Thus, under the House version of the bill, Texas Gas, since it had been using accelerated depreciation with flow-through, would have been required to continue doing so with respect to its “existing” (including replacement) property unless the Commission permitted otherwise. If this had been the law enacted, the Commission’s and Texas Gas’ position here would have been clearly justified. But, as we shall see, the law actually passed was significantly changed.
The bill as reported by the Senate Finance Committee gave regulated utilities using liberalized depreciation with flow-through an election to abandon that method of depreciation both for “pre-1970” property (a change from “existing” property in the House version) and “post-1969” property (“other” property in the House bill). The Senate Report states in regard to the altered right of election:
The [Senate] committee amendments, while in most respects the same as the House provisions, differ in one principal area. The amendments permit an election to be made within 180 days after the date of enactment of the bill for a utility covered by this provision to shift from the flow-through to the straight-line method, with or without the permission of the appropriate regulatory agency, or permit it with the permission of the regulatory agency to shift to the normalization method (that is, to come under general rules of the bill). This election applies both as to new and existing property. U.S.Code Cong. & Admin.News p. 2206.
Under the Senate version of the bill, therefore, Texas Gas would have been permitted to shift from liberalized depreciation with flow-through either to straight-line depreciation or, with the FPC’s approval, to liberalized depreciation with normalization.
However, in conference, it was agreed that this right of election would be restricted to apply to post-1969 •expansion property only. The Conference Report states:
1. Depreciation allowed regulated industries (sec. 167 of Due code)
The House bill provides that in the case of certain regulated industries (the furnishing or sale of . . . gas through a local distribution system, . . . and transportation of gas by pipeline) a taxpayer is not permitted to use accelerated depreciation unless it “normalizes” the current income tax reduction resulting from the use of such accelerated depreciation. . . .
This rule is not to apply in the case of a taxpayer that is at present flowing through the tax reduction to earnings for purposes of computing its allowable expenses on its regulated books of account. Also, if the taxpayer is now using straight line depreciation as to any public utility property it may not change to accelerated depreciation as to that property.
The Senate amendment makes the following changes in the House bill: (d) an election is permitted to be made within 180 days after the date of enactment by a company at present on flowthrough to come under the rules of the bill ....
The conference substitute (sec. Ml of the substitute and sec. 167(1) of the code) follows the Senate amendment •except that the special provision referred to in (e) above is stricken and the 180-day election (item (d), above) is modified to a/pply to new property and not to replacement property. Even in the case of new property, however, the right to change over from the flow-through method is to be available only to the extent the new property increas es the productive or operational capacity of the company. U.S.Code Cong. & Admin.News, p. 2427.
Thus, Texas Gas is unable to invoke the election provision of Section 441(a) to abandon liberalized depreciation with flow-through with respect to its “existing” (including replacement) property for two reasons: first, since Texas Gas has been employing liberalized depreciation with flow-through, it is specifically prohibited, under the final version of the bill, from abandoning such depreciation (see the second paragraph of the Conference Report, supra); and, second, since the right of election was restricted to apply to post-1969 expansion property only, Texas Gas may not seek to circumvent this restriction by applying it to its pre-1970 and post-1969 wcm-expansion property — the subject of this set of cases (24,517 and 24,632).
What the Commission does by its decision in this set of cases, then, is to produce an effect precisely contrary to that envisioned by Congress in enacting the Tax Reform Act of 1969. This effect was considered by Congress in its deliberations on the appropriate scope for the right of election provided by Section 441 (a), both in terms of its impact on rates and on tax revenues, and was specifically rejected. The Report of the House Committee on Ways and Means states:
Consideration has been given to suggestions by the Federal Power Commission and others that regulated utilities no longer be permitted to use a method of depreciation other than straight line. However, your committee concluded that, in too many eases, this would place regulated utilities at an unfair competitive disadvantage, both in terms of the sale of their products or services and their attractiveness to equity investors. Also, this would result in prompt, substantial, and widespread utility rate increases.
Accordingly, your committee has determined in general to “freeze” the current situation regarding methods of depreciation in the case of those companies in what are, by and large, the more healthy utility industries
The Senate Report agreed with this perspective, stating in relevant part:
Accordingly, the committee agrees with the House that it is appropriate to in general [sic] “freeze” the current situation regarding methods of depreciation in the case of those companies in what are, by and large, the more flourishing utility industries. U.S.Code Cong. & Admin.News, p. 2204.
The Senate Report, agreeing that a company using straight-line depreciation with normalization could not shift to flow-through under the bill, stated, with specific reference to utility companies such as Texas Gas which have been using liberalized depreciation with flow-through, “[o]ther companies — those that now flow through, as well as those in other regulated industries — are not limited by this general rule of the bill.”
Also, as the Summary of the Bill, prepared by the staffs of the Joint Committee on Internal Revenue Taxation and the Committee on Finance, observes with respect to the impact of Section 441(a) on revenues as well as rates:
The bill substantially forestalls the entire revenue loss that the continuation of existing trends would have made almost inevitable. It does so in a way that (with very few exceptions) will require no increase in utility rates because of the tax laws, since by and large, it merely takes the various regulatory situations as it finds them and freezes those situations.
There is nothing in the Tax Reform Act of 1969, then, which modifies the Commission’s duty under the Natural Gas Act to require regulated utility compañíes such as Texas Gas, which had been using liberalized depreciation with flow-through with respect to their pre1970 and post-1969 non-expansion property, to set rates which reflect actual expenditures alone with respect to such property. According to Congress, the only appropriate tax allowance for rate-making purposes for a company such as Texas Gas, which has been using liberalized depreciation with flow-through with respect to its pre-1970 and post-1969 non-expansion property, is the income taxes actually paid.
B.
The FPC has argued that there is nothing in this Tax Reform Act indicating an intent on the part of Congress to alter the Commission’s power to exercise its informed judgment as to what method of accounting can properly serve as the basis of ratemaking, and to weigh the cost to the consumer and the necessity to preserve a viable industry. The FPC urges that had Congress had such an intent, Congress would have manifested it by an amendment to the Natural Gas Act, not to a Revenue Act.
This overlooks the undeniable fact that methods of calculating depreciation are relevant both for taxation and ratemak-ing purposes. Congress here dealt with depreciation in the context of a revenue measure, but all its deliberations — particularly the committee reports of both houses, the conference committee report, and most significantly, the changes made in the bill at different stages — show its keen awareness of the measure’s impact on the federal revenue, the natural gas industry, and the consumers. It may well be that some of the FPC’s regulatory discretion has been lost by the enactment of this law; in effect, Congress has pondered the question, and has exercised what formerly was the FPC’s prerogative for it. The fact that Congress did so in the context of a Tax Reform Act cannot vitiate what Congress enacted.
To hold otherwise would be to rule that the carefully considered changes, granting an election to the company with respect to its expansion property but eliminating any choice by either company or FPC with respect to the company’s wow-expansion property, were meaningless. The rule here urged by the FPC and Texas Gas is similar to that policy proposed by Chairman White, and this was rejected. We here give effect to what Congress did; albeit cloaked in a revenue act, a statutory mandate in regard to the calculation of depreciation has an effect on the FPC’s power to exercise its independent judgment as to what best will serve industry and consumers.
Our holding, however, should not be taken to mean that Section 441(a) of the Tax Reform Act of 1969 deprives the Commission in all cases of its discretion under the Natural Gas Act to permit utilities to abandon flow-through. There might be extraordinary circumstances in which Section 441(a), taken in conjunction with the mandate of the Natural Gas Act, should not be construed to prevent the FPC in its underlying responsibility of protecting consumer interests from finding that those interests would be furthered by permitting the abandonment of flow-through. It is clear, however, that such consumer interests would not be furthered by permitting Texas Gas to abandon flow-through in the circumstances presented by the case at bar.
III.
Accordingly, the decision of the Federal Power Commission in its Orders No. 404 and 404-A with respect to the post-1969 expansion property of Texas Gas— the subject of cases no. 24,518 and 24,602 —is affirmed. However, the action of the Commission in its Opinions No. 578 and 578-A and accompanying orders in regard to Texas Gas’ pre-1970 and post-1969 wow-expansion property — the subject of cases no. 24,517 and 24,632 — is vacated and remanded to the Commission for action in accordance with this opinion.
So ordered.
. fInt.Rev.Code of 1954, § 167 (i), as amended Publ.L. 90-26, §§ 1, 2(b), 81 Stat. 57, 58 (1967); Publ.L. 91-172, § 521(a), (d), 83 Stat. 625, 649, 653 (1969).
. Section 441(a) of the 1969 Tax Reform Act defines “pre-1970” property as “property which was public utility property in the hands of any person at uny time before January 1, 1970.” Int.Rev.Code of 1954, § 167(Z) (3) (B). Property which is not pre-1970 is considered “post-1969” property. Int.Rev.Code of 1954. § 167(Z) (3) (O). “Expansion” property is the term employed to denote that property “which increases the productive or operational capacity of the taxpayer,” while “non-expansion” property refers simply to that property which replaces the existing plant of a taxpayer. Int.Rev. Code of 1954 § 167(Z) (4) (A).
. Int.Rev.Code of 1954, § 167(Z) (4) (A).
. By utilizing liberalized depreciation in computing its income tax, a utility obtains a larger deduction, and thus pays less income tax, at least initially, and, in the case of expanding or steady plants, overall, than it would if it used straight-line depreciation. Under the “flow-through” method of liberalized depreciation, a utility is allowed to recoup from its customers by means of its rates only the taxes it actually pays; under “normalization,” however, it is allowed to recoup the higher taxes it would pay (but actually does not) if it were using straight-line depreciation.
. Int.Rev.Code of 1954, § 167 (Z) (2) (C).
. S.Rep. No. 552, 91st Cong., 1st Sess. 173-74 (1969) (emphasis added).
. Conf.Rep. No. 782, 91st Cong., 1st Sess. 312-13 (1969) (emphasis added).
. Under normalization, taxes for ratemak-ing purposes are determined on the basis of straight-line depreciation, while for tax purposes liberalized depreciation is used. The difference between the taxes which would be payable under straight-line depreciation and the taxes payable under liberalized depreciation is placed into a deferred tax reserve account by the taxpayer. The FPC
Question: Are the formally listed respondents in the case the "real parties", that is, are they the parties whose real interests are most directly at stake?
A. both 1st and 2nd listed respondents are real parties (or only one respondent, and that respondent is a real party)
B. the 1st respondent is not a real party
C. the 2nd respondent is not a real party
D. neither the 1st nor the 2nd respondents are real parties
E. not ascertained
Answer:
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songer_genapel2
|
I
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the second listed appellant. If there are more than two appellants and at least one of the additional appellants has a different general category from the first appellant, then consider the first appellant with a different general category to be the second appellant.
Gary WHITE, Appellant, v. Christopher S. BOND, Joseph Teasdale, John Ashcroft, Dick Moore, Lee Roy Black and David Blackwell, Appellees.
No. 82-2308.
United States Court of Appeals, Eighth Circuit.
Submitted Sept. 16, 1983.
Decided Nov. 18, 1983.
John Ashcroft, Atty. Gen., George W. Cox, III, Asst. Atty. Gen., Jefferson City, Mo., for appellees.
James M. Warden, Bruce Campbell, Blackwell, Sanders, Matheny, Weary & Lombardi, Kansas City, Mo., for appellant.
Before BRIGHT, ARNOLD and FAGG, Circuit Judges.
PER CURIAM.
Gary White appeals from the district court’s summary judgment of his pro se action alleging violations of 42 U.S.C. §§ 1983, 1985, and 1986. White contends that the district court improperly dismissed his civil rights action as frivolous. We reverse and remand for further proceedings.
On July 28,1982, inmate Gary White filed a pro se civil rights action and a motion for appointment of counsel. He alleged that members of the Missouri Parole Board discriminated against him in parole hearings because of his race and economic status. White also raised several due process claims: he contended that he was not informed of the criteria used by the Board in twice denying him parole, and that he was denied access to his parole file and other prison files containing information utilized by the Board in its decisionmaking process. In addition, White alleged a right to counsel for his parole hearings.
White also claimed that over a seven and one-half year period, numerous state officials and employees had conspired against him. The alleged objectives of the conspiracy were to commit “criminal acts” against White because of his race, and to retaliate against White because of litigation he was pursuing. White asserted that numerous acts were committed in furtherance of the conspiracy, including compiling false information and placing it in White’s institutional files to discredit him, giving White an apple that contained a drug which caused him to have a temporary kidney ailment, inciting a riot at the Missouri State Penitentiary in order to kill White, conspiring to serve White a drink containing LSD in order to deprive him of his sanity, attempting to kill White by setting his cell on fire while he slept, invading his privacy by unwarranted intrusions into his mail, conspiring to administer a drug that would cause heart failure, and employing psychological treatments that would cause White to become sexually aggressive.
A number of White’s broad allegations are improper or inadequate to state a claim upon which relief can be granted. Several, however, may state a valid civil rights cause of action, especially because pro se pleadings such as White’s are to be liberally construed. See Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595, 30 L.Ed.2d 652 (1972). In particular, White’s allegation of racial discrimination in the parole process appears to state a cognizable section 1983 claim. See Inmates of Nebraska Penal and Correctional Complex v. Greenholtz, 567 F.2d 1368, 1370 (8th Cir.1977), cert. denied, 439 U.S. 841, 99 S.Ct. 132, 58 L.Ed.2d 140 (1978); see also Block v. Potter, 631 F.2d 233, 238 (3d Cir.1980). In addition, although White’s complaint may not state facts sufficient to give rise to the inference that a conspiracy existed, see White v. Walsh, 649 F.2d 560, 561 (8th Cir.1981); Means v. Wilson, 522 F.2d 833, 840 (8th Cir.1975), cert. denied, 424 U.S. 958, 96 S.Ct. 1436, 47 L.Ed.2d 364 (1976), several of the specific acts allegedly committed against White, such as unwarranted interference with his mail, may present valid civil rights claims. See Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1977).
Counsel appointed to argue this case on appeal indicated that he would accept appointment to recast White’s complaint. We appreciate counsel’s willingness to serve in this matter. Accordingly, we remand this case to give counsel an opportunity to amend White’s complaint, developing his due process claims and alleging with greater particularity those claims that may be cognizable under 42 U.S.C. § 1983.
. The Honorable Scott O. Wright, United States District Judge for the Western District of Missouri.
Question: What is the nature of the second listed appellant whose detailed code is not identical to the code for the first listed appellant?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
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sc_decisiondirection
|
A
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the ideological "direction" of the decision ("liberal", "conservative", or "unspecifiable"). Use "unspecifiable" if the issue does not lend itself to a liberal or conservative description (e.g., a boundary dispute between two states, real property, wills and estates), or because no convention exists as to which is the liberal side and which is the conservative side (e.g., the legislative veto). Specification of the ideological direction comports with conventional usage. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. In interstate relations and private law issues, consider unspecifiable in all cases.
AMERICAN TRADITION PARTNERSHIP, INC., fka WESTERN TRADITION PARTNERSHIP, INC., et al. v. BULLOCK, ATTORNEY GENERAL OF MONTANA, et al.
No. 11-1179.
Decided June 25, 2012
Per Curiam.
A Montana state law provides that a “corporation may not make ... an expenditure in connection with a candidate or a political committee that supports or opposes a candidate or a political party.” Mont. Code Ann. § 13-35-227(1) (2011). The Montana Supreme Court rejected petitioners’ claim that this statute violates the First Amendment. 2011 MT 328, 363 Mont. 220, 271 P. 3d 1. In Citizens United v. Federal Election Comm’n, 558 U. S. 310 (2010), this Court struck down a similar federal law, holding that “political speech does not lose First Amendment protection simply because its source is a corporation.” Id., at 342 (internal quotation marks omitted). The question presented in this case is whether the holding of Citizens United applies to the Montana state law. There can be no serious doubt that it does. See U. S. Const., Art. VI, cl. 2. Montana’s arguments in support of the judgment below either were already rejected in Citizens United, or fail to meaningfully distinguish that case. The petition for certiorari is granted. The judgment of the Supreme Court of Montana is reversed.
It is so ordered.
Question: What is the ideological direction of the decision?
A. Conservative
B. Liberal
C. Unspecifiable
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.
W. Willard WIRTZ, Secretary of Labor, United States Department of Labor, Appellant, v. YOUNG ELECTRIC SIGN COMPANY, a corporation, Appellee.
No. 7095.
United States Court of Appeals Tenth Circuit.
Feb. 19, 1963.
Jacob I. Karro, Washington, D. C. (Charles Donahue, Solicitor of Labor, Bessie Margolin, Associate Solicitor, Sigmund R. Balka, and Kenneth C. Robertson, Regional Attorney, on the brief), for appellant.
Earl D. Tanner, Salt Lake City, Utah, for appellee.
Before MURRAH, Chief Judge, and PICKETT and LEWIS, Circuit Judges.
LEWIS, Circuit Judge.
Appellant, plaintiff below, seeks to set aside an adverse judgment entered by the District Court for the District of Utah sua sponte at the conclusion of a pre-trial conference. The judgment denied injunctive relief sought by the Secretary of Labor under a complaint alleging repeated and continuing violations by the defendant company of sections 15(a) (4) and 15(a) (5) of the Fair Labor Standards Act, 29 U.S.C.A. § 201 et seq. The judgment recited and provided:
“ * * * At the pre-trial hearing counsel for defendant represented to the court that the claimed violations set forth by plaintiff had ceased to exist, that they had been voluntarily remedied by defendant prior to the commencement of this suit, and that : there was no intent on the part of the defendant to violate the Fair Labor Standards Act of 1938 now or in future. In reply to inquiry by the Court, counsel for plaintiff stated that plaintiff had no evidence that violations existed at the time of the . filing of the complaint herein or now and that plaintiff knew of no proof which it proposed to adduce at trial showing a present intent on the part of defendant to violate the Fair Labor Standards Act in future.
“The Court, having been fully advised in the premises, it is hereby
“Ordered, Adjudged and Decreed:.
“1. That defendant have judgment of no cause of action herein.
“Dated this 17 day of May, 1962.”
Summary disposition of a cause may logically and properly follow a pre-trial conference when the pre-trial procedures disclose the lack of a disputed issue of material fact and the facts so established indicate an unequivocal right to judgment favoring a party. Holcomb v. Aetna Life Insurance Company, 10 Cir., 255 F.2d 577; Berger v. Brannan, 10 Cir., 172 F.2d 241. And in certain instances we believe that summary procedures may properly be applied when the granting or withholding of injunctive relief is discretionary with the court upon consideration of undisputed facts. But the basis of every judgment must be so reflected in the record as to make it capable of intelligent appellate review. The First National Bank of Fort Smith, Arkansas v. H. E. Mattingly, 10 Cir., 312 F.2d 603; Woods Construction Company, Inc. v. Pool Construction Company, 10 Cir., 314 F.2d 405; United States v. Horsfall, 10 Cir., 270 F.2d 107. We cannot determine from the record before us the basis in law or fact for the subject judgment.
The judgment recites that “the claimed violations” of the Fair Labor Standards Act by the defendant company had all been remedied long prior to the time of pre-trial conference and the company was in current compliance with the provisions of the Act. This premise was justified as counsel for the company so represented and government counsel admitted they had no evidence to the contrary. However, if the trial court based its judgment of no cause of action upon a conclusion of law that present compliance is a complete bar to injunctive relief sought by the Secretary upon claim of earlier violations and that the occurrence of such violations is thus an immaterial fact, such judgment is clearly erroneous in law. Injunctive relief may be, and often is, a proper and indicated remedy even though an employer may have remedied conditions violating the Act and may be in current compliance. Walling v. Helmerich & Payne, 323 U.S. 37, 43, 65 S.Ct. 11, 89 L.Ed. 29; Walling v. Haile Gold Mines, 4 Cir., 136 F.2d 102, 105; Walling v. Fairmount Creamery Co., 8 Cir., 139 F. 2d 318, 321-323; McComb v. Wyandotte Furniture Co., 8 Cir., 169 F.2d 766, 770.
■ [6,7] The judgment may, however, reflect a subjective view of the trial judge that proof of the “claimed” violations of the Act, though a disputed issue of fact, would not affect the judgment result and that injunctive relief would be denied, on the merits and as a matter of discretion, even if the Secretary proved each and all of the violations. If so premised, the judgment is faulty for summary disposition requires the total absence of a disputed material issue of fact. The number, nature and extent of violations under the Fair Labor Standards Act is the factor determinative of the necessity or lack of necessity of protecting the public interest by judicial decree. Absent a finding upon this material issue appellate review is impossible.
The tenor of the pre-trial procedures is such as to suggest the possibility, though remote, of a third premise for the judgment. The trial judge may have interpreted statements made at pre-trial by counsel for the defendant as constituting unqualified admissions of the occurrence of all the violations alleged. Counsel makes no such admission in his presentation to this court and if such be the premise for the judgment its uncertainty is apparent.
The judgment is vacated and the case remanded for further proceedings in accordance with the views expressed herein.
. Compliance with Rule 56 is the desirable procedure for consideration of summary disposition and gives the parties full opportunity for understanding of the basis of judgment. Although the appropriateness of summary disposition may be indicated as the result of a pre-trial conference held under Rule 16, this rule contemplates further procedural steps before final disposition.
Question: What type of court made the original decision?
A. Federal district court (single judge)
B. 3 judge district court
C. State court
D. Bankruptcy court, referee in bankruptcy, special master
E. Federal magistrate
F. Federal administrative agency
G. Special DC court
H. Other
I. Not ascertained
Answer:
|
songer_classact
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether the case is described in the opinion as a class action suit. If so, the opinion should specifically indicate that the action was filed as a representative of a class or of "all others similarly situated".
NEWBERN v. GREAT ATLANTIC & PACIFIC TEA CO.
No. 3531.
Circuit Court of Appeals, Fourth Circuit.
Jan. 9, 1934.
B. H. Thomas and T. T. Thome, both of Rocky Mount, N. C. (Alexander & Gold and T. A. Burgess, all of Rocky Mount, N. C., and Willis Briggs, of Raleigh, N. C., on the brief), for appellant.
Kemp D. Battle, of Rocky Mount, N. C. (Battle & Winslow, of Rocky Mount, N. C., on tbe brief), for appellee.
Before PARKER, NORTHCOTT, and SOPER, Circuit Judges.
PARKER, Circuit Judge.
This is an appeal from a judgment sustaining a demurrer to tbe complaint in a personal injury action grounded on negligence. Tbe complaint alleges that the plaintiff was an employee of defendant in one of its stores at Rocky Mount, N. C.; that defendant bad rejected tbe provisions of tbe State Workmen’s Compensation Law (Laws 1929, e. 120), and was therefore liable in damages for any negligence resulting in injury to plaintiff, without the benefit of any of the common-law defenses; and that plaintiff had sustamed injury as a result of the negligence of the defendant.
While the complaint contained general allegations of negligence in failing to furnish a safe place to work and safe and suitable appliances for tbe use of plaintiff, these were limited by specific allegation that a floor scale furnished plaintiff for his use had become “defective, unsafe, and dangerous from its long use by the defendant, so that the wheels by the means of which said floor scale was moved from place to place in defendant’s place of business were old, broken, in a dangerous and unsafe condition and not sufficient and adequate to enable it to be safely moved by tbe defendant’s employees.” And the negligence alleged was further limited in tbe language describing tbe happening which resulted in plaintiff’s injury; that portion of tbe complaint being as follows:
“That during tbe middle of tbe morning and on or about tbe first day of September, 1931, the plaintiff in tbe regular course of bis employment and. while exercising due care attempted to move from one portion of said store to another the large and heavy floor scale hereinabove described, for- the purpose of weighing an incoming load of meat, the property of the defendant, while in the attempted course of action outlined above tbe right band front wheel of said floor scale unexpectedly and suddenly came off because of latent and other defects in said scale and wheel not observable or discoverable by the plaintiff in the exercise of ordinary care causing the front right hand side of said scale to drop to tbe floor and causing the left rear portion of it to fly up onto and against the inside of the left leg of this plaintiff.”
The only question presented by the appeal is whether it was negligence on the part of defendant to provide for the use of plaintiff a floor or platform scale, one of the wheels of which was worn or defective. Defendant’s contention is that the simple tool doctrine applies, and that under that doctrine it cannot be held guilty of negligence. Plaintiff, while denying that the simple tool doctrine is applicable, says that, if appliear ble, that doctrine is but an application of tbe defense of assumption of risk, which is not available in North Carolina to employers who reject tbe provisions of tbe State Workmen’s Compensation Act. See Public Laws of N. C. of 1929, e. 120, § 15. It is clear that this statute does preclude a defense based upon assumption of risk; and, if there were negligence on tbe part of the defendant either in furnishing tbe scale or in failing to inspect it, defense on tbe ground that, plaintiff knew of its condition and assumed the risk arising therefrom could not be sustained. On the other hand, there is nothing in the act which imposes liability in the absence of negligence. Tbe sole question, therefore, is whether there was negligence in furnishing for the use of plaintiff a scale having a worn or defective wheel as alleged. We think this question must be answered in the negative.
It is elementary, of course, that the master is charged with the duty of using reasonable care in furnishing bis employees with implements, tools, -and appliances reasonably safe for the use for which they are intended, and of inspecting them from time to time to see that they remain in this reasonably safe condition. This duty arises because of the superior opportunity of the master to provide for the safety of the employee, and because the employee is required to work with the tools and appliances which- the master has provided. The reason of the rule prescribes its limitations. It has no application, ordinarily, to tools which are so simple that defects will be readily observable by the employee, or to tools from tbe use of which, even if defective, no danger is reasonably to be apprehended, although it does apply even to simple tools if they are to be nsed in such a way that their defective condition may result in danger. Cole v. S. A. L. Ry. Co., 199 N. C. 389, 154 S. E. 682; Thompson v. Oil Co., 177 N. C. 279, 98 S. E. 712.
The rule that the master is not ordinarily liable for defects in simple tools is based upon the idea that ordinarily the employee has better opportunity than the master to observe such defects and guard himself against them, and that the master should not be charged with the duty to care for the safety of an employee with respect to a matter as to which the employee is in better position to care for himself. See note to Vanderpool v. Partridge in 13 L. R. A. (N. S.) 668; 18 R. C. L. 548. But it is also to be observed that the nonliability of the master for defects in simple tools is based upon the fact that ordinarily, as in the case at bar, no danger to the employee is to be apprehended from defects therein which he cannot easily guard himself against. Ordinarily, they are reasonably safe for the use for which they are intended; and the duty of the master is not to furnish tools free of defects, but tools that are reasonably safe. This duty, therefore, is held to have relation ordinarily to machinery and appliances which are recognized as in their nature dangerous to employees using them or which are to be used in a manner which may result in danger if they are defective; and, where no danger is reasonably to bo apprehended, no duty is held to exist. Lynn v. Glucose Sugar Refining Co., 128 Iowa, 501, 104 N. W. 577; Vanderpool v. Partridge, 79 Neb. 165, 112 N. W. 318, 13 L. R. A. (N. S.) 668; House v. Sou. Ry. Co., 152 N. C. 397, 67 S. E. 981. As said by the late Judge Hoke, speaking for the Supreme Court of North Carolina in the case last cited:
“We have repeatedly decided that an employer of labor is required to provide for his employees a reasonably safe place to work, and to supply them with implements and applianees reasonably safe and suitable for the work in which they were engaged. As stated in Hicks v. Manufacturing Co., 138 N. C. 319-325, 50 S. E. 703, 705, and other cases of like import, the principle more usually obtains in the case of ‘machinery more or less complicated and more especially when driven by mechanical power’; and does not as a rule apply to the use of ordinary everyday tools, nor to ordinary everyday conditions, requiring no special care, preparation, or prevision, whore the defects are readily observable, and where there was no good reason to suppose that the injury complained of would result.”
It is well settled that, while it is the duty of the master, in exercise of reasonable care for the safety of the employee, to see that machinery and appliances which may cause injury to him are in reasonably safe condition, this duty does not ordinarily exist with respect to simple tools from the use of which no danger is reasonably to be apprehended or as to which the employee is in a better position than the master ito discover defects. 39 C. J. 342, 419; 18 R. C. L. 563; Kilday v. Jahncke Dry Dock & Ship Repair Co. (C. C. A. 5th) 281 F. 133; O’Hara v. Brown Hoisting Mach. Co. (C. C. A. 3d) 171 F. 394; Middleton v. National Box Co. (D. C.) 38 F.(2d) 89; Taylor v. A. C. L. R. Co., 203 N. C. 218, 165 S. E. 357; Cole v. S. A. L. Ry. Co., 199 N. C. 389, 154 S. E. 682; Martin v. Highland Park Mfg. Co., 128 N. C. 264, 38 S. E. 876, 83 Am. St. Rep. 671; and see notes in 1 L. R. A. (N. S.) 949; 13 L. R. A. (N. S.) 668; 30 L. R. A. (N. S.) 800; 40 L. R. A. (N. S.) 832; 51 L. R. A. (N. S.) 337; L. R. A. 1918D, 1141. This is true, not because the employee assumes the risk of injury from defects in such tools, but because the possibility of injury is so remote as not to impose upon the master the duty of seeing that they are free from defects in the first instance or of inspecting them thereafter. The fact that the employee has better opportunity than the master to judge of the defects of such tools, that no inspection is necessary to discover such defects, and that no danger is to he apprehended which the employee cannot guard himself against, renders it unnecessary in ordinary eases that the master exercise with respect to simple tools the care that the. law requires with respect to more complicated machinery. With respect to simple tools, ordinarily the master is not relieved of responsibility because the servant assumes the risk, but the servant assumes the risk because the master is relieved of responsibility, or, what is probably a more accurate statement, the same circumstances which establish assumption of risk on the part of the. servant show that there is no duty on the part of the master. Assumption of risk by the servant does not necessarily imply negligence on the part of the master.
Two cases directly in point axe Allen Gravel Co. v. Yarbrough, 133 Miss. 652, 98 So. 117, and Hedicke v. Highland Springs Co., 185 Minn. 79, 239 N. W. 896, 897. In both of these eases the simple tool doctrine was applied, although the defense of assumption of risk had been abolished by statute. In the ease last cited the court said: “The burden is upon the employee to show that the neglect or failure of the employer to discharge some duty owing to the employee caused the injury for whieh damages are claimed. And, where nothing more is shown than an injury from some defect whieh the ordinary use of a simple tool or appliance is likely to develop. therein, a prima facie proof of negligence is'not made out against the employer, and no affirmative defenses are needed. Our decisions, moreover, predicate the simple tool doctrine upon the theory that as to such a tool the master owes the servant no duty to inspect for the purpose of discovering whether the ordinary use had produced some defect therein whieh would endanger the user. If there is no duty to discover and remedy such defects, of course, there can be no negligence inferred from the mere proof that defects developed in the use of a simple appliance. * * * So we think the law is established that no actionable negligence of an employer is shown when an employee is injured, from a defeet resultant from the ordinary use of a simple tool or appliance. And it matters not what affirmative defenses the statute has deprived the employer of, the employee must prove negligence, if recovery is to be had for injuries received in the employment.”
Certainly the North Carolina statute (Pub. Acts 1929, c. 120, § 15) denying to a defendant who has rejected the provisions of the State Workmen’s Compensation Act the defense of assumption of risk cannot be held to have abolished the simple tool doctrine in that state; for North Carolina has consistently recognized the simple tool doe-trine, as shown by the cases heretofore cited, although she has refused to recognize the doctrine that the servant assumes the risk of the master’s negligence in failing to furnish safe appliances, except in the narrow class of cases where the danger resulting from such negligence is so great that no prudent man would continue to work in its presence. Pressly v. Yarn Mills, 138 N. C. 410, 51 S. E. 69, 71; Hicks v. Naomi Falls Mfg. Co., 138 N. C. 319, 50 S. E. 703, 708. Of course, the assumption of risk of the master’s negligence, as thus limited by the North Carolina courts, could not by any possibility embrace the simple tool doctrine; and it follows that that doctrine would not be abolished by a statute abolishing the defense of assumption of risk.
Applying these principles to the case before us, it is clear, we think, that the complaint fails to allege any actionable negligence on the-part of the defendant. It is not necessary to go into the qualifications of the “simple tool” doctrine or to distinguish cases .which have been held not to fall within it (See L. R. A. notes heretofore cited); for it is clear that the case here falls squarely within the principle of all of the eases which hold that the ordinary duty of the master to furnish his employee with tools and appliances reasonably safe for the use intended, and to see by reasonable inspection that they are kept safe, has xio application to ordinary simple tools with which the employee is familiar and from the use of which no danger is reasonably to be apprehended. It is true that a scale is a somewhat complicated piece of machinery, in so far as the weighing apparatus is concerned; but there is nothing-complicated about the small iron wheels, one of which was the cause of the trouble here, and no danger is to be apprehended either from the ordinary use of the scale or from rolling it about on the wheels with whieh it is provided. There was no duty, therefore, either to see that the wheels were in good condition in the first instance or to inspect them thereafter. If the wheels or the cotter pins had become worn, this was a condition whieh was as readily apparent to the employee using the scale as to any one else; and certainly it was not a condition from whieh danger to anyone was reasonably to be apprehended. We think, therefore, that plaintiff’s injury must be held to be due to an accidental happening, and not to have resulted from any failure on the part of defendant to exercise the care for the safety of its employees which the law requires.
For the reasons stated, the judgment for the defendant on the demurrer will be affirmed.
Affirmed.
Question: Is the case described in the opinion as a class action suit?
A. No
B. Yes
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.
COMMISSIONER OF INTERNAL REVENUE v. GLENSHAW GLASS CO.
No. 199.
Argued February 28, 1955.
Decided March 28, 1955.
Solicitor General Sobeloff argued the cause for petitioner. With him on the brief were Assistant Attorney General Holland, Charles F. Barber, Ellis N. Slack and Melva M. Graney.
Max Swiren argued the cause for the Glenshaw Glass Company, respondent. With him on the brief were Sidney B. Oambill and Joseph D. Block.
Samuel H. Levy argued the cause for William Goldman Theatres, Inc., respondent. With him on the brief was Bernard Wolfman.
Mr. Chief Justice Warren
delivered the opinion of the Court.
This litigation involves two cases with independent factual backgrounds yet presenting the identical issue. The two cases were consolidated for argument before the Court of Appeals for the Third Circuit and were heard en banc. The common question is whether money received as exemplary damages for fraud or as the punitive two-thirds portion of a treble-damage antitrust recovery must be reported by a taxpayer as gross income under § 22 (a) of the Internal Revenue Code of 1939, In a single opinion, 211 F. 2d 928, the Court of Appeals affirmed the Tax Court’s separate rulings in favor of the taxpayers. 18 T. C. 860; 19 T. C. 637. Because of the frequent recurrence of the question and differing interpretations by the lower courts of this Court’s decisions bearing upon the problem, we granted the Commissioner of Internal Revenue’s ensuing petition for certiorari. 348 U. S. 813.
The facts of the cases were largely stipulated and are not in dispute. So far as pertinent they are as follows:
Commissioner v. Glenshaw Glass Co.—The Glenshaw Glass Company, a Pennsylvania corporation, manufactures glass bottles and containers. It was engaged in protracted litigation with the Hartford-Empire Company, which manufactures machinery of a character used by Glenshaw. Among the claims advanced by Glenshaw were demands for exemplary damages for fraud and treble damages for injury to its business by reason of Hartford’s violation of the federal antitrust laws. In December, 1947, the parties concluded a settlement of all pending litigation, by which Hartford paid Glenshaw approximately $800,000. Through a method of allocation which was approved by the Tax Court, 18 T. C. 860, 870-872, and which is no longer in issue, it was ultimately determined that, of the total settlement, $324,529.94 represented payment of punitive damages for fraud and antitrust violations. Glenshaw did not report this portion of the settlement as income for the tax year involved. The Commissioner determined a deficiency claiming as taxable the entire sum less only deductible legal fees. As previously noted, the Tax Court and the Court of Appeals upheld the taxpayer.
Commissioner v. William Goldman Theatres, Inc.— William Goldman Theatres, Inc., a Delaware corporation operating motion picture houses in Pennsylvania, sued Loew’s, Inc., alleging a violation of the federal antitrust laws and seeking treble damages. After a holding that a violation had occurred, William Goldman Theatres, Inc. v. Loew’s, Inc., 150 F. 2d 738, the case was remanded to the trial court for a determination of damages. It was found that Goldman had suffered a loss of profits equal to $125,000 and was entitled to treble damages in the sum of $375,000. William Goldman Theatres, Inc. v. Loew’s, Inc., 69 F. Supp. 103, aff’d, 164 F. 2d 1021, cert. denied, 334 U. S. 811. Goldman reported only $125,000 of the recovery as gross income and claimed that the $250,000 balance constituted punitive damages and as such was not taxable. The Tax Court agreed, 19 T. C. 637, and the Court of Appeals, hearing this with the Glenshaw case, affirmed. 211 F. 2d 928.
It is conceded by the respondents that there is no constitutional barrier to the imposition of a tax on punitive damages. Our question is one of statutory construction: are these payments comprehended by § 22 (a) ?
The sweeping scope of the controverted statute is readily apparent:
“SEC. 22. 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. . . .” (Emphasis added.)
This Court has frequently stated that this language was used by Congress to exert in this field “the full measure of its taxing power.” Helvering v. Clifford, 309 U. S. 331, 334; Helvering v. Midland Mutual Life Ins. Co., 300 U. S. 216, 223; Douglas v. Will cuts, 296 U. S. 1, 9; Irwin v. Gavit, 268 U. S. 161, 166. Respondents contend that punitive damages, characterized as “windfalls” flowing from the culpable conduct of third parties, are not within the scope of the section. But Congress applied no limitations as to the source of taxable receipts, nor restrictive labels as to their nature. And the Court has given a liberal construction to this broad phraseology in recognition of the intention of Congress to tax all gains except those specifically exempted. Commissioner v. Jacobson, 336 U. S. 28, 49; Helvering v. Stockholms Enskilda Bank, 293 U. S. 84, 87-91. Thus, the fortuitous gain accruing to a lessor by reason of the forfeiture of a lessee’s improvements on the rented property was taxed in Helvering v. Bruun, 309 U. S. 461. Cf. Robertson v. United States, 343 U. S. 711; Rutkin v. United States, 343 U. S. 130; United States v. Kirby Lumber Co., 284 U. S. 1. Such decisions demonstrate that we cannot but ascribe content to the catchall provision of § 22 (a), “gains or profits and income derived from any source whatever.” The importance of that phrase has been too frequently recognized since its first appearance in the Revenue Act of 1913 to say now that it adds nothing to the meaning of “gross income.”
Nor can we accept respondents’ contention that a narrower reading of § 22 (a) is required by the Court’s characterization of income in Eisner v. Macomber, 252 U. S. 189, 207, as “the gain derived from capital, from labor, or from both combined.” The Court was there endeavoring to determine whether the distribution of a corporate stock dividend constituted a realized gain to the shareholder, or changed “only the form, not the essence,” of his capital investment. Id., at 210. It was held that the taxpayer had “received nothing out of the company’s assets for his separate use and benefit.” Id., at 211. The distribution, therefore, was held not a taxable event. In that context — distinguishing gain from capital — the definition served a useful purpose. But it was not meant to provide a touchstone to all future gross income questions. Helvering v. Bruun, supra, at 468-469; United States v. Kirby Lumber Co., supra, at 3.
Here we have instances of undeniable accessions to wealth, clearly realized, and over which the taxpayers have complete dominion. The mere fact that the payments were extracted from the wrongdoers as punishment for unlawful conduct cannot detract from their character as taxable income to the recipients. Respondents concede, as they must, that the recoveries are taxable to the extent that they compensate for damages actually incurred. It would be an anomaly that could not be justified in the absence of clear congressional intent to say that a recovery for actual damages is taxable but not the additional amount extracted as punishment for the same conduct which caused the injury. And we find no such evidence of intent to exempt these payments.
It is urged that re-enactment of § 22 (a) without change since the Board of Tax Appeals held punitive damages nontaxable in Highland Farms Corp., 42 B. T. A. 1314, indicates congressional satisfaction with that holding. Re-enactment — particularly without the slightest affirmative indication that Congress ever had the Highland Farms decision before it — is an unreliable indicium at best. Helvering v. Wilshire Oil Co., 308 U. S. 90, 100-101; Koshland v. Helvering, 298 U. S. 441, 447. Moreover, the Commissioner promptly published his nonacquiescence in this portion of the Highland Farms holding and has, before and since, consistently maintained the position that these receipts are taxable. It therefore cannot be said with certitude that Congress intended to carve an exception out of § 22 (a)’s pervasive coverage. Nor does the 1954 Code’s legislative history, with its reiteration of the proposition that' statutory gross income is “all-inclusive," give support to respondents’ position. The definition of gross income has been simplified, but no effect upon its present broad scope was intended. Certainly punitive damages cannot reasonably be classified as gifts, cf. Commissioner v. Jacobson, 336 U. S. 28, 47-52, nor do they come under any other exemption provision in the Code. We would do violence to the plain meaning of the statute and restrict a clear legislative attempt to bring the taxing power to bear upon all receipts constitutionally taxable were we to say that the payments in question here are not gross income. See Helvering v. Midland Mutual Life Ins. Co., supra, at 223.
Reversed.
Mr. Justice Douglas dissents.
Mr. Justice Harlan took no part in the consideration or decision of this case.
53 Stat. 9, 53 Stat. 574, 26 U. S. C. § 22 (a).
For the bases of Glenshaw’s claim for damages from fraud, see Shawkee Manufacturing Co. v. Hartford-Empire Co., 322 U. S. 2701; Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U. S. 238.
See Hartford-Empire Co. v. United States, 323 U. S. 386, 324 U. S. 570.
See note 1, supra.
38 Stat. 114,167.
The phrase was derived from Stratton’s Independence, Ltd. v. Howbert, 231 U. S. 399, 415, and Doyle v. Mitchell Bros. Co., 247 U. S. 179, 185, two cases construing the Revenue Act of 1909, 36 Stat. 11, 112. Both taxpayers were “wasting asset” corporations, one being engaged in mining, the other in lumbering operations. The definition was applied by the Court to demonstrate a distinction between a return on capital and “a mere conversion of capital assets.” Doyle v. Mitchell Bros. Co., supra, at 184. The question raised by the instant case is clearly distinguishable.
1941-1 Cum. Bull. 16.
The long history of departmental rulings holding personal injury recoveries nontaxable on the theory that they roughly correspond to a return of capital cannot support exemption of punitive damages following injury to property. See 2 Cum. Bull. 71; 1-1 Cum. Bull. 92, 93; VII-2 Cum. Bull. 123; 1954-1 Cum. Bull. 179, 180. Damages for personal injury are by definition compensatory only. Punitive damages, on the other hand, cannot be considered a restoration of capital for taxation purposes.
68A Stat. 3 et seq. Section 61 (a) of the Internal Revenue Code of 1954, 68A Stat. 17, is the successor to § 22 (a) of the 1939 Code.
H. R. Rep. No. 1337, 83d Cong., 2d Sess. a18; S. Rep. No. 1622, 83d Cong., 2d Sess. 168.
In discussing § 61 (a) of the 1954 Code, the House Report states:
“This section corresponds to section 22 (a) of the 1939 Code. While the language in existing section 22 (a) has been simplified, the all-inclusive nature of statutory gross income has not been affected thereby. Section 61 (a) is as broad in scope as section 22 (a).
“Section 61 (a) provides that gross income includes ‘all income from whatever source derived.’ This definition is based upon the 16th Amendment and the word ‘income’ is used in its constitutional sense.” H. R. Rep. No. 1337, supra, note 10, at a18.
A virtually identical statement appears in S. Rep. No. 1622, supra, note 10, at 168.
Question: What is the ideological direction of the decision?
A. Conservative
B. Liberal
C. Unspecifiable
Answer:
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songer_district
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H
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What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable".
SANCHO v. BACARDI CORPORATION OF AMERICA. DESTILERIA SERRALLES, Inc., v. SAME.
Nos. 3455, 3456.
Circuit Court of Appeals, First Circuit.
Jan. 12, 1940.
William Cattron Rigby, of Washington, D. C. (B. Fernandez Garcia, of San Juan, P. R., and Nathan R. Margold, of Washington, D. C., on the brief), for appellant Sancho.
David A. Buckley, of New York City (Jaime Sifre, Jr., of San Juan, P. R., and H. Russell Bishop, of Washington, D. C., on the brief), for appellant Destilería Ser-ralles, Inc.
Thomas Hunt, of Boston, Mass. (Edward S. Rogers and Jerome L. Isaacs, both of New York City, on the brief), for appel-lee.
Before WILSON and MAGRUDER, Circuit Judges, and McLELLAN, District Judge.
McLELLAN, District Judge.
Bacardi Corporation of America, a Pennsylvania corporation, filed a bill of complaint in the District Court of the United States for Puerto Rico, seeking to enjoin the defendant, Treasurer of Puerto Rico, and others from enforcing certain Acts of the Legislature of Puerto Rico. The alleged grounds for relief are in substance that these Acts contravene the Constitution of the United States, the Organic Act of Puerto Rico and a Treaty between the United States, Cuba and other countries. The District Court, having made certain findings of fact, concluded that the legislation attacked in the bill of complaint was not a valid exercise of the police power and was repugnant to the Commerce Clause of the Constitution of the United States. The District Court also concluded that the legislation was invalid because it violates the due process clause of the Constitution of the United States and of the Organic Act of Puerto Rico and because it deprives the plaintiff, appellee, of the equal protection of the Laws for which the Organic Act provides. The final decree from which these appeals were taken by the Treasurer of Puerto Rico, defendant, and by Destil-ería Serralles, Inc., intervenor, reads so far as need be stated as follows:
“It is ordered, adjudged and decreed: That the defendant Rafael Sancho Bonet, Treasurer of Puerto Rico, his successors, his agents and all those acting under his authority, and the Destilería Serralles, Inc., the Puerto Rico Distilling Company, their successors, officers and agents, and any and all persons holding permits from the Treasurer of Puerto Rico under the alcoholic' beverages laws of Puerto Rico, be and are hereby forever and perpetually enjoined and restrained from in any way enforcing or attempting to enforce against the plaintiff Bacardi Corporation of America the provisions of Sections 40 and 44 of Act No. 6 approved June 30, 1936, as amended by Act No. 149 approved May 15, 1937, and the provisions of Section 7 of said Act 149, insofar as said provisions prohibit complainant from marketing its products in Puerto Rico or shipping its products out of Puerto Rico with the Bacardi trade marks and labels attached thereto as now or hereafter authorized by the Federal Alcohol Administration, and from using its corporate name on its products; and also, from in any way enforcing or attempting to enforce against said plaintiff the provisions of Section 44(b) of said Act No. 6 as amended by said Act No. 149, insofar as said provisions prohibit the plaintiff from shipping its products to the United States or elsewhere in bulk; * * *”
In order that the history and declared purpose of the legislation thus stricken may appear, we set forth in the margin the pertinent portions of Act No. 115, approved May 15, 1936 and of Act No. 6, approved June 30, 1936, effective July 1, 1936, which repealed Act No. 115 and was of an experimental character and was by its terms to expire September 30, 1937. Following these Acts there appear in the margin the relevant provisions of Act No. 149 of 1937, including Section 1, Section 2, amending Section 40 of Act No. 6 of 1936, Section 3, amending Section 44 of the same Act, Section 4, adding Section 44(b) thereto, and Section 7 thereof, to which the decree of the District Court refers.
These sections of Act No. 149 prohibit the manufacture (by holders of the requisite permit) of alcoholic beverages on which there appears whether on the container or elsewhere “any trade mark, brand, trade name, commercial name, corporation name or any other designation if said trade mark, brand, trade name, commercial name, corporation name or other designation, design or drawing has been used previously * * anywhere outside the Island of Puerto Rico.” This limitation is made inapplicable to designations by a manufacturer, bottler or canner of distilled spirits manufactured in Puerto Rico on or before February 1, 1936. By Section 7, this limitation or proviso is made applicable in regard to trade marks only to such “as shall have been used exclusively in the Continental United States * * * prior to February 1st, 1936, provided such trade marks shall not have been used, in whole or in part * * * outside of the Continental United States, at any time prior to said date.” , - i 11 > : r i . ) s - > - i i r
Act No. 149, Section 4, also provides that with exceptions not here relevant distilled spirits may be shipped or exported from Puerto Rico or imported into Puerto Rico “only in containers holding not more than one gallon”. , ¡ , i
Bacardi Corporation of America aimed several blows at this legislation, and some of them took effect. We refrain, for the time being, from comment upon the . l • : apparent object and the avowed purpose of the Puerto Rican Legislature, because we want first to consider a question which needs for its determination nothing of this sort. The District Court was impressed with the suggestion that the commerce clause of the Constitution of the United States invalidates the statutory provisions as to the use of trade marks and as to the maximum size of the containers required for shipment. The commerce clause (U.S. C.A. Constitution, Article 1, Section 8, Clause 3) grants the Congress power “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” By necessary implication, it prevents a state from regulating such commerce. But Puerto Rico is not a state. It is an organized Territory of the United States though not yet “incorporated” into the Union, Puerto Rico v. Shell Co., 302 U.S. 253, 58 S.Ct. 167, 82 L.Ed. 235 and the indubitable right of the Congress to regulate the commerce of Puerto Rico is founded on the Constitutional power “to dispose of and make all needful Rules and Regulations 'respecting tihe Territbry or other Property belonging to the United States.” (Constitution, Article IV, Section
3, Clause 2). The power is in no direct sense dependent upon the Commerce clause which as this court has said “does not extend to Puerto Rico”. Lugo v. Suazo, 1 Cir., 59 F.2d 386, 390. Cf. Inter-Island Steam Navigation Co. v. Hawaii, 9 Cir., 96 F.2d 412.
The decree of the District Court declaring such legislation unconstitutional can not be affirmed upon the ground that the Puerto Rican statutes violate the commerce clause of the Constitution of the United States.
The next question is whether the Puerto Rican statutes constitute a valid exercise of_ the police power of the Insular Legislature in view of the due process clause of the Constitution of the United States and of the Organic Act for Puerto Rico. And in discussing the Insular police power we shall consider whether it is relevantly narrowed either by the Federal Alcoholic Administration Act or by the Convention between the United States and Cuba.
The police power of the Puerto Rican Legislature depends upon the Organic Act for Puerto Rico passed by the Congress of the United States in 1917. This Act organizes the Territory and erects “the typical American governmental structure, consisting of three independent - departments — legislative, executive and judicial.” Puerto Rico v. Shell Co., supra [302 U.S.253, 58 S.Ct. 171, 82 L.Ed. 235]. To the Insular Legislature, the Organic Act extends legislative authority as “to all matters of a legislative character not locallyi inapplicable, including power to create, consolidate, and reorganize the municipalities so far as may be necessary, and to provide and repeal laws and ordinances therefor; also the power to alter, amend, modify, or repeal * * * all laws and ordinances of every character in force in Porto Rico or municipality or district thereof on March 2, 1917, in so far as * * * alteration, amendment, modification, or repeal may be consistent with the provisions of this chapter.” U.S.Code, Title 48, Section 821, 48 U.S.C.A. § 821.
Clearly enough, the Organic Act of Puer-to Rico authorizes legislation for the control of the manufacture and traffic in rum and other ardent spirits unless such legislation trespasses upon a field forbidden by the Constitution or by the Congress.
The appellee urges that the territorial legislation is invalid because it conflicts with the Federal Alcohol Administration Act, 27 U.S.C.A. §§ 201-211, and as examples of such asserted conflict, says:
“(a) American Bacardi has been authorized under the Federal Law to use on its product to be shipped from Puerto Rico certain labels which have been presented in evidence. Under the local statute the plaintiff is prohibited from using them (Section 44 of Law No. 6) ;
“(b) The Federal statute authorizes shipment in bulk in containers of more than one gallon, while the local statute (Section 44(b) prohibits such shipments.”
As to labels, the Federal Alcohol Administration Act, aiming at unfair competition and other unlawful practices, forbids the introduction into interstate or foreign commerce of liquor unless labelled in accordance with regulations established by the Administration in such a way as to prevent deception of the consumer and the like. Such being the purpose of the Act, its effect was not to deprive the Legislature of Puerto Rico of the right to enact the territorial statute restricting the use of labels.
Nor does it seem to us correct to say, as does the appellee, that “the Federal statute authorizes shipment in bulk in containers of more than one gallon”. What the statute does is to forbid the disposition of liquor in bulk except in pursuance of regulations of the Federal Alcohol Administration. We cannot read into this statute an intent upon the part of the Congress to bar the territorial statutes governing shipments in bulk.
Consistent with the view that the Federal Alcohol Administration Act was not intended to deprive territories of the right, in the exercise of their police powers, to limit the use of labels, or to limit the size of containers to be used under certain circumstances, is the form of permit received by the appellee, which is expressly “conditioned upon compliance with the laws of all states” in which the applicant engages in business. We are concerned here not with Congressional power but with the question whether Congress has so exercised that power as to close the door to the territorial legislation here considered. In McDermott v. Wisconsin, 228 U.S. 115, 33 S.Ct. 431, 57 L.Ed. 754, 47 L.R.A.,N.S., 984, Ann.Cas.l915A, 39, on which the appellee relies, the right of a state to impose burdens upon or discriminate against Interstate Commerce was at stake and we think that case not at all controlling upon the present aspect of the case at bar. The District Court was right in not including among the conclusions of law requested by the appellee the ruling “that Sections 40, 44 and 44(b) of Act No. 6 of June 30, 1936 as amended by Act No. 149 of May 15, 1937 are invalid as contrary to the Federal Alcoholic Administration Act.”
The appellee which had acquired by contract the right to use the trade marks of the Cuban Bacardi Corporation urges that the District Judge erred in the refusal to rule in substance that the legislation here in question “prohibiting the use of certain trade marks conflicts with the * * * trade mark convention of February 20, 1929, between the United States and Cuba and is, therefor, invalid.” 46 Stat. 2907. As to this contention the District Judge said:
“It is unnecessary to express any opinion as to the allegations in the complaint to the effect that the challenged legislation violates the Treaty between the United States and Cuba. If it were necessary I would be disposed to hold against the contention of the plaintiff. The Treaty gives no preferential advantage to a citizen of Cuba. Any right or privilege which the Treaty creates would be subject to a proper exercise of the police power.”
A summarization of the Convention would prolong this opinion unduly and is needless. Its purpose was to prevent piracy of trade marks, a matter which is not here involved. It was not intended to have and does not have the effect of invalidating local laws and regulations of the type here in question. We think the District Court’s refusal to rule that the legislation was invalid by virtue of the Convention between the United States and Cuba was right.
We come now to the question whether the provisions of the Puerto Rican legislation forbidding in substance, and subject to limitations heretofore stated and hereafter referred to, the making of rum, on the container of which or elsewhere, there appears a trade mark or corporation name previously used outside of Puerto Rico and forbidding the shipping of rum in containers holding more than a gallon, violate the due process clause appearing both in the Constitution of the United States and the Organic Act of Puerto Rico.
The due process clause of the Fifth Amendment to the Constitution, U.S.C.A. is so identical with Section 2 of the Organic Act, 48 U.S.C.A. § 737, providing against the enactment of any law depriving any person of life, liberty or property without due process of law as to preclude any detailed discussion of what parts of the Federal Constitution extend to Puerto Rico.
The District Court ruled that “the provisions of Act No. 6 of June 30, 1936, as amended by Act No. 149 approved May 15, 1937, prohibiting the use of certain trade marks and corporate names, * * * violate the due process clause of the Constitution of the United States and the Organic Act of Puerto Rico and are invalid.” A like ruling was made with reference to Section 44(b) of Act No. 6 as added by Act No. 149 of 1937 “insofar as it prohibits the exportation of rum legally manufactured in Puerto Rico in containers of more than a gallon.” In his opinion, the District Judge having called attention to the intent and policy of the statutes as expressed by the Legislature and the restrictive use of trade marks and corporate names for which the statutes provide, expressed the view that “it is difficult to see how the ‘evil’ mentioned in the preamble was corrected by the attempted ‘remedy’ Later, the court said:
“If the Legislature of Puerto Rico desires to eliminate all competition by foreign capital as a means of protecting the liquor industry, and so as to avoid the increase and growth of financial absenteeism, there is a very simple and direct way to accomplish this, purpose. I know of no reason why the Legislature of Puerto Rico may not, as Pennsylvania has done, deny to any foreign corporation or non-resident the right to manufacture or sell rum within Puerto Rico. It may limit the number of licenses which may be granted even to residents and citizens of Puerto Rico. I do not mean to say that such a policy would be wise or desirable. That is a legislative question. But, if the evil which the legislation here under consideration condemns is to be eliminated, some method other than that provided must be adopted.”
In saying that Puerto Rico could constitutionally “deny any foreign corporation or non-resident the right to manufacture or sell rum within Puerto Rico”, the District Court was right. La Tourette v. McMaster, 248 U.S. 465, 39 S.Ct. 160, 63 L.Ed. 362, supporting the constitutionality of the legislative exclusion of non-resident insurance agents, and Premier-Pabst Sales Co. v. Grosscup, 298 U.S. 226, 56 S.Ct. 754, 80 L.Ed. 1155, where the constitutionality of an act forbidding the sale of beer within Pennsylvania unless duly licensed, and forbidding the issue of a license to a corporation unless all of its officers and directors aind 51% of ,its stockholders wer.e and for two years had been residents of the state, was conceded.
But we think that having the absolute power to prohibit foreign corporations from manufacturing or selling intoxicants the Puerto Rican Legislature had the right to prescribe the conditions under which such business might be conducted. The greater power includes the less. Ziffrin v. Reeves, 60 S.Ct. 163, 84 L.Ed.-, decided November 13, 1939 by the Supreme Court of the United States; Seaboard Air Line Railway v. North Carolina, 245 U.S. 298, 304, 38 S.Ct. 96, 62 L.Ed. 299. To say the least, the legislative power to prohibit involves a wide discretion as to the conditions which may be imposed in lieu of total prohibition.
The legislative purpose to protect the renascent liquor industry of Puerto Rico from all competition by foreign capital, so as to avoid the increase and growth of financial absenteeism and to favor this domestic industry and to protect it against any unfair competition, was legitimate. And we may not strike down any legislation designed to effectuate such purpose just because it may be thought unlikely completely to accomplish the desired result. Whether the statutes prohibiting the use of certain trade marks and corporate names and whether the legislation forbidding shipments in bulk (presumably passed in part to prevent an evasion of the trade mark prohibition) will accomplish the desired result is not the question for our determination. The Legislature of Puerto Rico possessing “substantially all the local legislation powers of a state legislature, in all respects here involved” including the local police powers particularly applicable to the liquor business, has manifested its faith in the efficacy of its policy through three successive sessions, the session of 1936, the special session of 1936 and the regular session of 1937, and it is not for us to say whether its faith is well founded. .Even if we knew enough about the matter to form a judgment as to the wisdom of these statutes we should be exceeding our function were we to attempt to substitute our judgment for that of the Legislature. As said by the Supreme Court, in Nebbia v. New York, 291 U.S. 502, 537, 54 S.Ct. 505, 516, 78 L.Ed. 940, 89 A.L.R. 1469 “with the wisdom of the policy adopted, with the adequacy or practicability of the law enacted to forward it, the courts are both incompetent and unauthorized to deal. * * Times without number we have said that the Legislature is primarily the judge of the necessity of such an enactment, that every possible presumption is in favor of its validity, and that though the court may hold views inconsistent with the wisdom of the law, it may not be annulled unless palpably in excess of legislative power.”
Bearing in mind that doubt is not enough, that unconstitutionality must clearly appear in order to warrant us in holding legislation void, and being unable to say that the statutes here questioned so lack any reasonable basis as to be arbitrary or capricious, we think they should not be invalidated as repugnant to the due process clause of the Constitution of the United States or the Organic Act for Puerto Rico. St. Joseph Stock Yards Company v. United States, 298 U.S. 38, 51, 56 S.Ct. 720, 80 L. Ed. 1033; Standard Oil Co. v. Marysville, 279 U.S. 582, 49 S.Ct. 430,73 L.Ed. 856; West Coast Hotel Co. v. Parrish, 300 U.S. 379, 391, 57 S.Ct. 578, 81 L.Ed. 703, 108 A.L.R. 1330.
The District Court ruled that “the provisions of Act No. 6 of June 30, 1936 as amended by Act No. 149 approved May 15, 1937, which restrict the use of certain trade marks and corporate names, discriminate arbitrarily against the plaintiff; violate the equal protection clause of the Constitution of the United States and the Organic Act of Puerto Rico and are invalid.”
It would seem that the equal protection clause appearing in the 14th Amendment of the Constitution of the United States, U.S.C.A., limits the powers of the states and is inapplicable to Puerto Rico. But this is of no importance here because the Organic Act for Puerto Rico expressly provides that “no law shall be enacted in Porto Rico which shall * * * deny to any person therein the equal protection of the laws.” The statutory provision forbidding the shipping of rum in bulk, which applies to all shippers, need not be considered in this connection. The above ruling relates only to the provisions prohibiting the use of certain trade marks and corporate names. As to this aspect of the case, the District Court said, “whether so intended or not the Act has the appearance of being so framed as to exclude only the plaintiff. It is difficult to conceive of a more glaring discrimination.” We think the court’s ruling that the statutes are invalid as constituting a denial of the equal protection of the laws may not stand. It is true that when this case was heard by the District Judge, the appellee was the only manufacturer affected by the particular statutory provisions here considered. But they applied to all who might later engage in the business. The clause in the Act permitting continuance of the use of labels or brands already established in Puerto Rico prior to February 1, 1936, does not unduly discriminate against foreign corporations which had not entered the field before that time. We can not say without doubt upon the subject, that such a statute is unusual or capricious or unjustly discriminatory. In New York Rapid Transit Corp. v. New York, 303 U.S. 573, 578, 58 S.Ct. 721, 724, 82 L.Ed. 1024, it is said: “Although the wide discretion as to classification retained by a Legislature often results in narrow distinctions, these distinctions, if reasonably related to the object of the legislation, are sufficient to justify the classification. * * * Indeed, it has long been the law under the Fourteenth Amendment that ‘a distinction in legislation is not arbitrary, if any state of facts reasonably can be conceived that would sustain it.’ ” See also Borden’s Farm Products Co. v. Ten Eyck, 297 U.S. 251, 56 S.Ct. 453, 80 L.Ed. 669; United States v. Rock Royal Co-op. Inc., 307 U.S. 533, 59 S.Ct. 993, 83 L.Ed. 1446. Upon the principles heretofore stated and which must govern us in determining the constitutionality of an act of a legislature possessed of ample police powers, we cannot declare any of the statutory provisions here questioned repugnant to the equal protection clause of the Organic Act of Puerto Rico or if applicable the same clause appearing in the 14th Amendment to the Constitution of the United [States.
We have refrained from stating many of the facts found by the District Court as to the quality of the appellee’s product, the amounts expended on its plant and equipment, whether before or after receiving the requisite permit for manufacturing liquor, or whether before or after notice of the legislation here questioned, because none of these considerations changes the result. The validity of these statutes can not be made to depend upon the appellee’s expectation that in the exercise of its police powers a law making body may not change its policies or its laws. Mahoney v. Joseph Triner Corp., 304 U.S. 401, 58 S.Ct. 952, 82 L.Ed. 1424.
Nor have we deemed it necessary to state the facts pertinent thereto or to decide whether as urged on behalf of the appellants the plaintiff appellee is estopped to question the validity of the challenged statutes. We think the provisions of the Acts here assailed are valid.
The decree of the District Court is reversed, with costs on appeal to each appellant, and the case is remanded to that court with directions to dissolve the injunction and to dismiss the bill of complaint.
Act No. 115. “Alcoholic Beverage Law of Puerto Rico”, approved May 15, 1936; Laws of 1936, regular session, pp. 610 et seq.
“Sec. 41. — * * *
“B. After the thirty (30) days following the taking elfect of this Act, no person shall engage in the business of manufacturing, distilling, rectifying or bottling distilled spirits in Puerto Rico, unless such person is provided with a permit by the Treasurer of Puerto Rico authorizing him to engage in said business. * * *
“C. The following persons shall be entitled to permits upon application:
“(1) Every person who on February 1, 1936, possesses (possessed) a license or permit issued by the Government of Puerto Rico to engage in the business of distilling, manufacturing, rectifying, and bottling distilled spirits, and who is (was) on that date engaged in said business.
“(2) Any other person who may fully comply with the following requisites:
“(a) To file with the Treasurer of Puerto Rico an application to engage in the business of manufacturing, distilling, rectifying or bottling distilled spirits, which application shall be made in the manner prescribed by the Treasurer of Puerto Rico and shall contain, among other particulars, the following specific information:
“(I) That such person, by reason of his business experience or because of his financial position or business relations, will possibly begin operations within a reasonable period of time and that he will operate his business in accordance with both the Federal and the insular laws.
“(II) That the demand for consumption in Puerto Rico and in the rest of the United States, for the class or classes of distilled spirits to be distilled, manufactured, rectified, or bottled, exceeds the production capacity of the holders of permits under this Act, priority to be given to such persons as may have received permits under clause C, paragraph 1, of this title, as well as to the production capacity of the holders of permits granted by the Federal Alcohol Administration to distill, rectify, bottle, and/or manufacture similar distilled spirits in continental United States.
“(Ill) That the applicant has no intention to violate clause (h) hereinbelow transcribed.
“(IV) That the applicant has no intention to violate clause (i) hereinbelow transcribed.
“(V) That such business will not adversely affect those already established for the manufacture, distilling, rectifying, and bottling of distilled spirits in Puerto Rico.”
Clauses (h) and (i) referred to under (III) and (IV) above, are as follows:
“(h) If any kind, type, or brand of distilled spirits of a foreign origin becomes nationally or internationally known by reason of its bearing or showing as its brand, trade name, or trade mark, the proper name of the manufacturer thereof, such name shall not, in any manner or form whatever, appear on the labels for any distilled spirit of said kind or type manufactured, distilled, rectified, or bottled in Puerto Rico.
“(i) The production capacity of the existing distilleries, manufacturing plants, and rectifying and bottling plants may be increased so as to meet the consumption demands for the brands now produced, or to meet the demand brought about by the manufacture of new brands not in conflict with clause, (g) of this title.”
Clause (g) of the same title, referred to in (i) of the title, reads as follows:
“(g) No holder of a permit under this title shall manufacture, distill, rectify, or bottle, either for himself or for others, any distilled spirit locally or nationally known under a brand, trade name, or trade mark previously used on similar products manufactured in a foreign country, or in any other place outside Puerto Rico; Provided, (1) That such limitation, aimed at protecting the industry already existing in Puerto Rico, shall not apply to any brand trade name, or trade mark used by a manufacturer, rectifier, distiller, or bottler of distilled spirits manufactured in Puerto Rico on February 1, 1936; and (2) such restrictions shall not apply to any new brand, trade name, or trade mark which may in the future be used in Puerto Rico.”
Act No. 6, “Spirits and Alcoholic Beverages Act”, approved June 30, 1936; Law of 1936, special session, pp. 44, et seq.
“To provide revenues for the People of Puerto Rico by levying internal-revenue taxes on alcoholic spirits and alcoholic beverages, and for the manufacture and sale thereof; to regulate the production, manufacture, importation, and sale of alcohol, spirits and alcoholic beverages, and to provide license fees therefor; to impose penalties for violations hereof; to provide funds for the administration and enforcement of the Act; to repeal Aet No. 115, approved May 15, 1936, and for other purposes.
“Section 40. — Every person who in Puerto Rico manufactures or places in any container alcoholic beverages taxable under this Act, shall place on each container a label indicating the follow? ing particulars: exact contents of the container; alcoholic content by volume; the place where it was distilled or manufactured, and the name of the bottler or canner. If said alcoholic beverage is rum, said person shall be obliged to have appear on the label the following phrase in English: ‘Puerto Rican Rum’, in letters the size of which the Treasurer shall by regulation prescribe, as well as the name of the person owning the distillery where said rum was distilled. On the label of every alcoholic beverage shall also appear the word ‘Distilled’, ‘Rectified’, or ‘Blended’, as the case may be, in accordance with such regulations as the Treasurer may prescribe for the purpose, (at p. 76.)
“Section 44. — No holder of a permit granted in accordance with the provisions of this Act shall distill, rectify, manufacture, bottle or can, any distilled spirit, under a trade mark or commercial name, because such trade mark or commercial name has been used on similar products manufactured in Puerto Rico or outside of the Island; Provided, That this limitation shall not apply to any trade mark or commercial name, used for products manufactured in Puerto Rico prior to the approval of this Act; and Provided, further, That distilled spirits, with the exception of ethylic alcohol, 180° proof or more, industrial alcohol, alcohol denatured according to authorized formulas, and denatured rum for industrial purposes, may be exported from Puerto Rico only in containers holding not more than one gallon, and each container shall bear the corresponding label containing the information prescribed by law and the regulations of the Treasurer.”
Act No. 149, approved May 15, 1937; Daws of 1937, regular session pp. 392-396.
“Be it enacted by the Legislature of Puerto Rico:
“Section 1. — Section 1 is hereby amended by adding Section 1 (b) to Act No. 6, approved June 30, 1936, entitled ‘An Act to provide revenues for The People of Puerto Rico by levying internal-revenue taxes on alcoholic spirits and alcoholic beverages, and for the manufacture and sale thereof; to regulate the production, manufacture, importation, and sale of alcohol, spirits and alcoholic beverages, and to provide license fees therefor; to impose penalties for violations hereof; to provide funds for the administration and enforcement of the Act; to repeal Act No. 115, approved May 15, 1936, and for- other purposes’, which section shaE be as foEows:
“ ‘Section 1. The short title of this Act shall be Spirits and Alcoholic Beverages Act.’
“ ‘Section 1 (b). — Declaration of Policy. It has been and is the intention and the policy of this Legislature to protect the renascent liquor industry of Puerto Rico from aE competition by foreign capital so as to avoid the increase and growth of financial absenteeism and to favor said domestic industry so that it may receive adequate protection against any unfair competition in the Puerto Rican market, the continental American market, and in any other possible purchasing market.’
“Section 2. — Section 40 of said Act No. 6, approved June 30, 1936, is hereby amended to read as foEows:
“ ‘Section 40. — Every person who in Puerto Rico manufactures or places in any container alcoholic beverages taxable under this Act, shall place on each container a label indicating the foEow-ing particulars: Exact contents of the container; alcoholic content by volume; the place where it was distiEed or manufactured, and the name of the bottler or canner. If said aleohoHc beverage is rum, said person shaE be obliged to have appear prominently on the label the following phrase in English Puerto Rican Rum, in letters not less than five-sixteenths (5/16) of an inch high and of lines of one-sixteenth (1/16) of an inch or more in width, said phrase to be not less than three (3) inches long. For containers of four-fifths (4/5) of a pint and less the phrase Puerto Rican Rum must appear on the label in letters not less than one-eighth (1/8) of an inch high, said phrase to be not less than one and one-half (1%) inches long. On the label of every alcoholic beverage shaE also appear the word distüled, rectified, or blended, as the case may be, in accordance with such regulations as the Treasurer may prescribe for the purpose; Provided, further, That the trade mark or name of the rum must appear prominently on the label in letters of a size at least three times the size of the letters in which the name of the manufacturers, distiHer, rectifier, bottler, or canner appears.’
“Section 3. — Section 44 of said Act No. 6, approved June 30, 1936, is hereby amended to read as foEows:
“ ‘Section 44. — No holder of a permit granted in accordance with the provisions of this or of any other Act shaE distiE, rectify, manufacture, bottle, or can any distiEed spirits, rectified spirits, or aleohoHc beverages on which there appears, whether on the container, label, stopper, or elsewhere, any trade mark, brand, trade name, commercial name, corporation name, or any other designation, if said trade mark, brand, trade name, commercial name, corporation name, or any other designation, design, or drawing has been used previously, in whole or in part, directly or indirectly, or in any other manner, anywhere outside of the Island of Puerto Rico; Provided, That this limitation shall not apply to the designations used by a distiller, rectifier, manufacturer, bottler, or canner of distilled spirits manufactured in Puerto Rico on or before February 1, 1936.’
“Section 4 — Section 44 (b) is added to said Act No. 6, approved June 30, 1936, which section reads as follows:
“ ‘Section 44 (b). — Distilled spirits, with the exception of ethylic alcohol, 180° proof or more, industrial alcohol, alcohol denatured according to authorized formulas, and denatured rum for industrial purposes may be shipped or exported from Puerto Rico to foreign countries, to the continental United States, or to any of its territories or possessions, or imported into Puerto Rico, only in containers holding not more than one gallon, and each container shall bear the corresponding label containing the information prescribed by law and by the regulations of the Treasurer; Provided, That where any rectifier presents to the Treasurer a sworn application stating that he wishes to withdraw from business and
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_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.
ATLANTIC & GULF STEVEDORES, INC., a Maryland Corporation, et al., Plaintiffs-Appellants, v. Odell KOMINERS et al., Defendants-Appellees.
No. 248, Docket 71-1776.
United States Court of Appeals, Second Circuit.
Argued Dec. 1, 1971.
Decided March 13, 1972.
William Kimball, New York City (Joseph F. McGoldrick, New York City, on the brief), for plaintiffs-appellants.
Howard McCormack, New York City (Zock, Petrie, Sheneman & Reid, New York City, on the brief), for defendants-appellees.
Before LUMBARD, WATERMAN and FEINBERG, Circuit Judges.
LUMBARD, Circuit Judge:
Appellants herein, three stevedore companies, were among the plaintiffs in an action commenced on June 21, 1967, in the Eastern District of New York against Sigurd Herlofson & Co. A/S to recover stevedore charges for services rendered. They were represented by appellees herein, the Washington, D. C. law partnership of Kominers, Fort, Schlefer, Farmer & Boyers (Komi-ners). The stevedores brought the present action to recover $19,700 in disputed legal fees and the lawyers counterclaimed for $10,000 paid by them to McHugh & Leonard, a New York City law firm which acted as local counsel for the stevedores in the suit against Her-lofson. The district court granted Kom-iners’ motion for summary judgment, holding not only that it was entitled to the $19,700 but also that the bill presented by McHugh & Leonard was for the account of the stevedores. We reverse the former and affirm the latter.
The stevedores had sought $1,303,-267.62 from Herlofson, but settled in May 1969 for approximately fifty-eight percent or $755,000.00. On April 9, 1968, however, some ten months after litigation had been initiated, attorney Mark Schlefer had written to the plaintiffs suggesting a change from time-plus-costs compensation to a contingency fee arrangement. The inartfully drawn proposal was accepted by the various stevedore companies. It read in relevant part:
Let me now turn to alternative fee arrangements which would be agreeable to us. We would be prepared to convert our billing to date into a retainer on account in connection with a contingency agreement. The contingency would be that if we prevailed, by way of settlement before litigation, 7% of the recovery; if we recover on motion for summary judgment, 10%; if we recover after trial, 15%; if either after summary judgment or trial we must pursue or defend an appeal, 5% additional. I am reasonably certain that this case does not have implications which the Supreme Court would consider reviewing and we would include a petition for certiorari to the Court as part of the appeal for purposes of the contingency. If by some chance the Supreme Court should grant certiorari, remote as that may be, I think we should work out a further arrangement at that time. Out of pocket disbursements would of course be for your account under the code of ethics, (emphasis added)
Some two months later Kominers filed a brief and then a reply brief in connection with the stevedores’ motion for summary judgment against Herlofson. The settlement of May 1969 was reached before a decision on the motion was ever rendered. Believing that they had satisfactorily completed all the work necessary to a disposition by summary judgment, the law firm claimed 10% of the settlement figure. The stevedore-plaintiffs herein, on the other hand, reasoned that the settlement obviated the risk that Herlofson would ultimately prevail, in which case Kominers would get practically nothing, and that in any event summary judgment was never rendered, making 7% the appropriate recompense to the lawyers. At this time the fee owing McHugh & Leonard also fell into dispute.
The stevedores remark upon the apparently unique usage of “litigation,” and deduce that a recovery “before litigation” signified a recovery without exposure to the vicissitudes of any form of legal decision-making (trial or summary judgment). Any other interpretation, they argue, might indicate that the lawyers, having drawn the agreement, were not altogether in good faith, as they were certainly aware that “litigation” in the normal sense had already begun. Furthermore, say the stevedores, the language should be strictly construed against the lawyers.
Kominers prepared and filed a 41-page memorandum of law in support of the motion for summary judgment, and thereafter a 47-page reply memorandum. This, they urge, surely makes 10% the appropriate figure inasmuch as all the work necessary to summary judgment had been performed. To “recover” on summary judgment does not indicate that the recovery must be court-ordered, according to Kominers, because the agreement also used the word “recover” in reference to settlement. Kominers also points out that Herlofson agreed to settle with the stevedores only after Kominers had prepared the summary judgment briefs, implying, perhaps accurately, that but for Kominers’ efforts Herlofson might well not have perceived the need to settle. The 7% figure applicable to a recovery “before litigation” is inappropriate in Kominers’ view because “litigation,” defined as actual court skirmishes (e. g., motions for and against summary judgment) rather than the filing of the complaint, had occurred by the time recovery was had.
Kominers further points to the April 1, 1969 letter of Mr. Schlefer to the stevedores in which he recommended that Herlofson’s offer of settlement be accepted and presented a breakdown of the respective income from the recovery each plaintiff would enjoy and the respective expenses — with Kominers’ fee set at 10% — as well. Kominers argues that the stevedores accepted the advice contained in the letter and, insofar as no objection was made at that time, should be assumed also to have agreed to the 10% fee. Kominers finally urges that 10% is appropriate as a matter of quantum meruit.
We think that 7% is the proper share of Kominers. Nothing in the record leads us to question either the good faith of the lawyers or their proficiency in representing the stevedores, but Kominers drafted the terms of the agreement and should be responsible for any defects of clarity therein. Lawyers are engaged largely for their skills as communicators, and lucidity is no less necessary in an agreement regarding fees than in other documents prepared for clients. The client invests considerable trust and money in the lawyer’s ability to express himself precisely. The lawyer invites this reliance and is properly held accountable when his own imprecision in defining his fees reasonably leads to diverse interpretations. In short, lawyers are supposed to be wordsmiths ; stevedores are not.
The fee of McHugh & Leonard, however, was properly held to be for the account of the stevedores. In the letter of April 1, 1969, in which Mr. Schlefer set out the recovery and expenses of the companies, the McHugh & Leonard fee was split among the stevedores three ways, one-third to Marra Brothers, one-third to International Terminal Operating Company (not a party to this litigation), and one-third to the two Atlantic & Gulf Companies. In addition, the letter of April 9, 1968, proposing the new fee arrangement, contained the following:
Finally, I have ascertained McHugh & Leonard’s fee and have made a review of the time charges which I indicated to you were applicable for last year’s work. McHugh’s fee to date is $2,500. We think that the plain import of these letters and the complete lack of objection thereto removes any doubt that the New York counsel fees were for the stevedores. We hold, however, that the responsibility for the $10,000 is not joint and several. This should be divided three ways as indicated in the letter of April 1, 1969.
Reversed and remanded for entry of judgment in accordance with this opinion.
. International Terminal Operating Co., Inc., also a plaintiff in the previous action, is not a party to this litigation.
. Kominers accepted the settlement from Herlofson for transferral to the steve-clores, and withheld the full amount it claimed in fees. The amount in dispute is presently in escrow pending determination of this litigation.
. The district court was requested to withhold decision while settlement negotiations were explored.
. International Terminal Operating Co., Inc., lias agreed to pay Kominers 10%, a fact which does not preclude the other stevedores from asserting that their understanding was different.
. An equally plausible inference, of course, is that the legal briefs of Herlofson’s counsel impressed upon Kominers and the stevedores the wisdom of relinquishing more than 40% of their claim.
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer:
|
songer_respond2_4_3
|
B
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second listed respondent. The nature of this litigant falls into the category "sub-state government (e.g., county, local, special district)", specifically "other". Your task is to determine which specific substate government agency best describes this litigant.
Gordon W. JONES, Plaintiff-Appellant, v. O.D. GANN, etc., et al., Defendants-Appellees.
No. 82-8489
Non-Argument Calendar.
United States Court of Appeals, Eleventh Circuit.
April 18, 1983.
Gordon W. Jones, pro se.
Downey, Cleveland, Moore & Parker, Lynn A. Downey, Marietta, Ga., for defendants-appellees.
Before HILL, KRAVITCH and HENDERSON, Circuit Judges.
JAMES C. HILL, Circuit Judge:
Jones filed this § 1983 action alleging that the defendants violated his civil rights in the enforcement of a Marietta city ordinance. Jones alleged that he had been prosecuted under the ordinance but had been discharged from the conviction by the Superior Court of Cobb County, Georgia. That court had ruled, however, that the city could retain the fine originally assessed against Jones. Jones contended in his present complaint that defendants had no legal basis upon which they could retain his money and that their actions in retaining his money violated the United States Constitution. He also alleged that in the process of enforcing the citation, individual defendants Gann, Griffin, and Crane committed numerous tortious acts.
The city and the mayor filed a motion for summary judgment alleging that after the actions of which Jones complains and prior to the filing of the instant action, another federal court had dismissed with prejudice an action by Jones raising the same issues as those raised in the present action. The district court dismissed the instant action on the grounds of res judicata. Defendants Griffin, Crane, and Gann later filed a summary judgment motion alleging that the issues raised in this case had previously been adjudicated in actions in both federal and state court. The district court granted their motion for summary judgment on res judicata grounds and dismissed the action. We affirm the district court’s order dismissing the action against the city and the mayor but vacate the order dismissing the action against defendants Gann, Griffin, and Crane.
As a preliminary matter, appellees assert that Jones’ notice of appeal filed on August 2,1982 was not timely. They argue that the notation made upon the final judgment order indicates that the judgment was filed on June 29, 1982. The docket sheet contradicts this notation, indicating that the judgment was actually entered on the docket on July 1, 1982. The time for filing a notice of appeal begins to run not on the date that the judgment is filed but on the date the judgment is actually entered on the docket. See United States v. Rothseiden, 680 F.2d 96, 97 (11th Cir.1982); Fed.R. App. 4(a)(b); Fed.R.Civ.P. 58; Fed.R.Civ.P. 79(a). We conclude that Jones’ notice of appeal was timely.
On the merits, Jones contends that the district court erred in concluding that this action is barred by former state and federal suits. In Allen v. MeCurry, 449 U.S. 90, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980), the Supreme Court held that a § 1983 litigant could be collaterally estopped from .asserting claims which he could have litigated in a prior state proceeding. In Southern Jam, Inc, v. Robinson, 675 F.2d 94, 96-97 (5th Cir. Unit B 1982), the court extended this principle to issues that the litigant might have raised but did not raise in the prior proceeding provided that he had a full and fair opportunity to raise the issues. The law of the state of the court rendering a prior state decision determines the scope of the estoppel defense. Id. at 97-98; 28 U.S.C. § 1738 (1976). In Southern Jam, the court noted that the law of Georgia is clear:
A party must raise any claim against an opposing party which arises out of the transaction or occurrence that is the subject-matter of the opposing party’s claim, so long as the presence of a third party is not required. Failure to plead that claim then precludes that party from asserting it in a separate, second litigation. Ga. Code § 81A-113(a); see generally P & J Truck Lines, Inc. v. Canal Insurance Co., 148 Ga.App. 3, 251 S.E.2d 72 (1978).
675 F.2d at 98. The same principles apply to the res judicata effect of prior federal court judgments. See Kremer v. Chemical Construction Corp., 456 U.S. 461, 466 n. 6, 102 S.Ct. 1883, 1889 n. 6, 72 L.Ed.2d 262 (1982).
The record does not indicate that Gann, Griffin, and Crane and the allegations against them were involved in the prior state or federal proceedings. Many of Jones’ claims in the present action constitute state law torts, some of which provide possible bases for a § 1983 claim. The dissimilarity of the claims in the suits indicates that the presence of Gann, Griffin, and Crane would have been required in any prior adjudication of these claims. Appellant .has not merely substituted different defendants for the same cause of action. We conclude that under Georgia or federal law as applied to a § 1983 action these three defendants could not raise the bar of res judicata.
Jones also argues that the district court erred in dismissing his action against the city and the mayor on res judicata grounds. In Concordia v. Bendekovic, 693 F.2d 1073 (11th Cir.1982), the court emphasized that when addressing a claim of res judicata, a court must examine the record to determine whether the issue has been actually or could have been litigated and to ascertain whether there has been a final judgment in the other proceeding. Although the court expressed a preference for a copy of the record of the prior proceedings, it did not conclude that such was a prerequisite for successful assertion of a res judicata claim.
In Concordia, the court distinguished between a Rule 12(b) dismissal motion and a Rule 56 motion for summary judgment based on a res judicata claim. Id. at 1075-76. A party may raise a res judicata defense by a Rule 12(b) motion when the defense’s existence can be judged on the face of the complaint. Id. at 1075. A party may successfully raise this defense in a Rule 56 summary judgment motion by introducing sufficient information into the record to allow the court to judge the validity of the res judicata defense. See id. The defendant in Concordia failed to satisfy this burden, introducing only a copy of a counterclaim in a prior state proceeding and a copy of a judgment which denied the plaintiff relief on this counterclaim but did not indicate the basis for the state court’s conclusion.
In the case at bar, the city and the mayor answered Jones’ complaint, raising res judicata principles as an affirmative defense pursuant to Fed.R.Civ.P. 8(c). They then moved for summary judgment including in the record a copy of two orders in the prior case of Jones v. City of Marietta, C.A. No. 80-1779A (N.D.Ga.). The June 19 order dismissed that action with prejudice, indicating that the prior proceeding reached a final judgment. We must therefore determine whether the April 28 order provides a sufficient basis for determining which issues were or could have been raised in that proceeding. This order indicates that Jones had argued that the city’s regulations regarding the automobile ordinance violated the fourth, fifth, and fourteenth amendments of the United States Constitution. Specifically, Jones argued in No. 80-1779A that (1) the regulations were unconstitutionally vague; (2) the regulations were not uniformly enforced and were used to harass certain persons; (3) enforcement of the regulations amounted to a “taking” of plaintiff’s property without due process of law; and (4) enforcement of the regulations denied Jones equal protection of the law.
The record indicates that Jones' present claims against both the city and the mayor raise the same issues which either were raised or could have been raised in the prior proceeding. Jones has failed to present any evidence indicating that the orders in C.A. No. 80-1779A do not accurately reflect the complete record of that case. We therefore conclude that principles of res judicata bar the plaintiff from relitigating his claims against the city and the mayor in the instant action. Southern Jam, Inc. v. Robinson, 675 F.2d 94, 96-98 (5th Cir. Unit B 1982). The district court’s disposition of C.A. No. 80-1779A by way of settlement .does not alter our conclusion, Jones v. Texas Tech University, 656 F.2d 1137, 1142 n. 2 (5th Cir.1981), and reinforces our conclusion that the prior judgment involved actual litigation of Jones’ claims, see Astron Industrial Associates v. Chrysler Motors Corp., 405 F.2d 958, 960 (5th Cir. 1968) (dismissal with prejudice constitutes a final judgment on the merits).
We affirm the order of the district court dismissing the present action against the city and the mayor. We vacate and remand the court’s order dismissing this action against defendants Griffin, Crane, and Gann.
AFFIRMED in part; VACATED and REMANDED in part.
. Jones had filed several suits in both state and federal court prior to bringing the present action. The district court premised its order dismissing the city and its mayor on a prior adjudication in federal court, Jones v. City of Marietta. C.A. No. 80-1779A. The, district court based its decision dismissing Gann, Griffin and Crane on the Georgia Supreme Court’s decision in Jones v. City of Marietta, 248 Ga. 773, 285 S.E.2d 730 (1982).
. We need not determine whether these claims are sufficient to survive a dismissal motion under Fed.R.Civ.P. 12(b)(6) since the issue was not properly raised before the district court.
Question: This question concerns the second listed respondent. The nature of this litigant falls into the category "sub-state government (e.g., county, local, special district)", specifically "other". Which specific substate government agency best describes this litigant?
A. City of, county of, etc. - in corporate capacity - criminal case
B. city of, county of, etc. - in corporate capacity - civil case
C. Other sub-state activity
D. not ascertained
Answer:
|
songer_direct2
|
A
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for 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.
UNITED STATES of America, Plaintiff-Appellee, v. Joseph D. LUDWIG and Lois V. Ludwig, Defendants-Appellants.
Nos. 89-1424, 89-1425.
United States Court of Appeals, Seventh Circuit.
Argued Sept. 12, 1989.
Decided March 8, 1990.
As Amended March 12 and March 21, 1990.
Mel S. Johnson, Asst. U.S. Atty., Milwaukee, Wis., for plaintiff-appellee.
Mama M. Tess-Mattner, Gimbel, Reilly, Guerin & Brown, Milwaukee, Wis., for defendants-appellants.
Before CUMMINGS, WOOD, Jr., and COFFEY, Circuit Judges.
COFFEY, Circuit Judge.
Joseph D. Ludwig and Lois V. Ludwig appeal from a judgment of guilty convicting each of them of one count of conspiracy to defraud the government in violation of 18 U.S.C. § 371 and one count of tax evasion for the 1981 taxable year in violation of 26 U.S.C. § 7201. We affirm.
I.
Joseph D. Ludwig owned three discount furniture stores in the cities of Neenah, Kaukauna, and Little Chute, Wisconsin, each operating under the name of Factory Outlet Furniture (hereinafter F.O.F.). Following an Internal Revenue Service investigation, Joseph Ludwig and his second wife, Lois Ludwig, were charged with conspiracy to defraud the government and tax evasion as a result of underreporting cash received from F.O.F. furniture sales.
Prior to the founding of Factory Outlet Furniture, Joseph Ludwig owned a bowling alley operated under the trade name of Ludwig Lanes. In 1971 Ludwig and wife # 1, Beatrice Ludwig, sold the bowling alley and received a net profit of between $65,000 and $75,000. Ludwig told Internal Revenue Service Special Agent Lawrence Hart that because he did not trust banks, he kept the $65,000 to $75,000 cash proceeds from this bowling alley sale in a box in a closet in his Freedom, Wisconsin, home from 1971 until 1981 when he built the Kaukauna furniture store. The ensuing facts recited herein cast doubt on Ludwig’s statement concerning his mistrust of banks and his alleged keeping of the $65,000 to $75,000 in cash in his home. Furthermore, at trial Ludwig’s first wife, Beatrice, did not corroborate Ludwig’s story concerning the storage of the bowling alley proceeds, stating that she never saw a box of currency in their home during the five years after the sale of the bowling alley. In addition, several of the financial statements (personal records) Ludwig furnished during the course of the government investigation between 1976 and 1982 made no mention of the cash proceeds from the bowling alley sale. Furthermore, the stipulated property settlement entered into during the 1976 divorce proceedings of Joseph and Beatrice Ludwig failed to reflect the $65,000 to $75,-000 or any significant amount of cash on hand. Also, statements made for the purposes of securing loans in 1979, 1981 and 1982 listed cash amounts on hand ranging between $20,000 and $30,000, significantly less than the amount Ludwig supposedly kept in the mystery box in the closet in his home. In addition, the April 1980 pre-mari-tal agreement between Joseph Ludwig and his second wife, Lois Ludwig, failed to specifically mention a significant level of cash on hand. Moreover, the government alleged that the absence of a rider in the Ludwig’s home insurance policy protecting this cash and the likely presence of start-up costs accompanying Ludwig’s entry into the furniture business in the early 1970s, for which this money might have been used, cast further doubt on Ludwig’s statements concerning the bowling alley proceeds.
Factory Outlet Furniture was founded by the Ludwigs in the early 1970s, just after the sale of Ludwig Lanes with the business originally operating out of the garage and basement of the Ludwigs’ home. Thereafter, a store was opened in Little Chute, Wisconsin and later stores were opened in Neenah and Kaukauna, Wisconsin. Former F.O.F. employees testified concerning the store’s unconventional sales and accounting practices in years beginning with 1982. According to the former F.O.F. employees, store policies required differing treatment for cash and non-cash sales. Employees were instructed to fill out receipts with notations of “G” for cash sales and a check (“/”) for check sales. When cash was accepted, it was put in an envelope with the amount of cash received and the customer’s name written on the envelope. These envelopes were kept in a drawer behind the sales counter and at the end of each day Joseph Ludwig would transfer the envelopes containing cash to his home and would count and store the money there.
Former F.O.F. employees also testified that a ledger was used to compile the monthly sales figures. Each month some, but not all, of the cash receipts were commingled with the receipts paid for by check to produce the monthly sales figures. These figures were then submitted to the Ludwigs’ accountant, Duane Kalm, who prepared the Ludwigs’ taxes. The Lud-wigs’ accounting practices also carried over to the storage of the sales slips. Testimony also revealed that the sales slips generated from the receipts paid for by check and the sales slips from the receipts paid by cash that had been integrated to produce the monthly sales figures were kept in one area. The sales slips generated from the cash receipts that were not incorporated in the monthly sales figures were kept in a separate area. Both the accounting and sales slips storage practices assisted in the Ludwigs’ accumulation of unreported income.
Further evidence pointed toward the presence of significant amounts of possibly unaccounted for cash in the Ludwigs’ possession. Evidence was presented at trial establishing that Joseph Ludwig relied heavily on cash to purchase expensive items, including purchases of boats and cars, as well as an addition to his home. Evidence was also submitted concerning the Ludwigs’ storage of cash in safes at home and in safety deposit boxes, apparently in banks. Lois Ludwig told a former F.O.F. employee that there was $200,000 to $500,000 kept in a safe at the Ludwigs' home and in her children’s safety deposit boxes, apparently located in a bank. Lois Ludwig also told the F.O.F. employee that the cash was kept in the children’s safety deposit boxes rather than in an interest bearing account because the Ludwigs were not supposed to have the money. This statement reflected an apparent knowledge on Lois Ludwig’s part that the cash had not been reported to the IRS and went to establish her intent to defraud the government.
In establishing its case, the government utilized the “bank deposits” method of proof. This method of proof permits the investigating officer to reconstruct a taxpayer’s income, including his expenses and purchases, thus allowing the government to attempt to establish the amount of unreported income. In United States v. Hall, 650 F.2d 994, 996-97 n. 4 (9th Cir.1981), the Ninth Circuit described this method as follows:
“The bank deposits method of proof is ... a circumstantial way of establishing unreported income. It purports to demonstrate that excess income must exist by showing excessive unaccounted for bank deposits. The bank deposits for the tax year are totaled, with adjustments made for funds in transit at the beginning and end of the year. Non-income deposits are excluded, and non-deposited income is included. This constitutes a reconstructed gross income. Calculation of taxable income then proceeds in the usual way, taking into account the legitimate deductions, exceptions, exclusions and credits. In the case of a business this would exclude the business’ cost of goods sold and other expenses. If the resultant figure differs from what the taxpayer has reported, the government will contend that the difference is unreported income.”
Utilizing the bank deposit method, the government asserted that the defendants underreported taxable income in the amounts of $67,866.25 in 1980, $69,077.93 in 1981, and $18,962.46 in 1982. Thus, the defendants underreported their tax liability by $33,816 in 1980, $36,863 in 1981 and $9,451 in 1982. It was also determined that in 1983 the defendants underreported a tax liability in the amount of $21,873.
Following trial, the jury found Joseph and Lois Ludwig each guilty of one count of conspiracy to defraud the government in violation of 18 U.S.C. § 371 as well as one count of tax evasion for the taxable year 1981 in violation of 26 U.S.C. § 7201. The court sentenced Joseph Ludwig to fifteen months of incarceration, two years of probation consecutive to his release from custody and a $10,000 fine. Sentence was withheld for Lois Ludwig who was placed on two years’ probation and fined $5,000.
II.
As previously discussed, the government relied upon the bank deposits method to establish its case against the Ludwigs. The Ludwigs contend that the government failed to make a complete and adequate investigation of their financial situation and, thus, presented an inaccurate picture of their financial situation under the-bank deposits method. Specifically, the Ludwigs allege two deficiencies in the government’s proof: (1) the government failed to adequately investigate Joseph Ludwig’s explanation that he had a large amount of cash on hand as a result of his 1971 sale of the bowling alley and (2) the government erroneously characterized certain deposits received in Mrs. Ludwig’s personal bank account as taxable income.
In approaching the question of whether the government adequately proved its “bank deposits” case, the Ludwigs assert that we should direct our attention to the question of the quality of the investigation the government conducted and whether the government investigators appropriately followed all the “leads” in determining whether certain items were “income” or “non-income” receipts. In contrast, the government contends that the controlling question is the sufficiency of the evidence, thus meaning that the only question this court need address is whether the “bank deposits” method proof the government presented was sufficient for a reasonable jury to convict the Ludwigs of conspiracy to defraud the government and tax evasion. We agree with the government’s position. The Ludwigs’ challenge is to the quantity and method of proof the government utilized. We see nothing to distinguish this case from other criminal tax cases where the defendants allege that the proof the government presented of their criminal conduct is insufficient. Certainly the adequacy of the government’s investigation and whether the government must follow all “leads” is a factor we must consider in determining whether there was sufficient evidence for any reasonable jury to find the Ludwigs guilty of conspiracy to defraud the government and tax evasion. Nonetheless, we must consider this factor in the overall context of whether there existed sufficient evidence upon which the trier of fact could properly find guilt beyond a reasonable doubt of the crimes charged.
“In evaluating [the Ludwigs’] sufficiency of the evidence challenge, we note that [they] bear [] a heavy burden. Initially, we ‘review all the evidence and all the reasonable inferences that can be drawn from the evidence in the light most favorable to the government.’ ” United States v. Nesbitt, 852 F.2d 1502, 1509 (7th Cir.1988) (quoting United States v. Pritchard, 745 F.2d 1112, 1122 (7th Cir.1984)). “The test is whether after viewing the evidence in the light most favorable to the government, ‘any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” Pritchard, 745 F.2d at 1122 (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (emphasis in original)).
“As we emphasized in United States v. Giangrosso, 779 F.2d 376, 382 (7th Cir.1985): ‘[T]his court is not the trier of fact and we are required to uphold the jury’s verdict where “any rational trier of fact” would have found the defendant guilty of the crime. ’ ... ‘Only when the record contains no evidence regardless of how it is weighed, from which the [trier of fact] could find guilt beyond a reasonable doubt, may an ap pellate court overturn the verdict. ’ Nesbitt, 852 F.2d at 1509 (quoting United States v. Whaley, 830 F.2d 1469, 1472 (7th Cir.1987), cert. denied, 486 U.S. 1009, 108 S.Ct. 1738, 100 L.Ed.2d 202 (1988) which quoted, in turn, United States v. Moore, 764 F.2d 476, 478 (7th Cir.1985)) (emphasis added).”
United States v. Vega, 860 F.2d 779, 793 (7th Cir.1988).
A jury is entitled to rely upon circumstantial evidence, such as that utilized • in the bank deposits method, in determining a defendant’s guilt. As we observed in United States v. Grier, 866 F.2d 908, 923 (7th Cir.1989):
“ ‘Not only is the use of circumstantial evidence permissible, but “circumstantial evidence ‘may be the sole support for a conviction.’ ” ’ United States v. Nesbitt, 852 F.2d at 1510 (quoting United States v. Williams, 798 F.2d 1024, 1042 (7th Cir.1986) (dissenting opinion) which quoted, in turn, United States v. McCrady, 774 F.2d 868, 874 (8th Cir.1985)). ‘ “Circumstantial evidence is not less probative than direct evidence, and, in some cases is even more reliable.” ’ Williams, 798 F.2d at 1039 (dissenting opinion) (quoting United States v. Andrino, 501 F.2d 1373, 1378 (9th Cir.1974)). See also Wisconsin Jury Instruction — Criminal, No. 170 (‘[Circumstantial evidence may be stronger and more convincing that (sic) direct evidence’). ‘[T]he evidence “ ‘need not exclude every reasonable hypothesis of innocence so long as the total evidence permits a conclusion of guilt beyond a reasonable doubt.' ” United States v. Radtke, 799 F.2d 298, 302 (7th Cir.1986) (quoting United States v. Thornley, 707 F.2d 622 (1st Cir.1983)).’ United States v. Koenig, 856 F.2d [843] at 854 [7th Cir.1988].”
In weighing both direct and circumstantial evidence
“[j]uries are entitled to draw upon their own experience in life as well as their common sense in reaching their verdict. See [United States v. Radtke, 700 F.2d 298, 302 (7th Cir.1986)]. While ‘[common sense is no substitute for evidence, ... common sense should be used to evaluate what reasonably may be inferred from circumstantial evidence.’ Id."
Nesbitt, 852 F.2d at 1511. Not only do we recognize the jury’s experience in the affairs of life, but we also acknowledge the jury’s role as the arbiter of credibility:
“[W]e defer to the jury’s determination of witnesses’ credibility. As we noted in United States v. Ramirez, 796 F.2d 212, 214 (7th Cir.1986): ‘An appellate court will not weigh the evidence or assess the credibility of the witnesses.’ Similarly, we have stated: ‘ “It is well settled law that a court of appeals does not stand in judgment of the credibility of witnesses. Rather that question is left to the sound discretion of the trier of fact.” ’ United States v. Perry, 747 F.2d 1165, 1170 (7th Cir.1984) (quoting United States v. Roman, 728 F.2d 846, 856 (7th Cir.1984)). Finally, ‘the credibility of witnesses is peculiarly within the province of the jury and our review of credibility is prohibited absent extraordinary circumstances.’ United States v. Noble, 754 F.2d 1324, 1332 (7th Cir.1985).”
Vega, 860 F.2d at 794.
In analyzing the defendants’ sufficiency of the evidence argument, we turn initially to their contention that the government’s bank deposits calculations inappropriately failed to consider as “cash on hand” the proceeds from the 1971 bowling alley sale that Joseph Ludwig allegedly stored in his home for nearly ten years. “The beginning cash on hand figure is important because a large amount of undeposited cash could explain [the Ludwigs’] ‘excessive’ deposits.” United States v. Soulard, 730 F.2d 1292, 1298 (9th Cir.1984). In this case all parties agreed to the following jury instruction concerning cash on hand:
“Because the bank deposit method of proving unreported income involves a review of the defendants’ deposits and cash expenditures which come from taxable sources, the government must establish an accurate cash on hand figure for the beginning of the tax year. The proof need not show the exact amount of the cash on hand so long as it is established, ... the government’s claimed cash on hand figure is reasonably accurate. So if you should decide that the evidence does not establish with reasonable certainty what the defendants’ cash on hand was at the beginning of the year, you should find the defendants not guilty. In determining whether or not the claimed cash on hand of a defendant at the starting point or the beginning of a year is reasonably accurate you may consider whether government agents sufficiently investigated all reasonable leads suggested to them by the defendant or which otherwise surfaced during the investigation concerning the existence of other funds at that time. If you should find that the government’s investigation has either failed to reasonably pursue or to refute plausible explanations which were advanced by the defendant or which otherwise arose during the investigation concerning the defendants’ cash on hand at the beginning of the year, then you should find the defendants not guilty.
Notice, however, that this duty to reasonably investigate applies only to suggestions or explanations made by the defendant or to reasonable leads which otherwise turn up. The government is not required to investigate every conceivable source of nontaxable funds.”
Assuming the jury followed this instruction, it would have determined both that the government’s position concerning the amount of cash on hand was appropriate and that the government adequately investigated the explanations the Ludwigs proffered concerning the cash on hand issue. In reviewing the jury’s verdict with respect to this cash on hand question, it is evident that the jury chose to credit the sworn testimony of the IRS representatives rather than the Ludwigs’ assertion concerning their cash on hand theory. Not only is this choice supported in our recognition that the jury is the arbiter of creditability, it is also strongly buttressed by several relevant facts. Initially, no person testifying at trial corroborated Ludwig’s assertion that he kept $65,000 or $75,000 in cash in a box in his residence, and thus the jury was entitled to disbelieve Ludwig’s unsupported testimony. Furthermore, the jury cannot be faulted for believing that a man who ran an expanding furniture business and who had a history of purchasing expensive items, such as boats and cars, and building home additions, with cash, very likely would have exhausted any cash receipts from his bowling alley sale over the roughly nine years between this sale and the 1980 through 1983 tax years at issue in this matter. Even more significantly, Mr. Ludwig’s assertions are in sharp contrast with the stipulated divorce property settlement, his prenuptial agreement prior to his second marriage and several loan applications. Furthermore, the jury would have been well within its province in discrediting Joseph Ludwig’s explanation that he did not trust banks, in light of his use of bank accounts in the business enterprise. In our case, as in United States v. Soulard:
“The jury was properly instructed as to the bank deposits method of proof and the figures used therein. It was for the jury to determine whether the figure in the Government’s bank deposits analysis properly represented [the defendants’] cash on hand at the beginning of the prosecution. Having found [the defendants] guilty ... the jury apparently gave greater weight to the Government’s figure than to the [conflicting evidence].”
730 F.2d at 1298-99. Thus, we conclude that the jury appropriately accepted the Government’s position concerning the amount of cash on hand.
The Ludwigs’ next argument is that the Government erroneously included as taxable income deposits of unknown origin that were made in Lois Ludwig’s personal bank accounts in the amounts of $16,139.83 in 1980 and $31,286.72 in 1981. The Ludwigs assert that these amounts do not have the appearance of income required for them to be classified as income under the bank deposits method. In support of their position, they assert that these deposits were irregular, not specifically identified as coming from any income source, were made to a personal rather than business account and were placed in an account that Joseph Ludwig had no control over.
With respect to these amounts the jury was instructed that:
“[T]his duty to reasonably investigate applies only to suggestions or explanations made by the defendant or to reasonable leads which otherwise turn up. The Government is not required to investigate every conceivable source of nontaxable funds. If you decide that the evidence in this case establishes beyond a reasonable doubt that the defendants’ bank deposits together with their un, rather, non-deductible cash expenditures during the year did substantially exceed the amount of income reported on the defendants’ income tax return for that year, you should then proceed to decide whether the evidence also establishes beyond a reasonable doubt that such additional deposits and expenditures represented taxable income, that is, income from taxable sources on which the defendant willfully attempted to evade and defeat the tax as charged in the indictment.”
Having received this instruction, it was necessary for the jury to determine that the involved deposits and expenditures represented income from taxable sources. The jury was confronted with admissions from Lois Ludwig that money was hidden in her children’s safety deposit boxes, a fact from which they could permissibly infer that Lois Ludwig may very well have also attempted to hide other amounts of cash in her “personal” bank account. Furthermore, the jury could have appropriately considered the fact that Lois Ludwig never offered a non-taxable characterization of the money deposited into her accounts in 1980 and 1981. In the words of the district court’s proper instruction to the jury, the “duty to reasonably investigate applies only to suggestions or explanations made by the defendant or to reasonable leads which otherwise turn up. The government is not required to investigate every conceivable source of non-taxable funds.” Here the jury appropriately determined that the unaccounted for funds were “taxable income,” a determination that can be supported in light of testimony concerning the Ludwigs’ possession of a great deal of cash attributable to taxable income. Furthermore, even if the Ludwigs’ characterization of these deposits as nontaxable was
“a permissible construction of the facts, it would not preclude a finding of guilt because the evidence ‘ “need not exclude every reasonable hypothesis of innocence so long as the total evidence permits a conclusion of guilt beyond a reasonable doubt.” ’ United States v. Radtke, 799 F.2d 298, 302 (7th Cir.1986) (quoting United States v. Thornley, 707 F.2d 622 (1st Cir.1983)). See also United States v. Zanin, 831 F.2d 740, 745 (7th Cir.1987) (‘Phyllis Zanin argues that all conversations in which she participated are susceptible to an innocent explanation. This may or may not be true — but it is irrelevant. The existence of an innocent explanation does not foreclose a jury from finding guilt beyond a reasonable doubt’).”
United States v. Grier, 866 F.2d 908, 931 (7th Cir.1989). “Based upon these facts a factfinder ‘exercising well-reasoned judgment could very well conclude that the inculpatory inferences outweigh the exculpatory inferences that could be drawn from the evidence beyond a reasonable doubt,’ Nesbitt, 852 F.2d at 1511, and have found that” the Ludwigs were guilty of conspiracy to defraud the government and tax evasion.
III.
The Ludwigs also challenge the district court’s rejection of their motion for a new trial. Specifically, the Ludwigs allege on appeal that the district court erroneously failed to consider their argument that a new trial should be granted because the jury’s verdict was contrary to the weight of the evidence. In support of their position the Ludwigs cite the facts that much of the evidence presented to the jury concerned the years 1982 and 1983 while very little evidence concerned the years 1980 and 1981. They also point to the alleged problems in the bank deposit method calculations that IRS personnel prepared. The district court rejected the Ludwigs’ new trial motion in its entirety, but did not specifically address the question of whether the jury’s verdict was contrary to the weight of the evidence.
In United States v. Reed, 875 F.2d 107, 113 (7th Cir.1989), we observed:
“The decision to grant or deny a motion for new trial rests within the sound discretion of the trial court. In reviewing the trial court’s disposition of a motion for new trial, ‘[t]he appellate court properly defers to the view of the trial court unless there has been an error as a matter of law or a clear and manifest abuse of discretion.’ United States v. Davis, 604 F.2d 474, 484 (7th Cir.1979) (citation omitted).
‘While the district court’s discretion is quite broad, there are limits to it. The court may not reweigh the evidence and set aside the verdict simply because it feels some other result would be more reasonable.... The evidence must preponderate heavily against the verdict, such that it would be a miscarriage of justice to let the verdict stand.... Motions for new trial based on weight of the evidence are not favored. Courts are to grant them sparingly and with caution, doing so only in those really “exceptional cases.” ’
United States v. Martinez, 763 F.2d 1297, 1312-13 (11th Cir.1985) (citations omitted).”
(Citations omitted).
Our review of the record demonstrates to our satisfaction that a strong case for criminal liability was presented under the “bank deposits” method. We are convinced that the evidence of irregular accounting methods combined with the presence and use of large amounts of cash on the part of the Ludwigs combine to establish a record that preponderates in favor of guilt rather than innocence. As we noted in Reed, we do not believe this is one of those “exceptional cases” where the preponderance of evidence is such that “it would be a manifest injustice to let the guilty verdict stand.” 875 F.2d at 114. Rather, the weight of the evidence in our view favors the Ludwigs’ conviction and we refuse to disturb the district court’s refusal to grant a new trial.
Because there was more than sufficient evidence to convict the Ludwigs and because the weight of the evidence does not mandate the granting of a new trial, the Ludwigs’ convictions are
AFFIRMED.
. Beatrice and Joseph Ludwig were divorced in 1976.
. The Kaukauna store has since closed.
.Testimony was not offered concerning earlier years. However, there was no testimony indicating that accounting and sales practices in years prior to 1982 differed from those utilized in 1982.
. In Soulard, the Ninth Circuit recognized that a signed financial statement submitted to a bank could be admitted and relied upon as evidence refuting a taxpayer's assertions regarding cash on hand. 730 F.2d at 1298.
. United States v. Carrasco, 887 F.2d 794, 812 (7th Cir.1989).
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer:
|
songer_circuit
|
H
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case.
Paul William LITTLEFIELD, Appellant, v. FORT DODGE MESSENGER, a newspaper published daily by Messenger Printing Company, a division of The Ogden Newspapers, Inc., a corporation, and Mike Glover, Appellees.
No. 79-1215.
United States Court of Appeals, Eighth Circuit.
Submitted Oct. 8, 1979.
Decided Jan. 2, 1980.
Certiorari Denied March 24, 1980.
See 100 S.Ct. 1342.
Paul William Littlefield, pro se.
Herbert R. Bennett, Bennett, Beisser & Wilke, Fort Dodge, Iowa, for appellees.
Before LAY, HEANEY and HENLEY, Circuit Judges.
HEANEY, Circuit Judge.
Paul Littlefield appeals from the dismissal of his libel complaint by the court below. We affirm.
On August 6, 1973, in the Fayetteville Circuit Court for the State of Kentucky, Littlefield, a lawyer, pled guilty to the misdemeanor of attempting to commit a felony. He was placed on three years probation which was conditioned in part on his forsaking the practice of law for the duration of the probation.
A little over a year later, the Committee on Professional Ethics and Conduct of the Iowa State Bar Association reported to the Iowa Supreme Court that Littlefield was practicing law in Iowa in violation of his Kentucky probation. On December 16, 1974, notice was issued by that court advising Littlefield as follows: “[Sjatisfactory evidence has been received by this Court of your conviction of a crime. Said evidence being you were on or about August 6, 1973 convicted upon your plea of guilty to a charge of attempting to commit a felony[.]” The notice further informed him of a hearing concerning his temporary suspension from the practice of law.
In reporting on this chain of events, the Fort Dodge Messenger ran a front-page article entitled “Set hearing on license suspension.” The eleventh paragraph of that article misquoted the above cited notice (which it called an order) as follows: “The order, filed by the court Monday states that ‘satisfactory evidence has been received of your (Littlefield’s) pleading guilty of a felony [.]’” (Emphasis added.) The italicized portion should have read “of a crime.” It is this misquotation that Littlefield characterizes as libelous.
The law of libel involves the accommodation of federal constitutional interests in free speech and a robust press with state interests in protecting the reputations of its citizens from defamatory falsehoods. In recent years, the Supreme Court has on several occasions described the contours of that accommodation. See Time, Inc. v. Firestone, 424 U.S. 448, 96 S.Ct. 958, 47 L.Ed.2d 154 (1976); Gertz v. Welch, 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974); Rosenbloom v. Metromedia, 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971); New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). As a result, distinctions between “public officials” or “public figures” and “private individuals” have assumed critical importance. Public officials or figures can recover damages caused by defamatory falsehoods from media defendants only if they can demonstrate actual malice — i. e., that the publication was made “with knowledge of [the statement’s] falsity or with reckless disregard for the truth.” Gertz v. Welch, supra, 418 U.S. at 342, 94 S.Ct. at 3008. States may permit private individuals to recover damages from media defendants in accordance with a less stringent standard of culpability, so long as state law does “not impose liability without fault.” Id at 347, 94 S.Ct. 2997.
While the line between public figures and private persons is not always clear, the Supreme Court’s decisions in Gertz and Firestone offer guidance. In Gertz, an attorney representing the family of a youth killed by a Chicago police officer complained of an allegedly defamatory article published about him in American Opinion, “a monthly outlet for the views of the John Birch Society.” Gertz v. Welch, supra at 325, 94 S.Ct. at 3000. In determining what level of constitutional protection should be afforded this article, the Supreme Court rejected the position advanced by a plurality in Rosenbloom v. Metromedia, supra, that the inquiry should focus on whether the article involved a topic of “public or general interest.” Gertz v. Welch, supra, 418 U.S. at 346, 94 S.Ct. 2997. Rather, in recognition of the state interest in “the compensation of individuals for the harm inflicted on them by defamatory falsehood,” id. at 341, 94 S.Ct. at 3008, the Court focused on “the status of the person defamed.” Id. at 333, 94 S.Ct. at 3004. It drew a line between public figures and private individuals, noting that public figures have greater ability to contradict falsehoods through self-help, id. at 344, 94 S.Ct. 2997, and that public figures are assumed to have “voluntarily exposed themselves to increased risk of injury from defamatory falsehood concerning them.” Id. at 345, 94 S.Ct. at 3010.
In Firestone, Mary Alice Firestone alleged that she had been defamed by a Time magazine squib reporting on the Florida court proceedings in which she was divorced from her husband, Russell Firestone, “the scion of one of America’s wealthier industrial families.” Time, Inc. v. Firestone, supra, 424 U.S. at 450, 96 S.Ct. at 963. The Court rejected two arguments proffered in support of the actual malice standard. First, it held that Ms. Firestone was not a public figure because she “did not assume any role of especial prominence in the affairs of society, other than perhaps Palm Beach Society, and she did not thrust herself to the forefront of any particular public controversy in order to influence the resolution of the issues involved in it.” Id. at 453, 96 S.Ct. at 965. Her “voluntary” resort to court and even the press conferences she held during the divorce proceedings were not attempts to influence the resolution of any public controversy. Id. at n. 3, 96 S.Ct. 958. Second, the Court rejected the argument that coverage of judicial proceedings is, per se, sufficient to warrant invocation of the actual malice standard. In reaffirming Gertz’s rejection of the “public or general interest” standard, it emphasized that the focus remains on the status of the person defamed rather than the issue under discussion. It noted that
while participants in some litigation may be legitimate “public figures,” either generally or for the limited purpose of that litigation, the majority will more likely resemble respondent, drawn into a public forum largely against their will in order to attempt to obtain the only redress available to them or to defend themselves against actions brought by the State or by others.
Id. at 457, 96 S.Ct. at 966-67.
We turn now to the case before us. The district court, in dismissing Littlefield’s complaint, concluded that he was a public figure for the limited issue of his bar discipline proceedings. In so holding, the court found a voluntariness in Littlefield’s actions that was absent in Gertz and Firestone.
[Littlefield] is unlike Gertz and Firestone in that he was drawn into a public forum and debate as a result of his purposeful act of practicing law in Iowa in direct contravention of his probation.
Littlefield v. Fort Dodge Messenger et al., 481 F.Supp. 919, 922 (D.N.D.Iowa 1978). The district court also noted that the substantial public interest in bar disciplinary proceedings was an additional factor that .may be relevant, in finding Littlefield to be a public figure. Id. at 922. The court applied the public figure standard, and concluded that actual malice had not been proven. Id. at 920. Finally, it noted that “even if [Littlefield] were found to be a private person, his utter failure to prove actual injury or damages of any kind would bar recovery.” Id. at 923 (footnote and citation deleted).
Our analysis differs in part from that of the district court since we cannot agree that Littlefield is a public figure. We fail to see anything in Littlefield’s status indicating that he has ready access to effective means of self-help or that he has voluntarily assumed the risks of public exposure by thrusting himself into a public controversy with a view toward influencing its resolution. While it is true that he “voluntarily” practiced law in violation of his probation, there is no indication that he did so out of a desire to influence any public controversy. Rather, his voluntary action is akin to that of Ms. Firestone’s in her petitioning a court for separate maintenance from her husband. Although the issue in which Littlefield became involved was of great public interest, he like the “majority” of litigants, was “drawn into a public forum largely against [his] will in order * * * to defend [himself] against actions brought by the State.” Time, Inc. v. Firestone, supra, 424 U.S. at 457, 96 S.Ct. at 967. Furthermore, the public’s interest should not be considered in making the public figure/private individual determination. After Gertz and Firestone, the status of the person allegedly defamed is the controlling factor.
Although we find Littlefield to be a private individual for the purposes of this libel action, we agree with the district court that he has failed to prove damages. Gertz held that “States may not permit recovery of presumed or punitive damages, at least when liability is not based on a showing of knowledge of falsity or reckless disregard for the truth.” Gertz v. Welch, supra, 418 U.S. at 349, 94 S.Ct. at 3011. Only actual damages may be compensated on a showing of lesser fault. Though actual damages could include “impairment of reputation * * *, personal humiliation, and mental anguish and suffering,” id. at 350, 94 S.Ct. at 3012, Littlefield’s only evidence of damage concerned his dismissal from employment. This evidence was inadequate since it consisted solely of Little-field’s testimony that he was dismissed from his employment with the federal government in Brentwood, Missouri, after his supervisor made a trip to Fort Dodge, Iowa, where he learned of Littlefield’s disbarment. Littlefield failed to prove either (1) that his supervisor ever believed him to be a felon, or (2) that such belief, rather than knowledge of his disbarment, was the motivating factor in his termination. Moreover, Littlefield failed to prove any link between the article of which he complains, published in 1974, and his supervi- . sor’s 1976 discovery of his disbarment. Thus, Littlefield failed to prove any actual damage resulting from the article.
Littlefield raises two ancillary contentions. The first is that the district court erred in not granting his request for a jury trial. Littlefield never made a written demand for a jury trial as required by Rule 38(b), Fed.R.Civ.P. This failure constitutes a waiver of a trial by jury. Rule 38(d), Fed.R.Civ.P. He now contends that the district court abused its discretion in failing to grant a jury trial when a belated request was made for one at the pretrial conference. See Rule 39(b), Fed.R.Civ.P. While we agree that courts “ought to approach each application under Rule 39(b) with an open mind,” 9 C. Wright & A. Miller, Federal Practice and Procedure § 2334, at 116 (1971), and that jury trials ought to be liberally granted when no prejudice results, we do not find the denial here to be an abuse of the district court’s discretion. Littlefield offers no justification for the failure to make an appropriate demand other than inexperience, and he points to no prejudice resulting from denial. Furthermore, the record shows that Littlefield engaged in a pattern of conduct apparently intended to delay trial. Granting his request for a trial by jury at the pretrial conference stage would have further delayed final disposition of the matter. In these circumstances, denial of the request was within the bounds of the discretion of the trial court.
Second, Littlefield contends that the district court erred in failing to decide whether Littlefield’s right to privacy had been invaded. He contends that his disciplinary proceedings were confidential under Iowa Sup.Ct.R. 118.7 and, therefore, that the Fort Dodge Messenger invaded his privacy by publishing its article relating to those proceedings. It is clear, however, that the rule on which Littlefield relies governs only the actions of the Iowa bar. It does not purport to govern the actions of the press. If so, it would constitute a constitutionally suspect prior restraint on publication.
For the reasons set forth in this opinion, the order of the district court is affirmed.
. United States District Court for the Northern District of Iowa, Central Division.
. Littlefield also alleges that he was libeled in the concluding paragraph of a subsequent article entitled “Former F. D. Man disbarred,” printed in the Fort Dodge Messenger on August 30, 1976. That paragraph reads as follows: “Littlefield no longer lives in Fort Dodge and his present whereabouts are not known, though he was reportedly living in New Orleans at one time.” Littlefield contends that this was written in an “FBI wanted poster style and con-taints] false and misleading information.” The record discloses that the paper made several attempts to determine Littlefield’s current address but was unable to do so. Thus, although Littlefield’s whereabouts may have been known to some, we cannot say that the statement was false. Certainly it was not libelous.
. The court specifically avoided making the nature of the issue under discussion, i. e., disciplinary proceedings, a determinative factor in reaching the conclusion that Littlefield was a public figure; it considered Littlefield’s voluntary conduct alone to be sufficient to support its holding. Littlefield v. Fort Dodge Messenger et al., 481 F.Supp. 919, 922 (D.N.D.Iowa 1978).
. While we do not reach the issue of fault, we note that the standard required of private plaintiffs under Iowa libel law is not clear. Gertz v. Welch, 418 U.S. 323, 347, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974), requires that state libel law not impose liability without fault. Thus, states must require defamation plaintiffs to prove at least negligence in the publication of defamatory falsehoods; they may require more. See Troman v. Wood, 62 Ill.2d 184, 340 N.E.2d 292 (Ill.1975). The Supreme Court of Iowa expressly reserved its judgment on the standard applicable to private plaintiffs in McCarney v. Des Moines Register & Tribune Co., 239 N.W.2d 152, 158 (Iowa 1976). Even assuming that Iowa would adopt the negligence standard, it appears that Littlefield failed to make even that showing. The record indicates that the defendant reporter, who checked his story, in general terms, with a variety of sources including Littlefield, exercised due care in writing the piece.
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_injunct
|
A
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court's ruling on the validity of an injunction or the denial of an injunction or a stay of injunction favor the appellant?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
MASSACHUSETTS COALITION OF CITIZENS WITH DISABILITIES et al., Plaintiffs-Appellants, v. CIVIL DEFENSE AGENCY AND OFFICE OF EMERGENCY PREPAREDNESS OF the COMMONWEALTH OF MASSACHUSETTS et al., Defendants-Appellees.
No. 80-1520.
United States Court of Appeals, First Circuit.
Argued Jan. 6, 1981.
Decided May 26, 1981.
Mark Stern, Cambridge, with whom Benjamin Hiller, and Goldstein, Pressman & Stern, Cambridge, Mass., were on brief, for plaintiffs-appellants.
Mitchell J. Sikora, Jr., Asst. Atty. Gen., Boston, Mass., with whom Francis X. Bellotti, Atty. Gen., and Alan B. Sherr, Asst. Atty. Gen., Boston, Mass., were on brief, for defendants-appellees.
Before MARKEY, Chief Judge, CAMPBELL and BOWNES, Circuit Judges.
Of the U.S. Court of Customs and Patent Appeals, sitting by designation.
MARKEY, Chief Judge.
This is an appeal from the denial of a preliminary injunction against the state agencies and officials responsible for evacuation planning in the event of a meltdown at the Pilgrim I Nuclear Power Facility in Plymouth, Massachusetts. Plaintiffs brought this class action on behalf of persons residing in the area immediately surrounding the facility who are handicapped, those who do not speak English, and those without access to an automobile.
Plaintiffs sought and were denied a preliminary order requiring the State Defendants to modify their plan, to test the modified plan, and to report the steps taken to the court within 10 days. We affirm the denial of a preliminary injunction.
Proceedings
In its original complaint, the Massachusetts Coalition of Citizens with Disabilities and others (“Coalition”) sought a restraining order compelling the Civil Defense Agency and Office of Emergency Preparedness of the Commonwealth of Massachusetts, its Director, and other state defendants (“Agency”), to curtail the operation of the Plymouth I plant pending implementation and testing of an evacuation plan for evacuating all persons within ten miles of the plant, and to inform all persons within thirty miles of the plant of the dangers of nuclear accidents and the plan’s warning- and-evacuation procedures.
At the hearing on its motion for preliminary relief, the Coalition submitted a “Proposed Order”, which in relevant part read:
That the Public Defendants are ordered to provide for and test a warning system adequate to warn all persons within ten (10) miles of the Pilgrim I Plant within fifteen (15) minutes of notification from Boston Edison that an accident has occurred, including but not limited to all such persons with communication disabilities, and report to the Court what steps they have taken to comply with this Order within ten (10) days.
That the Public Defendants are ordered to provide for and test an evacuation plan that:
(a) provides sufficient transportation to assist all mobility handicapped persons and persons without private transportation to evacuate an area within a radius of ten miles of the Pilgrim I Plant in no more than four hours time;
(b) permits and takes account of voluntary evacuation by persons outside an area with [sic] a radius of ten miles from the Pilgrim I Plant, including but not limited to those persons on Cape Cod;
(c) that takes into account all meteorological, geographic, traffic, and related factors that might impact on the execution of said plan and describes in detail how each factor shall be handled by personnel in charge of an evacuation;
and report to the Court what steps they have taken to comply with this Order within ten days.
That the Defendants are ordered to provide all members of the public residing within thirty miles of the Pilgrim I Plant with the maximum possible amount of informational materials describing the improved warning and evacuation plan and how thereunder they should act and/or may obtain assistance; and describing the dangers of a nuclear accident, possible effects thereof, and the need to act in accordance with the requirements of the aforementioned plan.
In the light of affidavits, written memoranda and oral argument from all parties, the trial judge issued a decision, accompanied by an opinion, denying all injunctive relief. The Coalition moved for reconsideration of its proposed order. After a second hearing, the trial judge adhered to his decision, noting that plaintiffs had shown neither a reasonable prospect of immediate irreparable injury nor a reasonable prospect of success on the merits.
THE PLAN
The plan in existence when suit was filed included a general section listing overall evacuation measures for the area within a ten mile radius of the Pilgrim I plant, and twelve specific subsections, each constituting a local evacuation plan for a town within the ten mile radius. Respecting a nuclear accident, the plan provides for: (1) notice, warning, and instruction to officials and the public; (2) evacuation routes; (3) evacuation stations and sheltering facilities; (4) provision and protection of food; and, (5) public education about the plan. Respecting evacuation, the plan designates particular evacuation routes and assigns traffic control responsibility and locations to specific local units with available police assistance.
The plan requires that it be reviewed and updated every year. It also requires that the Agency educate the public about, and test, each local plan.
Coalition’s Arguments
The Coalition, relying on the Agency’s receipt of federal funds, invokes this provision, section 504 of the Rehabilitation Act of 1973 (Act):
No otherwise qualified handicapped individual ... shall... be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance....
Viewing the Act as requiring that every recipient of federal funds must guarantee the handicapped participation in and the benefits of the recipient’s program, the Coalition says the Agency violated the act by failing to provide special evacuation procedures for the handicapped.
The Coalition further urges that failure to specially and specifically provide for notification and evacuation of class members in the manner set forth in its proposed order is a denial of the constitutional guarantees of equal protection and due process and a denial of the class members’ fundamental rights to life, liberty and property.
ISSUE
Whether the trial court abused its discretion in denying the preliminary relief sought by the Coalition.
OPINION
In an interlocutory appeal from a denial of preliminary injunctive relief, the scope of review is narrow. Application for a preliminary injunction is addressed to the discretion of the trial court, not to that of the appellate court. A-Copy, Inc. v. Michaelson, 599 F.2d 450, 452 (1st Cir. 1978). Hence the Coalition must meet the heavy burden of establishing that the denial here was an abuse of the trial court’s discretion or was based on a clear error of law. Fifteen Thousand Eight Hundred and Forty-Four Welfare Recipients v. King, 610 F.2d 32, 34 (1st Cir. 1979); Automatic Radio Mfg. Co. v. Ford Motor Company, 390 F.2d 113, 115 (1st Cir. 1968), cert. denied, 391 U.S. 914, 88 S.Ct. 1807, 20 L.Ed.2d 653 (1968).
The denial must be affirmed if the trial court examined the appropriate factors and properly concluded that the existence of one of the factors required to support the issuance of a preliminary injunction had not been demonstrated by the Coalition. Factors traditionally examined include: (1) the threat of immediate irreparable harm; (2) the likelihood of success on the merits; (3) whether the public interest would be better served by issuing then by denying the injunction; and (4) the comparable hardship inflicted upon the parties. See Grimard v. Carlston, 567 F.2d 1171, 1173 (1st Cir. 1978); 11 C. Wright and A. Miller, Federal Practice and Procedure § 2948 (1973); See generally, Developments in the Law — Injunctions, 78 Harv.L.Rev. 944 (1965).
Irreparable Harm
Only a viable threat of serious harm which cannot be undone authorizes exercise of a court’s equitable power to enjoin before the merits are fully determined. Parks v. Dunlop, 517 F.2d 785 (5th Cir. 1975). A preliminary injunction will not be issued simply to prevent a mere possibility of injury. A presently existing, actual threat must be shown. 11 C. Wright and A. Miller Federal Practice and Procedure § 2948 (1973); See, State of New York v. Nuclear Regulatory Commission, 550 F.2d 745 (2d Cir. 1977); Crowther v. Seaborg, 415 F.2d 437 (10th Cir. 1969). The harm done the life and property of people, handicapped and non-handicapped, by a nuclear accident or by a nuclear attack of an enemy power, has been described in terms so horrendous as to be almost unthinkable. The harm here involved, however, is not that likely to be produced by uncontrolled nuclear energy as such but the special, additional harm that, it is said, will befall the class members (as opposed to others) in the event of a nuclear accident as a result of inadequacies allegedly present in the plan under attack.
The concerns expressed by the Coalition for those less able to escape due to no fault of their own evoke the strongest sympathies. But where, as here, those considerations have not been disregarded, the law governing issuance of mandatory injunctions precludes preliminary interposition of the courts, however sympathetic, in the evacuation planning of the responsible executive agency.
Enroute to its conclusion that the Coalition had not met its burden of establishing irreparable harm, the trial court considered: (1) that the plan’s ten mile evacuation radius conformed to federal guidance; (2) that non-English speaking, hearing impaired, and handicapped persons living in households might reasonably be expected to receive notice and assistance from other members of the household and from neighbors; (3) that the plan required towns to supplement private automobile transportation with ambulance service, and civil defense and mass transit vehicles; (4) that the plan required extensive simultaneous radio and television notice to accompany loudspeaker street-to-street warnings; (5) that the plan was subject to yearly reevaluation and amendment as necessary and was not permanently limited to its then existing form; and (6) that precise response to traffic and weather conditions must inevitably await the existence of those exact conditions, in the light of which evacuation decisions and directions would be made, as contemplated in the plan.
Those considerations, coupled with the failure of the Coalition to demonstrate a probability of immediate irreparable injury, beyond merely raising the specter of a nuclear accident, fully support the trial judge’s conclusion that the Coalition had not carried its burden of demonstrating a viable threat of irreparable harm sufficient to warrant preliminary injunctive relief.
Likelihood of Success
The Coalition argues that its assertion of statutory and constitutional violations relieved it of the need to meet the traditional criteria of conventional equitable analysis applicable to demands for preliminary injunctions. It failed, however, to convince the trial court that it had demonstrated a reasonable prospect for success on the merits concerning those asserted violations. Hence the court found no basis for an inference of irreparable harm per se.
In Blackwelder Furniture Company of Statesville, Inc. v. Seilig Manufacturing Company, 550 F.2d 189, 195 (4th Cir. 1977), the court compared the requirement for a probability of success showing with the requisite showing of irreparable injury:
The importance of a probability of success increases as the probability of irreparable injury diminishes [cases deleted] and where the latter may be characterized simply as ‘possible’, the former can be decisive.
And, at page 196:
In addition, as we have noted above, even a ‘possible’ irreparable injury has been held to suffice if there is strong probability of success on the merits.
Whether or not we accept plaintiff’s view that a showing of violation of legal rights would in itself warrant issuance of a mandatory injunction even without a showing of irreparable harm, and we do not now decide that question, we agree with the Blackwelder court that the strength of the showing necessary on irreparable harm depends in part on the degree of likelihood of success shown. Recognizing the obvious fact that, despite extensive precautions, a serious nuclear accident is “possible”, we therefore go on to discuss the likelihood of success factor, even though we have affirmed the district court’s finding that plaintiffs failed to show irreparable harm.
The Rehabilitation Act of 1973
The Coalition attacks the Agency’s evacuation plan as a violation of the Act, insisting that the Act requires the Agency to take the steps it recites in its proposed order. Only thereby, says the Coalition, would the benefits of the plan be available to the disabled. The Coalition equates what it views as absence from the evacuation plan of certain affirmative provisions for special needs of particular persons with an effective exclusion of those persons from the benefits of the plan. Because the Coalition would apparently have drafted the plan differently, it demands that its proposed preliminary order be granted. We do not agree that deficiencies, if deficiencies there be, in the present evacuation plan so clearly and necessarily preclude the handicapped from enjoying the benefits of that plan as to warrant the mandatory injunction sought; nor can we agree that any such deficiencies constitute a discrimination against the handicapped sufficient to compel a court to curtail the operation of the power facility, as was originally sought, or to order comprehensive planning, testing, and reporting procedures such as those set forth in the Coalition’s proposed order.
Both parties cite Southeastern Community College v. Davis, 442 U.S. 397, 99 S.Ct. 2361, 60 L.Ed.2d 980 (1979), wherein a deaf applicant was denied admission to a nursing program because of her hearing disability. The court held that the school had not violated the Act, noting that the applicant’s handicap rendered her unqualified to perform nursing functions. The court went on to compare sections of the Act, noting that whereas section 503 requires federal contractors to take affirmative action to employ and advance qualified handicapped individuals, section 504 does not refer to affirmative action, and concluding: “Here, neither the language, purpose nor history of § 504 reveals an intent to impose an affirmative action obligation on all recipients of federal funds.” 442 U.S. at 411, 99 S.Ct. at 2369.
It is the Coalition’s initial task to show at least the probability of a legal duty under the act. In view of the discussion in Davis of the limited mandate imposed upon federal fund recipients under section 504, we cannot say that the trial judge abused his discretion in concluding that the Coalition had not met its burden of showing a likelihood that it can successfully establish a violation of the Act. In sum, the Coalition’s arguments based on the Act do not reflect such a likelihood of success as would counterbalance its failure to demonstrate presence of the irreparable injury factor and are thus insufficient to command issuance of an injunction.
Equal Protection
The Coalition argues that handicapped persons comprise a suspect class for purposes of the equal protection clause; that strict scrutiny of state action or at least a “middle-tier” scrutiny is therefore mandatory; and that under such standards of review a classification must serve important governmental objectives and be substantially related to achievement of those objectives, citing Craig v. Boren, 429 U.S. 190, 197, 97 S.Ct. 451, 456, 50 L.Ed.2d 397 (1976). In Craig, however, the Supreme Court, relying on its earlier decision in Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971), concluded that a gender-based classification in state law constituted a denial of the equal protection to males aged 18-20. No such suspect criterion is presented here.
The cases relied upon by the Coalition do not support its expansive view that the handicapped comprise a suspect class. In Memorial Hospital v. Maricopa County, 415 U.S. 250, 94 S.Ct. 1076, 39 L.Ed.2d 306 (1973), the Court held that conditioning the receipt of welfare benefits upon the satisfaction of a durational residency requirement violated the Equal Protection Clause of the Fourteenth Amendment by unduly burdening the right to travel. In Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976), also cited by the Coalition, the Court held that deliberate indifference to the serious medical needs of persons held in custody by the state would violate the Eighth Amendment. None of those authorities supports the Coalition’s argument. Indeed, authorities to the contrary are more persuasive. See e. g., Legion v. Richardson, 354 F.Supp. 456 (S.D.N.Y.1973), (three-judge court) aff’d, sub nom. Legion v. Weinberger, 414 U.S. 1058, 94 S.Ct. 564, 38 L.Ed.2d 465 (1973). In Legion the court held that a statutory distinction between medically indigent persons who require short term care and those who require long term care does not violate the Equal Protection Clause. In so holding the court noted that in the area of economics and social welfare a State does not violate the Equal Protection Clause merely because classifications made by its laws are imperfect. Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970).
Because handicapped persons, and persons otherwise immobile, in specific groups or in their aggregate diversity, have not been shown to constitute a suspect class, a state government would not be here required to justify disparate treatment by a compelling state interest and its achievement through the least drastic means possible. See San Antonio School District v. Rodriguez, 411 U.S. 1, 128, 93 S.Ct. 1278, 1345, 36 L.Ed.2d 16 (1973). The present evacuation plan, however, involves neither classification nor disparate treatment. It would therefore pass constitutional muster if the handicapped had been shown to constitute a suspect class and a strict or “middle-tier” scrutiny were applied.
The present plan does not classify evacuees, nor does it provide for disparate treatment of those to be evacuated. If at the time of a nuclear accident some persons, handicapped and nonhandicapped, automobiled and nonautomobiled, become subject to some inequality of the plan’s effects, such inequality is not the fault of the plan, the provisions of which bear a reasonable relationship to the evacuation objectives sought to be fulfilled by adoption of the plan. Schweiker v. Wilson, - U.S.-, 101 S.Ct. 1074, 67 L.Ed.2d 186 (1981); Dandridge v. Williams, supra.
Moreover, the special needs of the handicapped are not being ignored. The state evacuation plan is reasonably calculated to provide safe evacuation of nearby residents in the event of nuclear accident. It is an evolving plan, carrying its own requirement for periodic updating which insures that it can be amended to provide additional procedures designed to further minimize difficulties complained of by the class members, as well as other burdens identified as the plan matures. The rationality of such a “one step at a time” approach to emergency evacuation planning further argues against the Coalition’s constitutional claim. National Roofing Contractors Asso. v. Brennan, 495 F.2d 1294 (7th Cir. 1974), cert. denied 419 U.S. 1105, 95 S.Ct. 775, 42 L.Ed.2d 801 (1975). Nor have state authorities been shown to have been insensitive to the needs of the handicapped. The present plan relied upon other household members, the media, loudspeaker hailings, ambulances, and civil defense and mass transit vehicles, to warn and assist in evacuating the handicapped and those otherwise immobile. That reliance may, in the Coalition’s eyes, be less than ideal; it is not unreasonable as a matter of law.
DUE PROCESS
The Coalition, devoting but two pages of an extended brief to its due process argument, asserts that the evacuation plan should guarantee the safety of all residents, resting that assertion on the constitutional right to protection of their life, health and safety. The due process clause, however, provides no such right. That clause provides that the states may not deprive their citizens of life, liberty, or property without due process of law. In enacting the evacuation plan, the state of Massachusetts has not deprived any person of life, liberty or property. Indeed, the state has done the opposite; it has provided some degree of protection, albeit, perhaps, imperfect protection, against a threat to life the source of which threat is not the state. Plaintiffs’ claim, in essence, is that the protection provided is unequally effective. We have already answered this equal protection argument. In the due process context, governmental action is proscribed only when it imposes a positive burden on a protected interest. Such a burden was imposed on a fundamental liberty in each of the cases the Coalition cites. Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965) (right of married couples to use contraception), Kent v. Dulles, 357 U.S. 116, 78 S.Ct. 1113, 2 L.Ed.2d 1204 (1958) (right to travel), Aptheker v. Secretary of State, 378 U.S. 500, 84 S.Ct. 1659, 12 L.Ed.2d 992 (1964) (right to travel), Cleveland Board of Education v. LaFleur, 414 U.S. 632, 94 S.Ct. 791, 39 L.Ed.2d 52 (1974) (mandatory termination provisions of maternity rules), and United States v. Carolene Products Co., 304 U.S. 144, 58 S.Ct. 778, 82 L.Ed. 1234 (1939) (regulation of interstate commerce). No such positive burden is involved here.
Because the evacuation plan does not itself violate a fundamental right, the burden falls on its challengers to show that it is invidiously discriminating, or that it is patently arbitrary, or that it is utterly lacking in rational justification. Gruenwald v. Gardner, 390 F.2d 591 (2d Cir. 1968), cert. denied 393 U.S. 982, 89 S.Ct. 456, 21 L.Ed.2d 445 (1968), Woods v. Holy Cross Hospital, 591 F.2d 1164 (5th Cir. 1979). The Coalition has made no such showing. Nor has the Coalition demonstrated a likelihood that it will succeed in making such a showing.
That the plan cannot guarantee the safety of all does not, of course, end the inquiry. That the claim establishes a rationally based emergency response procedure, reasonable in scope and adopted in the interest of area citizens, and that it moderates the impact of burdens imposed upon class members by their impairments by providing for extensive notice and supplemental public transportation, however, is sufficient to withstand a demand for the mandatory injunction here sought. Nachman Corp. v. Pension Benefit Guaranty Corp., 592 F.2d 947 (7th Cir. 1978); aff'd 446 U.S. 359, 100 S.Ct. 1723, 64 L.Ed.2d 354 (1979).
Hence the Coalition, having demonstrated no due process duty of the agency to immediately adopt a more extensive plan corresponding or similar to its proposed order, has failed to carry its burden of establishing a due process right to injunctive relief.
CONCLUSION
Accordingly, we hold that the trial court did not err in concluding that the Coalition had demonstrated neither the probability of irreparable harm nor a likelihood of success on the merits. Hence it committed no abuse of discretion and we affirm the court’s denial of the preliminary injunction sought.
AFFIRMED.
. The Nuclear Regulatory Commission (NRC), not a party here, has been granted authority to regulate respecting the effects of a nuclear power facility on the public health and safety, including the authority to grant, amend, modify, or revoke operating licenses, 42 U.S.C. §§ 2231-42, See Susquhanna Valley Alliance v. Three Mile Island Nuclear Reactor, 619 F.2d 231 (3rd Cir. 1980), the authority to require preliminary and final evacuation plans, 10 CFR § 50.34(a), (b), and broad regulatory authority over the development of nuclear energy. Vermont Yankee Nuclear Power Corp. v. National Resources Defense Council, 435 U.S. 519, 526, 98 S.Ct 1197, 1203, 55 L.Ed.2d 460 (1978).
. The Coalition also requests relief on behalf of all non-English speaking residents and all those without access to an automobile (presumably including all those who, though having such access at other times, might happen to be without such access at the time of a nuclear accident).
. The Agency’s argument that the Coalition failed to exhaust its administrative remedies is not urged on appeal. Neither the NRC nor the Agency currently require formal hearings on the adequacy of evacuation plans, See generally, Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967).
. Because we hold, infra, that the trial court did not err in concluding that the Coalition established neither irreparable harm nor a likelihood of success on the merits sufficient to warrant a preliminary injunction, we do not address the public interest and comparable hardship factors. For the same reason, the absence of specific findings below on the latter factors is of no moment on this appeal.
. For circumstances supporting the grant of preliminary injunctive relief under the Rehabilitation Act, See, Camenisch v. University of Texas, 616 F.2d 127 (5th Cir. 1980), cert. granted, -U.S.-, 101 S.Ct. 853, 66 L.Ed.2d 797 (1980). In that case plaintiff, a deaf graduate student, alleged irreparable harm unless the University of Texas provided sign language interpretor services enabling him to complete a masters program by end of the summer term. Completion of a masters degree that summer was found a prerequisite to plaintiffs continued employment.
. A threshold issue in connection with this statutory claim is whether a private right of action may be inferred from section 504. Southeastern Community College v. Davis, 442 U.S. 397, 404 n.5, 99 S.Ct. 2361, 2366 n.5, 60 L.Ed.2d 980 (1979). Because we reject the statutory claim on its merits, we have no need to decide this preliminary issue and we express no views on it.
. The authority of the District Court Judge to issue a preliminary injunction should be sparingly exercised. Mandatory preliminary injunctions do not preserve the status quo and normally should be granted only in those circumstances when the exigencies of the situation demand such relief. Wetzel v. Edwards, 635 F.2d 283 (4th Cir. 1980).
. But note the special circumstances in Camenisch v. Univ. of Texas, supra, n. 5.
. That the plan is rationally based and reasonably meets the needs of all does and should end the inquiry of the courts, which are not and should not be equipped, trained, or staffed, either to design evacuation plans or to engage in evaluation of the minute details of evacuation plans designed by responsible and accountable officials of the executive branches of governments.
Question: Did the court's ruling on the validity of an injunction or the denial of an injunction or a stay of injunction favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
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songer_respond2_3_2
|
G
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second listed 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.
Carol A. WAITERS, Appellant, v. J.L.G. PARSONS, II, individually, and as Medical Center Director, Veterans Administration Center, Coatesville, Pennsylvania, and James R. Harris, M.D., individually, and as Chief of Staff, Veterans Administration Center, Coatesville, Pennsylvania, and The Veterans Administration, Appellees.
No. 83-1214.
United States Court of Appeals, Third Circuit.
Argued Nov. 15, 1983.
Decided Feb. 27, 1984.
As Amended March 2, 1984.
Edward M. Kopanski (argued), Glenside, Pa., for appellant.
Edward S.G. Dennis, Jr., U.S. Atty., Walter S. Batty, Jr., Joseph M. Masiuk (argued), Asst. U.S. Attys., Philadelphia, Pa., for appellees.
Before ADAMS, BECKER and VAN DU-SEN, Circuit Judges.
OPINION OF THE COURT
PER CURIAM.
This is an employment discrimination case arising under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. The gravamen of the complaint is that appellant Carol A. Waiters was discharged from her position as a social worker at the Veterans Administration Medical Center, Coatesville, Pennsylvania (“VAMC”), allegedly in'retaliation for having filed an informal EEOC complaint in 1978 and a formal EEOC complaint in 1979 against her superiors at VAMC, and for having testified in an EEOC proceeding brought by a fellow employee in 1981. This appeal is from a judgment of the district court dismissing the action on the grounds that appellant had failed to exhaust administrative remedies with respect to her discharge claim.
Under Title VII, a victim of discrimination may file a complaint in federal district court either (1) within thirty days of final action by the EEOC or the employing agency, or (2) after 180 days pass from the filing of the administrative complaint, if there is no final agency action. Where there is no final agency action, there is no limit on the time in which a suit may be filed in district court. 42 U.S.C. § 2000e-16(c). While appellant did not pursue administrative remedies with respect to her discharge, a review of the record makes clear that her claim that she was discharged in retaliation for filing EEO charges falls within the scope of the EEOC investigation which arose out of her 1979 formal complaint, which also charged retaliation against appellant for asserting her rights under Title VII but on which there was no final agency action. A victim of discrimination is not required to exhaust administrative remedies with respect to a claim concerning an incident which falls within the scope of a prior EEOC complaint or the investigation which arose out of it, provided that the victim can still bring suit on the earlier complaint. Since we conclude that appellant’s current claim falls within the scope of the prior investigation, and that appellant would be entitled to sue on the complaint that led to that investigation, appellant was free to bring this suit without further exhausting her administrative remedies. We therefore reverse the judgment of the district court and remand for further proceedings.
I.
Appellant was hired as a clinical social worker at VAMC in 1971. She had been a federal employee since 1964. In March 1978, appellant filed an informal EEOC complaint against Joseph A. Armstrong, Chief of the Social Work Service at VAMC, alleging that the promotion of a male employee to a GS-11 position in a newly established intensive treatment ward discriminated against her on the basis of her sex. She withdrew the complaint after mediation, which resulted in her being given a position in the new program. Appellant felt, however, that she was a victim of continuing discrimination, primarily because VAMC was inhospitable to her ideas concerning education of medical students. Thus, on August 10, 1979, appellant filed a formal complaint with the EEOC alleging continuing discrimination in retaliation for her filing of the 1978 informal complaint.
After an investigation, the district director of the EEOC found that there was support for appellant’s allegations, and recommended that the VAMC official responsible be “admonished in writing,” that all supervisory personnel at VAMC be given “[r]e-training and re-emphasis of EEO law, principles, procedures, and policy,” and that VAMC “[cjease and desist from committing any discriminatory act’s [sic] against [appellant] for having filed a [sic] EEO complaint____” However, no further action was taken by the EEOC, appellant’s complaint was never finally adjudicated by the agency, and no right to sue letter ever issued.
Subsequently, appellant became involved in an attempt to implement a program for Vietnam veterans at VAMC. Although the program proposal was never adopted, appellant became closely involved with many of the veterans and organizations working on their behalf. One of the veterans charged that appellant had made sexual advances toward him. These charges led to an investigation of appellant’s conduct. On November 12, 1981, as a result of the investigation, appellant was notified of her proposed removal, based on numerous allegations of misconduct. Appellant, through her attorney, replied to the allegations in writing on December 11, 1981, and apparently appeared before appellee Parsons, VAMC’s Medical Director, on December 14. On December 23, 1981, Parsons wrote appellant notifying her of her discharge.
Appellant did not thereupon pursue any administrative remedies before the EEOC or the Veterans Administration. Rather, on January 8, 1982, appellant filed a complaint in the District Court for the Eastern District of Pennsylvania under Title VII of the 1964 Civil Rights Act and under 42 U.S.C. §§ 1981, 1983. The complaint alleged that her discharge was motivated by defendant’s desire to retaliate against appellant for exercising her rights under Title VII. The complaint requested a temporary restraining order, which the district court denied. An amended complaint, based on the same allegations and requesting a preliminary injunction, reinstatement, and damages, was filed on January 14. After a hearing, the preliminary injunction was denied.
Subsequently, appellant appealed her dismissal to the Merit Systems Protection Board (“MSPB”). The MSPB ordered the sanction reduced to a sixty-day suspension. On February 28, 1983, the district court dismissed appellant’s complaint on the grounds that she had failed to exhaust her administrative remedies. This appeal followed.
II.
The district court dismissed the present action on the grounds that there was no federal court jurisdiction because the plaintiff had not filed a complaint with the EEOC prior to bringing this action. After the district court ruled, the Supreme Court held that the timely filing of a complaint with the EEOC is not a jurisdictional prerequisite to bringing suit in federal court under Title VII. Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 392-98, 102 S.Ct. 1127, 1131-35, 71 L.Ed.2d 234 (1982). Standing alone, Zipes would require that we vacate the district court’s decision and remand the case for reconsideration of whether the doctrines of waiver, estoppel, or tolling should be applied. We decline to base our decision solely on Zipes, however, because we find that there are alternative grounds fairly raised on this appeal that enable us to dispose of the appeal without requiring that the district court now determine whether the exhaustion requirement has been excused on one of the grounds referred to in Zipes.
III.
In general, before filing a Title VII suit, a federal employee charging an employer with discrimination must file a complaint with the EEOC, and allow 180 days to pass during which the EEOC will attempt to resolve the dispute without resorting to litigation. At the end of the 180 day period the employee is entitled to sue, regardless of the pendency of EEOC proceedings. The statute of limitations begins to run, however, only in the event that there is “final agency action.” Final agency action can take the form of a “right to sue” letter, in which the agency states that it sees no reason to take action, or can consist of an agreement reached between the employing agency and the EEOC. See 42 U.S.C. § 2000e-16.
Where discriminatory actions continue after the filing of an EEOC complaint, however, the purposes of the statutory scheme are not furthered by requiring the victim to file additional EEOC complaints and re-starting the 180 day waiting period. This court has recognized this fact in permitting suits based on new acts that occur during the pendency of the case which are fairly within the scope of an EEOC complaint or the investigation growing out of that complaint, without requiring the victim to file additional EEOC complaints and wait another 180 days to sue. See Hicks v. ABT Associates, 572 F.2d 960, 966 (3d Cir.1978); Ostapowicz v. Johnson, 541 F.2d 394, 399 (3d Cir.1976), cert. denied, 429 U.S. 1041, 97 S.Ct. 741, 50 L.Ed.2d 753 (1977). See also Gupta v. East Texas State University, 654 F.2d 411 (5th Cir. Unit A 1981). The rationale behind these decisions is that once the EEOC has tried to achieve a consensual resolution of the complaint, and the discrimination continues, there is minimal likelihood that further conciliation will succeed. This slim likelihood of successful conciliation does not justify forcing the victim to wait an additional 180 days to file suit. The relevant test in determining whether appellant was required to exhaust her administrative remedies, therefore, is whether the acts alleged in the subsequent Title VII suit are fairly within the scope of the prior EEOC complaint, or the investigation arising therefrom. See Hicks, 572 F.2d at 965-66; Ostapowicz, 541 F.2d at 398-99; Gamble v. Birmingham Southern Railroad Co., 514 F.2d 678, 689-90 (5th Cir.1975).
IV.
The appellant’s formal complaint charged “retaliation” for the filing of her informal complaint a year earlier. Although the specific incident which was the basis of the formal complaint was the “restricted implementation of suggested proposals regarding education of medical students,” the EEOC district director concluded that a pattern of events that occurred after the filing of the informal complaint demonstrated that officials at VAMC “retaliated” against appellant for filing the informal complaint. The remedies recommended by the district director all focused on avoiding further discriminatory acts. The investigation clearly went beyond the specific problem alleged in the formal complaint, and found evidence of retaliatory intent in a pattern of actions by the official of VAMC.
Appellant alleges that her discharge was the product of this same retaliatory intent. The government responds that the different circumstances in this case — different officials are alleged to be responsible for the allegedly discriminatory acts, more than thirty months passed between the formal complaint and the discharge, and the alleged retaliatory acts are of a different nature — preclude us from holding that the claim based on the discharge is within the scope of the investigation that arose from the formal complaint. While it is true that the allegedly discriminatory officials and acts are different, the core grievance — retaliation—is the same and, at all events, it is clear that the allegations of the appellant’s complaint fall within the scope of the district director’s investigation of the charges contained in the 1979 formal complaint. Under these circumstances, the policy of promoting conciliation would not be furthered by allowing the defendants to delay having to answer in court for retaliatory action allegedly taken against appellant for asserting her rights. See Weise v. Syracuse University, 522 F.2d 397, 399, 412 (2d Cir.1975).
We hold that this suit is not barred by the requirement that a complainant exhaust administrative remedies before commencing legal action. We will therefore reverse the judgment of the district court and remand for further proceedings.
. The facts set forth herein are essentially uncontradicted.
. The district director’s findings, in relevant part, were:
Evidence gathered by the Commission in the form of sworn witness testimony shows that following complainants [sic] reassignment to the new position, complainant was subject to harassment by the A.D.O. [allegedly discriminatory official]. Witness testimony shows that the A.D.O. felt complainant questioned and contradicted him by pursuing the informal EEO complaint. Subsequent to the re-assignment to the position complainant sought, an effort was made to remove complainant from the Student Education Committee. The size of the committee was reduced from 8 to 7 members. The committee determined that complainant had the highest number of unexcused absences according to the administrative record. The complainant was identified as the member to be rotated off the committee for the year July 1, 1979 to June 30, 1980. Subsequently, a committee member resigned and complainant was allowed to stay. As a result of the harassment experienced by complainant, she was forced to by-pass the channeling process in an attempt to ensure that her proposals were received by appropriate individuals____
Since the complainant was subjected to harassment after the informal EEO complaint was brought to the attention of the A.D.O., and since the agency offers no explanation which bears scrutiny for the differential treatment received by the complainant, it is reasonable to conclude that complainant was discriminated against because she opposed practices made unlawful by Title VII.
. The record does not include any record of proceedings before the EEOC, VAMC, or the Merit Systems Review Board. A hearing scheduled for December 14 before Parsons is referred to by appellant's attorney in his December 11 letter.
. The reasons given for appellants' discharge were:
1. Violations of the privacy of patients, whose cases appellant allegedly discussed with a representative of a local Vietnam veterans organization.
2. Refusal to testify before the V.A. investigatory panel.
3. Making statements to persons outside the V.A. unfavorable to and "contrary to the best interests of” the V.A.
4. A statement of a patient concerning the charges of sexual misconduct made against appellant by another patient.
5. Various statements and conversations with patients involving sexual matters.
6. "Unprofessional” conduct also involving sexually oriented conversations or physical contact with patients.
. The district court found that appellant would not suffer irreparable injury because her injury could be compensated by a backpay award, and that her likelihood of success on the merits "was somewhat remote.” Waiters v. Parsons, No. 82-0088 (E.D.Pa. January 20, 1982).
. In the wake of that order, this case involves only appellant’s claim for backpay for the sixty-day suspension period, and her claim for counsel fees.
. Although the district court's order does not explain why the claims under 42 U.S.C. §§ 1981 and 1983 were dismissed, we affirm that part of the order on the basis that, in the employment discrimination context, a federal employee’s sole federal remedy is under Title VII. See Brown v. General Services Administration, 425 U.S. 820, 835, 96 S.Ct. 1961, 1969, 48 L.Ed.2d 402 (1976).
. In the case of an employer other than the federal government, a complaint must first be filed with the state agency charged with enforcing the laws against employment discrimination, if one exists. 42 U.S.C. § 2000e-5(c) and (d).
. After a federal employee has exhausted her remedies within the employing agency, she must file a complaint with the EEOC. The EEOC refers the complaint to a hearing examiner, who will hold an informal "pre-hearing conference” to attempt to settle the issue. If no agreement can be reached, the complaint proceeds to a formal, adversary hearing within the EEOC.
The statutory scheme reflects an attempt to balance the competing values of protecting the right of employees to nondiscriminatory treatment, and of avoiding the cost of litigation over discriminatory employment decisions that might be rectified by a consensual agreement. The favored means of resolving employment discrimination disputes is a mutually acceptable resolution, worked out informally under the aegis of the EEOC.
. The Fifth Circuit has held that all claims of "retaliation” against a discrimination victim based on the filing of an EEOC complaint are "ancillary” to the original complaint, and that therefore no further EEOC complaint need be filed. Gupta, 654 F.2d at 413-14. We decline to adopt this per se rule.
. See supra note 2.
. The summary judgment cannot be affirmed on the alternative ground that there are no disputed issues of material fact. The unresolved issue in this case — the intent of the VAMC officials in discharging appellant — is particularly unsuitable for disposition on summary judgment.
Question: This question concerns the second listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Which category of federal government agencies and activities best describes this litigant?
A. cabinet level department
B. courts or legislative
C. agency whose first word is "federal"
D. other agency, beginning with "A" thru "E"
E. other agency, beginning with "F" thru "N"
F. other agency, beginning with "O" thru "R"
G. other agency, beginning with "S" thru "Z"
H. Distric of Columbia
I. other, not listed, not able to classify
Answer:
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songer_applfrom
|
C
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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).
Anna Marie Hill ALLEN, Plaintiff-Appellant, v. George S. LOVEJOY, Director of Memphis and Shelby County Health Department, Shelby County, Tennessee, et al., Defendants-Appellees.
No. 76-1081.
United States Court of Appeals, Sixth Circuit.
Argued Feb. 9, 1977.
Decided April 21, 1977.
Robert M. Johnson, Canada, Russell & Turner, Memphis, Tenn., for plaintiff-appellant.
Abner W. Sibal, James P. Scanlan, E. E. O. C., Washington, D. C., for amicus curiae.
R. A. Ashley, Jr., Atty. Gen., Nashville, Tenn., C. Cleveland Drennon, Jr. (County Defts.), Memphis, Tenn., Edward R. Young (County Defts.), Dwight K. Luter, Memphis, Tenn., for defendants-appellees.
Before EDWARDS, CELEBREZZE and LIVELY, Circuit Judges.
LIVELY, Circuit Judge.
This is an appeal from summary judgment in favor of Shelby County, Tennessee and several county employees in an action charging that plaintiff was suspended from her employment in the county health department in violation of her constitutional right to be free of discrimination on account of her sex. A declaratory judgment, preliminary and permanent injunctions and damages were sought pursuant to 42 U.S.C. §§ 1983, 1985 and 1988. Injunctive relief and back pay were also requested under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Interrogatories were filed and answered and depositions of the plaintiff and defendant Lovejoy were taken prior to a hearing on the motion of the defendants for summary judgment.
The plaintiff was unmarried when she was employed as a statistical clerk for family planning by the Health Department of Shelby County. Her employment records reflected her maiden name, Anna Marie Hill. After her marriage in December 1973 plaintiff was requested by a personnel clerk to sign prescribed forms authorizing the change of her name on personnel forms of her employer to Allen, the surname of her husband. Plaintiff refused this request and was then advised by two of her immediate supervisors that she was required to comply with the “name change policy” of the County. She then made an appointment with defendant Lovejoy, the director of the department, and was told that compliance was mandatory.
Plaintiff was suspended without pay on March 22, 1974 following her refusal to obey a written order from Dr. Lovejoy to effect the name change on the personnel records. She was reinstated to her previous position on August 16, 1974 following implementation by the Health Department of a new policy adopted by the Shelby County Board of Commissioners on June 20, 1974. Under the new policy the personnel records of county employees carry the name shown on each employee’s social security card.
Though the court found that the name change policy of the defendants did discriminate against women, it concluded that “[cjompelling a married woman to use her husband’s last name on personnel forms does not constitute the type of sex discrimination Title VII was meant to proscribe.” The court equated the name change policy with rules concerning hair length, separate restrooms and height and weight requirements, which have been upheld.
The plaintiff has appealed the dismissal of her claims under Title VII and § 1983. She has made no issue on appeal of the dismissal of her claims under §§ 1985 and 1988. In addition to the County itself and Lovejoy, the appellees are the three members of the Shelby County Board of Commissioners (the governing body of the County) and the director of personnel of the Health Department.
We conclude the district court erred in holding that the discrimination practiced by the defendants is not the kind which Title VII proscribes. 42 U.S.C. § 2000e-2(a)(l) provides—
§ 2000e-2. Unlawful employment practices — Employer practices
(a) It shall be an unlawful employment practice for an employer—
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect. to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin[.]
Speaking of Title VII, the Supreme Court wrote in Griggs v. Duke Power Co., 401 U.S. 424, 431, 91 S.Ct. 849, 853, 28 L.Ed.2d 158 (1971), “What is required by Congress is the removal of artificial, arbitrary, and unnecessary barriers to employment when the barriers operate invidiously to discriminate on the basis of racial or other impermissible classification.” A rule which applies only to women, with no counterpart applicable to men, may not be the basis for depriving a female employee who is otherwise qualified of her right to continued employment.
Our cases dealing with grooming standards and height and weight requirements do not require a different result. In Barker v. Taft Broadcasting Co., 549 F.2d 400 (6th Cir., 1977), we dealt with a grooming code for both men and women employees which prescribed different restrictions on the hair styles of each sex and found no discrimination on the basis of sex “within the traditional meaning of that term.” Id. at 401. The Barker holding is in harmony with such decisions as that of the Fifth Circuit in Causey v. Ford Motor Company, 516 F.2d 416 (1975), which denied a claim of discrimination based on the maintenance of separate restrooms for men and women. As long as workers of each sex are provided adequate facilities there is no discrimination. The district court cited Smith v. Troyan, 520 F.2d 492 (6th Cir. 1975), cert. denied, 426 U.S. 934, 96 S.Ct. 2646, 49 L.Ed.2d 385 (1976), which was not a Title VII case. There the court applied a “rational relationship” test to find that minimum height requirements for police officers were constitutionally permissible while minimum weight requirements were not. These requirements had been attacked by the plaintiff on equal protection grounds.
This court’s recent decision in Whitlow v. Hodges, 539 F.2d 582 (6th Cir.), cert. denied, 429 U.S. 1029, 97 S.Ct. 654, 50 L.Ed.2d 632 (1976), is inapposite. That case did not involve employment or the requirements of Title VII, but was concerned with a Kentucky regulation which requires a married woman to use her husband’s surname in applying for a. driver’s license. The outcome of Hodges was determined by the Supreme Court’s summary affirmance of a three-judge district court’s holding that an identical Alabama regulation did not offend the equal protection clause of the Fourteenth Amendment. See Forbush v. Wallace, 341 F.Supp. 217 (M.D.Ala.1971), aff’d, 405 U.S. 970, 92 S.Ct. 1197, 31 L.Ed.2d 246 (1972). In the present case we are dealing with a specific congressional enactment designed to eliminate discrimination in employment. When such discrimination is found to exist, it is not necessary to prove a constitutional violation. Those discriminated against are entitled to relief unless it is precluded by- some other provision of the Act.
We conclude that the district court erred in granting summary judgment to all of the defendants. Upon remand the district court will determine the amount of back pay to which the plaintiff is entitled, noting that she testified that she made no effort to find other employment during the period of her suspension. Entitlement to back pay is qualified by 42 U.S.C. § 2000e-5(g) which provides: “Interim earnings or amounts earnable with reasonable diligence by the person or persons discriminated against shall operate to reduce the back pay otherwise allowable.”
Though the plaintiff named individual county officers and employees as well as Shelby County as defendants in this action, it is clear that Shelby County is the only proper defendant with respect to the Title VII claim. Shelby County was the plaintiffs employer and was the “respondent named in the charge” filed with the Equal Employment Opportunity Commission. See 42 U.S.C. § 2000e-5(f)(l). The “respondent” is defined as the employer charged with violation of the Act, § 2000e-5(b), and is described as the one against whom affirmative relief, including back pay, may be adjudged. § 2000e-5(g). The County is not immune from a money judgment for back pay by reason of the Eleventh Amendment. The Supreme Court recently held that Congress authorized federal courts to award money judgments against states in the 1972 amendments to Title VII. Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976). A fortiori, there is no immunity for political subdivisions of the states. See Incarcerated Men of Allen County Jail v. Fair, 507 F.2d 281 (6th Cir. 1974).
In view of our conclusions with respect to the Title VII claim, it is not necessary to consider the § 1983 claim. The demand for a declaratory judgment and injunctive relief was clearly rendered moot by the reinstatement of plaintiff pursuant to the new official policy of the County with respect to employees’ names on personnel records. There is no reason to believe the County will return to its “old ways.” United States v. W. T. Grant Co., 345 U.S. 629, 632, 73 S.Ct. 894, 97 L.Ed. 1303 (1953). Thus the only relief possible under the § 1983 claim would be a money judgment for damages. There was no serious effort to establish bad faith or malice on the part of any of the defendants which would justify punitive damages; therefore any award under § 1983 would be limited to compensatory damages. Since the plaintiff will be “made whole” by the back pay award, any § 1983 damages would be cumulative.
The judgment of the district court is reversed insofar as it dismissed the complaint against Shelby County, Tennessee, and is affirmed in its dismissal of the complaint as to the remaining defendants. (The judgment omitted the name of the defendant Ramsay through oversight. An order should be entered dismissing as to this defendant). The case is remanded for further proceedings to determine the back pay award to which the plaintiff is entitled.
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:
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songer_summary
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D
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What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court's ruling on the appropriateness of summary judgment or the denial of summary judgment favor the appellant?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LOCAL 111, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL-CIO, et al., Respondents.
No. 5600.
United States Court of Appeals First Circuit.
May 24, 1960.
Stuart Rothman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Allison W. Brown, Jr., Atty., Washington, D. C., on memorandum of petitioner.
Arthur J. Flamm and Segal & Flamm, Boston, Mass., on reply of respondents.
Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges.
ALDRICH, Circuit Judge.
This is a petition for summary entry of a decree enforcing an order of the National Labor Relations Board. The complaint alleges violation of § 8(b) (1) (A) and (2) of the Act, 29 U.S.C.A. § 158(b) (1) (A), (2) and is similar to the complaint involved in a recent decision of ours, N.L.R.B. v. Local 176, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, et al., 1 Cir., 1960, 276 F.2d 583. It appears that respondent local appeared before the Board without counsel, through its business agent, respondent Doiron. The trial examiner’s report was filed on September 8, 1959, and the respondents notified. They were similarly notified that the case was being transferred to the Board, and that any exceptions should be filed by them on or before October 1, 1959. On October 5, no exceptions having been filed, the Board, pursuant to § 10(c) of the Act, 29 U.S. C.A. § 160(c) and § 102.48 of the Board’s Rules and Regulations, Series 7, as amended, adopted the findings and the order recommended by the trial examiner. Thereafter, on November 27, 1959, the Board filed the within petition. On November 30 respondents appeared through counsel and moved to extend the time for filing a reply, on the ground that counsel had just been retained. This motion did not assert any “extraordinary circumstances,” as required by § 10(e) of the Act to permit us to consider freely matters upon which “no objection * * * [had] been urged before the Board * * except that respondents stated that they had not been represented by counsel before the Board, and that the decision of the Board was predicated on its holding in Mountain Pacific Chapter of the Associated General Contractors, Inc., 119 N.L.R.B. 833, which had been refused enforcement in N.L.R.B. v. Mountain Pacific Chapter, 9 Cir., 1959, 270 F.2d 425. Because we then had under advisement a case involving the Board’s Mountain Pacific doctrine, we deferred action upon respondents’ motion. On March 30, 1960, we decided the case of N.L.R.B. v. Local 176, etc., supra, in which we declined to follow the view of the Ninth Circuit, and affirmed the Board. We did, however, depart, on the facts of that case, from that portion of the Board’s order predicated upon the Brown-Olds doctrine, Plumbers and Pipefitters Local 231, 1956, 115 N.L.R. B. 594, which ordered disgorgement of dues. On April 8 we entered an order permitting respondents to file a reply to the petition, “limited to the scope of the order. See N.L.R.B. v. Local 176, etc., 1 Cir., March 30, 1960 [276 F.2d 583].”
Respondents have now filed a lengthy answer. They not only object to the dues reimbursement aspect of the order on the basis of our holding in Local 176, but seek to obtain a complete reversal of our approval of the Mountain Pacific doctrine. They also object to the scope of the order in another, quite unrelated matter. On the other hand, they state nothing with respect to extenuating circumstances. Obviously, Unexplained failure to have counsel is not such. N.L.R.B. v. Pappas & Co., 9 Cir., 1953, 203 F.2d 569. Respondents are not aided in this aspect by our order of April 8, which is not “anything more than a reservation of the court’s jurisdiction to decide the question [s] according to law.” Marshall Field & Co. v. N.L.R.B., 1943, 318 U.S. 253, 256, 63 S.Ct. 585, 586, 87 L.Ed. 744. By our reference to the “scope of the order” we merely indicated, backhandedly, what we considered as necessarily foreclosed.
Any order entered following a decision by the Board is, of course, the court’s order, and not that of the Board. In this respect the matter differs from an appeal from a district court. We are correspondingly more concerned with the content of the order. For if, on default, we must automatically enter any order prepared by the Board Congress would in effect be giving to an administrative board the final word in the formulation of our injunctions. We recognize no such power, even if it could be thought that there was such an intent. It does not follow that an order prepared by the Board must be examined with the full scrutiny that would be accorded had respondents diligently preserved and prosecuted their rights. We think the correct rule is that in case of default an order should be enforced if it is not unreasonable on its face, and has some semblance of support on the findings below. Beyond that we see no occasion to enquire. N.L.R.B. v. Cheney California Lumber Co., 1946, 327 U.S. 385, 66 S.Ct. 553, 90 L.Ed. 739.
Applying this test to the case at hand, we have no reason to reconsider our holding in Local 176. It is true that in that case we disapproved a general disgorgement order. (We did not have before us the question of lost wages, because no employee had in fact lost any work.) However, in that case the only conduct found was an exclusive hiring hall agreement which did not comply with the Board’s Mountain Pacific requirements, with no finding of any actual preference given to members of the local. The findings in the case at bar go far beyond that. Here the charging party and another carpenter, both members of a sister local, were told by respondents that because of difficulties between the two locals no member of their local could receive a work permit. Subsequently they were told that they could “sit in the union office and wait until such time as all members of Local 111 were at work, and that in that event, Doiron would approve them for work.” They were never in fact approved. An open-ended list whereby local members coming in later are placed ahead of nonmembers waiting for work simply because they are local members is the clearest kind of illegal preference. See N.L.R.B. v. Local 176, etc., supra, 276 F.2d 583 note 3. In addition, the trial examiner found that both men made efforts to transfer their membership from the sister local to the respondent in order to obtain employment with the particular employer in question, and were repulsed. In the light of such bare-faced, fundamental violation, the disgorgement order is not governed by our decision in Local 176. On the contrary, we could refuse to enforce the Board’s order only if it must be ruled that the Board could never determine such relief to be proper. We would not so hold. N.L.R.B. v. Local 60, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, 7 Cir., 1960, 273 F.2d 699; cf. Virginia Electric & Power Co. v. N.L.R.B., 1943, 319 U.S. 533, 63 S.Ct. 1214, 87 L.Ed. 1568.
A different situation obtains with respect to the provision in the Board’s proposed order enjoining violation concerning not only the employer involved in this case and his employees, but also “any other employer” and his employees. We have said (on April 18, the day respondents’ answer was filed herein), in a case involving a secondary boycott, that such an order could not be justified, absent a showing that other employers had been concerned or threatened. N.L.R.B. v. Bangor Building Trades Council, AFL-CIO, 1 Cir., 1960, 278 F.2d 287. The Supreme Court has even more recently disapproved the same type of order. Communications Workers of America, AFL-CIO v. N.L.R.B., 1960, 80 S.Ct. 838. Were there some finding of involvement of other employers, we would not concern ourselves in this summary proceeding with the extent of the Board’s discretion in framing relief. However, we find no suggestion in the record of any activity whatever relating to other employers. Accordingly, as matter of law, there is no basis for an order of this breadth.
A decree will be entered enforcing the order of the Board, as modified by striking out those phrases which make reference to “any other employer.”
. Since then the Sixth Circuit, in a decision written by a Ninth Circuit judge sitting by special assignment, has followed the Ninth Circuit view. N.L.R.B. v. E & B Brewing Co., Inc., 6 Cir., 1960, 276 F.2d 594.
Question: Did the court's ruling on the appropriateness of summary judgment or the denial of summary judgment favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
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sc_issuearea
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A
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Denard STOKELING, Petitioner
v.
UNITED STATES.
No. 17-5554.
Supreme Court of the United States
Argued Oct. 9, 2018.
Decided Jan. 15, 2019.
Brenda G. Bryn, Fort Lauderdale, FL, for Petitioner.
Frederick Liu, Washington, DC, for Respondent.
Amir H. Ali, Roderick & Solange, MacArthur Justice Center, Washington, DC, Michael Caruso, Federal Public Defender, Brenda G. Bryn, Andrew L. Adler, Assistant Federal Public Defenders, Office of the Federal Public Defender, Fort Lauderdale, FL, for Petitioner.
Noel J. Francisco, Solicitor General, Brian A. Benczkowski, Assistant Attorney General, Eric J. Feigin, Frederick Liu, Assistants to the Solicitor General, John M. Pellettieri, Attorney, Department of Justice, Washington, DC, for Respondent.
Justice THOMAS delivered the opinion of the Court.
This case requires us to decide whether a robbery offense that has as an element the use of force sufficient to overcome a victim's resistance necessitates the use of "physical force" within the meaning of the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(B)(i). We conclude that it does.
I
In the early hours of July 27, 2015, two people burgled the Tongue & Cheek restaurant in Miami Beach, Florida. Petitioner Denard Stokeling was an employee of the restaurant, and the Miami Beach Police identified him as a suspect based on surveillance video from the burglary and witness statements. After conducting a criminal background check, police learned that Stokeling had previously been convicted of three felonies-home invasion, kidnaping, and robbery. When confronted, Stokeling admitted that he had a gun in his backpack. The detectives opened the backpack and discovered a 9-mm semiautomatic firearm, a magazine, and 12 rounds of ammunition.
Stokeling pleaded guilty in federal court to possessing a firearm and ammunition after having been convicted of a felony, in violation of 18 U.S.C. § 922(g)(1). The probation office recommended that Stokeling be sentenced as an armed career criminal under ACCA, which provides that a person who violates § 922(g) and who has three previous convictions for a "violent felony" shall be imprisoned for a minimum of 15 years. § 924(e). ACCA defines "violent felony" as "any crime punishable by imprisonment for a term exceeding one year" that
"(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
"(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another." § 924(e)(2)(B).
As relevant here, Stokeling objected that his 1997 Florida robbery conviction was not a predicate offense under ACCA. This conviction, he argued, did not qualify under the first clause-the "elements clause"-because Florida robbery does not have "as an element the use, attempted use, or threatened use of physical force."
Under Florida law, robbery is defined as "the taking of money or other property ... from the person or custody of another, ... when in the course of the taking there is the use of force, violence, assault, or putting in fear." Fla. Stat. § 812.13(1) (1995). The Florida Supreme Court has explained that the "use of force" necessary to commit robbery requires "resistance by the victim that is overcome by the physical force of the offender." Robinson v. State, 692 So.2d 883, 886 (1997).
Instead of applying a categorical approach to the elements clause, the District Court evaluated whether the facts of Stokeling's robbery conviction were serious enough to warrant an enhancement. The court concluded that, although Stokeling " 'grabbed [the victim] by the neck and tried to remove her necklaces' " as she " 'held onto' " them, his actions did not "justify an enhancement." Sentencing Hearing in 15-cv-20815 (SD Fla.), Doc. 45, pp. 10-11. The court then sentenced Stokeling to less than half of the mandatory minimum 15-year term of imprisonment provided by ACCA.
The Eleventh Circuit reversed. 684 Fed.Appx. 870 (2017). It held that the District Court erred in making its own factual determination about the level of violence involved in Stokeling's particular robbery offense. Id., at 871. The court also rejected Stokeling's argument that Florida robbery does not categorically require sufficient force to constitute a violent felony under ACCA's elements clause. Id., at 871-872.
We granted certiorari to address whether the "force" required to commit robbery under Florida law qualifies as "physical force" for purposes of the elements clause. 584 U.S. ----, 138 S.Ct. 1438, 200 L.Ed.2d 716 (2018). We now affirm.
II
Construing the language of the elements clause in light of the history of ACCA and our opinion in Johnson v. United States, 559 U.S. 133, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010), we conclude that the elements clause encompasses robbery offenses that require the criminal to overcome the victim's resistance.
A
As originally enacted, ACCA prescribed a 15-year minimum sentence for any person who received, possessed, or transported a firearm following three prior convictions "for robbery or burglary." 18 U.S.C. App. § 1202(a) (1982 ed., Supp. II). Robbery was defined in relevant part as "any felony consisting of the taking of the property of another from the person or presence of another by force or violence ." § 1202(c)(8) (1982 ed., Supp. II) (emphasis added).
The statute's definition mirrored the elements of the common-law crime of robbery, which has long required force or violence. At common law, an unlawful taking was merely larceny unless the crime involved "violence." 2 J. Bishop, Criminal Law § 1156, p. 860 (J. Zane & C. Zollman eds., 9th ed. 1923). And "violence" was "committed if sufficient force [was] exerted to overcome the resistance encountered." Id., at 861.
A few examples illustrate the point. Under the common law, it was robbery "to seize another's watch or purse, and use sufficient force to break a chain or guard by which it is attached to his person, or to run against another, or rudely push him about, for the purpose of diverting his attention and robbing him." W. Clark & W. Marshall, Law of Crimes 554 (H. Lazell ed., 2d ed. 1905) (Clark & Marshall) (footnotes omitted). Similarly, it was robbery to pull a diamond pin out of a woman's hair when doing so tore away hair attached to the pin. See 2 W. Russell, Crimes and Indictable Misdemeanors 68 (2d ed. 1828). But the crime was larceny, not robbery, if the thief did not have to overcome such resistance.
In fact, common-law authorities frequently used the terms "violence" and "force" interchangeably. See ibid. (concluding that "if any injury be done to the person, or there be any struggle by the party to keep possession of the property before it be taken from him, there will be a sufficient actual 'violence' " to establish robbery); Clark & Marshall 553 ("Sufficient force must be used to overcome resistance.... If there is any injury to the person of the owner, or if he resists the attempt to rob him, and his resistance is overcome, there is sufficient violence to make the taking robbery, however slight the resistance" (emphasis added)). The common law also did not distinguish between gradations of "violence." If an act physically overcame a victim's resistance, "however slight" that resistance might be, it necessarily constituted violence. Ibid. ; 4 W. Blackstone, Commentaries on the Laws of England 242 (1769) (distinguishing "taking ... by force" from "privately stealing," and stating that the use of this "violence" differentiates robbery from other larcenies); see also 3 id., at 120 (explaining, in the battery context, that "the law cannot draw the line between different degrees of violence, and therefore totally prohibits the first and lowest stage of it").
The overlap between "force" and "violence" at common law is reflected in modern legal and colloquial usage of these terms. "Force" means "[p]ower, violence, or pressure directed against a person or thing," Black's Law Dictionary 656 (7th ed. 1999), or "unlawful violence threatened or committed against persons or property," Random House Dictionary of the English Language 748 (2d ed. 1987). Likewise, "violence" implies force, including an "unjust or unwarranted use of force." Black's Law Dictionary, at 1564; accord, Random House Dictionary, at 2124 ("rough or injurious physical force, action, or treatment," or "an unjust or unwarranted exertion of force or power, as against rights or laws").
Against this background, Congress, in the original ACCA, defined robbery as requiring the use of "force or violence"-a clear reference to the common law of robbery. See Samantar v. Yousuf, 560 U.S. 305, 320, n. 13, 130 S.Ct. 2278, 176 L.Ed.2d 1047 (2010) ("Congress 'is understood to legislate against a background of common-law ... principles' "). And the level of "force" or "violence" needed at common law was by this time well established: "Sufficient force must be used to overcome resistance ... however slight the resistance." Clark & Marshall 553.
In 1986, Congress amended the relevant provisions of ACCA to their current form. The amendment was titled Expansion of Predicate Offenses for Armed Career Criminal Penalties. See Career Criminals Amendment Act of 1986, § 1402, 100 Stat. 3207 -39. This amendment replaced the two enumerated crimes of "robbery or burglary" with the current elements clause, a new enumerated-offenses list, and a (now-defunct) residual clause. See Johnson v. United States, 576 U.S. ----, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). In the new statute, robbery was no longer enumerated as a predicate offense. But the newly created elements clause extended ACCA to cover any offense that has as an element "the use, attempted use, or threatened use of physical force ." 18 U.S.C. § 924(e)(2)(B)(i) (2012 ed.) (emphasis added).
" '[I]f a word is obviously transplanted from another legal source, whether the common law or other legislation, it brings the old soil with it.' " Hall v. Hall, 584 U.S. ----, ----, 138 S.Ct. 1118, 1128, 200 L.Ed.2d 399 (2018) (quoting Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum. L. Rev. 527, 537 (1947)). That principle supports our interpretation of the term "force" here. By retaining the term "force" in the 1986 version of ACCA and otherwise "[e]xpan[ding]" the predicate offenses under ACCA, Congress made clear that the "force" required for common-law robbery would be sufficient to justify an enhanced sentence under the new elements clause. We can think of no reason to read "force" in the revised statute to require anything more than the degree of "force" required in the 1984 statute. And it would be anomalous to read "force" as excluding the quintessential ACCA-predicate crime of robbery, despite the amendment's retention of the term "force" and its stated intent to expand the number of qualifying offenses.
The symmetry between the 1984 definition of robbery (requiring the use of "force or violence") and the 1986 elements clause (requiring the use of "physical force") is striking. By replacing robbery as an enumerated offense with a clause that has "force" as its touchstone, Congress made clear that "force" retained the same common-law definition that undergirded the original definition of robbery adopted a mere two years earlier. That conclusion is reinforced by the fact that the original 1984 statute defined "robbery" using terms with well-established common-law meanings.
Our understanding of "physical force" is further buttressed by the then widely accepted definitions of robbery in the States. In 1986, a significant majority of the States defined nonaggravated robbery as requiring force that overcomes a victim's resistance. The Government counts 43 States that measured force by this degree, 5 States that required "force" to cause bodily injury, and 2 States and the District of Columbia that permitted force to encompass something less, such as purse snatching. App. B to Brief for United States. Stokeling counters that, at most, 31 States defined force as overcoming victim resistance. Reply Brief 21. We need not declare a winner in this numbers game because, either way, it is clear that many States' robbery statutes would not qualify as ACCA predicates under Stokeling's reading.
His reading would disqualify more than just basic-robbery statutes. Departing from the common-law understanding of "force" would also exclude other crimes that have as an element the force required to commit basic robbery. For instance, Florida requires the same element of "force" for both armed robbery and basic robbery. See Fla. Stat. § 812.13(2)(a) (distinguishing armed robbery from robbery by requiring the additional element of "carr[ying] a firearm or other deadly weapon" during the robbery). Thus, as Stokeling's counsel admitted at oral argument, "armed robbery in Florida" would not qualify under ACCA if his view were adopted. Tr. of Oral Arg. 3-4; see United States v. Lee, 886 F.3d 1161, 1163, n. 1 (C.A.11 2018) (treating "Florida strong-arm robbery [i.e., basic robbery], armed robbery, and attempted robbery ... the same for purposes of analyzing the ACCA's elements clause").
Where, as here, the applicability of a federal criminal statute requires a state conviction, we have repeatedly declined to construe the statute in a way that would render it inapplicable in many States. See, e.g., United States v. Castleman, 572 U.S. 157, 167, 134 S.Ct. 1405, 188 L.Ed.2d 426 (2014) (reading "physical force" to include common-law force, in part because a different reading would render 18 U.S.C. § 922(g)(9)"ineffectual in at least 10 States"); Voisine v. United States, 579 U.S. ----, ----, 136 S.Ct. 2272, 2280, 195 L.Ed.2d 736 (2016) (declining to interpret § 912(a)(33)(A) in a way that would "risk rendering § 922(g)(9) broadly inoperative" in 34 States and the District of Columbia). That approach is appropriate here as well.
B
Our understanding of "physical force" comports with Johnson v. United States, 559 U.S. 133, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010). There, the Court held that " 'actua[l] and intentiona[l] touching' "-the level of force necessary to commit common-law misdemeanor battery-did not require the "degree of force" necessary to qualify as a "violent felony" under ACCA's elements clause. Id., at 138, 140, 130 S.Ct. 1265. To reach this conclusion, the Court parsed the meaning of the phrase "physical force." First, it explained that the modifier "physical" "plainly refers to force exerted by and through concrete bodies-distinguishing physical force, from, for example, intellectual force or emotional force." Id., at 138, 130 S.Ct. 1265. The Court then considered "whether the term 'force' in [the elements clause] has the specialized meaning that it bore in the common-law definition of battery." Id., at 139, 130 S.Ct. 1265. After reviewing the context of the statute, the Court rejected the Government's suggestion that "force" encompassed even the "slightest offensive touching." Ibid. Instead, it held that "physical force" means "violent force-that is, force capable of causing physical pain or injury to another person." Id., at 140, 130 S.Ct. 1265. Applying that standard to a Florida battery law criminalizing "any intentional physical contact," the Court concluded that the law did not require the use of "physical force" within the meaning of ACCA. Ibid.
Stokeling argues that Johnson rejected as insufficient the degree of "force" required to commit robbery under Florida law because it is not "substantial force." We disagree. The nominal contact that Johnson addressed involved physical force that is different in kind from the violent force necessary to overcome resistance by a victim. The force necessary for misdemeanor battery does not require resistance or even physical aversion on the part of the victim; the "unwanted" nature of the physical contact itself suffices to render it unlawful. See State v. Hearns, 961 So.2d 211, 216 (Fla.2007).
By contrast, the force necessary to overcome a victim's physical resistance is inherently "violent" in the sense contemplated by Johnson, and "suggest[s] a degree of power that would not be satisfied by the merest touching." 559 U.S., at 139, 130 S.Ct. 1265. This is true because robbery that must overpower a victim's will-even a feeble or weak-willed victim-necessarily involves a physical confrontation and struggle. The altercation need not cause pain or injury or even be prolonged; it is the physical contest between the criminal and the victim that is itself "capable of causing physical pain or injury." Id., at 140, 130 S.Ct. 1265. Indeed, Johnson itself relied on a definition of "physical force" that specifically encompassed robbery: " '[f]orce consisting in a physical act, esp. a violent act directed against a robbery victim .' " Id., at 139, 130 S.Ct. 1265 (quoting Black's Law Dictionary 717 (9th ed. 2009); emphasis added). Robbery thus has always been within the " 'category of violent, active crimes' " that Congress included in ACCA. 559 U.S., at 140, 130 S.Ct. 1265.
To get around Johnson, Stokeling cherry picks adjectives from parenthetical definitions in the opinion, insisting that the level of force must be "severe," "extreme," "furious," or "vehement." These adjectives cannot bear the weight Stokeling would place on them. They merely supported Johnson 's actual holding: that common-law battery does not require "force capable of causing physical pain or injury." Ibid . Johnson did not purport to establish a force threshold so high as to exclude even robbery from ACCA's scope. Moreover, Stokeling ignores that the Court also defined "violence" as " 'unjust or improper force.' " Ibid. (emphasis added). As explained above, the common law similarly linked the terms "violence" and "force." Overcoming a victim's resistance was per se violence against the victim, even if it ultimately caused minimal pain or injury. See Russell, Crimes and Indictable Misdemeanors, at 68.
C
In the wake of Johnson, the Court has repeated its holding that "physical force" means " 'force capable of causing physical pain or injury.' " Sessions v. Dimaya, 584 U.S. ----, ---- - ----, 138 S.Ct. 1204, 1220, 200 L.Ed.2d 549 (2018) (quoting Johnson, supra, at 140, 130 S.Ct. 1265 ); see also Castleman, supra, at 173-174, 134 S.Ct. 1405 (Scalia, J., concurring in part and concurring in judgment).
Finding this definition difficult to square with his position, Stokeling urges us to adopt a new, heightened reading of physical force: force that is "reasonably expected to cause pain or injury." For the reasons already explained, that definition is inconsistent with the degree of force necessary to commit robbery at common law. Moreover, the Court declined to adopt that standard in Johnson, even after considering similar language employed in a nearby statutory provision, 18 U.S.C. § 922(g)(8)(C)(ii). 559 U.S., at 143, 130 S.Ct. 1265. The Court instead settled on "force capable of causing physical pain or injury." Id., at 140, 130 S.Ct. 1265 (emphasis added). "Capable" means "susceptible" or "having attributes ... required for performance or accomplishment" or "having traits conducive to or features permitting." Webster's Ninth New Collegiate Dictionary 203 (1983); see also Oxford American Dictionary and Thesaurus 180 (2d ed. 2009) ("having the ability or quality necessary to do"). Johnson thus does not require any particular degree of likelihood or probability that the force used will cause physical pain or injury; only potentiality.
Stokeling's proposed standard would also prove exceedingly difficult to apply. Evaluating the statistical probability that harm will befall a victim is not an administrable standard under our categorical approach. Crimes can be committed in many different ways, and it would be difficult to assess whether a crime is categorically likely to harm the victim, especially when the statute at issue lacks fine-tuned gradations of "force." We decline to impose yet another indeterminable line-drawing exercise on the lower courts.
Stokeling next contends that Castleman held that minor uses of force do not constitute "violent force," but he misreads that opinion. In Castleman, the Court noted that for purposes of a statute focused on domestic-violence misdemeanors, crimes involving relatively "minor uses of force" that might not "constitute 'violence' in the generic sense" could nevertheless qualify as predicate offenses. 572 U.S., at 165, 134 S.Ct. 1405. The Court thus had no need to decide more generally whether, under Johnson, conduct that leads to relatively minor forms of injury-such as "a cut, abrasion, [or] bruise"-"necessitate[s]" the use of "violent force." 572 U.S., at 170, 134 S.Ct. 1405. Only Justice Scalia's separate opinion addressed that question, and he concluded that force as small as "hitting, slapping, shoving, grabbing, pinching, biting, and hair pulling," id., at 182, 134 S.Ct. 1405 (alterations omitted), satisfied Johnson 's definition. He reasoned that "[n]one of those actions bears any real resemblance to mere offensive touching, and all of them are capable of causing physical pain or injury." 572 U.S., at 182, 134 S.Ct. 1405. This understanding of "physical force" is consistent with our holding today that force is "capable of causing physical injury" within the meaning of Johnson when it is sufficient to overcome a victim's resistance. Such force satisfies ACCA's elements clause.
III
We now apply these principles to Florida's robbery statute to determine whether it "has as an element the use, attempted use, or threatened use of physical force against the person of another." 18 U.S.C. § 924(e)(2)(B)(i). We conclude that it does.
As explained, Florida law defines robbery as "the taking of money or other property ... from the person or custody of another, ... when in the course of the taking there is the use of force, violence, assault, or putting in fear." Fla. Stat. § 812.13(1). The Florida Supreme Court has made clear that this statute requires "resistance by the victim that is overcome by the physical force of the offender." Robinson v. State, 692 So.2d 883, 886 (1997). Mere "snatching of property from another" will not suffice. Ibid.
Several cases cited by the parties illustrate the application of the standard articulated in Robinson . For example, a defendant who grabs the victim's fingers and peels them back to steal money commits robbery in Florida. Sanders v. State, 769 So.2d 506, 507-508 (Fla.App.2000). But a defendant who merely snatches money from the victim's hand and runs away has not committed robbery. Goldsmith v. State, 573 So.2d 445 (Fla.App.1991). Similarly, a defendant who steals a gold chain does not use " 'force,' within the meaning of the robbery statute," simply because the victim "fe[els] his fingers on the back of her neck." Walker v. State, 546 So.2d 1165, 1166-1167 (Fla.App.1989). It is worth noting that, in 1999, Florida enacted a separate "sudden snatching" statute that proscribes this latter category of conduct; under that statute, it is unnecessary to show either that the defendant "used any amount of force beyond that effort necessary to obtain possession of the money or other property" or that "[t]here was any resistance by the victim to the offender." Fla. Stat. § 812.131 (1999).
Thus, the application of the categorical approach to the Florida robbery statute is straightforward. Because the term "physical force" in ACCA encompasses the degree of force necessary to commit common-law robbery, and because Florida robbery requires that same degree of "force," Florida robbery qualifies as an ACCA-predicate offense under the elements clause. Cf. Descamps v. United States, 570 U.S. 254, 261, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013) ("If the relevant statute has the same elemen[t]," "then the prior conviction can serve as an ACCA predicate").
IV
In sum, "physical force," or "force capable of causing physical pain or injury," Johnson, 559 U.S., at 140, 130 S.Ct. 1265 includes the amount of force necessary to overcome a victim's resistance. Robbery under Florida law corresponds to that level of force and therefore qualifies as a "violent felony" under ACCA's elements clause. For these reasons, we affirm the judgment of the Eleventh Circuit.
It is so ordered.
Justice SOTOMAYOR, with whom THE CHIEF JUSTICE, Justice GINSBURG, and Justice KAGAN join, dissenting.
In Johnson v. United States, 559 U.S. 133, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010), this Court ruled that the words "physical force" in the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(2), denote a heightened degree of force, rather than the minimal contact that would have qualified as "force" for purposes of the common-law crime of battery. Id., at 139-140, 130 S.Ct. 1265. This case asks whether Florida robbery requires such "physical force," and thus qualifies as a "violent felony" under the ACCA, even though it can be committed through use of only slight force. See § 924(e)(2)(B). Under Johnson, the answer to that question is no. Because the Court's contrary ruling distorts Johnson, I respectfully dissent.
I
As the majority explains, petitioner Denard Stokeling pleaded guilty in 2016 to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The Government and the probation department argued for an increased sentence under the ACCA. Stokeling objected.
The ACCA imposes a 15-year mandatory-minimum sentence on any § 922(g) offender who has been convicted of at least three qualifying predicate convictions. § 924(e)(1). As relevant here, a past conviction can qualify as an ACCA predicate if it is what ACCA calls a "violent felony"-that is, "any crime punishable by imprisonment for a term exceeding one year" that
"(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
"(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another." § 924(e)(2)(B).
Clause (i) is often called the "elements clause" (or "force clause"), because it requires each qualifying crime to have an element involving force. The first part of clause (ii) is often called the "enumerated clause," because it enumerates certain generic crimes-such as burglary-that Congress sought to cover. The final part of clause (ii), often called the "residual clause," once offered a catchall to sweep in otherwise uncovered convictions, but the Court struck it down as unconstitutionally vague in 2015. See Johnson v. United States, 576 U.S. ----, ----, 135 S.Ct. 2551, 2563, 192 L.Ed.2d 569. So the elements clause and the enumerated clause are now the only channels by which a prior conviction can qualify as an ACCA "violent felony."
Whether Stokeling is subject to the ACCA's 15-year mandatory minimum hinges on whether his 1997 conviction for Florida robbery, see App. 10, qualifies under the elements clause. To determine whether a conviction qualifies as a violent felony under the ACCA, courts apply a method called the categorical approach. See Taylor v. United States, 495 U.S. 575, 600-602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). In the elements-clause context, that method requires asking whether the least culpable conduct covered by the statute at issue nevertheless "has as an element the use, attempted use, or threatened use of physical force against the person of another." See § 924(e)(2) ; Johnson, 559 U.S., at 137, 130 S.Ct. 1265. If it does not, then the statute is too broad to qualify as a "violent felony." In determining what a state crime covers for purposes of this federal sentencing enhancement, federal courts look to, and are constrained by, state courts' interpretations of state law. See id., at 138, 130 S.Ct. 1265.
As relevant here, Florida law defines robbery as "the taking of money or other property ... from the person or custody of another ... when in the course of the taking there is the use of force, violence, assault, or putting in fear." Fla. Stat. § 812.13(1) (2017). The Florida Supreme Court has interpreted the statute's reference to force to require "force sufficient to overcome a victim's resistance." Robinson v. State, 692 So.2d 883, 887 (1997). Otherwise, the "degree of force used is immaterial." Montsdoca v. State, 84 Fla. 82, 86, 93 So. 157, 159 (1922). If the resistance is minimal, the force need only be minimal as well.
II
Florida robbery, as interpreted and applied by the Florida courts, covers too broad a range of conduct to qualify as a "violent felony" under the ACCA. Both the text and purpose of the ACCA-particularly as they have already been construed by our precedents-demon
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_4_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 "sub-state government (e.g., county, local, special district)". Your task is to determine which category of substate government best describes this litigant.
Gloria PEREZ, Elizabeth Agosto, Plaintiffs-Appellants, v. Jesus ORTIZ, Philomena Lula and Theodore Meekins, Individually and in their Official Capacities as Officers in the Police Department of Bridgeport, Connecticut, Defendants-Appellees. Sonia ZAPP, Plaintiff-Appellant, v. Lori Ann CASABARRA, Stephanie Johnson, in their Official Capacities as Officers in the Police Department of New Haven, Connecticut, Defendants-Appellees. Douglas G. BROWN, Individually and in his Official Capacity as Administrator of the Estate of Gregory Brown and Judith Brown, Plaintiff-Appellant, v. P. DOOLING, III, E. O’Keefe, F. Hosey, H. Povinelli, Individually and in their Official Capacities as Officers in the Police Department of the City of Milford, Connecticut, Defendants-Appellees. Vera CARTER, on her Own Behalf and as the Mother and Next Friend of Her Minor Daughter, Tasha Carter, Willie Carter, and William Outlaw, III, Plaintiffs-Appellants, v. Jack KENNELLY, Steven Cahill, Defendants-Appellees.
Nos. 977-979 and 1000, Dockets 88-7002, 88-7012, 88-7004 and 88-7052.
United States Court of Appeals, Second Circuit.
Argued April 29, 1988.
Decided June 27, 1988.
John R. Williams, New Haven, Conn. (Williams & Wise, Sue L. Wise, of counsel), for plaintiffs-appellants.
Barbara Brazzel-Massaro, Office of the City Attorney, Bridgeport, Conn., for defendants-appellees Jesus Ortiz, Philomena Lula, and Theodore Meekins.
Edward Mattison, Deputy Corp. Counsel City of New Haven, Conn., for defendants-appellees Lori Ann Casabarra and Stephanie Johnson.
John Lemega, Hartford, Conn. (Halloran, Sage, Phelon & Hagarty, James J. Szerej-ko, John P. Farley, of counsel), for defendants-appellees P. Dooling, III, E. O’Keefe, F. Hosey, and H. Povinelli.
Raymond J. Plouffe, Jr., New Haven, Conn. (Bai, Pollack & Dunnigan, Arnold J. Bai, Barry G. Grandon, of counsel), for defendants-appellees Jack Kennedy and Steven Cahill.
Before CARDAMONE, PRATT and MAHONEY, Circuit Judges.
GEORGE C. PRATT, Circuit Judge:
On September 3, 1987, Chief Judge Daly of the District Court for the District of Connecticut entered sua sponte identical orders in five civil rights cases that were brought under 42 U.S.C. § 1983, dismissing all pendent state law claims and all claims brought against police officer defendants in their official capacities. These sua sponte orders were filed without notice or an opportunity to be heard. After noting that official capacity suits “ ‘generally represent only another way of pleading an action against an entity of which an officer is an agent’ ” (quoting Monell v. New York City Dep’t of Social Services, 436 U.S. 658, 690 n. 55, 98 S.Ct. 2018, 2035, n. 55, 56 L.Ed.2d 611 (1978)), and that, in each case, the officers’ employers (the cities of Milford, Hamden, Bridgeport and New Haven, and the state of Connecticut) had not been made a party, the court ordered “that any reference to the individual defendants being sued in their official capacity be hereby stricken.” After noting further that the exercise of pendent jurisdiction is discretionary, and that it had “given regard to all relevant considerations, including the potential for jury confusion,” the district court also dismissed plaintiffs’ state law claims in each of the five actions. Plaintiffs in all five actions were represented by the same firm of attorneys.
After plaintiffs in each case moved for partial judgment pursuant to Fed.R.Civ.P. 54(b), the district court stamped the motions in all of the cases except Carter with the following notation: “DECEMBER 21, 1987. There appearing no just reason for delay, the motion for final judgment on the pendent state law claims and the official capacity claim is GRANTED absent objection. Partial final judgment shall enter accordingly.” These orders were signed by Chief Judge Daly. In Carter, Judge Egin-ton denied plaintiffs’ initial motion for certification on December 17, 1987. After Chief Judge Daly granted certification in the other four cases, Judge Eginton granted a subsequent motion for reconsideration in Carter. That motion was stamped, “January 7, 1988: The motion is GRANTED. After reconsideration, the motion for partial judgment, Fed.R.Civ.P. 54(b), is granted.” All plaintiffs appealed, but one of the cases was apparently settled prior to argument of the appeals. A brief description of the remaining four actions follows.
Brawn v. Dooling was brought against four Milford police officers by the parents of a 13-year-old boy who committed suicide. The § 1983 complaint asserts that the defendants, who responded to a report that the boy was about to kill himself but then left the boy alone without conducting any significant investigation, acted with deliberate indifference to plaintiffs’ constitutional rights. See Doe v. New York City Dep’t of Social Services, 649 F.2d 134, 141 (2d Cir.1981), cert. denied, 464 U.S. 864, 104 S.Ct. 195, 78 L.Ed.2d 171 (1983). The complaint includes a pendent state law negligence claim based on the same facts, and seeks compensatory and punitive damages and “such other relief as this court may consider to be just, fair and equitable.” The sua sponte order was entered one year after the defendants answered the complaint.
The four plaintiffs in Carter v. Kennelly alleged that two Hamden police officers violated various constitutional rights and §§ 1983 and 1988 by conducting an illegal search and seizure. The complaint alleges a number of state law claims, including negligence, intentional infliction of emotional distress, and wrongful seizure of property. Plaintiffs seek money damages and an injunction requiring the defendants to return the seized property. In this case the sua sponte order was entered before the defendants answered the complaint.
Perez v. Ortiz was brought by a mother and daughter against three Bridgeport police officers for constitutional violations arising from false arrest, excessive force, and malicious prosecution. Pendent state claims based on the same facts include assault and battery, intentional infliction of emotional distress, and malicious prosecution. Plaintiffs seek money damages and “such other relief as the court shall consider to be fair and equitable.” The sua sponte order was entered before returns of service were filed and three months before answers were filed.
The plaintiff in Zapp v. Casabarra alleges that New Haven police officers violated her constitutional rights by entering her home without a warrant, arresting her without probable cause, and subjecting her to malicious prosecution and excessive force. In addition to her § 1983 claim, she asserts state law claims for trespass, assault and battery, and malicious prosecution. She seeks compensatory and punitive damages and “such other relief as this Court considers just, fair and equitable”. The sua sponte order was filed four months after defendants’ answer.
On appeal plaintiffs argue that Chief Judge Daly adopted a per se rule of refusing ever to entertain pendent state law claims in civil rights actions and erred in dismissing the pendent state law claims in these cases without engaging in any case-specific analysis. Plaintiffs argue as well that the district court erred in dismissing the claims against police officers in their official capacities without affording the plaintiffs notice and an opportunity to be heard or an opportunity to amend their complaints.
In none of these four cases did defendants seek the relief granted in the sua sponte orders, but all of the defendants argue that the dismissals were appropriate. The Zapp and Perez defendants argue, as well, that the district court erred in granting the plaintiffs’ motion for partial judgment because the plaintiffs did not show the absence of just reason for delay as required by rule 54(b).
Preliminarily, although we recognize that the district court’s compliance with rule 54(b) may have fallen short of the standard we have required in earlier cases, we conclude that the policies underlying rule 54 will be served by our exercising jurisdiction over these appeals. On the merits of the appeals, we conclude that the district court abused its discretion in entering the sua sponte dismissal orders in these cases.
DISCUSSION
1. Certification under Fed.R.Civ.P. 54(b)
Rule 54(b) allows the district court to “direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.” It provides an exception to the general rule that final judgment is entered only when all claims have been adjudicated. See Cullen v. Margiotta, 811 F.2d 698, 710 (2d Cir.1987), cert. denied, — U.S.-, 107 S.Ct. 3266, 97 L.Ed.2d 764 (1987).
In previous cases we have interpreted rule 54(b) as requiring a district court to do more than “ ‘merely repeat the formulaic language of the rule, but rather * * * [to] offer a brief, reasoned explanation.’ ” Ansam Associates, Inc. v. Cola Petroleum, Ltd., 760 F.2d 442, 445 (2d Cir.1985) (quoting Cullen v. Margiotta, 618 F.2d 226, 228 (2d Cir.1980)). One reason for this requirement is to avoid “piecemeal appeals”. Curtiss-Wright Corp. v. Gen. Electric Co., 446 U.S. 1, 10, 100 S.Ct. 1460, 1466, 64 L.Ed.2d 1 (1980). See 760 F.2d at 445; Cullen, 618 F.2d at 228; Brunswick Corp. v. Sheridan, 582 F.2d 175, 183 (2d Cir.1978); see also Campbell v. Westmoreland Farm, Inc., 403 F.2d 939, 942 (2d Cir.1968) (“Rule 54(b) orders ‘should not be entered routinely or as a courtesy or accommodation to counsel’ ”) (citation omitted).
The Supreme Court, however, has indicated “that the standard against which a district court’s exercise of discretion [in granting certification] is to be judged is ‘the interest of sound judicial administration.’ ” Curtiss-Wright Corp., 446 U.S. at 10, 100 S.Ct. at 1466 (citing Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 437, 76 S.Ct. 895, 901, 100 L.Ed. 1297 (1956)). Although the district court in these cases did not explicitly engage in the analysis of all the factors the Supreme Court has set out as relevant to the exercise of discretion under rule 54(b), see id. at 7-9, 100 S.Ct. at 1464-65, we conclude that the interests of sound judicial administration will be served by our exercising jurisdiction over this appeal.
The record before us indicates that Chief Judge Daly, who must daily grapple with managing a crowded civil docket, has utilized the same procedural device in five civil rights cases, four of which are now before us. By granting a rule 54(b) certification he (and Judge Eginton) provided a prompt and efficient means for obtaining appellate review of that procedure. Were we to remand for a statement of reasons it is obvious what reasons Chief Judge Daly would provide: multiple cases are involved; a dispositive issue affects a major part of each suit; substantial trial time will be saved; if the procedure invoked is permissible, substantial time in other cases can be saved. If we do not rule now on the merits of these appeals, the same issues may have to be relitigated not only later in these four cases but possibly in other cases as well. If this were a single case we might have doubts about the propriety of the rule 54(b) certification, but when four appeals are involved, we have no doubt that the “interest of sound judicial administration” will be served by our resolving now the threshold procedural issues raised by these appeals.
As another panel of this court stated in an appeal arising from a sua sponte dismissal for failure to state a claim that was ordered without notice, “[w]e are troubled by the procedural aspects of th[ese] dismissal[s].” Schlesinger Investment Partnership v. Fluor Corp., 671 F.2d 739, 742 (2d Cir.1982). Not only were they ordered both sua sponte and without notice to plaintiffs, but they were also imposed across-the-board by this particular district judge on five separate civil rights cases. Both of these problems require discussion.
2. Sua sponte dismissal
Although sua sponte dismissals may be appropriate in some circumstances, see Leonhard v. United States, 633 F.2d 599, 609 n. 11 (2d Cir.1980) (citing Robins v. Rarback, 325 F.2d 929 (2d Cir.1963), cert. denied, 379 U.S. 974, 85 S.Ct. 670, 13 L.Ed.2d 565 (1965); 5 C. Wright & A. Miller, Federal Practice and Procedure § 1357 at 593 (1969)); Taub v. Hale, 355 F.2d 201, 202 (2d Cir.), cert. denied, 384 U.S. 1007, 86 S.Ct. 1924, 16 L.Ed.2d 1020 (1966); Fed.R.Civ.P. 12(e), particularly in cases involving frivolous in forma pauperis complaints, see 28 U.S.C. § 1915(d); 2A Moore’s Federal Practice § 12.07 [2. — 5] (1987), or frivolous habeas petitions, see Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts (1987), the general rule is that a “district court has no authority to dismiss a complaint for failure to state a claim upon which relief can be granted without giving the plaintiff an opportunity to be heard.” Square D Co. v. Niagara Frontier Tariff Bureau, Inc., 760 F.2d 1347, 1365 (2d Cir.1985) (“Failure to afford an opportunity to address the court’s sua sponte motion to dismiss is, by itself, grounds for reversal”) (quoting Lewis v. New York, 547 F.2d 4, 5-6 & n. 4 (2d Cir.1976)), aff'd, 476 U.S. 409, 106 S.Ct. 1922, 90 L.Ed.2d 413 (1986); see Eades v. Thompson, 823 F.2d 1055, 1061 (7th Cir.1987) (“sua sponte dismissals * * * are not favored, particularly where no party has * * * raised the issue, and there is no notice or hearing”); Doe v. St. Joseph’s Hospital of Ft. Wayne, 788 F.2d 411, 415 (7th Cir.1986) (“Sua sponte dismissals without prior notice or an opportunity to be heard on the issues underlying the dismissal * * * ‘generally may be considered hazardous.’ ”) (quoting Tamari v. Bache & Co. (Lebanon) S.A.L., 565 F.2d 1194, 1198 (7th Cir.1977), cert. denied, 435 U.S. 905, 98 S.Ct. 1450, 55 L.Ed.2d 495 (1978)); Jefferson Fourteenth Assoc. v. Wometco de Puerto Rico, 695 F.2d 524, 525, 527 (11th Cir.1983) (sua sponte dismissal of third-party claims “on the merits” deprived third-party plaintiff of due process); Schlesinger Investment, 671 F.2d at 742-43 (plaintiff entitled to notice that court was considering dismissal, and to discovery and leave to replead).
As we have noted before, “adequate notice helps the court secure a just determination”, Schlesinger Investment, 671 F.2d at 742, by giving parties moved against the opportunity to present their best arguments in opposition. Id. See Doe v. St. Joseph’s Hospital, 788 F.2d at 415 (“sua sponte dismissals may prejudice plaintiffs by depriving them of an opportunity to amend their complaints or to argue against the dismissal”). Sua sponte dismissals, especially those entered without notice, also deviate from the traditions of the adversarial system by making the judge “ ‘a proponent rather than an independent entity’ ”. Id. (citation omitted); accord Lewis, 547 F.2d at 5 (“[i]t is prudent for judges to avoid an inquisitorial role”). Finally, such dismissals may tend to produce the very effect they seek to avoid — a waste of judicial resources — by leading to appeals and remands.
In two of the cases before us, Carter and Perez, the claims were dismissed before defendants filed their answers. In Zapp, the dismissal came four months after the defendants had filed an answer admitting that the court had pendent jurisdiction and that plaintiffs could sue defendants in their official capacities. In no case did defendants seek the relief that was granted. Under these circumstances, the district court’s orders were, at best, premature. We hold, therefore, that the district court erred in dismissing these claims sua sponte without giving plaintiffs notice and an opportunity to be heard.
3. Official capacity claims
It was also an abuse of discretion to dismiss the suits against the police officers in their official capacities without giving the plaintiffs an opportunity to amend their complaints to conform to the requirements for an official capacity suit. Cf. Brandon v. Holt, 469 U.S. 464, 469-71, 105 S.Ct. 873, 876-77, 83 L.Ed.2d 878 (1985) (where it was clear that action was against defendant in official capacity, plaintiffs allowed to amend pleadings post-trial to conform to proof where § 1983 suit did not name city as defendant because case was filed before Monell was decided). See generally Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir.1983) (discussing elements of official capacity suit that must be pleaded and proved). Although it is difficult to assess the nature of plaintiffs’ claims on the scanty record before us, we note that at least one set of plaintiffs, in Carter, seeks an injunction ordering the return of property, and that it is entirely proper, when seeking injunctive relief, to sue officials in their official capacities. See Kentucky v. Graham, 473 U.S. 159, 167 n. 14, 105 S.Ct. 3099, 3106 n. 14, 87 L.Ed.2d 114 (1985); Ross v. Meese, 818 F.2d 1132, 1135 (4th Cir.1987).
4. Pendent jurisdiction over state law claims
The exercise of pendent jurisdiction is a matter committed to the sound discretion of the district court. See Hagans v. Lavine, 415 U.S. 528, 545, 94 S.Ct. 1372, 1383, 39 L.Ed.2d 577 (1974) (citing United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966)); Federman v. Empire Fire & Marine Ins. Co., 597 F.2d 798, 809 (2d Cir.1979), See generally Pride v. Community School Bd. of Brooklyn, 482 F.2d 257, 271-72 (2d Cir.1973) (discussion of factors for determining whether to exercise pendent jurisdiction). In these civil rights cases, the parties, the events, and even the conduct complained of were the same for both federal and state claims. Yet when the district court entered identical orders dismissing all pendent state law claims, it stated only that it had “given regard to all relevant considerations, including the potential for jury confusion.” Because the court did not have before it the facts and arguments of the individual cases as they might have been presented in opposition to motions to dismiss, and because the judge simultaneously entered identical orders that contained no case-specific analysis that might support the dismissals in one or more of these cases, we conclude that the district court simply failed to exercise its discretion and therefore erred.
We have no way of knowing whether Chief Judge Daly has adopted a general policy or per se rule of dismissing pendent state claims and official capacity claims in civil rights cases or whether he simply adopted that approach in these five cases. In either event, the application of a per se rule to a matter that requires the exercise of discretion would constitute reversible error. See Plunkett v. Johnson, 828 F.2d 954, 956 (2d Cir.1987); cf. Lis v. Robert Packer Hospital, 579 F.2d 819, 819-24 (3d.Cir.1978) (district court failed to exercise its discretion by adopting practices of allowing cross-examination beyond the scope of direct in “every case unless it causes confusion” and of bifurcating all negligence cases).
CONCLUSION
In all four cases the judgments are reversed, and the cases are remanded for further proceedings.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "sub-state government (e.g., county, local, special district)". Which category of substate government best describes this litigant?
A. legislative
B. executive/administrative
C. bureaucracy providing services
D. bureaucracy in charge of regulation
E. bureaucracy in charge of general administration
F. judicial
G. other
Answer:
|
songer_appel1_7_3
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine the race or ethnic identity of this litigant as identified in the opinion. Names may be used to classify a person as hispanic if there is little ambiguity. All aliens are coded as "not ascertained".
DENNERT v. UNITED STATES.
No. 9788.
Circuit Court of Appeals, Sixth Circuit.
Feb. 16, 1945.
Stephens L. Blakely, of Covington, Ky., for appellant.
Claude P. Stephens, of Lexington, Ky. (Claude P. Stephens and Ben L. Kessinger, both of Lexington, Ky., on the brief), for appellee.
Before SIMONS, ALLEN, and McALLISTER, Circuit Judges.
PER CURIAM.
The appellant was convicted and sentenced on each of two counts of an indictment, one charging him with being engaged in a conspiracy to transport, possess, and sell distilled spirits in containers without stamps affixed thereto, and the other with being in possession of such illicit spirits. Viewing the evidence in the light most favorable to the government, there is a complete absence of substantial evidence that Dennert was a conspirator, or that the liquors were possessed by him. The principal item of evidence is that Dennert was the owner of the house in a vacant part of which the liquor was found. There is no evidence that it was his liquor, that he placed it there, or that it was placed there at his direction or with his knowledge. Indeed, there was substantial evidence contra, one Farley having confessed to placing the liquor in the premises without the knowledge of Dennert.
Nor was there any proof that he conspired. It may not be inferred from casual and unexplained meetings between Dennert and other persons charged, that he participated or even knew of the conspiracy. United States v. Falcone, 311 U.S. 205, 210, 61 S.Ct. 204, 85 L.Ed. 128.
“Circumstances which merely raise suspicion or give room for conjecture are not sufficient evidence of guilt. Wharton on Evidence, p. 1532. A conviction resting on them alone cannot stand.” Kassin v. United States, 5 Cir., 87 F.2d 183, 184.
The evidence also shows that the revenue agents broke into Dennert’s house without a search warrant. The fact that the rooms where the whiskey was found were unoccupied, did not justify the search, and the agents had no means of knowing that there were no other possessions of Dennert’s on the premises, nor can the search be validated by the consent of a tenant upon another portion of the premises, who had no control or dominion over the locked rooms which were broken into. The reasonableness of a search made upon information of a moving vehicle as validated in Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543, 39 A.L.R. 790, does not apply, where, as here, there was ample opportunity to obtain a search warrant. United States v. Falcone, supra; Go-Bart v. United States, 282 U.S. 344, 51 S.Ct. 153, 75 L.Ed. 374; Gouled v. United States, 255 U.S. 298, 41 S.Ct. 261, 65 L.Ed. 647. As was said in Alvau v. United States, 9 Cir., 33 F.2d 467, 470, “there was here no emergency.” There was much more evidence in Taylor v. United States, 286 U.S. 1, 52 S.Ct. 466, 76 L.Ed. 951, where the search was held to be unreasonable and void. It must also be noted that the search was not in connection with Dennert’s arrest.
The judgment and sentence must be reversed, and the court is directed to suppress the evidence obtained by the illegal search.
Reversed and remanded for further proceedings not inconsistent herewith.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". What is the race or ethnic identity of this litigant as identified in the opinion?
A. not ascertained
B. caucasian - specific indication in opinion
C. black - specific indication in opinion
D. native american - specific indication in opinion
E. native american - assumed from name
F. asian - specific indication in opinion
G. asian - assumed from name
H. hispanic - specific indication in opinion
I. hispanic - assumed from name
J. other
Answer:
|
sc_partywinning
|
B
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the petitioning party (i.e., the plaintiff or the appellant) emerged victorious. The victory the Supreme Court provided the petitioning party may not have been total and complete (e.g., by vacating and remanding the matter rather than an unequivocal reversal), but the disposition is nonetheless a favorable one. Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case.
FEDERAL ELECTION COMMISSION v. NRA POLITICAL VICTORY FUND et al.
No. 93-1151.
Argued October 11, 1994
Decided December 6, 1994
Rehnquist, C. J., delivered the opinion of the Court, in which O’Con-nok, Scalia, Kennedy, Souter, Thomas, and Breyer, JJ., joined. Stevens, J., filed a dissenting opinion, post, p. 100. Ginsburg, J., took no part in the consideration or decision of the case.
Lawrence M. Noble argued the cause for petitioner. With him on the briefs were Richard B. Bader and Vivien Clair.
Deputy Solicitor General Bender argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Days, Assistant Attorneys General Dellinger and Hunger, Malcolm L. Stewart, and Douglas N. Letter.
Charles J. Cooper argued the cause for respondents. With him on the brief were Michael A. Carvin and William L. McGrath.
Chief Justice Rehnquist
delivered the opinion of the Court.
We granted certiorari in this case to review a judgment of the Court of Appeals for the District of Columbia Circuit holding that the congressionally mandated composition of petitioner Federal Election Commission (FEC), including as it did representatives of the Senate and House as nonvoting members, violated the separation-of-powers principle embodied in the Constitution. 512 U. S. 1218 (1994). We do not reach the merits of the question, however, because we conclude that the FEC is not authorized to petition for cer-tiorari in this Court on its own, and that the effort of the Solicitor General to authorize the FEC’s petition after the time for filing it had expired did not breathe life into it.
The Court of Appeals entered judgment in this case on October 22, 1998. 6 F. 3d 821. The FEC, in its own name, filed a petition for a writ of certiorari on January 18, 1994. The FEC neither sought nor obtained the authorization of the Solicitor General before filing its petition. By order dated March 21, 1994, 510 U. S. 1190, we invited the United States to file a brief addressing the question “[wjhether the [FEC] has statutory authority to represent itself in this case in this Court.” The United States filed a brief on May 27, 1994, contending that the FEC lacks such statutory authority. The United States stated, however, that pursuant to 28 U. S. C. § 518(a) and its implementing regulation, the Solicitor General had authorized the FEC’s petition by letter dated May 26,1994. See Brief for United States as Amicus Curiae 13. The FEC filed a brief in response on May 31, 1994, asserting that it has independent statutory authority to represent itself before this Court in this case.
A petition for certiorari in a civil case must be filed within 90 days of the entry of the judgment below. 28 U. S. C. § 2101(c). This “90-day limit is mandatory and jurisdictional.” Missouri v. Jenkins, 495 U. S. 33, 45 (1990). Here, the Court of Appeals entered judgment on October 22, 1993, and the FEC filed its petition for certiorari on January 18, 1994, two days before the 90-day time period expired. The FEC’s petition would appear to be timely. However, if the FEC lacks statutory authority to represent itself in this case before this Court, it cannot independently file a petition for certiorari, but must receive the Solicitor General’s authorization. See 28 CFR § 0.20(a) (1994). The question then becomes whether the Solicitor General’s May 26, 1994, letter authorizing the FEC’s petition relates back to the date of the FEC’s unauthorized filing so as to make it timely. We first examine the scope of the FEC’s independent litigating authority.
The FEC is an independent agency established by Congress to “administer, seek to obtain compliance with, and formulate policy” with respect to the Federal Election Campaign Act of 1971 (FECA) and chapters 95 and 96 of Title 26. 86 Stat. 3, as amended, 2 U. S. C. § 437c(b)(l). The FECA governs various aspects of all federal elections, see 2 U. S. C. §431 et seq., whereas chapters 95 and 96 specifically govern the administration of funds for Presidential election campaigns and the payment of matching funds for Presidential primary campaigns, see 26 U. S. C. § 9001 et seq. (Presidential Election Campaign Fund Act), 26 U. S. C. § 9031 et seq. (Presidential Primary Matching Payment Account Act). The FEC has “exclusive jurisdiction with respect to the civil enforcement of such provisions.” 2 U. S. C. §437c(b)(l); see Federal Election Comm’n v. National Conservative Political Action Comm., 470 U. S. 480, 485, 489 (1985).
Two separate statutory provisions provide the FEC with independent litigating authority. The first provision, 2 U. S. C. § 437d(a)(6), applies to actions under both the FECA and chapters 95 and 96 of Title 26. It gives the FEC power “to initiate . . . , defend ... or appeal any civil action ... to enforce the provisions of [the FECA] and chapter 95 and chapter 96 of title 26, through its general counsel.” The second provision, which is contained in 26 U. S. C. §§ 9010(d) and 9040(d), applies only to actions under chapters 95 and 96 of Title 26. It authorizes the FEC “on behalf of the United States to appeal from, and to petition the Supreme Court for certiorari to review, judgments or decrees entered with respect to actions in which it appears pursuant to the authority provided in this section.”
The FEC brought this civil enforcement action seeking to establish a violation of 2 U. S. C. § 441b(a), a provision of the FECA. As noted above, 2 U. S. C. § 437d(a)(6) authorizes the FEC to “initiate” and “appeal” an FECA enforcement action such as the present one. Thus, no dispute exists as to the FEC’s authority to litigate this case in the District Court or the Court of Appeals; the question here concerns only the FEC’s independent litigating authority before this Court when it proceeds under § 437d(a)(6).
Title 28 U. S. C. § 518(a) provides in pertinent part:
“Except when the Attorney General in a particular case directs otherwise, the Attorney General and the Solicitor General shall conduct and argue suits and appeals in the Supreme Court... in which the United States is interested.”
By regulation, the Attorney General has delegated authority to the Solicitor General:
“The following-described matters are assigned to, and shall be conducted, handled, or supervised by, the Solicitor General, in consultation with each agency or official concerned:
“(a) Conducting, or assigning and supervising, all Supreme Court cases, including appeals, petitions for and in opposition to certiorari, briefs and arguments, and ... settlement thereof.” 28 CFR §0.20 (1994).
Thus, if a case is one “in which the United States is interested,” § 518(a), “it must be conducted and argued in this Court by the Solicitor General or his designee.” United States v. Providence Journal Co., 485 U. S. 693, 700 (1988); cf. United States v. Winston, 170 U. S. 522, 524-525 (1898); Confiscation Cases, 7 Wall. 454, 458 (1869).
It is undisputed that this is a case “in which the United States is interested.” 28 U. S. C. § 518(a). We have recognized, however, that Congress may “exempt litigation from the otherwise blanket coverage of [§ 518(a)].” Providence Journal, 485 U. S., at 705, n. 9. According to the FEC, one such exemption is found in 2 U. S. C. § 437d(a)(6). Bearing in mind the Solicitor General’s traditional role in conducting and controlling all Supreme Court litigation on behalf of the United States and its agencies — a role that is critical to the proper management of Government litigation brought before this Court, see id., at 702, n. 7, 706; id., at 709, 713-714 (Stevens, J., dissenting) — we “must... scrutinizfe] and subject] [§ 437d(a)(6)] to the ordinary tools of statutory construction to determine whether Congress intended to supersede § 518(a).” Id., at 705, n. 9.
Title 2 U. S. C. § 437d(a)(6) gives the FEC power “to initiate ... , defend ... or appeal any civil action ... to enforce the provisions of [the FECA] and chapter 95 and chapter 96 of title 26.” The statute clearly authorizes the FEC to “appeal,” but it omits any mention of authority to file a “petition for a writ of certiorari” or otherwise conduct litigation before the Supreme Court. The FEC argues that the term “appeal” is not defined in the FECA, and that in the absence of such a definition in the statute the term is construed “in accordance with its ordinary or natural meaning.” FDIC v. Meyer, 510 U. S. 471, 476 (1994). It then refers to the definition of “appeal” found in Black’s Law Dictionary 96 (6th ed. 1990), which includes, inter alia, the following:
“There are two stages of appeal in the federal and many state court systems; to wit, appeal from trial court to intermediate appellate court and then to Supreme Court.”
This argument might carry considerable weight if it were not for the cognate provision authorizing the FEC to enforce chapters 95 and 96 of Title 26. There, Congress has explicitly provided that “[t]he [FEC] is authorized on behalf of the United States to appeal from, and to petition the Supreme Court for certiorari to review,” judgments or decrees. 26 U. S. C. §§ 9010(d), 9040(d) (emphasis added). It is difficult, if not impossible, to place these sections alongside one another without concluding that Congress intended to restrict the FEC’s independent litigating authority in this Court to actions enforcing the provisions of the Presidential election funds under chapters 95 and 96 of Title 26. Such a differentiation by Congress would be quite understandable, since Presidential influence through the Solicitor General might be thought more likely in cases involving Presidential election fund controversies than in other litigation in which the FEC is involved.
The FEC argues that 26 U. S. C. §§ 9010(d) and 9040(d) shed no light on the issue whether 2 U. S. C. § 437d(a)(6) gives it independent litigating authority before this Court because the provisions are found in different statutes, were drafted by different Congresses in different years, and were originally written to apply to different agencies of the Government. Brief for Petitioner in Response to Solicitor General 21. The FEC is only partially correct. Section 9010(d) was first enacted in 1971, and at that time it applied to the Comptroller General. See Presidential Election Campaign Fund Act, Pub. L. 92-178, 85 Stat. 497, 569-570. The Federal Election Campaign Act Amendments of 1974 established the FEC, see Pub. L. 93-443,88 Stat. 1263,1280, and enacted §437d(a)(6). See id., at 1282-1283. The 1974 statute transferred to the FEC the functions previously performed by the Comptroller General under 26 U. S. C. § 9010, see id., at 1293, but it also added § 9040 to Title 26. See id., at 1302. Thus, § 9040(d) was originally enacted in 1974 as part of the same legislation that created §437d(a)(6). Each of the two sections, with its contrasting language as to litigating authority, was before the Conference Committee whose report was ultimately adopted by both Houses. H. R. Conf. Rep. No. 93-1438, pp. 967, 989 (1974). Section 9040(d) may have been modeled on § 9010(d), but because both §§ 9040(d) and 437d(a)(6) were designed to deal with the FEC’s authority to represent itself in civil enforcement actions, we find the contrasting language to be particularly telling. See United States v. American Building Maintenance Industries, 422 U. S. 271, 277 (1975); cf. Keene Corp. v. United States, 508 U. S. 200, 208 (1993) (“Where Congress includes particular language in one section of a statute but omits it in another . . . , it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion”) (internal quotation marks and citation omitted).
We recognize sound policy reasons may exist for providing the FEC with independent litigating authority in this Court for actions enforcing the FECA. Congress’ decision to create the FEC as an independent agency and to charge it with the civil enforcement of the FECA was undoubtedly influenced by Congress’ belief that the Justice Department, headed by a Presidential appointee, might choose to ignore infractions committed by members of the President’s own political party. See, e. g., Federal Election Reform, 1973: Hearings before the Subcommittee on Priveleges [sic] and Elections and the Senate Committee on Rules and Administration, 93d Cong., 1st Sess., 17, 177, 186 (1973); Federal Election Campaign Act of 1973: Hearings before the Subcommittee on Communications of the Senate Committee on Commerce, 93d Cong., 1st Sess., 70-71 (1973). The fact that Congress had these policies in mind when giving the FEC independent enforcement powers, however, does not demonstrate that it intended to alter the Solicitor General’s statutory prerogative to conduct and argue the Federal Government’s litigation in the Supreme Court. See 28 U. S. C. § 518(a).
That statutory authority, too, represents a policy choice by Congress to vest the conduct of litigation before this Court in the Attorney General, an authority which has by rule and tradition been delegated to the Solicitor General. See 28 CFR § 0.20(a) (1994). This Court, of course, is well served by such a practice, because the traditional specialization of that office has led it to be keenly attuned to this Court’s practice with respect to the granting or denying of petitions for certiorari. But the practice also serves the Government well; an individual Government agency necessarily has a more parochial view of the interest of the Government in litigation than does the Solicitor General’s office, with its broader view of litigation in which the Government is involved throughout the state and federal court systems. Whether review of a decision adverse to the Government in a court of appeals should be sought depends on a number of factors which do not lend themselves to easy categorization. The Government as a whole is apt to fare better if these decisions are concentrated in a single official. See Providence Journal, 485 U. S., at 706.
Congress could obviously choose, if it sought to do so, to sacrifice the policy favoring concentration of litigating authority before this Court in the Solicitor General in favor of allowing the FEC to petition here on its own. See 26 U. S. C. §§ 9010(d), 9040(d). But we do not think that §437d(a)(6) bespeaks such a choice. Nor are we impressed by the FEC’s argument that it has represented itself before this Court on several occasions in the past without any question having been raised regarding its authority to do so under § 437d(a)(6). See, e. g., Federal Election Comm’n v. Massachusetts Citizens for Life, Inc., 479 U. S. 238 (1986) (finding 2 U. S. C. § 441b unconstitutional as applied); Federal Election Comm’n v. National Right to Work Comm., 459 U. S. 197 (1982) (involving interpretation of 2 U. S. C. §441b(b)(4)(C)); Bread Political Action Comm. v. Federal Election Comm’n, 455 U. S. 577 (1982) (involving application of 2 U. S. C. § 437h(a)); Federal Election Comm’n v. Democratic Senatorial Campaign Comm., 454 U. S. 27 (1981) (involving application of 2 U. S. C. §441a(d)(3)); California Medical Assn. v. Federal Election Comm’n, 453 U. S. 182 (1981) (upholding constitutionality of certain campaign expenditure limitations imposed by 2 U. S. C. §431 et seq.). The jurisdiction of this Court was challenged in none of these actions, and therefore the question is an open one before us. See, e. g., Will v. Michigan Dept. of State Police, 491 U. S. 58, 63, n. 4 (1989) (“[T]his Court has never considered itself bound [by prior sub silentio holdings] when a subsequent case finally brings the jurisdictional issue before us”) (citation and internal quotation marks omitted); United States v. L. A. Tucker Truck Lines, Inc., 344 U. S. 33, 38 (1952) (same). And we do not think that the provisions discussed above, authorizing the FEC to litigate in the federal courts, are the sort of provisions that can be said to be within the province of the agency to interpret. Federal Election Comm’n v. Democratic Senatorial Campaign Comm., supra, at 37, relied upon by the FEC, dealt with the FEC’s interpretation of a substantive provision of the FECA, not with the provisions authorizing independent litigation.
Because the FEC lacks statutory authority to litigate this case in this Court, it necessarily follows that the FEC cannot independently file a petition for certiorari, but must receive the Solicitor General’s authorization. See 28 CFR § 0.20(a) (1994). By letter dated May 26, 1994, the Solicitor General authorized the petition filed by the FEC. The Solicitor General’s authorization, however, did not come until more than 120 days after the deadline for filing a petition had passed. See 28 U. S. C. § 2101(c). We must determine whether this “after-the-fact” authorization relates back to the date of the FEC’s unauthorized filing so as to make it timely. We conclude that it does not.
The question is at least presumptively governed by principles of agency law, and in particular the doctrine of ratification. “If an act to be effective in creating a right against another or to deprive him of a right must be performed before a specific time, an affirmance is not effective against the other unless made before such time.” Restatement (Second) of Agency §90 (1958); see also id., Comment a (“The bringing of an action, or of an appeal, by a purported agent can not be ratified after the cause of action or right to appeal has been terminated by lapse of time”). Though in a different context, we have recognized the rationale behind this rule: “The intervening rights of third persons cannot be defeated by the ratification. In other words, it is essential that the party ratifying should be able not merely to do the act ratified at the time the act was done, but also at the time the ratification was made.” Cook v. Tullis, 18 Wall. 332, 338 (1874) (emphasis added). Here, the Solicitor General attempted to ratify the FEC’s filing on May 26, 1994, but he could not himself have filed a petition for certiorari on that date because the 90-day time period for filing a petition had expired on January 20,1994. His authorization simply came too late in the day to be effective. See, e. g., Nasewaupee v. Sturgeon Bay, 77 Wis. 2d 110, 116-119, 251 N. W. 2d 845, 848-849 (1977) (refusing to uphold town board’s ratification of private attorney’s unauthorized commencement of lawsuit where ratification came after the statute of limitations had run); Wagner v. Globe, 150 Ariz. 82, 87, 722 P. 2d 250, 255 (1986) (holding invalid city council’s attempt to ratify police chief’s dismissal of police officer after police officer commenced a wrongful discharge action). But see Trenton v. Fowler-Thorne Co., 57 N. J. Super. 196, 154 A. 2d 369 (1959) (upholding city’s ratification of unauthorized lawsuit filed on its behalf even though ratification occurred after limitations period had expired).
The application of these principles of agency law here produces a result entirely consistent with, and perhaps required by, 28 U. S. C. § 2101(c), the statute governing the time for filing petitions for certiorari. “We have no authority to extend the period for filing except as Congress permits.” Jenkins, 495 U. S., at 45. If the Solicitor General were allowed to retroactively authorize otherwise unauthorized agency petitions after the deadline had expired, he would have the unilateral power to extend the 90-day statutory period for filing certiorari petitions by days, weeks, or, as in this case, even months. Such a practice would result in the blurring of the jurisdictional deadline. But “[t]he time of appealability, having jurisdictional consequences, should above all be clear.” Budinich v. Becton Dickinson & Co., 486 U. S. 196, 202 (1988).
We hold that the FEC may not independently file a petition for certiorari in this Court under 2 U. S. C. § 437d(a)(6), and that the Solicitor General’s “after-the-fact” authorization does not relate back to the date of the FEC’s unauthorized filing so as to make it timely. We therefore dismiss the petition for certiorari for want of jurisdiction.
It is so ordered.
Justice Ginsburg took no part in the consideration or decision of this case.
Under 28 U. S. C. §§ 516 and 519, the conduct of litigation on behalf of the United States and its agencies is subject to control of the Attorney General “[ejxcept as otherwise authorized by law.” The FEC’s “initiation” and “appeal” of this action fall within this “otherwise authorized by law” exception.
The dissent says it is incongruous “to assume that Congress wanted the FEC to have independent authority to invoke our mandatory [appellate] jurisdiction when proceeding under § 437h, but not to have the authority to invoke our discretionary jurisdiction when proceeding under other sections of the same statute.” Post, at 100, n. 1. But Congress could have thought the Solicitor General would better represent the FEC’s interests in cases involving our discretionary jurisdiction “because the traditional specialization of that office has led it to be keenly attuned to this Court’s practice with respect to the granting or denying of petitions for certiorari.” Infra, at 96.
Question: Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case. Did the petitioning win the case?
A. Yes
B. No
Answer:
|
songer_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.
J. M. ROUNTREE, Director of Internal Revenue for the District of Tennessee, Appellant, v. Herbert HERFF and Minna G. Herff, Appellees.
No. 12895.
United States Court of Appeals Sixth Circuit.
June 15, 1956.
Charles K. Rice, Washington, D. C., Fred Elledge, Jr., Nashville, Tenn., for appellant.
Ed. M. Lowrance, Lowrance & Stivers, Memphis, Tenn., for appellees.
PER CURIAM.
Upon stipulation of counsel for the parties, it is ordered that the appeal in this cause be and it hereby is dismissed, without prejudice to any right of the ap-pellees to take an appeal in this action. D.C., 140 F.Supp. 201.
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_circuit
|
I
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case.
FLEMING v. MYERS.
No. 11405.
Circuit Court of Appeals, Ninth Circuit.
Feb. 4, 1947.
George Moncharsh, Deputy Adm. of Enforcement, David London, Director, Litigation Division, Albert M. Dreyer, Chief, Appellate Branch, Nathan Siegel, Sp. Appellate Attorney, and Abraham H. Mailer. Special Appellate Attorney, OPA, Office of Temporary Controls, all of Washington, D. C., William B. Wetherall, Regional Litigation Attorney, OPA, Office of Temporary Controls, of San Francisco, Cal., for appellant.
Knapp, Boyle, Bilby & Thompson, B. G. Thompson and Arthur Henderson, all of Tucson, Ariz., for appellee.
Before GARRECHT, DENMAN, and ORR, Circuit Judges.
ORR, Circuit Judge.
Appellant, the Administrator, in a complaint for treble damages, charged appellee, a wholesaler of malt beverages, with violations of Maximum Price Regulation No. 259 by reason o-f sales, during the period December 1, 1943 to August 26, 1944, at prices in excess of those permitted by said Regulation.
The parties, by a “Stipulation for Judgment”, submitted the case to the trial court without further evidence.
By the stipulation the parties agreed that March 1942 should be considered the “base period” and that during March 1942 appel-lee did not pay the cost of return freight on empty beer bottles and cases to his supplier and, further, that during that month appellee did not pay any brokerage commissions in connection with the purchase of any malt beverage handled by him during that month.
It was also provided in paragraph 6 of the stipulation that the proper method of computing maximum prices on brands of beer sold by appellee later than, but not during, March 1942 “shall be as provided by Section 3(a) (§ 1499.3(a)) of the General Maximum Price Regulation.” The Administrator in his brief concedes that appellee’s “sales without dispute fall within” this section, that is, that the sales involved here were of commodities sold by appellee for the first time subsequent to the base period.
Section 1499.3 so stipulated to be controlling, reads, in part, as follows:
“(a) Sales at wholesale or retail. In the case of a sale at wholesale or retail, the seller (1) shall select * * * the comparable commodity * * *; (2) shall divide his maximum price for that commodity by his replacement cost of that commodity; and (3) shall multiply the percentage so obtained by the cost to him of the commodity being priced under this paragraph. * * *
“(n) ‘Replacement cost’ shall be the net price paid by the seller after May 18, 1942, or the net price which the seller would have to pay to replace such commodity after such date”. (Emphasis supplied.)
The determination of the question of whether, under that regulation, appellee was entitled to include return freight and brokerage fees actually paid by him as part of his costs where it was not disputed that appellee had not paid such charges during the base period on his “comparable commodity”, was the legal question submitted to the trial court.
Apart from those two controverted charges some overcharges were admitted by appellee and it was stipulated that if the trial court construed the controlling regulation so as to permit appellee to include the disputed charg.e of return freight judgment should be reduced in the sum of $4,223.30, and “that in the event the trial court should find both return freight and commissions, brokerage charges, and finder’s fees paid by said defendant in connection with the purchase of the * * * commodities constitute proper elements of net unit cost,” judgment should be entered for the Administrator in the sum of $18,-329.20. In the event the trial court sustained the Administrator’s interpretation, judgment should be entered for him in the sum of $27,426.14.
The trial court entered judgment for the Administrator in the sum of $18,329.20, which compels the conclusion that said court construed the regulation as permitting appellee to include as an item of his costs all disputed items.
The Administrator contends, despite the plain definition of “replacement cost” in § 1499.3 as the “net price paid by the seller after May 18, 1942, or the net price which the seller would have to pay to replace such commodity after such date”, that Maximum Price Regulation No. 259 permits a seller to pay his supplier only the charges imposed by the supplier during the base period (March 1942).
His argument is that the term “net price” in the definition of “replacement cost” in § 1499.3 means “legal net price”; that is, that although said regulation provides that “the net price which the seller would have to pay to replace such commodity after such date [i.e. May 18, 1942]” it should be construed to mean that the seller could pay such charges only as were lawfully imposed on him, under Maximum Price Regulation No. 259, by his supplier.
Under the stipulation § 1499.3 is the controlling regulation. That section uses the words “cost to him [seller]” without qualification, and defines “replacement cost” as including net cost after May 18, 1942. The interpretation placed upon the section by appellee, namely, that he was permitted to include the two disputed charges since they were part of the cost of the beer to him, and part of the net price paid by him after May 18, 1942, is reasonable. It seems the normal interpretation to be placed on such language; in fact it is the interpretation which the Administrator’s Regional Office adopted and so notified appellee. Later, a contrary ruling was received from Washington.
If there is ambiguity or conflict between the stipulated regulation § 1499.3, and other regulations, § 1499.3 must control under the stipulation submitted to the trial court. Said regulation permits appellee to include return freight charges which he paid his supplier, and other elements of the net price which he would have to pay after May 18, 1942 “to replace such commodity”. There is nothing in said section which forbids the payment of brokerage fees, if those are part of the net cost of the beer to appellee. It was not until December 18, 1944, long after the last sale involved here, that the addition of § 5.3 to Regulation 259 specifically forbade the addition of brokerage fees to the seller’s maximum price. We are unable to agree with the argument that the practice of paying such fees to secure beer was forbidden by implication prior to the adoption of the specific regulation on the subject.
It was contended by the Administrator, at the oral argument, that by the stipulation appellee has accepted the burden of proving that he did not violate the regulations and that because, as it is said, there is no evidence “in the record showing that appellee actually paid the two disputed charges, or that his supplier lawfully imposed such charges, judgment must be entered for the Administrator in the larger sum.
The stipulation clearly, provides in paragraph 11 that: “In the event the court should find that return freight is a proper and legitimate element of net unit cost for the purpose of computing maximum prices of the commodities * * * the actual amount of the overcharges are to be reduced by the sum of $4,223.30; that in the event the court should find that both return freight and commissions, brokerage charges, and finder’s fees paid by said defendant [appellee] in connection with the purchase of the aforesaid commodities constitute proper elements of net unit cost, the said actual overcharges on accom%t thereof shall be reduced by the total sum of $9,086.14 * *
Under the stipulation the facts are agreed upon and no further proof is necessary. The reasonable interpretation to be placed upon the provision of the stipulation that, in the event the court found the return freight charge to be legal that the judgment be reduced $4,223.30, is that the amount of such freight charges was $4,-223.30. It is not reasonable to assume that the Administrator would agree to the reduction of his judgment in said amount, in any event, unless he conceded the amount to have been paid. The same may be said relative to the agreed reduction of $9,086.-14 in the event of a ruling adverse to the Administrator on other legal questions.
The facts have been agreed upon. The burden of proof has not been shifted but 'has been lifted. Perhaps we can make our meaning more clear by the statement that had proof been adduced, independent of the stipulation, that not one of the charges had been paid, the Administrator, having had the legal questions decided adversely to his contentions, would be compelled to accept the stipulated reductions in the judgment.
Judgment affirmed.
7 F.R. 8950.
7 F.R. 3153-4, 3156.
Question: What is the circuit of the court that decided the case?
A. First Circuit
B. Second Circuit
C. Third Circuit
D. Fourth Circuit
E. Fifth Circuit
F. Sixth Circuit
G. Seventh Circuit
H. Eighth Circuit
I. Ninth Circuit
J. Tenth Circuit
K. Eleventh Circuit
L. District of Columbia Circuit
Answer:
|
sc_lcdisposition
|
B
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the treatment the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed, that is, whether the court below the Supreme Court (typically a federal court of appeals or a state supreme court) affirmed, reversed, remanded, denied or dismissed the decision of the court it reviewed (typically a trial court). Adhere to the language used in the "holding" in the summary of the case on the title page or prior to Part I of the Court's opinion. Exceptions to the literal language are the following: where the Court overrules the lower court, treat this a petition or motion granted; where the court whose decision the Supreme Court is reviewing refuses to enforce or enjoins the decision of the court, tribunal, or agency which it reviewed, treat this as reversed; where the court whose decision the Supreme Court is reviewing enforces the decision of the court, tribunal, or agency which it reviewed, treat this as affirmed; where the court whose decision the Supreme Court is reviewing sets aside the decision of the court, tribunal, or agency which it reviewed, treat this as vacated; if the decision is set aside and remanded, treat it as vacated and remanded.
DENNIS et al. v. UNITED STATES.
No. 336.
Argued December 4, 1950.
Decided June 4, 1951.
George W. Crockett, Jr., Abraham J. Isserman and Harry Sacher argued the cause for petitioners. With them on the brief was Richard Gladstein.
Solicitor General Perlman and Irving S. Shapiro argued the cause for the United States. With them on the brief were Attorney General McGrath, Assistant Attorney General Mclnerney, Irving H. Saypol, Robert W. Ginnane, Frank H. Gordon, Edward C. Wallace and Lawrence K. Bailey.
Mr. Chief Justice Vinson
announced the judgment of the Court and an opinion in which Mr. Justice Reed, Mr. Justice Burton and Mr. Justice Minton join.
Petitioners were indicted in July, 1948, for violation of the conspiracy provisions of the Smith Act, 54 Stat. 671, 18 U. S. C. (1946 ed.) § 11, during the period of April, 1945, to July, 1948. The pretrial motion to quash the indictment on the grounds, inter alia, that the statute was unconstitutional was denied, United States v. Foster, 80 F. Supp. 479, and the case was set for trial on January 17, 1949. A verdict of guilty as to all the petitioners was returned by the jury on October 14, 1949. The Court of Appeals affirmed the convictions. 183 F. 2d 201. We granted certiorari, 340 U. S. 863, limited to the following two questions: (1) Whether either § 2 or § 3 of the Smith Act, inherently or as construed and applied in the instant case, violates the First'Amendment and other provisions of the Bill of Rights; (2) whether either § 2 or § 3 of the Act, inherently or as construed and applied in the instant case, violates the First and Fifth Amendments because of indefiniteness.
Sections 2 and 3 of the Smith Act, 54 Stat. 671, 18 U. S. C. (1946 ed.) §§ 10, 11 (see present 18 U. S. C. § 2385), provide as follows:
“Sec. 2. (a) It shall be unlawful for any person— “(1) to knowingly or willfully advocate, abet, advise, or teach the duty, necessity, desirability, or propriety of overthrowing or destroying any government in the United States by force or violence, or by the assassination of-any officer of any such government;
“(2) with intent to cause the overthrow or destruction of any government in the United States, to print, publish, edit, issue, circulate,.sell, distribute, or publicly display any written or printed matter advocating, advising, or teaching the duty, necessity, desirability, or propriety of overthrowing or destroying any government in the United States by force or violence;
“(3) to organize or help to .organize any society, group, or assembly of persons who teach, advocate, or encourage the overthrow or destruction of any government in the United States by force or violence; or to be or become a member of, or affiliate with, any such society, group, or assembly of persons, knowing the purposes thereof.
“(b) For the purposes of this section, the term ‘government in the United States’ means the Government of the United States, the government of any State, Territory, or possession of the United States, the government of the District of Columbia, or the government of any political subdivision of any of them.
“Sec. 3. It shall be unlawful for any person to attempt to commit, or to conspire to commit, any of the acts prohibited by the provisions of this title.”
The indictment charged the petitioners with wilfully and knowingly conspiring (1) to organize as the Communist Party of the United States of America a society, group and assembly of persons who teach and advocate the overthrow and destruction of the Government of the United States by force and violence, and (2) knowingly and wilfully to advocate and teach the duty and necessity of overthrowing and destroying the Government of the United States by force and violence. The indictment further alleged that § 2 of the Smith Act proscribes these acts and that any conspiracy to take such action is a violation of § 3 of the Act.
The trial of the case extended over nine months, six of which were devoted to the taking of evidence, resulting in a record of 16,000 pages. Our limited grant of the writ of certiorari has removed from our consideration any question as to the sufficiency of the evidence to support the jury’s determination that petitioners are guilty of the offense charged. Whether on this record petitioners did in fact advocate the overthrow of the Government by force and violence is not before us, and we must base any discussion of this point upon the conclusions stated in the opinion of the Court of Appeals, which treated the issue in great detail. That court held that the record in this case amply supports the necessary finding of the jury that petitioners, the leaders of the Communist Party in this country, were unwilling to work within our framework of democracy, but intended to initiate a violent revolution whenever the propitious occasion appeared. Petitioners dispute the meaning to be drawn from the evidence, contending that the Marxist-Leninist doctrine they advocated taught that force and violence to achieve a Communist form of government in an existing democratic state would be necessary only because the ruling classes of that state would never permit the transformation to be accomplished peacefully, but would use force and violence to defeat any peaceful political and economic gain the Communists could achieve. But the Court of Appeals held that the record supports the following broad conclusions: By virtue of their control over the political apparatus of the Communist Political Association, petitioners were able to transform that organization into the Communist Party; that the policies of the Association were changed from peaceful cooperation with the United States and its economic and political structure to a policy which had existed before the United States and the Soviet Union were fighting a common enemy, namely, a policy which worked for the overthrow of the Government by force and violence; that the Communist Party is a highly disciplined organization, adept at infiltration into strategic positions, use of aliases, and double-meaning language; that the Party is rigidly controlled; that Communists, unlike other political parties, tolerate no dissension from the policy laid down by the guiding forces, but that the approved program is slavishly followed by the members of the Party; that the literature of the Party and the statements and activities of its leaders, petitioners here, advocate, and the general goal of the Party was, during the period in question, to achieve a successful overthrow of the existing order by force and violence.
I.
It will be helpful in clarifying the issues to treat next the contention that the trial judge improperly interpreted the statute by charging that the statute required an unlawful intent before the jury could convict. More specifically, he charged that the jury could not find the petitioners guilty under the indictment unless they found that petitioners had the intent to “overthrow . . . the Government of the United States by force and violence as speedily as circumstances would permit.”
Section 2 (a) (1) makes it unlawful “to knowingly or willfully advocate-, ... or teach the duty, necessity, desirability, or propriety of overthrowing or destroying any government in the United States by force or violence ....”; Section 2 (a) (3), “to organize or help to organize any society, group, or assembly of persons who teach, advocate, or encourage the overthrow . . . .” Because of the fact that § 2 (a) (2) expressly requires a specific intent to overthrow the Government, and because of the absence of precise language in the foregoing subsections, it is claimed that Congress deliberately omitted any such requirement. We do not agree. It would require a far greater indication of congressional desire that intent not be made an element of the crime than the use of the disjunctive “knowingly or willfully” in § 2 (a) (1), or the omission of exact language in § 2 (a) (3). The structure and purpose of the statute demand the inclusion of intent as an element of the crime. Congress was concerned with those who advocate and organize for the overthrow of the Government. Certainly those who recruit and combine for the purpose of advocating overthrow intend to bring about that overthrow. We hold that the statute requires as an essential element of the crime proof of the intent of those who are charged with its violation to overthrow the Government by force and violence. See Williams v. United States, 341 U. S. 97, 101-102 (1951); Screws v. United States, 325 U. S. 91, 101-105 (1945); Cramer v. United States, 325 U. S. 1, 31 (1945).
Nor does the fact that there must be an investigation of a state of mind under this interpretation afford any basis for rejection of that meaning. A survey of Title 18 of the U. S. Code indicates that the vast majority of the crimes designated by that Title require, by express language, proof of the existence of a certain mental state, in words such as “knowingly,” “maliciously,” “wilfully,” “with' the purpose of,” “with intent to,” or combinations or permutations of these and synonymous terms. The existence of a mens rea is the rule of, rather than the exception to, the principles of Anglo-American criminal jurisprudence. See American Communications Assn. v. Douds, 339 U. S. 382, 411 (1950).
It has been suggested that the presence of intent makes a difference in the law when an “act otherwise excusable or carrying minor penalties” is'accompanied by such an evil intent. Yet the existence of such an intent made the killing condemned in Screws, supra, and the beating in Williams, supra, both clearly and severely punishable under state law, offenses constitutionally punishable by the Federal Government. In those cases, the Court required the Government to prove that the defendants intended to deprive the victim of a constitutional right. If that precise mental state may be an essential element of a crime, surely an intent to overthrow the Government of the United States, by advocacy thereof is equally susceptible of proof.
II.
The obvious purpose of the statute is to protect existing Government, not from change by peaceable, lawful and constitutional means, but from change by violence, revolution and terrorism. That it is within the power of the Congress to protect the Government of the United States from armed rebellion is a proposition which requires little discussion. Whatever theoretical merit there may be to the argument that there is a “right” to rebellion against dictatorial governments is without force where the existing structure of the government provides for peaceful and orderly change. We reject any principle of governmental helplessness in the face of preparation for revolution, which principle, carried to its logical conclusion, must lead to anarchy. No one could conceive that it is not within the power of Congress to prohibit acts intended to overthrow the Government by force and violence. The question with which we are concerned here is not whether Congress has such power, but whether the means which it has employed conflict with the First and Fifth Amendments to' the Constitution.
One of the bases for the contention that the means which Congress has employed are invalid takes the form of an attack on the face of the statute on the grounds that by its terms it prohibits academic discussion of the merits of Marxism-Leninism, that it stifles ideas and is contrary to all concepts of a free speech and a free press. Although we do not agree that the language itself has that significance, we must bear in mind that it is the duty of the federal courts to interpret federal legislation in a manner not inconsistent with the demands of the Constitution. American Communications Assn. v. Douds, 339 U. S. 382, 407 (1950). We are not here confronted with cases similar to Thornhill v. Alabama, 310 U. S. 88 (1940); Herndon v. Lowry, 301 U. S. 242 (1937); and De Jonge v. Oregon, 299 U. S. 353 (1937), where a state court had given a meaning to a state statute which was inconsistent with the Federal Constitution. This is a federal statute which we must interpret as well as judge. Herein lies the fallacy of reliance upon the manner in which this Court has treated judgments of state courts. Where the statute as construed by the state court transgressed the First Amendment, we could not but invalidate the judgments of conviction.
The very language of the Smith Act negates the interpretation which petitioners would have us impose on that Act. It is directed at advocacy, not discussion. Thus, the trial judge properly charged the jury that they could not convict if they found that petitioners did “no more than pursue peaceful studies and discussions or teaching and advocacy in the realm of ideas.” He further charged that it was not unlawful “to conduct in an American college or university a course explaining the philosophical theories set forth in the books which have been placed in evidence.” Such a charge is in strict accord with the statutory language, and illustrates the meaning to be placed on those words. Congress did not intend to eradicate the free discussion of political theories, to destroy the traditional rights of Americans to discuss and evaluate ideas without fear of governmental sanction. Rather Congress was concerned with the very kind of activity in which the evidence showed .these petitioners engaged.
III.
But although the statute is not directed at the hypothetical cases which petitioners have conjured, its application in this case has resulted in convictions for the teaching and advocacy of the overthrow of the Government by force and violence, which, even though coupled with the intent to accomplish that overthrow, contains an element of speech. For this reason, we must pay special heed to the demands of the First Amendment marking out the boundaries of speech.
We pointed out in Douds, supra, that the basis of the First Amendment is the hypothesis that speech can rebut speech, propaganda will answer propaganda, free debate of ideas will result in the wisest governmental policies. It is for this reason that this Court has recognized the inherent value of free discourse. An analysis of the leading cases in this Court which have involved direct limitations on speech, however, will demonstrate that both the majority of the Court and the dissenters in particular cases have recognized that this is not an unlimited, unqualified right, but that the societal value of speech must, on occasion, be subordinated to other values and considerations.
No important case involving free speech was decided by this Court prior to Schenck v. United States, 249 U. S. 47 (1919). Indeed, the summary treatment accorded an argument based upon an individual’s claim that the First Amendment protected certain utterances indicates that the Court at earlier dates placed no unique emphasis upon that right. It was not until the classic dictum of Justice Holmes in the Schenck case that speech per se received that emphasis in a majority opinion. That case involved a conviction under the Criminal Espionage Act, 40 Stat. 217. The question the Court faced was whether the evidence was sufficient to sustain the conviction. Writing for a unanimous Court, Justice Holmes stated that the “question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.” 249 U. S. at 52. But the force of even this expression is considerably weakened by the reference at the end of the opinion to Goldman v. United States, 245 U. S. 474 (1918), a prosecution under the same statute. Said Justice Holmes, “Indeed [Goldman] might be said to dispose of the present contention if the precedent covers all media concludendi. But as the right to free speech was not referred to specially, we have thought fit to add a few words.” 249 U. S. at 52. The fact is inescapable, too, that the phrase bore no connotation that the danger was to be any threat to the safety of the Republic. The charge was causing and attempting to cause insubordination in the military forces and obstruct recruiting. The objectionable document denounced conscription and its most inciting sentence was, “You must do your share to maintain, support and uphold the rights of the people of this country.” 249 U. S. at 51. Fifteen thousand copies were printed and some circulated. This insubstantial gesture toward insubordination in 1917 during war was held to be a clear and present danger of bringing about the evil of military insubordination.
In several later cases involving convictions under the Criminal Espionage Act; the nub of the evidence the Court held sufficient to meet the “clear and present danger” test enunciated in Schenck was as follows: Frohwerk v. United States, 249 U. S. 204 (1919) — publication of twelve newspaper articles attacking the war; Debs v. United States, 249 U. S. 211 (1919) — one speech attacking United States’ participation in the war; Abrams v. United States, 250 U. S. 616 (1919) — circulation of copies of two different socialist circulars attacking the war; Schaefer v. United States, 251 U. S. 466 (1920) — publication of a German-language newspaper with allegedly false articles, critical of capitalism and the war; Pierce v. United States, 252 U. S. 239 (1920) — circulation of copies of a four-page pamphlet written by a clergyman, attacking the purposes of the war and United States’ participation therein. Justice Holmes wrote the opinions for a unanimous Court in Schenck, Frohwerk and Debs. He and Justice Brandéis dissented in Abrams, Schaefer and Pierce. The basis of these dissents was that, because of the protection which the First Amendment gives to speech, the evidence in each case was insufficient to show that the defendants had created the requisite danger under Schenck. But these dissents did not mark a change of principle. The dissenters doubted only the probable effectiveness of the puny efforts toward subversion. In Abrams, they wrote, “I do not doubt for a moment that by the same reasoning that would justify punishing persuasion to murder, the United States constitutionally may punish speech that produces or is intended to produce a clear and imminent danger that it will bring about forthwith certain substantive evils that the United States constitutionally may seek to prevent.” 250 U. S. at 627. And in Schaefer the test was said to be one of “degree,” 251 U. S. at 482, although it is not clear whether “degree” refers to clear and present danger or evil. Perhaps both were meant.
The rule we deduce from these cases is that where an offense is specified by a statute in nonspeech or nonpress terms, a conviction relying upon speech or press as evidence of violation may be sustained only when the speech or publication created a “clear and present danger” of attempting or accomplishing the prohibited crime, e. g., interference with enlistment. The dissents, we repeat, in emphasizing the value of speech, were addressed to the argument of the sufficiency of the evidence.
The next important case before the Court in which free speech was the crux of the conflict was Gitlow v. New York, 268 U. S. 652 (1925). There New York had made it a crime to advocate “the necessity or propriety of overthrowing . . . organized government by force . . . .” The evidence of violation of the statute was that the defendant had published a Manifesto attacking the Government and capitalism. The convictions were sustained, Justices Holmes and Brandéis dissenting. The majority refused to apply the “clear and present danger” test to the specific utterance. Its reasoning was as follows: The “clear and present danger” test was applied to the utterance itself in Schenck because the question was merely one of sufficiency of evidence under an admittedly constitutional statute. Gitlow, however, presented a different question. There a legislature had found that a certain kind of speech was, itself, harmful and unlawful. The constitutionality of such a state statute had to be adjudged by this Court just as it determined the constitutionality of any state statute, namely, whether the statute was “reasonable.” Since it was entirely reasonable for a state to attempt to protect itself from violent overthrow, the statute was perforce reasonable. The only question remaining in .the case became whether there was evidence to support the conviction, a question which gave the majority no difficulty. Justices Holmes and Brandéis refused to accept this approach, but insisted that wherever speech was the evidence of the violation, it was necessary to show that the speech created the “clear and present danger” of the substantive evil which the legislature had the right to prevent. Justices Holmes and Brandéis, then, made no distinction between a federal statute which made certain acts unlawful, the evidence to support the conviction being speech, and a statute which made speech itself the crime. This approach was emphasized in Whitney v. California, 274 U. S. 357 (1927), where the Court was confronted with a conviction under the California Criminal Syndicalist statute. The Court sustained the conviction, Justices Brandéis and Holmes concurring in the result. In their concurrence they repeated that even though the legislature had designated certain speech as criminal, this could not prevent the defendant from showing that there was no danger that the substantive evil would be brought about.
Although no case subsequent to Whitney and Gitlow has expressly overruled the majority opinions in those cases, there is little doubt that subsequent opinions have inclined toward the Holmes-Brandeis rationale. And in American Communications Assn. v. Douds, supra, we were called upon to decide the validity of § 9 (h) of the Labor Management Relations Act of 1947. That section required officials of unions which desired to avail themselves of the facilities of the National Labor Relations Board to take oaths that they did not belong to the Communist Party and that they did not believe in the overthrow of the Government by force and violence. We pointed out that Congress did not intend to punish belief, but rather intended to regulate the conduct of union affairs. We therefore held that any indirect sanction on speech which might arise from the oath requirement did not present a proper case for the “clear and present danger” test, for the regulation was aimed at conduct rather than speech. In discussing the proper measure of evaluation of this kind of legislation, we suggested that the Holmes-Brandeis philosophy insisted that where there was a direct restriction upon speech, a “clear and present danger” that the substantive evil would be caused was necessary before the statute in question could be constitutionally applied. And we stated, “[The First] Amendment requires that one be permitted to believe what he will. It requires that one be permitted to advocate what he will unless there is a clear and present danger that a substantial public evil will result therefrom.” 339 U. S. at 412. But we further suggested that neither Justice Holmes nor Justice Brandéis ever envisioned that a shorthand phrase should be crystallized into a rigid rule to be applied inflexibly without regard to the circumstances of each case. Speech is not an absolute, above and beyond control by the legislature when its judgment, subject to review here, is that certain kinds of speech are so undesirable as to warrant criminal sanction. Nothing is more certain in modern society than the principle that there are no absolutes, that a name, a phrase, a standard has meaning only when associated with the considerations which gave birth to the nomenclature. See American Communications Assn. v. Douds, 339 U. S. at 397. To those who would paralyze our Government in the face of impending threat by encasing it in a semantic straitjacket we must reply that all concepts are relative.
In this case we are squarely presented with the application of the “clear and present danger” test, and must decide what that phrase imports. We first note that many of the cases in which this Court has reversed convictions by use of this or similar tests have been based on the fact that the interest which the State was attempting to protect was itself too insubstantial to warrant restriction of speech. In this category we may put such cases as Schneider v. State, 308 U. S. 147 (1939); Cantwell v. Connecticut, 310 U. S. 296 (1940); Martin v. Struthers, 319 U. S. 141 (1943); West Virginia Board of Educa tion v. Barnette, 319 U. S. 624 (1943); Thomas v. Collins, 323 U. S. 516 (1945); Marsh v. Alabama, 326 U. S. 501 (1946); but cf. Prince v. Massachusetts, 321 U. S. 158 (1944); Cox v. New Hampshire, 312 U. S. 569 (1941). Overthrow of the Government by force and violence is certainly a substantial enough interest for the Government to limit speech. Indeed, this is the ultimate value of any society, for if a society cannot protect its very structure from armed internal attack, it must follow that no subordinate value can be protected. If, then, this interest may be protected, the literal problem which is presented is what has been meant by the use of the phrase “clear and present danger” of the utterances bringing about the evil within the power of Congress to punish.
Obviously, the words .cannot mean that before the Government may act, ii5 must wait until the putsch is about to be executed, the plans have been laid and the signal is awaited. If Government is aware that a group aiming at its overthrow is attempting to indoctrinate its members and to commit them to a course whereby they will strike when the leaders feel the circumstances permit, action by the Government is required.. The argument that there is no need for Government to concern itself, for Government is strong, it possesses ample powers to put down a rebellion, it may defeat the revolution with ease needs no answer. For that is not the question. Certainly an attempt to overthrow the Government by force, even though doomed from the outset because of inadequate numbers or power of the revolutionists, is a sufficient evil for Congress to prevent. The damage which such attempts create both physically and politically to a nation makes it impossible to measure the validity in terms of the probability of success, or the immediacy of a successful attempt. In the instant case the trial judge charged the jury that they could not convict unless they found that petitioners intended to overthrow the Government “as speedily as circumstances would permit.” This does not mean, and could not properly mean, that they would not strike until there was certainty of success. What was meant was that the revolutionists would strike when they thought the time was ripe. We must therefore reject the contention that success or probability of success is the criterion.
The situation with which Justices Holmes and Brandéis were concerned in Gitlow was a comparatively isolated event, bearing little relation in their minds to any substantial threat to the safety of the community. Such also is true of cases like Fiske v. Kansas, 274 U. S. 380 (1927), and De Jonge v. Oregon, 299 U. S. 353 (1937); but cf. Lazar v. Pennsylvania, 286 U. S. 532 (1932).( They. were not confronted with any situation comparable to the instant one — the development of an apparatus designed and dedicated to the overthrow of the Government, in the context of world crisis after crisis.
Chief Judge Learned Hand, writing for the majority below, interpreted the phrase as follows: “In each case [courts] must ask whether the gravity of the ‘evil,’ discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger.” 183 F. 2d at 212. We adopt this statement of the rule. As articulated by Chief Judge Hand, it is as succinct and inclusive as any other we might devise at this time. It takes into consideration those factors which we deem relevant, and relates their significances. More we cannot expect from words.
Likewise, we are in accord with the court below, which affirmed the trial court’s finding that the requisite danger existed. The mere fact that from the period 1945 to 1948 petitioners’ activities did not result in an attempt to overthrow the Government by force and violence is of course no answer to the fact that there was a group that was ready to make the attempt. The formation by petitioners of such a highly organized conspiracy, with rigidly disciplined members subject to call when the leaders, these petitioners, felt that the time had come for action, coupled with the inflammable nature of world conditions, similar uprisings in other countries, and the touch-and-go nature of our relations with countries with whom petitioners were in the very least ideologically attuned, convince us that their convictions were justified on this score. And this analysis disposes of the contention that a conspiracy to advocate, as distinguished from the advocacy itself, cannot be constitutionally restrained, because it comprises only the preparation. It is the existence of the conspiracy which creates the danger. Cf. Pinkerton v. United States, 328 U. S. 640 (1946); Goldman v. United States, 245 U. S. 474 (1918); United States v. Rabinowich, 238 U. S. 78 (1915). If the ingredients of the reaction are present, we cannot bind the Government to wait until the catalyst is added.
IV.
Although we have concluded that the finding that there was a sufficient danger to warrant the application of the statute was justified on the merits, there remains the problem of whether the trial judge’s treatment of the issue was correct. He charged the jury, in relevant part, as follows:
“In further construction and interpretation of the statute I charge you that it is not the abstract doctrine of overthrowing or destroying organized government by unlawful means which is denounced by this law, but the teaching and advocacy of action for the accomplishment of that purpose, by language reasonably and ordinarily calculated to incite persons to such action. Accordingly, you cannot find the defendants or any of them guilty of the crime charged unless you are satisfied beyond a reasonable doubt that they conspired to organize a society, group and assembly of persons who teach and advocate the overthrow or destruction of the Government of the United States by force and violence and to advocate and teach the duty and necessity of overthrowing or destroying the Government of the United States by force and violence, with the intent that such teaching and advocacy be of a rule or principle of action and by language reasonably and ordinarily calculated to incite persons to such action, all with the intent to cause the overthrow or destruction of the Government of the United States by force and violence as speedily as circumstances would permit.
“If you are satisfied that the evidence establishes beyond a reasonable doubt that the defendants, or any of them, are guilty of a violation of the statute, as I have interpreted it to you, I find as matter of law that there is sufficient danger of a substantive evil that the Congress has a right to prevent to justify the application of the statute under the First Amendment of the Constitution.
“This is matter of law about which you have no concern. It is a finding on a matter of law which I deem essential to support my ruling that the case should be submitted to you to pass upon the guilt or innocence of the defendants. . .
It is thus clear that he reserved the question of the existence of the danger for his own determination, and the question becomes whether the issue is of such a nature that it should have been submitted to the jury.
The first paragraph of the quoted instructions calls for the jury to find the facts essential to establish the substantive crime, violation of §§ 2 (a) (1) and 2 (a) (3) of the Smith Act, involved in the conspiracy charge. There can be no doubt that if the jury found those facts against the petitioners violation of the Act would be established. The argument that the action of the trial court is erroneous, in declaring as a matter of law that such violation shows sufficient danger to justify the punishment despite the First Amendment, rests on the theory that a jury must decide a question of the application of the First Amendment. We do not agree.
When facts are found that establish the violation of a statute, the protection against conviction afforded by the First Amendment is a matter of law. The doctrine that there must be a clear and present danger of a substantive evil that Congress has a right to prevent is a judicial rule to be applied as a matter of law by the courts. The guilt is established by proof of facts. Whether the First Amendment protects the activity which constitutes the violation of the statute must depend upon a judicial determination of the scope of the First Amendment applied to the circumstances of the case.
Petitioners’ reliance upon Justice Brandéis’ language in his concurrence in Whitney, supra, is misplaced. In that case Justice Brandéis pointed out that the defendant could have made the existence of the requisite danger the important issue at her trial, but that she had not done so. In discussing this failure, he stated that the defendant could have had the issue determined by the court or the jury. No realistic construction of this disjunctive language could arrive at the conclusion that he intended to state that the question was only determinable by a jury. Nor is the incidental statement of the majority in Pierce, supra, of any more persuasive effect. There the issue of the probable effect of the publication had been submitted to the jury, and the majority was apparently addressing its remarks to the contention of the dissenters that the jury could not reasonably have returned a verdict of guilty on the evidence. Indeed, in the very case in which the phrase was born, Schenck, this Court itself examined the record to find whether the requisite danger appeared, and the issue was not submitted to a jury. And in every later case in which the Court has measured the validity of a statute by the “clear and present danger” test, that determination has been by the court, the question of the danger not being submitted to the jury.
The question in this case is whether the statute which the legislature has enacted may be constitutionally applied. In other words, the Court must examine judicially the application of the statute to the particular situation, to ascertain if the Constitution prohibits the conviction. We hold that the statute may be applied where there is a “clear and present danger” of the substantive evil which the legislature had the right to prevent. Bearing, as it does, the marks of a “question of law,” the issue is properly one for the judge to decide.
V.
There remains to be discussed the question of vagueness — whether the statute as we have interpreted it is too vague, not sufficiently advising those who would speak of the limitations upon their activity. It is urged that such vagueness contravenes the First and Fifth Amendments. This argument is particularly nonpersuasive when presented by petitioners, who, the jury found, intended to overthrow the Government as speedily as circumstances would permit. See Abrams v. United States, 250 U. S. 616, 627-629 (1919) (dissenting opinion); Whitney v. California, 274 U. S. 357, 373 (1927) (concurring opinion); Taylor v. Mississippi, 319 U. S. 583, 589 (1943). A claim of guilelessness ill becomes those with evil intent. Williams v. United States, 341 U. S. 97, 101-102 (1951); Jordan v. De George, 341 U. S. 223, 230-232 (1951); American Communications Assn. v. Douds, 339 U. S. at 413; Screws v. United States, 325 U. S. 91, 101 (1945).
We agree that the standard as defined is not a neat, mathematical formulary. Like all verbalizations it is subject to criticism on the score of indefinit
Question: What treatment did the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed?
A. stay, petition, or motion granted
B. affirmed
C. reversed
D. reversed and remanded
E. vacated and remanded
F. affirmed and reversed (or vacated) in part
G. affirmed and reversed (or vacated) in part and remanded
H. vacated
I. petition denied or appeal dismissed
J. modify
K. remand
L. unusual disposition
Answer:
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songer_genresp1
|
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.
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. Bennie Ray WINSHIP, a/k/a Nip, and Jerry Bice, Defendants-Appellants.
No. 82-4571.
United States Court of Appeals, Fifth Circuit.
Jan. 30, 1984.
Stipe, Gossett, Stipe, Harper & Estes, Eddie Harper, Gene Stipe, McAlester, Okl., for Winship.
Jerry L. McCombs, Idabel, Okl., for Bice.
Judith A. Lombardino, D.H. Perkins, Jr., Asst. U.S. Atty., Shreveport, La., for plaintiff-appellee.
Before GOLDBERG, GEE and TATE, Circuit Judges.
GOLDBERG, Circuit Judge:
A district court jury in the Western District of Louisiana convicted appellants Bennie Ray Winship and Jerry Bice on four counts of federal controlled substances violations. Counts I and II involve conspiracy, charging respectively conspiracy to possess with intent to distribute marijuana and conspiracy to possess with intent to distribute methamphetamine. Count V charges defendants with aiding and assisting one another in possessing marijuana with intent to distribute; Count V parallels Count IV, but involves methamphetamine.
At trial the government sketched a network of drug distribution taking in areas of Texas, Oklahoma and Louisiana, with final “distribution to consumers” occurring in Alexandria, Louisiana. The sources of the marijuana lay in South Texas and in Oklahoma, while the methamphetamine came from Oklahoma. The government’s case against the appellants emerged primarily from the testimony of six indicted co-conspirators, five of whom claimed that they had personally participated in the distribution of illegal drugs in Alexandria, Louisiana. Testimony from Anthony Brown, Joseph DeSoto, Jack Godeau, and John Hod-nett implicated appellants as the Oklahoma source of the marijuana and methamphetamine. According to that testimony, Win-ship and Bice sold substantial quantities of both drugs out of Winship’s home in Eagle-town, Oklahoma. Although neither appellant ever traveled to any location within the Western District of Louisiana, trial testimony reflected their awareness of their cocon-spirator’s distribution activities in Louisiana.
Upon appellants’ conviction by the jury of all four counts, the trial judge sentenced Winship to two consecutive five year terms, a five year term to run concurrently with the others, and five years probation to begin after expiration of the jail terms. Bice received three five year sentences, all to run concurrently, and five years probation.
I. ISSUES ON APPEAL
Winship and Bice raise numerous points on appeal, the majority of which clearly lack merit. As to these patently meritless claims, we find no reason to belabor the obvious and therefore deny them without discussion. Appellants raise four issues on appeal, however, that do justify a more explicative approach. First, they claim that the trial court’s admission of hearsay evidence, in the absence of substantial independent evidence of a conspiracy in which appellants were members, violated the standard established in United States v. James, 590 F.2d 575 (5th Cir.) (en banc), cert. denied, 442 U.S. 917, 99 S.Ct. 2886, 61 L.Ed.2d 283 (1979). Second, they claim that the evidence at trial showed the existence of two marijuana conspiracies, producing a prejudicial variance from the single marijuana conspiracy charged in the indictment. Third, appellants claim the trial court committed reversible error in failing to give the venue instruction requested by their defense counsel. Finally, they contend that the two conspiracies alleged in the indictment, one involving marijuana and the other methamphetamine, constituted only a single conspiracy. And, therefore, conviction of the two separate counts subjects them to double jeopardy.
II. THE JAMES ISSUE
The record here reveals that early in the government’s case the trial judge admitted substantial coconspirator testimony that would have constituted inadmissible hearsay unless it had met the requirements of Fed.R.Evid. 801(d)(2)(E). This definitional section of the Rules removes a statement from the realm of hearsay if the statement is “offered against a party ... and is a statement by a coconspirator of a party during the course of and in furtherance of the conspiracy." Id. We review the trial court’s admission of the “potential hearsay’ under the oft-quoted standard of United States v. James, supra:
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.
Regardless of whether the proof has been made in the preferred order, or the coconspirator’s statement has been admitted subject to later connection, on appropriate motion at the conclusion of all the evidence the court must determine as a factual matter whether the prosecution has shown by a preponderance of the evidence independent of the statement itself (1) that a conspiracy existed, (2) that the coconspirator and the defendant against whom the eoconspirator’s statement is offered were members of the conspiracy, and (3) that the statement was made during the course and in furtherance of the conspiracy. Rule 801(d)(2)(E). If the court concludes that the prosecution has not borne its burden of proof on these issues, the statement cannot remain in the evidence to be submitted to the jury.
590 F.2d at 582.
During testimony by the government’s first witness, the district judge below acknowledged that the testimony raised a James issue. Although stating a “preference” that the government follow the James order of presenting evidence, the judge specifically declined to limit initial government testimony to independent evidence of the conspiracy. He stated his intention to determine whether James had been complied with after the government rested its case. Record Vol. Ill, p. 83. However, no specific, articulated ruling on James was even made; rather, at the close of the government’s evidence the district court simply overruled appellants’ motions to dismiss and strike.
Appellants advance three arguments with respect to the James issue. First, they contend that the trial court erred in not following James’ preferred order of admitting evidence. Neither James nor subsequent cases interpreting it support appellants’ argument. The trial court has “discretion to determine the application of the James ruling and rationale in the specifics of the trial setting encountered.” United States v. Whitley, 670 F.2d 617, 620 (5th Cir.1983). In particular, the trial court can admit hearsay statements subject to later connection. See United States v. Montemayor, 703 F.2d 109, 117 (5th Cir.), cert. denied, - U.S. -, 104 S.Ct. 89, 78 L.Ed.2d 97 (1983); United States v. Gonzales, 700 F.2d 196, 203 (5th Cir.1983). Appellants offer no compelling argument that the trial judge abused his discretion in determining the order in which evidence would be admitted. The spirit of James can be carried out without baggaging it with rigidities and inflexibilities, so long as the judge and the participants in the trial keep in mind that there must be independent evidence of the crime aside from the hearsay testimony. We find no error in the trial judge’s decision to admit testimony subject to later connection.
Appellants also argue that the district court never made the “later connection” determination. They point to the absence of articulated findings to that effect. However, the fact that the trial judge failed to specifically articulate his James findings does not necessarily mean that he never decided the “later connection” issue. On the contrary, circumstances in this case indicate that the James issue received careful consideration. The record makes it clear that the trial judge was fully aware of the James issue during the trial. Moreover, he specifically stated that he intended to rule on the matter at the close of the government’s case. We find that in the circumstances here, just as in United States v. Whitley, supra, 670 F.2d at 620, the failure to articulate findings and conclusions that James has been met does not constitute reversible error.
Finally, appellants argue the merits of the “later connection” issue, asserting that the government failed to present adequate independent evidence of the conspiracy and the appellants’ role in it. We review these claims under the “clearly erroneous” standard. United States v. Ackal, 706 F.2d 523, 531 (5th Cir.1983); United States v. Nichols, 695 F.2d 86, 91 (5th Cir.1982). Under this standard the record does not support appellants’ argument. Substantial nonhearsay testimony exists both as to the existence of the conspiracy and as to the participation in that conspiracy of appellants and the testifying coconspirators. James demands that we be ever protective that hearsay evidence, unless it has independent support, shall not become convicting words. While acknowledging that James remains an important concept in our law, we can find neither its letter nor its spirit violated in the proceedings below.
III. AN UNCHARGED SOUTH TEXAS CONSPIRACY?
Appellants contend that the trial judge admitted evidence regarding two separate and distinct marijuana conspiracies— one occurring in Louisiana and Oklahoma and one occurring in South Texas and Oklahoma. They further contend that this variance between the indictment and the proof resulted in prejudice, claiming that introduction of evidence on a geographically and conceptually distinct “South Texas conspiracy” surprised them at trial. A reversal in this case, based on variance between indictment and proof, would require two findings: (1) the evidence at the trial actually proved two separate conspiracies and (2) the variance affected “the substantial rights” of the appellants. See Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314 (1935); United States v. Wayman, 510 F.2d 1020, 1025 (5th Cir.), cert. denied, 423 U.S. 846, 96 S.Ct. 84, 46 L.Ed.2d 67 (1975). According to Berger, the “true inquiry” centers around the second issue — the existence of prejudice. 295 U.S. at 82, 55 S.Ct. at 630. In this case, though, the analysis of whether a variance existed bears on the prejudice issue. We, therefore, turn first to our analysis of whether a variance actually existed.
Initially, we note the factors that enter into whether a given criminal venture constitutes more than one conspiracy. The crucial factor in finding a single conspiracy centers on whether the alleged coconspira-tors all took part in a common plan or scheme. United States v. Elam, 678 F.2d 1234, 1246 (5th Cir.1982); United States v. Tilton, 610 F.2d 302 (5th Cir.1980). In addition, where the memberships of two criminal enterprises overlapped, id., United States v. Tilton, supra, 610 F.2d 302, or where members of one endeavor had actual or implied knowledge of the existence of members of a related endeavor, see United States v. Elam, supra, 678 F.2d at 1247, a single conspiracy more likely existed. It is not necessary, however, for all coconspira-tors to know each other or to have worked together on all phases of the criminal enterprise. United States v. Wilson, 657 F.2d 755, 759 (5th Cir.), cert. denied, 455 U.S. 951, 102 S.Ct. 1456, 71 L.Ed.2d 667 (1982); United States v. James, supra, 590 F.2d 575.
Unless the evidence presented at trial establishes separate conspiracies as a matter of law, whether a single conspiracy or multiple conspiracies existed is a question for the jury to determine. United States v. Elam, 678 F.2d 1234, 1245 (5th Cir.1982); United States v. Michel, 588 F.2d 986 (5th Cir.), cert. denied, 444 U.S. 825, 100 S.Ct. 47, 62 L.Ed.2d 32 (1979). In this case the trial judge noted that the government’s evidence on South Texas drug transactions created a question of whether two separate conspiracies were being proved. Record, Vol. III, pp. 85-86. But, he did not resolve the question as a matter of law, calling instead on the jury to decide it. We find no error in this procedure. Evidence surfaced at trial on which a jury could have relied in concluding that a single South Texas-Oklahoma-Louisiana conspiracy existed. Specifically, trial testimony suggested a common ‘purpose among the alleged coconspirators to make money from street distribution of illegal drugs. Record, Vol. V, p. 5. One government witness also testified that he told the appellants of the South Texas drug sources and, in fact, brought one of those sources to Oklahoma. Record, Vol. IV, pp. 129-132. And, testimony from several of the government witnesses indicated that the memberships of the two enterprises significantly overlapped.
In submitting the “single versus multiple conspiracies” question to the jury, the trial judge instructed them to disregard all evidence concerning South Texas unless they found that the Texas suppliers belonged to the same conspiracy as appellants. Record, Vol. IV, pp. 254-56. The court emphasized two factors for the jury to consider in deciding whether the government proved one or two conspiracies.
In order to find that either defendant was a member of the same conspiracy with South Texas suppliers and responsible for 'he acts and declarations of the South Texas suppliers, you must find, first that the Texas suppliers were furthering a common purpose or objective of the conspiracy served by the defendants, and, two, that the defendants had general knowledge of the existence of other suppliers.
Record, Vol. IV, pp. 255-56. Without endorsing these jury instructions as a paragon of perfection, we find that they sufficiently framed the issue for the jury.
However, the jury’s conviction of the appellants, in itself, tells us nothing about wiiut testimony they considered— whether they found one or two conspiracies. Fortunately, as Berger v. United States, supra, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314, illustrates, a definitive answer to whether a variance existed is not always necessary to decide whether reversal on variance grounds is mandated. Holding a variance not prejudicial and thus not fatal, Berger stated that a reviewing court’s primary focus should center “on whether there has been such a variance as to affect the substantial rights of the accused.” Id. at 82, 55 S.Ct. at 630. We turn then to the second question at issue: If the variance existed, did it affect the substantial rights of the accused?
In Kotteakos v. United States, supra, 328 U.S. at 759, 66 S.Ct. at 1245, the Supreme Court reversed the convictions of two defendants convicted under a federal conspiracy statute. There, the government proved eight conspiracies while charging only one. Citing the large number of conspiracies and the fact that the trial had at one juncture involved thirty-two defendants, the Court held that the variance created sufficient potential for prejudice to preclude a finding of harmless error. The circumstances in the case at bar did not create the same potential for prejudice to appellants as existed in Kotteakos. The potential for trans-ferance of guilt in Kotteakos arose from the likelihood that the jury would confuse evidence of so many different conspiracies and defendants. In this case, where the trial involved only two defendants and at most two conspiracies, transferance of guilt was much less likely. Most importantly, the trial judge below instructed the jury to disregard the South Texas evidence if they found the South Texas activities comprised a separate conspiracy. This instruction greatly decreased the potential for prejudice. Just as the court concluded in United States v. Wayman, supra, 510 F.2d at 1025, “our case is more like Berger than Kottea-kos, and we find Berger controlling.” The variance in this case, if any, did not prejudice appellants.
IV. VENUE
Appellants raise more than a “pedantic, justice-defeating technicality” in asserting venue related rights. As this Court has previously noted, see, e.g., United States v. White, 611 F.2d 531, 534 (5th Cir.1980), the right of the accused to be tried in the district in which the crime was committed rests upon both the United States Constitution and federal statutory law. Emphasizing the “unfairness and hardship to which a trial in an environment alien to the accused exposes him”, the Supreme Court has held that venue should not be treated as a mere formality. United States v. Johnson, 323 U.S. 273, 275-276, 65 S.Ct. 249, 250, 89 L.Ed. 236 (1944). Questions of venue in criminal cases, in fact, “raise deep issues of public policy,” bearing on “the fair administration of criminal justice and public confidence in it.” Id. at 276, 65 S.Ct. at 250. Venue is an element of any offense; the prosecution always bears the burden of proving that the trial is in the same district as the crime’s commission. United States v. White, supra, 611 F.2d at 536; United States v. Turner, 586 F.2d 395, 397 (5th Cir.), cert. denied, 440 U.S. 926, 99 5.Ct. 1258, 59 L.Ed.2d 480 (1979). Whether venue has been properly proved is a jury question. See Green v. United States, 309 F.2d 852 (5th Cir.1962).
Although venue is a constitutional right and an element of every crime, and despite the Supreme Court’s command that it not be treated as a formality, courts have dealt with venue questions differently from other constitutional rights and other elements of crimes. For instance, the standard for finding a waiver of venue rights is much more relaxed than the rigorous standard for finding waivers of the right to trial by jury, the right to confront one’s accusers or the privilege against compulsory self incrimination. See Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). As opposed to waiver of these latter rights, a defendant can waive venue rights by his silence — just by his failure to lodge an objection prior to trial. Kitchen v. United States, 532 F.2d 445 (5th Cir.1976); United States v. Dryden, 423 F.2d 1175 (5th Cir.1970); Harper v. United States, 383 F.2d 795 (5th Cir.1967).
In addition, the burden of proof in establishing venue differs from the burden of proving other elements. The prosecution need only show the propriety of venue by a preponderance of the evidence, not beyond a reasonable doubt. United States v. Turner, supra, 586 F.2d at 397; United States v. Luton, 486 F.2d 1021 (5th Cir.), cert. denied, 417 U.S. 920, 94 S.Ct. 2626, 41 L.Ed.2d 225 (1974). Venue questions also occupy a unique position with respect to when failure to instruct the jury on venue will constitute plain error. Failure to instruct on other essential elements of crimes, regardless of whether a defendant requests an instruction, is error. United States v. Bosch, 505 F.2d 78, 82 (5th Cir.1974); United States v. Musgrave, 444 F.2d 755, 763-64 (5th Cir,), cert. denied, 414 U.S. 1023, 94 S.Ct. 447, 38 L.Ed.2d 315 (1973). By contrast, the particular circumstances of a case determine whether failure to instruct on venue is plain error. United States v. White, 611 F.2d at 537.
Barriers do exist, however, to prevent the government from trammelling a defendant’s venue rights. The rule in this circuit is that failure to instruct on venue is reversible error when trial testimony puts venue in issue and the defendant requests the instruction. Green v. United States, supra, 309 F.2d 852; United States v. White, supra, 611 F.2d 531 (dicta). We must now decide whether appellants fall within the cover of this shield of venue rights.
First, we must determine whether appellants requested a venue instruction. Appellants’ trial took place in the Western District of Louisiana. All four counts of which they were convicted designated the Western District as the situs of the offenses. Appellants did not submit a written jury instruction on venue nor did they request such an instruction at the jury charge conference. It was not until after the jury was instructed that appellants’ counsel requested an additional instruction that the jury must find “some element of each of these counts charged, happened in the Western District of Louisiana.” Record Yol. IV, pp. 266-267. The trial judge refused the venue instruction request. Despite appellants’ eleventh hour timing, we find that they properly requested a venue instruction.
Next, we reach the question of whether trial testimony put venue in issue. The law concerning propriety of venue, therefore, becomes relevant. Venue is proper in conspiracy offenses in any district where the agreement was formed or an overt act occurred. United States v. Pozos, 697 F.2d 1238, 1244 (5th Cir.1983); United States v. Nicoll, 664 F.2d 1308, 1311 (5th Cir.), cert. denied, 457 U.S. 1118, 102 S.Ct. 2929, 73 L.Ed.2d 1330 (1982). The Supreme Court has approved this rule despite its dilutent effect upon venue rights, permitting trials of defendants in districts where they have never set foot. See Hyde v. United States, 225 U.S. 347, 32 S.Ct. 793, 56 L.Ed. 1114 (1912); see also, United States v. DeLeon, 641 F.2d 330, 336 (5th Cir.1981). As with conspirators, whether an aider and abettor has ever before been in the district of the trial is not necessarily determinative of proper venue. Aiding and abetting crimes may be tried in the district where the principal committed the substantive crimes. See United States v. Buttorff, 572 F.2d 619 (8th Cir.), cert. denied, 437 U.S. 906, 98 S.Ct. 3095, 57 L.Ed.2d 1136 (1978); United States v. Buckhanon, 505 F.2d 1079 (8th Cir.1974); United States v. Kilpatrick, 458 F.2d 864 (7th Cir.1972).
Understanding the law on propriety of venue, we now consider the testimony presented at appellants’ trial. Evidence that drug related activities, including possession and distribution, occurred within the Western District was overwhelming. Such evidence surfaced throughout the testimony of four of the government’s main witnesses; each of the four located major portions of their drug related activities within the Western District of Louisiana. Record, Vol. Ill, pp. 23, 67, 90; Vol. IV, p. 113; Vol. V, p. 4. This testimony and the lack of any contradictory evidence compels the conclusion that trial testimony did not put venue “in issue.” The concept of “in issue” simply will not stretch so far. Consequently, despite the request for a venue instruction, appellants fall outside the protection of Green v. United States, supra, and United States v. White, supra. We can find no reversible error in the failure to give a venue instruction.
V. DOUBLE JEOPARDY
Appellants’ two conspiracy convictions both came under 21 U.S.C. § 846. Count I named 16 conspirators, pertained to the period from December 1, 1979, until May 20, 1982, and involved marijuana. Count II named 9 conspirators, pertained to the period from January 1,1979, until May 20,1982, and involved methamphetamine. Claiming that Counts I and II are “in law and fact” the same offense, appellants urge that they have been twice placed in jeopardy for the same crime. See United States v. Marable, 578 F.2d 151, 153 (5th Cir.1978).
The constitutional guarantee against double jeopardy prohibits multiple prosecutions for the same offense. In conspiracy cases, this court has formulated special rules to enforce that guarantee. See id. Those rules derive from the notion that the essence of a conspiracy offense lies in the agreement to violate the law. See id.; United States v. Tammaro, 636 F.2d 100, 103 (5th Cir.1981).
For each conspiracy conviction the government seeks, it must prove a corresponding, separate agreement. But frequently, proof of the unlawful agreement or common purpose in conspiracies does not flow from direct evidence. In many cases, the jury reaches its verdict based on inferences from circumstantial evidence. Thus, that same circumstantial evidence must provide the basis for a double jeopardy analysis in conspiracy cases. United States v. Marabie, supra, suggests five focal points for determining whether evidence in a conspiracy trial proves more than one offense: (1) the time-frames of the charged conspiracies; (2) the persons acting as conspirators; (3) the statutory offenses charged in the indictment; (4) the overt acts charged by the government or any other description of the offense charged which indicates the nature and scope of the activity which the government sought to punish in each case; and (5) the places where the events alleged as part of the conspiracy took place. 578 F.2d at 154. See also, United States v. Kalish, 690 F.2d 1144, 1151-52 (5th Cir.), cert. denied, -U.S.-, 103 S.Ct. 735, 74 L.Ed.2d 958 (1983); United States v. Tammaro, supra, 636 F.2d at 104.
These factors, when applied in the instant case, point consistently toward a single conspiracy. With regard to the first factor, a substantial time correspondence exists between the active periods of the purportedly separate conspiracies. The marijuana conspiracy occurred wholly within the period of the methamphetamine conspiracy. Furthermore, the evidence adduced at trial indicated no event to mark a specific beginning of either conspiracy. In arguing that a significant time difference existed between the two counts, the government points only to one conspirator’s testimony that he did not deal marijuana with defendants during 1980. This testimony alone, however, hardly establishes a significant time differential between the working periods of the drug operations. Overall, the time element cuts in favor of the existence of one conspiracy.
An examination of the second factor reveals that a core cast of characters was the same in both conspiracies. Eight individuals were charged with both crimes. Only one individual was named in the methamphetamine count and not named in the marijuana count. As to that one individual, trial testimony never suggested that he played a significant role in the conspiracy. Although five individuals were named in the marijuana count who weren’t named in the methamphetamine charge, one of these five, Tommy Hodnett, testified that he also took part in a methamphetamine deal. Record, Vol. IV, p. 224. Overall, the proof adduced at trial drew no distinct line between the perpetrators of the alleged “marijuana conspiracy” and those involved in the alleged “methamphetamine conspiracy.” And, as the Hodnett testimony reveals, we cannot rest a conclusion of separate conspiracy personnel on the government’s decision of who to charge in specific indictments. Accordingly, the cast of characters element here indicates a single conspiracy.
Marable’s third factor, the statutory offenses charged in the indictment, is also consistent with a single conspiracy charge. As noted above, both indictments charged violations of Section 846.
Factor four is not telling either way. Because no overt act need be alleged in a Section 846 indictment, the charge contains no description of the offense other than the time, location, and drug involved.
In terms of the location element, though, significant parallels exist between the two charged conspiracies. The main distribution line for marijuana and methamphetamine ran from Oklahoma to Louisiana. Although the government presented evidence of South Texas marijuana sources, the great majority of evidence establishing conspiracy concerned Oklahoma and Louisiana locations. Thus, the location element indicates a single conspiracy.
The double jeopardy prohibition would not allow separate public drunkenness convictions for a man who drank enough of two whiskies to be drunk on either liquor. Public drunkenness laws do not inquire whether the violators consumed Old Crow or Chivas Regal. Similarly, whether the government may bring separate Section 846 charges does not hinge on whether separate controlled substances were involved. In this case, analysis of the Marable factors provides objective indications of a single agreement. Furthermore, the conspiracy was clearly not departmentalized or compartmentalized in the minds of the conspirators. One conspirator’s testimony emphasized the close links between efforts to sell the two drugs. Jack Goudeau could not recall whether he was buying marijuana or methamphetamine when he first met appellant Winship. Record, Vol. V, p. 6. We see no logic or reason to dichotomize the conspiracy here. This criminal blend came from a single agreement to sell two drugs. We cannot allow the government to distill separate offenses from that agreement by prosecuting for each kind of drug. Counts I and II constituted a single offense. Appellants’ right not to be twice placed in jeopardy for the same offense was violated.
VI. CONCLUSION
In summary, we find no basis for reversal in appellants’ James argument, variance argument, or venue instruction claim. Additionally, we have reviewed other arguments by appellants and found that they too lack merit. We do find error, however, in appellants’ being convicted on two separate conspiracy counts. Therefore, we reverse the Count I conviction and affirm the Counts II, IV and V convictions. See United States v. Howell, 719 F.2d 1258 (5th Cir. 1983). We remand to the district court for resentencing.
AFFIRMED IN PART: REVERSED IN PART AND REMANDED.
. COUNT I
Commencing on or about December 1, 1979, and continuing thereafter until on or about May 20, 1982, in the Western District of Louisiana, and elsewhere, RICHARD BURCH, BEN-NEY RAY WINSHIP, A/K/A NIP, JERRY BICE, ARALDO RODRIQUEZ-GONZALEZ, A/K/A ROBERT RODRIQUEZ, NOE ERVEY GARCIA, A/K/A NOE, JOSEPH GLEN DESO-TO, JACK GOUDEAU, ANTHONY BROWN, RICKY EUGENE CAPLES, AL NEWMAN, CECIL PHILLIPS, ROCCO DE BENEDETTO, TOMMY HODNETT, being named herein as Coconspirators and Defendants, and various other persons, both known and unknown to the Grand Jury, did willfully and knowingly combine, conspire and confederate, and agree together and with others to commit the following offenses against the United States, to wit: to knowingly, intentionally and unlawfully possess with intent to distribute, and/or to distribute marijuana, a Schedule I, non-narcotic controlled substance, in violation of Section 841(a), Title 21, United States Code, all in violation of Section 846, Title 21, United States Code. (21 U.S.C. § 841(a), 21 U.S.
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_genresp1
|
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.
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.
CALIFORNIA STATE BOARD OF OPTOMETRY, Petitioner, v. FEDERAL TRADE COMMISSION, Respondent, National Association of Optometrists and Opticians, Intervenor.
89-1190, 89-1191, 89-1202, 89-1293, 89-1301, 89-1307, 89-1308, 89-1314, 89-1316 and 89-1317.
United States Court of Appeals, District of Columbia Circuit.
Argued May 10, 1990.
Decided Aug. 28, 1990.
Thomas S. Lazar (for California State Bd. of Optometry), with whom Sara Ritt-man (for Missouri State Bd. of Optometry), Steve Clark and Mary B. Stallcup (for Arkansas State Bd. of Optometry), Allen R. Grossman (for State of Fla. and Florida State Bd. of Optometry), Kenneth 0. Eiken-berry and John H. Keith (for Washington State Bd. of Optometry), Debra W. Jeppson (for State of Nev. and Nevada State Bd. of Optometry), Fred W. Stork III (for Arizona State Bd. of Optometry), and Roger L. Chaffe and Howard M. Casway (for inter-venor Virginia Bd. of Optometry), were on the joint brief, for petitioner/intervenor States and/or State Boards of Optometry.
Edward A. Groobert, with whom Ellis Lyons, Bennett Boskey, D. Biard MacGui-neas, and Morris Klein (for American Opto-metric Ass’n), and William A. Gould, Jr., Alan G. Perkins, and Mark L. Andrews (for California Optometric Ass’n), were on the joint brief, for petitioners in Nos. 89-1191 and 89-1202.
Lawrence DeMille-Wagman, Atty., Federal Trade Com’n (“FTC”), with whom Jay C. Shaffer, Acting Gen. Counsel, and Ernest J. Isenstadt, Asst. Gen. Counsel, FTC, were on the brief, for respondent.
Andrew J. Pincus, with whom Kenneth S. Geller was on the brief, for intervenor Nat. Ass’n of Optometrists and Opticians in Nos. 89-1190, 89-1191, and 89-1202.
Steven S. Honigman, Donald S. Dawson, and M. Joseph Stoutenburgh, were on the joint brief, for amici curiae American Ass’n of Retired Persons and the Opticians Ass’n of America.
Paul Farley, Asst. Atty. Gen. of New Mexico, H. A1 Cole, Jr., Sr. Deputy Atty. Gen. of North Carolina, and Craig M. Ei-chstadt, Asst. Atty. Gen. of South Dakota, were on the joint brief, for amici curiae States of N.M., Ala., Colo., Miss., N.C., S.D., Tex., Utah and Wyo.
Fred Niemann, Jr., was on the brief, for amicus curiae Texas Optometric Ass’n, Inc.
Peter M. Sfikas and Werner Strupp, were on the joint brief, for amici curiae American Dental Ass’n and American Po-diatric Medical Ass’n.
Mary C. Jacobson, Deputy Atty. Gen., Andrea M. Silkowitz, Asst. Atty. Gen., and Regina H. Nugent, Deputy Atty. Gen., were on the brief, for amici curiae New Jersey State Bd. of Optometry and the New Jersey State Bd. of Ophthalmic Dispensers and Ophthalmic Technicians and State of Or.
Thomas J. Gillooly, Senior Deputy Atty. Gen., was on the brief, for amicus curiae State of W.Va.
Kathlyn Rhodes entered an appearance, for petitioners State of Okl. and the Oklahoma Bd. of Examiners in Optometry in No. 89-1316.
Randall W. Childress entered an appearance, for amicus curiae State of N.M.
Before WALD, Chief Judge, and BUCKLEY and D.H. GINSBURG, Circuit Judges.
Opinion for the court filed by Circuit Judge BUCKLEY.
BUCKLEY, Circuit Judge:
The American Optometric Association, the California Optometric Association, and several States or state boards of optometry challenge a Federal Trade Commission rule that declares certain state laws restricting the practice of optometry to be unfair acts or practices. We find that the FTC lacked the statutory authority to promulgate the rule because Congress did not authorize the Commission to regulate the sovereign acts of the States.
I. Background
A. Statutory Framework
As enacted in 1914, the Federal Trade Commission Act (“Act”) empowered the FTC to prevent persons, partnerships, and corporations “from using unfair methods of competition in commerce.” See Act, ch. 311, § 5, 38 Stat. 719 (1914). In 1938, Congress amended section 5 to authorize the Commission to prevent “unfair or deceptive acts or practices” as well as unfair methods of competition. Wheeler-Lee Amendment to the FTC Act, ch. 49, § 3, 52 Stat. Ill (1938). Finally, in 1975, Congress expanded the scope of section 5 to encompass acts “affecting” commerce. Magnuson-Moss Warranty — FTC Improvement Act, § 202(a), 88 Stat. 2193 (1975) (“Magnu-son-Moss Amendments”). Thus, the relevant language of section 5(a) now reads as follows:
(1) Unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are declared unlawful.
(2) The Commission is empowered and directed to prevent persons, partnerships, or corporations ... from using unfair methods of competition in or affecting commerce and unfair or deceptive acts or practices in or affecting commerce.
15 U.S.C. § 45(a) (1988).
The Magnuson-Moss Amendments also added section 18 to the Act, which grants the FTC rulemaking authority to define specific acts or practices as unfair. Section 18(a)(1) provides that
the Commission may prescribe—
(A) interpretive rules and general statements of policy with respect to unfair or deceptive acts or practices in or affecting commerce ..., and
(B) rules which define with specificity acts or practices which are unfair or deceptive acts or practices in or affecting commerce_ Rules under this subpar-agraph may include requirements prescribed for the purpose of preventing such acts or practices.
Id. § 57a(a)(l) (1988).
B. Procedural Background
These consolidated petitions seek review of the FTC’s Ophthalmic Practice Rules, 54 Fed.Reg. 10,285 (1989) (“Eyeglasses II” or “rule”).
Beginning in the mid-1970’s, the FTC began to investigate state-imposed restrictions on the practice of optometry. These tended to discourage the “commercial practice” of optometry — such as partnerships between optometrists and laymen, use of trade names, and chain operations combining the practice of optometry with the sale of eyeglasses in shopping centers — in favor of “traditional optometric practice” typified by sole practioners operating in professional office buildings under their own names. The FTC’s studies indicated that these restrictions resulted in higher prices and reduced the quality of eye care available to the public.
In 1980, the FTC published the results of its investigation and issued an Advance Notice of Proposed Rulemaking requesting comments and recommendations. 45 Fed. Reg. 79,823 (1980). The Commission formally initiated a rulemaking proceeding in 1985, 50 FecLReg. 598 (1985), and, on March 13, 1989, issued Eyeglasses II. 54 Fed.Reg. 10,285 (1989). Commission Chairman Daniel Oliver voted against adoption of the rule based on principles of federalism and his view that the FTC was without authority to promulgate it. Id. at 10,305.
Eyeglasses II revised Title 16, Part 456 of the Code of Federal Regulations to include a new section 456.4, “State bans on commercial practice,” which begins as follows:
(a) It is an unfair act or practice for any state or local governmental entity to:
(1) Prevent or restrict optometrists from entering into associations with lay persons or corporations....
Id. at 10,305 (emphasis added). There follows an extensive list of the acts or practices the FTC found to be unfair, including state laws or regulations prohibiting laymen from employing optometrists to provide optometric services, limiting the number of offices that may be owned or operated by optometrists individually or as participants in such associations, and prohibiting them from practicing in department stores or shopping centers, or from practicing under any name other than their own. Id.
Eyeglasses II provides that the rule may be used as a defense to any state proceeding brought against an optometrist or his affiliated entity for violating those state laws or rules declared by the rule to be unfair practices. Id. (to be codified at 16 C.F.R. § 456.5(b)). The rule disclaims, however, any intention to interfere with the authority of state or local governments to safeguard the health and safety of the recipients of eye care services, including their authority to require that optometric services be provided only by a person qualified to do so by such state or local law and to establish minimum quality standards for ophthalmic goods and services. Id. (to be codified at 16 C.F.R. § 456.5(a)). Finally, it defines a “person” as “any individual, partnership, corporation, association or other entity. ” Id. at 10,304 (to be codified at 16 C.F.R. § 456.1(g)) (emphasis added).
Petitioners challenge all of these provisions. Several interested parties appear as amici curiae arguing for and against the rule.
II. Discussion
Petitioners challenge Eyeglasses II on both statutory and constitutional grounds. They also attack the factual record upon which the FTC based its decision to adopt the rule. Because we agree with petitioners that the rule exceeds the FTC’s statutory authority and vacate it on that basis, we do not address the alternative grounds presented.
Eyeglasses II declares that certain state-imposed restrictions on the practice of optometry are unfair acts or practices. The question of the Commission’s authority to promulgate the rule presents two specific issues of statutory interpretation: whether a State acting in its sovereign capacity is a “person” within the FTC’s enforcement jurisdiction under section 5(a)(2) of the Act, and whether a state law may be an unfair or deceptive act or practice within the FTC’s rulemaking authority under section 18(a)(1).
In reviewing the FTC’s interpretation of its organic act, we must first determine whether Congress had an intention on the question at issue using the traditional tools of statutory construction. Chevron, U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837, 842-43 & n. 9, 104 S.Ct. 2778, 2781 & n. 9, 81 L.Ed.2d 694 (1984). These tools include the language and structure of the Act, its legislative history, and any applicable canons of statutory construction. See Dole v. United Steelworkers of America, — U.S. -, 110 S.Ct. 929, 934-35, 937 & n. 7, 108 L.Ed.2d 23 (1990); see also Michigan Citizens for an Indep. Press v. Thornburgh, 868 F.2d 1285, 1292-93 (D.C.Cir.) (“If employment of an accepted canon of construction illustrates that Congress had a specific intent on the issue in question, then the case can be disposed of under the first prong of Chevron.”) (emphasis deleted), affd without opinion by an equally divided Court, —U.S.-, 110 S.Ct. 398, 107 L.Ed.2d 277 (1989) (per curiam).
There is nothing in the language of sections 5(a) and 18(a)(1) to indicate that Congress intended to authorize the FTC to reach the “acts or practices” of States acting in their sovereign capacities. The legislative history of the Act suggests that at the time of its original enactment, Congress was concerned with the anticompeti-tive conduct of businesses, whether organized as corporations, partnerships, associations, or sole proprietorships. The House Report declared that the purpose of the Act was to empower the FTC to stop monopolies “at the threshold [by] preventing] unfair competition,” H.R.Rep. No. 1142, 63d Cong., 2d Sess. 19 (1914); see also FTC v. Raladam Co., 283 U.S. 643, 647-50, 51 S.Ct. 587, 589-90, 75 L.Ed. 1324 (1931) (discussing purposes of the Act); its sponsor stated that the FTC’s power under section 5 extended
to persons, partnerships, and corporations, and with respect to the great industrial activities in interstate commerce. It embraces ... every kind of person, natural or artificial, who may be engaged in interstate commerce.
See 51 Cong.Rec. 14,928 (remarks of Rep. Covington) (emphasis added). We can find nothing in the language or history of subsequently adopted amendments to support a finding that Congress has expanded the FTC’s jurisdiction to embrace state action. In the absence of any evidence of such a purpose, we turn to well-established rules of statutory construction, which we find dispositive. See INS v. Cardoza-Fonseca, 480 U.S. 421, 449, 107 S.Ct. 1207, 1222, 94 L.Ed.2d 434 (1987) (“ordinary canons of statutory construction compelling”).
The Supreme Court has observed that “in common usage, the term ‘person’ does not include the sovereign, [and] statutes employing the [word] are ordinarily construed to exclude it.” Will v. Michigan Dep’t of State Police, — U.S. -, 109 S.Ct. 2304, 2308, 105 L.Ed.2d 45 (1989) (internal quotes omitted) (holding that a State is not a person within the meaning of 42 U.S.C. § 1983); see also Wilson v. Omaha Indian Tribe, 442 U.S. 653, 667, 99 S.Ct. 2529, 2537, 61 L.Ed.2d 153 (1979); United States v. Cooper Corp., 312 U.S. 600, 604, 61 S.Ct. 742, 743, 85 L.Ed. 1071 (1941). On the other hand, several Supreme Court decisions hold that a State is a person for purposes of the antitrust laws. See Jefferson County Pharmaceutical Ass’n v. Abbott Laboratories, 460 U.S. 150, 155, 103 S.Ct. 1011, 1015, 74 L.Ed.2d 882 (1983) (the words “persons” and “purchasers” in the Robinson-Patman Act are “sufficiently broad to cover governmental bodies”) (internal quotes omitted); City of Lafayette v. Louisiana Power & Light Co., 435 U.S. 389, 395, 98 S.Ct. 1123, 1127, 55 L.Ed.2d 364 (1978) (“the definition of ‘person’ or ‘persons’ [in the antitrust laws] embraces both cities and States”); see also Hawaii v. Standard Oil Co., 405 U.S. 251, 260-61, 92 S.Ct. 885, 890, 31 L.Ed.2d 184 (1972) (State may sue as a “person” under section 4 of the Clayton Act); Georgia v. Evans, 316 U.S. 159, 162, 62 S.Ct. 972, 974, 86 L.Ed. 1346 (1942) (State may sue under section 7 of the Sherman Act).
Although a State may be a “person” for purposes of the antitrust laws, it is equally clear, under the “state action” doctrine enunciated in Parker v. Brown, 317 U.S. 341, 350-51, 63 S.Ct. 307, 313, 87 L.Ed. 315 (1943), that when a State acts in a sovereign rather than a proprietary capacity, it is exempt from the antitrust laws even though those actions may restrain trade. See City of Lafayette, 435 U.S. at 391, 98 S.Ct. at 1125; see also id. at 408-13, 98 S.Ct. at 1134-36 (state action doctrine provides antitrust immunity for actions taken in a State’s capacity as sovereign but does not cover proprietary functions carried out by municipal subdivisions of the State) (plurality opinion of Brennan, J.). Thus, properly framed, the question before us is not simply whether a State is a person under section 5(a)(2) of the Act, but whether a State acting in its sovereign capacity is subject to the Act.
The Parker state action doctrine has been applied to limit the reach of the FTC’s enforcement jurisdiction. See Massachusetts Furniture & Piano Movers Ass’n v. FTC, 773 F.2d 391, 394-97 (1st Cir.1985). Parker and later cases applying the doctrine, however, have involved judicial interpretations of the relevant statutes in the context of an adjudication, while in this case we consider whether the doctrine limits the FTC’s rulemaking authority. When engaged in rulemaking pursuant to section 18(a)(1), the Commission itself exercises substantive lawmaking authority delegated to it by Congress. Petitioners argue that we should extend the state action doctrine to limit the FTC’s rulemaking authority as well.
Because the rule of statutory construction employed by the Court in Parker applies with equal force in this context, we conclude that the state action doctrine is applicable to limit the FTC’s rulemaking authority. In holding that the Sherman Act was not intended to apply to the acts of States as sovereigns, the Court observed that it could
find nothing in the language of the Sherman Act or in its history which suggests that its purpose was to restrain a state or its officers or agents from activities directed by its legislature. In a dual system of government in which, under the Constitution, the states are sovereign, save only as Congress may constitutionally subtract from their authority, an unexpressed purpose to nullify a state’s control over its officers and agents is not lightly to be attributed to Congress.
Parker, 317 U.S. at 350-51, 63 S.Ct. at 313 (emphasis added). The Supreme Court has since applied this rule of construction in many cases involving issues of federalism. In Will, for example, the Court articulated the following “ordinary rule of statutory construction”:
[I]f Congress intends to alter the “usual constitutional balance between the States and the Federal Government,” it must make its intention to do so “unmistakably clear in the language of the statute.”
109 S.Ct. at 2308 (quoting Atascadero State Hospital v. Scanlon, 473 U.S. 234, 242, 105 S.Ct. 3142, 3147, 87 L.Ed.2d 171 (1985)). The Court explained the rationale for this rule as follows:
“In traditionally sensitive areas, such as legislation affecting the federal balance, the requirement of clear statement assures that the legislature has in fact faced, and intended to bring into issue, the critical matters involved in the judicial decision.”
Id., 109 S.Ct. at 2308-09 (emphasis added) (quoting United States v. Bass, 404 U.S. 336, 349, 92 S.Ct. 515, 523, 30 L.Ed.2d 488 (1971)).
This rule of statutory construction serves to ensure that the States’ sovereignty interests are adequately protected by the political process. In Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 547-55, 105 S.Ct. 1005, 1015-19, 83 L.Ed.2d 1016 (1985), the Supreme Court held that the Tenth Amendment does not impose substantive limitations on federal legislative power. Rather, “State sovereign interests” are “properly protected by procedural safeguards inherent in the structure of the federal system,” id. at 552, 105 S.Ct. at 1018, e.g., the States’ equal representation in the Senate. Id. at 551, 105 S.Ct. at 1017. “[T]he fundamental limitation that the constitutional scheme imposes on the Commerce Clause to protect the ‘States as States’ is one of process rather than one of result.” Id. at 554, 105 S.Ct. at 1019.
The Commission nevertheless insists that
[i]n providing the Commission with Section 18 rulemaking authority, Congress has made a limited delegation to the FTC of its legislative authority to protect consumers from acts or practices that unreasonably interfere with the efficient functioning of interstate markets.
Eyeglasses II, 54 Fed.Reg. at 10,296. As it finds the state acts and practices proscribed by the rule to be unfair, the Commission concludes that “Congress authorized the FTC to challenge” them in a section 18 rulemaking. Id. Were we to defer to this construction and uphold Eyeglasses II in the face of congressional silence, we would short-circuit the protections offered States by the political process. See L. Tribe, American Constitu tional Law § 6-25, at 480 (2d ed. 1988) (“to give the state-displacing weight of federal law to mere congressional ambiguity would evade the very procedure for lawmaking on which Garcia relied to protect states’ interests”) (emphasis in original); The Supreme Court, 1987 Term — Leading Cases, 102 Harv.L.Rev. 143, 296 (1988) (“A rule that distills displacement of state law from congressional silence divests states of even Garcia’s slender procedural guarantee.”) (emphasis in original).
The clear statement doctrine leaves no room for inferences. An agency may not exercise authority over States as sovereigns unless that authority has been unambiguously granted to it. When one applies this rule of construction to sections 5 and 18(a)(1) of the Act, it becomes clear that the FTC had no authority to promulgate Eyeglasses II.
First, state regulation of the practice of optometry is a quintessentially sovereign act. Second, there can be little question that accepting an interpretation of the Act that sanctions the rule would alter the usual balance between the Federal Government and the States. The rule subjects States to direct FTC regulation by declaring that certain state laws constitute unfair acts or practices. It thus empowers the FTC directly to “prevent” States from imposing certain restrictions on the practice of optometry. See 15 U.S.C. § 45(a)(2). Third, nothing in either the language of the Act or its legislative history evidences a congressional intent to alter the state-federal balance as the rule would. The Mag-nuson-Moss Amendments, which codified the FTC’s rulemaking authority, contain no language that could be construed as an explicit congressional authorization to reach the sovereign acts of the States. This silence is especially compelling in view of Congress’s more than thirty years of experience with the state action doctrine at the time it enacted section 18(a)(1). As nothing in the language of the Act clearly expresses a congressional intent to empower the FTC to regulate state action, we must reject the rule.
III. Conolusion
Because we find that the FTC has acted beyond its statutory authority in promulgating Eyeglasses II, we grant these petitions and vacate the rule.
So ordered.
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_issuearea
|
A
|
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.
CHAVEZ v. MARTINEZ
No. 01-1444.
Argued December 4, 2002
Decided May 27, 2003
Thomas, J., announced the judgment of the Court and delivered an opinion, which was joined by Rehnquist, C. J., in full, by O’Connor, J., as to Parts I and II-A, and by Scalia, J., as to Parts I and II. Souter, J., delivered an opinion, Part II of which was for the Court and was joined by Stevens, Kennedy, Ginsburg, and Breyer, JJ., and Part I of which concurred in the judgment and was joined by Breyer, J., post, p. 777. Scalia, J., filed an opinion concurring in part in the judgment, post, p. 780. Stevens, J., filed an opinion concurring in part and dissenting in part, post, p. 783. Kennedy, J., filed an opinion concurring in part and dissenting in part, which was joined by Stevens, J., in full and by Ginsburg, J., as to Parts II and III, post, p. 789. Ginsburg, J., filed an opinion concurring in part and dissenting in part, post, p. 799.
Lawrence S. Robbins argued the cause for petitioner. With him on the briefs were Roy T. Englert, Jr., Kathryn S. Zecca, Alan E. Wisotsky, Jeffrey Held, and Gary L. Gillig.
Deputy Solicitor General Clement argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Olson, Assistant Attorney General Chertoff, Assistant Attorney General Mc-Callum, John P. Elwood, Barbara L. Herwig, and Peter R. Maier.
Richard S. Paz argued the cause for respondent. With him on the brief was Sonia Mercado.
Briefs of amici curiae urging reversal were filed for the State of California ex rel. Bill Lockyer by Mr. Lockyer, Attorney General, pro se, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Senior Assistant Attorney General, Stan Cross, Supervising Deputy Attorney General, and Lee E. Seale and Patrick J. Whalen, Deputy Attorneys General; for the City of Escondido by Jeffrey R. Epp and Richard J. Schneider; for 50 California Cities et al. by Girard Fisher; for the Criminal Justice Legal Foundation by Kent S. Scheidegger and Charles L. Hobson; and for the National Association of Police Organizations by Devallis Rutledge and William J. Johnson.
Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union Foundation et al. by Mark D. Rosenbaum, Steven R. Shapiro, Susan N. Herman, John T. Philipsbom, and Erwin Chemerin-sky; for the Association of Trial Lawyers of America by Jeffrey L. Needle; and for the National Police Accountability Project et al. by Susan R. Klein and Michael Avery.
Justice Thomas
announced the judgment of the Court and delivered an opinion.
This case involves a 42 U. S. C. § 1983 suit arising out of petitioner Ben Chavez’s allegedly coercive interrogation of respondent Oliverio Martinez. The United States Court of Appeals for the Ninth Circuit held that Chavez was not entitled to a defense of qualified immunity because he violated Martinez’s clearly established constitutional rights. We conclude that Chavez did not deprive Martinez of a constitutional right.
I
On November 28,1997, police officers Maria Peña and Andrew Salinas were near a vacant lot in a residential area of Oxnard, California, investigating suspected narcotics activity. While Peña and Salinas were questioning an individual, they heard a bicycle approaching on a darkened path that crossed the lot. They ordered the rider, respondent Martinez, to dismount, spread his legs, and place his hands behind his head. Martinez complied. Salinas then conducted a patdown frisk and discovered a knife in Martinez’s waistband. An altercation ensued.
There is some dispute about what occurred during the altercation. The officers claim that Martinez drew Salinas’ gun from its holster and pointed it at them; Martinez denies this. Both sides agree, however, that Salinas yelled, “ ‘He’s got my gun!’ ” App. to Pet. for Cert. 3a. Peña then drew her gun and shot Martinez several times, causing severe injuries that left Martinez permanently blinded and paralyzed from the waist down. The officers then placed Martinez under arrest.
Petitioner Chavez, a patrol supervisor, arrived on the scene minutes later with paramedics. Chavez accompanied Martinez to the hospital and then questioned Martinez there while he was receiving treatment from medical personnel. The interview lasted a total of about 10 minutes, over a 45-minute period, with Chavez leaving the emergency room for periods of time to permit medical personnel to attend to Martinez.
At first, most of Martinez’s answers consisted of “I don’t know,” “I am dying,” and “I am choking.” App. 14, 17, 18. Later in the interview, Martinez admitted that he took the gun from the officer’s holster and pointed it at the police. Id., at 16. He also admitted that he used heroin regularly. Id., at 18. At one point, Martinez said “I am not telling you anything until they treat me,” yet Chavez continued the interview. Id., at 14. At no point during the interview was Martinez given warnings under Miranda v. Arizona, 384 U. S. 436 (1966). App. to Pet. for Cert. 4a.
Martinez was never charged with a crime, and his answers were never used against him in any criminal prosecution. Nevertheless, Martinez filed suit under Rev. Stat. § 1979, 42 U. S. C. § 1983, maintaining that Chavez’s actions violated his Fifth Amendment right not to be “compelled in any criminal case to be a witness against himself,” as well as his Fourteenth Amendment substantive due process right to be free from coercive questioning. The District Court granted summary judgment to Martinez as to Chavez’s qualified immunity defense on both the Fifth and Fourteenth Amendment claims. Chavez took an interlocutory appeal to the Ninth Circuit, which affirmed the District Court’s denial of qualified immunity. Martinez v. Oxnard, 270 F. 3d 852 (2001). Applying Saucier v. Katz, 533 U. S. 194 (2001), the Ninth Circuit first concluded that Chavez’s actions, as alleged by Martinez, deprived Martinez of his rights under the Fifth and Fourteenth Amendments. The Ninth Circuit did not attempt to explain how Martinez had been “compelled in any criminal case to be a witness against himself.” Instead, the Ninth Circuit reiterated the holding of an earlier Ninth Circuit case, Cooper v. Dupnik, 963 F. 2d 1220, 1229 (1992) (en banc), that “the Fifth Amendment’s purpose is to prevent coercive interrogation practices that are destructive of human dignity,” 270 F. 3d, at 857 (internal quotation marks omitted), and found that Chavez’s “coercive questioning” of Martinez violated his Fifth Amendment rights, “[e]ven though Martinez’s statements were not used against him in a criminal proceeding,” ibid. As to Martinez’s due process claim, the Ninth Circuit held that “a police officer violates the Fourteenth Amendment when he obtains a confession by coercive conduct, regardless of whether the confession is subsequently used at trial.” Ibid.
The Ninth Circuit then concluded that the Fifth and Fourteenth Amendment rights asserted by Martinez were clearly established by federal law, explaining that a reasonable officer “would have known that persistent interrogation of the suspect despite repeated requests to stop violated the suspect’s Fifth and Fourteenth Amendment right to be free from coercive interrogation.” Id., at 858.
We granted certiorari. 535 U. S. 1111 (2002).
!={
In deciding whether an officer is entitled to qualified immunity, we must first determine whether the officer’s alleged conduct violated a constitutional right. See Katz, 533 U. S., at 201. If not, the officer is entitled to qualified immunity, and we need not consider whether the asserted right was “clearly established.” Ibid. We conclude that Martinez’s allegations fail to state a violation of his constitutional rights.
A
1
The Fifth Amendment, made applicable to the States by the Fourteenth Amendment, Malloy v. Hogan, 378 U. S. 1 (1964), requires that “[n]o person . . . shall be compelled in any criminal case to be a witness against himself.” U. S. Const., Amdt. 5 (emphases added). We fail to see how, based on the text of the Fifth Amendment, Martinez can allege a violation of this right, since Martinez was never prosecuted for a crime, let alone compelled to be a witness against himself in a criminal case.
Although Martinez contends that the meaning of “criminal case” should encompass the entire criminal investigatory process, including police interrogations, Brief for Respondent 23, we disagree. In our view, a “criminal case” at the very least requires the initiation of legal proceedings. See Blyew v. United States, 13 Wall. 581, 595 (1872) (“The words ‘case’ and ‘cause’ are constantly used as synonyms in statutes and judicial decisions, each meaning a proceeding in court, a suit, or action” (emphasis added)); Black’s Law Dictionary 215 (6th ed. 1990) (defining “[c]ase” as “[a] general term for an action, cause, suit, or controversy at law . . .; a question contested before a court of justice” (emphasis added)). We need not decide today the precise moment when a “criminal case” commences; it is enough to say that police questioning does not constitute a “case” any more than a private investigator’s precomplaint activities constitute a “civil case.” Statements compelled by police interrogations of course may not be used against a defendant at trial, see Brown v. Mississippi, 297 U. S. 278, 286 (1986), but it is not until their use in a criminal case that a violation of the Self-Incrimination Clause occurs, see United States v. Verdugo-Urquidez, 494 U. S. 259, 264 (1990) (“The privilege against self-incrimination guaranteed by the Fifth Amendment is a fundamental trial right of criminal defendants. Although conduct by law enforcement officials prior to trial may ultimately impair that right, a constitutional violation occurs only at trial” (emphases added; citations omitted)); Withrow v. Williams, 507 U. S. 680, 692 (1993) (describing the Fifth Amendment as a “ ‘trial right’ ”); id., at 705 (O’Connor, J., concurring in part and dissenting in part) (describing “true Fifth Amendment claims” as “the extraction and use of compelled testimony” (emphasis altered)).
Here, Martinez was never made to be a “witness” against himself in violation of the Fifth Amendment’s Self-Incrimination Clause because his statements were never admitted as testimony against him in a criminal case. Nor was he ever placed under oath and exposed to “‘the cruel trilemma of self-accusation, perjury or contempt.’ ” Michigan v. Tucker, 417 U. S. 433, 445 (1974) (quoting Murphy v. Waterfront Comm’n of N. Y. Harbor, 378 U. S. 52, 55 (1964)). The text of the Self-Incrimination Clause simply cannot support the Ninth Circuit’s view that the mere use of compulsive questioning, without more, violates the Constitution.
2
Nor can the Ninth Circuit’s approach be reconciled with our case law. It is well established that the government may compel witnesses to testify at trial or before a grand jury, on pain of contempt, so long as the witness is not the target of the criminal case in which he testifies. See Minnesota v. Murphy, 465 U. S. 420, 427 (1984); Kastigar v. United States, 406 U. S. 441, 443 (1972). Even for persons who have a legitimate fear that their statements may subject them to criminal prosecution, we have long permitted the compulsion of incriminating testimony so long as those statements (or evidence derived from those statements) cannot be used against the speaker in any criminal case. See Brown v. Walker, 161 U. S. 591, 602-604 (1896); Kastigar, supra, at 458; United States v. Balsys, 524 U. S. 666, 671-672 (1998). We have also recognized that governments may penalize public employees and government contractors (with the loss of their jobs or government contracts) to induce them to respond to inquiries, so long as the answers elicited (and their fruits) are immunized from use in any criminal case against the speaker. See Lefkowitz v. Turley, 414 U. S. 70, 84-85 (1973) (“[T]he State may insist that [contractors] . . . either respond to relevant inquiries about the performance of their contracts or suffer cancellation”); Lefkowitz v. Cunningham, 431 U. S. 801, 806 (1977) (“Public employees may constitutionally be discharged for refusing to answer potentially incriminating questions concerning their official duties if they have not been required to surrender their constitutional immunity” against later use of statements in criminal proceedings). By contrast, no “penalty” may ever be imposed on someone who exercises his core Fifth Amendment right not to be a “witness” against himself in a “criminal ease.” See Griffin v. California, 380 U. S. 609, 614 (1965) (the trial court’s and the prosecutor’s comments on the defendant’s failure to testify violates the Self-Incrimination Clause of the Fifth Amendment). Our holdings in these cases demonstrate that, contrary to the Ninth Circuit’s view, mere coercion does not violate the text of the Self-Incrimination Clause absent use of the compelled statements in a criminal case against the witness.
We fail to see how Martinez was any more “compelled in any criminal case to be a witness against himself” than an immunized witness forced to testify on pain of contempt. One difference, perhaps, is that the immunized witness knows that his statements will not, and may not, be used against him, whereas Martinez likely did not. But this does not make the statements of the immunized witness any less “compelled” and lends no support to the Ninth Circuit’s conclusion that coercive police interrogations, absent the use of the involuntary statements in a criminal case, violate the Fifth Amendment’s Self-Incrimination Clause. Moreover, our cases provide that those subjected to coercive police interrogations have an automatic protection from the use of their involuntary statements (or evidence derived from their statements) in any subsequent criminal trial. Oregon v. Elstad, 470 U. S. 298, 307-308 (1985); United States v. Blue, 384 U. S. 251, 255 (1966); Leyra v. Denno, 347 U. S. 556, 558 (1954); Ashcraft v. Tennessee, 322 U. S. 143, 155 (1944). See also Pillsbury Co. v. Conboy, 459 U. S. 248, 278 (1983) (Blackmun, J., concurring in judgment); Williams v. United States, 401 U. S. 646, 662 (1971) (Brennan, J., concurring in result). This protection is, in fact, coextensive with the use ánd derivative use immunity mandated by Kastigar when the government compels testimony from a reluctant witness. See 406 U. S., at 453. Accordingly, the fact that Martinez did not know his statements could not be used against him does not change our view that no violation of the Fifth Amendment’s Self-Incrimination Clause occurred here.
3
Although our cases have permitted the Fifth Amendment’s self-incrimination privilege to be asserted in noncriminal cases, see id., at 444-445 (recognizing that the “Fifth Amendment privilege against compulsory self-incrimination . . . can be asserted in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory . . .”); Lefkowitz v. Turley, supra, at 77 (stating that the Fifth Amendment privilege allows one “not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings”), that does not alter our conclusion that a violation of the constitutional right against self-incrimination occurs only if one has been compelled to be a witness against himself in a criminal case.
In the Fifth Amendment context, we have created prophylactic rules designed to safeguard the core constitutional right protected by the Self-Incrimination Clause. See, e. g., Tucker, 417 U. S., at 444 (describing the “procedural safeguards” required by Miranda as “not themselves rights protected by the Constitution but . . . measures to insure that the right against compulsory self-incrimination was protected” to “provide practical reinforcement for the right”); Elstad, supra, at 306 (stating that “[t]he Miranda exclusionary rule . . . serves the Fifth Amendment and sweeps more broadly than the Fifth Amendment itself”). Among these rules is an evidentiary privilege that protects witnesses from being forced to give incriminating testimony, even in noncriminal cases, unless that testimony has been immunized from use and derivative use in a future criminal proceeding before it is compelled. See Kastigar, supra, at 453; Maness v. Meyers, 419 U. S. 449, 461-462 (1975) (noting that the Fifth Amendment privilege may be asserted if one is “compelled to produce evidence which later may be used against him as an accused in a criminal action” (emphasis added)).
By allowing a witness to insist on an immunity agreement before being compelled to give incriminating testimony in a noncriminal case, the privilege preserves the core Fifth Amendment right from invasion by the use of that compelled testimony in a subsequent criminal case. See Tucker, supra, at 440-441 (“Testimony obtained in civil suits, or before administrative or legislative committees, could [absent a grant of immunity] prove so incriminating that a person compelled to give such testimony might readily be convicted on the basis of those disclosures in a subsequent criminal proceeding”). Because the failure to assert the privilege will often forfeit the right to exclude the evidence in a subsequent “criminal case,” see Murphy, 465 U. S., at 440; Garner v. United States, 424 U. S. 648, 650 (1976) (failure to claim privilege against self-incrimination before disclosing incriminating information on tax returns forfeited the right to exclude that information in a criminal prosecution); United States v. Kordel, 397 U. S. 1, 7 (1970) (criminal defendant forfeited his right to assert Fifth Amendment privilege with regard to answers he gave to interrogatories in a prior civil proceeding), it is necessary to allow assertion of the privilege prior to the commencement of a “criminal case” to safeguard the core Fifth Amendment trial right. If the privilege could not be asserted in such situations, testimony given in those judicial proceedings would be deemed “voluntary,” see Rogers v. United States, 340 U. S. 367, 371 (1951); United States v. Monia, 317 U. S. 424, 427 (1943); hence, insistence on a prior grant of immunity is essential to memorialize the fact that the testimony had indeed been compelled and therefore protected from use against the speaker in any “criminal case.”
Rules designed to safeguard a constitutional right, however, do not extend the scope of the constitutional right itself, just as violations of judicially crafted prophylactic rules do not violate the constitutional rights of any person. As we explained, we have allowed the Fifth Amendment privilege to be asserted by witnesses in noncriminal cases in order to safeguard the core constitutional right defined by the Self-Incrimination Clause — the right not to be compelled in any criminal case to be a witness against oneself. We have likewise established the Miranda exclusionary rule as a prophylactic measure to prevent violations of the right protected by the text of the Self-Incrimination Clause — the admission into evidence in a criminal case of confessions obtained through coercive custodial questioning. See Warren v. Lincoln, 864 F. 2d 1436, 1442 (CA8 1989) (alleged Miranda violation not actionable under § 1983); Giuffre v. Bissell, 31 F. 3d 1241, 1256 (CA3 1994) (same); Bennett v. Passic, 545 F. 2d 1260, 1263 (CA10 1976) (same); see also New York v. Quarles, 467 U. S. 649, 686 (1984) (Marshall, J., dissenting) (“All the Fifth Amendment forbids is the introduction of coerced statements at trial”). Accordingly, Chavez’s failure to read Miranda warnings to Martinez did not violate Martinez’s constitutional rights and cannot be grounds for a § 1983 action. See Connecticut v. Barrett, 479 U. S. 523, 528 (1987) (Miranda’s warning requirement is “not itself required by the Fifth Amendment] . . . but is instead justified only by reference to its prophylactic purpose”); Tucker, supra, at 444 (Miranda’s safeguards “were not themselves rights protected by the Constitution but were instead measures to insure that the right against compulsory self-incrimination was protected”). And the absence of a “criminal case” in which Martinez was compelled to be a “witness” against himself defeats his core Fifth Amendment claim. The Ninth Circuit’s view that mere compulsion violates the Self-Incrimination Clause, see 270 F. 3d, at 857; California Attorneys for Criminal Justice v. Butts, 195 F. 3d 1039, 1045-1046 (1999); Cooper, 963 F. 2d, at 1243-1244, finds no support in the text of the Fifth Amendment and is irreconcilable with our case law. Because we find that Chavez’s alleged conduct did not violate the Self-Incrimination Clause, we reverse the Ninth Circuit’s denial of qualified immunity as to Martinez’s Fifth Amendment claim.
Our views on the proper scope of the Fifth Amendment’s Self-Incrimination Clause do not mean that police torture or other abuse that results in a confession is constitutionally permissible so long as the statements are not used at trial; it simply means that the Fourteenth Amendment’s Due Process Clause, rather than the Fifth Amendment’s Self-Incrimination Clause, would govern the inquiry in those cases and provide relief in appropriate circumstances.
B
The Fourteenth Amendment provides that no person shall be deprived “of life, liberty, or property, without due process of law.” Convictions based on evidence obtained by methods that are “so brutal and so offensive to human dignity” that they “shoe[k] the conscience” violate the Due Process Clause. Rochin v. California, 342 U. S. 165, 172, 174 (1952) (overturning conviction based on evidence obtained by involuntary stomach pumping). See also Breithaupt v. Abram, 352 U. S. 432, 435 (1957) (reiterating that evidence obtained through conduct that “ ‘shock[s] the conscience’ ” may not be used to support a criminal conviction). Although Rochin did not establish a civil remedy for abusive police behavior, we recognized in County of Sacramento v. Lewis, 523 U. S. 833, 846 (1998), that deprivations of liberty caused by “the most egregious official conduct,” id., at 846, 847-848, n. 8, may violate the Due Process Clause. While we rejected, in Lewis, a §1983 plaintiff’s contention that a police officer’s deliberate indifference during a high-speed chase that caused the death of a motorcyclist violated due process, id., at 854, we left open the possibility that unauthorized police behavior in other contexts might “shock the conscience” and give rise to § 1983 liability. Id., at 850.
We are satisfied that Chavez’s questioning did not violate Martinez’s due process rights. Even assuming, arguendo, that the persistent questioning of Martinez somehow deprived him of a liberty interest, we cannot agree with Martinez’s characterization of Chavez’s behavior as “egregious” or “conscience shocking.” As we noted in Lewis, the official conduct “most likely to rise to the conscience-shocking level” is the “conduct intended to injure in some way unjustifiable by any government interest.” Id., at 849. Here, there is no evidence that Chavez acted with a purpose to harm Martinez by intentionally interfering with his medical treatment. Medical personnel were able to treat Martinez throughout the interview, App. to Pet. for Cert. 4a, 18a, and Chavez ceased his questioning to allow tests and other procedures to be performed. Id., at 4a. Nor is there evidence that Chavez’s conduct exacerbated Martinez’s injuries or prolonged his stay in the hospital. Moreover, the need to investigate whether there had been police misconduct constituted a justifiable government interest given the risk that key evidence would have been lost if Martinez had died without the authorities ever hearing his side of the story.
The Court has held that the Due Process Clause also protects certain “fundamental liberty interest^]” from deprivation by the government, regardless of the procedures provided, unless the infringement is narrowly tailored to serve a compelling state interest. Washington v. Glucksberg, 521 U. S. 702, 721 (1997). Only fundamental rights and liberties which are “ ‘deeply rooted in this Nation’s history and tradition’ ” and “ ‘implicit in the concept of ordered liberty’ ” qualify for such protection. Ibid. Many times, however, we have expressed our reluctance to expand the doctrine of substantive due process, see Lewis, supra, at 842; Glucksberg, supra, at 720; Albright v. Oliver, 510 U. S. 266, 271 (1994); Reno v. Flores, 507 U. S. 292, 302 (1993); in large part “because guideposts for responsible decisionmaking in this unchartered area are scarce and open-ended,” Collins v. Harker Heights, 503 U. S. 115, 125 (1992). See also Regents of Univ. of Mich. v. Ewing, 474 U. S. 214, 225-226 (1985).
Glucksberg requires a “‘careful description’” of the asserted fundamental liberty interest for the purposes of substantive due process analysis; vague generalities, such as “the right not to be talked to,” will not suffice. 521 U. S., at 721. We therefore must take into account the fact that Martinez was hospitalized and in severe pain during the interview, but also that Martinez was a critical nonpolice witness to an altercation resulting in a shooting by a police officer, and that the situation was urgent given the perceived risk, that Martinez might die and crucial evidence might be lost. In these circumstances, we can find no basis in our prior jurisprudence, see, e. g., Miranda, 384 U. S., at 477-478 (“It is an act of responsible citizenship for individuals to give whatever information they may have to aid in law enforcement”), or in our Nation's history and traditions to suppose that freedom from unwanted police questioning is a right so fundamental that it cannot be abridged absent a “compelling state interest.” Flores, supra, at 302. We have never required such a justification for a police interrogation, and we decline to do so here. The lack of any “guideposts for responsible decisionmaking” in this area, and our oft-stated reluctance to expand the doctrine of substantive due process, further counsel against recognizing a new “fundamental liberty interest” in this case.
We conclude that Martinez has failed to allege a violation of the Fourteenth Amendment, and it is therefore unnecessary to inquire whether the right asserted by Martinez was clearly established.
Ill
Because Chavez did not violate Martinez’s Fifth and Fourteenth Amendment rights, he was entitled to qualified immunity. The judgment of the Court of Appeals for the Ninth Circuit is therefore reversed, and the case is remanded for further proceedings.
It is so ordered.
The Chief Justice joins this opinion in its entirety. Justice O’Con-nor joins Parts I and II-A of this opinion. Justice Scaua joins Parts I and II of this opinion.
The parties disagree over what triggered the altercation. The officers maintain that Martinez ran away from them and that they tackled him while in pursuit; Martinez asserts that he never attempted to flee and Salinas tackled him without warning.
The government may not, however, penalize public employees and government contractors to induce them to waive their immunity from the use of their compelled statements in subsequent criminal proceedings. See Uniformed Sanitation Men Assn., Inc. v. Commissioner of Sanitation of City of New York, 392 U. S. 280 (1968); Lefkowitz v. Turley, 414 U. S. 70 (1973), and this is true even though immunity is not itself a right secured by the text of the Self-Incrimination Clause, but rather a prophylactic rule we have constructed to protect the Fifth Amendment’s right from invasion. See Part II-A-3, infra. Once an immunity waiver is signed, the signatory is unable to assert a Fifth Amendment objection to the subsequent use of his statements in a criminal case, even if his statements were in fact compelled. A waiver of immunity is therefore a prospective waiver of the core self-incrimination right in any subsequent criminal proceeding, and States cannot condition public employment on the waiver of constitutional rights, Lefkowitz, supra, at 85.
That the privilege is a prophylactic one does not alter our penalty cases jurisprudence, which allows such privilege to be asserted prior to, and outside of, criminal proceedings.
It is Justice Kennedy’s indifference to the text of the Self-Incrimination Clause, as well as a conspicuous absence of a single citation to the actual text of the Fifth Amendment, that permits him to adopt the Ninth Circuit’s interpretation.
Mincey v. Arizona, 437 U. S. 385 (1978), on which Justice Kennedy and Justice Ginsburg rely in support of their reading of the Fifth Amendment, was a case addressing the admissibility of a coerced confession under the Due Process Clause. Mincey did not even mention the Fifth Amendment or the Self-Incrimination Clause, and refutes Justice Kennedy’s and Justice Ginsburg’s assertions that their interpretation of that Clause would have been known to any reasonable officer at the time Chavez conducted his interrogation.
We also do not see how, in light of Graham v. Connor, 490 U. S. 386 (1989), Justice Kennedy can insist that “the Self-Incrimination Clause is applicable at the time and place police use compulsion to extract a statement from a suspect” while at the same time maintaining that the use of “torture or its equivalent in an attempt to induce a statement” violates the Due Process Clause. Post, at 795, 796 (opinion concurring in part and dissenting in part). Graham foreclosed the use of substantive due process analysis in claims involving the use of excessive force in effecting an arrest and held that' such claims are governed solely by the Fourth Amendment’s prohibitions against “unreasonable” seizures, because the Fourth Amendment provided the explicit source of constitutional protection against such conduct. 490 U. S., at 394-395. If, as Justice Kennedy believes, the Fifth Amendment’s Self-Incrimination Clause governs coercive police interrogation even absent use of compelled statements in a criminal case, then Graham suggests that the Due Process Clause would not.
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_petitioner
|
169
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the petitioner of the case. The petitioner is the party who petitioned the Supreme Court to review the case. This party is variously known as the petitioner or the appellant. Characterize the petitioner as the Court's opinion identifies them.
Identify the petitioner by the label given to the party in the opinion or judgment of the Court except where the Reports title a party as the "United States" or as a named state. Textual identification of parties is typically provided prior to Part I of the Court's opinion. The official syllabus, the summary that appears on the title page of the case, may be consulted as well. In describing the parties, the Court employs terminology that places them in the context of the specific lawsuit in which they are involved. For example, "employer" rather than "business" in a suit by an employee; as a "minority," "female," or "minority female" employee rather than "employee" in a suit alleging discrimination by an employer.
Also note that the Court's characterization of the parties applies whether the petitioner is actually single entity or whether many other persons or legal entities have associated themselves with the lawsuit. That is, the presence of the phrase, et al., following the name of a party does not preclude the Court from characterizing that party as though it were a single entity. Thus, identify a single petitioner, regardless of how many legal entities were actually involved. If a state (or one of its subdivisions) is a party, note only that a state is a party, not the state's name.
SNOW et ux. v. COMMISSIONER OF INTERNAL REVENUE
No. 73-641.
Argued April 16, 1974
Decided May 13, 1974
Douglas, J., delivered the opinioh of the Court, in which all Members joined except Stewart, J., who took no part in the consideration or decision of the case.
Burgess L. Doan argued the cause and filed briefs for petitioners.
Stuart A. Smith argued the cause for respondent. With him on the brief were Solicitor General Bork, ■Assistant Attorney General Crampton, Bennet N. Hollander, and Jane M. Edmisten.
Charles H. Phillips and Ronald L. Blanc, pro se, filed a brief as amici curiae.
Mr. Justice Douglas
delivered the opinion of the Court.
Section 174(a)(1) of the Internal Revenue Code of 1954, 26 U. S. C. § 174 (a)(1), allows a taxpayer to take as a deduction “experimental expenditures which are paid •or incurred by him during the taxable year in connection with his trade or business as expenses which are not chargeable to capital account.” Petitioner Edwin A. Snow (hereafter petitioner) was disallowed as a deduction his distributive share of the net operating loss of a partnership, Burns Investment Company, for the taxable year 1966. The United States Tax Court sustained the Commissioner, 58 T. C. 585. The Court of Appeals for the Sixth Circuit affirmed, 482 F. 2d 1029 (1973). The case is here on a writ of certiorari because of an apparent conflict between that court and the Fourth Circuit in Cleveland v. Commissioner, 297 F. 2d 169 (1961).
Petitioner was a limited partner in Burns, having contributed $10,000 for a four-percent interest in Burns. The general partner was one Trott who had previously formed two other limited partnerships, one called Echo, to develop a telephone answering device and the other Courier, to develop an electronic tape recorder. Petitioner had become a-limited partner in each of these other partnerships.
Burns .wa^ formed to develop “a special purpose incinerator for the consumer and industrial markets.” Trott was the inventor and had conceived of this idea in 1964 and between then and 1966 had made a number of prototypes. His patent counsel had told him in 1965 that several features of the burner were in his view patentable but in 1966 advised him that the incinerator as a whole had not been sufficiently “reduced to practice” in order to develop it into a marketable product. At that point Trott formed Burris, petitioner putting up part of the capital. Thereafter various models of the burner were built and tested.
During 1966 Burns reported no sales of the incinerator or any other product but expectations were high; and Trott was giving about one-third of his time to the project, an outside engineering firm doing the shopwork.
Trott obtained a patent on the incinerator in 1970, and it is currently being produced and marketed under the name Trash-Away.
Section 174 was enacted in 1954 to dilute some of the conception of “ordinary and necessary” business expenses under § 162 (a) (then § 23 (a)(1) of the Internal Revenue Code of 1939) adumbrated by Mr. Justice Frankfurter in a concurring opinion in Deputy v. Du Pont, 308 U. S. 488, 499 (1940), where he said that the section in question (old § 23 (a)) “involves holding one’s self out to others as engaged in the selling of goods or services.” The words “trade or business” appear, however, in about .60 different sections of the 1954 Act. Those other sections are not helpful here because Congress wrote into.§ 174 (a)(1) “in connection with,” and § 162 (a) is more narrowly written than is § 174, allowing “a deduction” of “ordinary and necessary expenses paid or incurred ... in carrying on any trade or business.” That and other sections are not helpful here.
The legislative history makes fairly clear the reasons. Established firms with ongoing business had continuous programs of research quite unlike small or pioneering business enterprises. Mr. Reed of New York, Chairman of the House Committee on Ways and Means, made the point even more explicit when he addressed the House on the bill:
“Present law contains no statutory provision dealing expressly with the deduction of these expenses. The result has been confusion and uncertainty. Very often, under present law'small businesses which are developing new products and do not have est¿blished research departments are not allowed to deduct these expenses' despite the fact that them large and well-established competitors can obtain the deduction. . . . This, provision will greatly stimulate the' search for new products' and new inventions, upon which the fiiture economic and military strength of our Nation depends.' It will be particularly valuable to small and growing businesses.” (Emphasis added.)
Congress may at times in its wisdom discriminate tax-wise between various kinds of business, between old and oncoming businéss and the like. But we would defeat the congressional purpose somewhat to equalize the tax benefits of the ongoing companies and those that are upcoming and about to reach the market by perpetuating the discrimination created below and urged upon us here.
We read § 174 as did the Court of Appeals for the Fourth Circuit in Cleveland “to encourage expenditure for research and experimentation.” 297 F. 2d, at 173. -That incentive is embedded in § 174 because of “in connection with,” making irrelevant whether petitioners-were rich or poor. -
We aré invited to explore the treatment of “hobby-losses” under §183. But that is far afield of the present inquiry for it is clear that in this case under § 174 the profit motive was the sole drive of the venture.
Reversed.
Mr. Justice Stewart took no part in the consideration or decision of this case.
Both Echo and Courier claimed research and development expenses in 1965 and 1966; and they were not. challenged by the Commissioner, apparently because their products were in a more advanced stage of development and were available for sale or licensing.
Treasury Regulation § 1.174-2 (a) (2) provides: “The provisions of this .section apply not only to costs paid or incurred by the taxpayer for research or- experimentation undertaken directly by him but also to expenditures paid or incurred for research or experimentation carried on in his behalf by another person or organization (such as . . . [an] engineering company, or similar contractor). . . .”
Prior to 1970 Burns was incorporated and it produces and markets Trasli-Away, petitioner being its Chairman of the Board.
Saunders, “Trade or Business,” Its Meaning Under the Internal Revenue Code, U. So. Cal. 12th Inst. on Fed. Tax. 693 (1960).
Hearings on H. R. 8300 before the Senate Committee on Finance, 83d Cong., 2d Sess., pt. 1, p. 105.
100 Cong. Rec. 3425 (1954).
Question: Who is the petitioner of the case?
001. attorney general of the United States, or his office
002. specified state board or department of education
003. city, town, township, village, or borough government or governmental unit
004. state commission, board, committee, or authority
005. county government or county governmental unit, except school district
006. court or judicial district
007. state department or agency
008. governmental employee or job applicant
009. female governmental employee or job applicant
010. minority governmental employee or job applicant
011. minority female governmental employee or job applicant
012. not listed among agencies in the first Administrative Action variable
013. retired or former governmental employee
014. U.S. House of Representatives
015. interstate compact
016. judge
017. state legislature, house, or committee
018. local governmental unit other than a county, city, town, township, village, or borough
019. governmental official, or an official of an agency established under an interstate compact
020. state or U.S. supreme court
021. local school district or board of education
022. U.S. Senate
023. U.S. senator
024. foreign nation or instrumentality
025. state or local governmental taxpayer, or executor of the estate of
026. state college or university
027. United States
028. State
029. person accused, indicted, or suspected of crime
030. advertising business or agency
031. agent, fiduciary, trustee, or executor
032. airplane manufacturer, or manufacturer of parts of airplanes
033. airline
034. distributor, importer, or exporter of alcoholic beverages
035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked
036. American Medical Association
037. National Railroad Passenger Corp.
038. amusement establishment, or recreational facility
039. arrested person, or pretrial detainee
040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association
041. author, copyright holder
042. bank, savings and loan, credit union, investment company
043. bankrupt person or business, or business in reorganization
044. establishment serving liquor by the glass, or package liquor store
045. water transportation, stevedore
046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines
047. brewery, distillery
048. broker, stock exchange, investment or securities firm
049. construction industry
050. bus or motorized passenger transportation vehicle
051. business, corporation
052. buyer, purchaser
053. cable TV
054. car dealer
055. person convicted of crime
056. tangible property, other than real estate, including contraband
057. chemical company
058. child, children, including adopted or illegitimate
059. religious organization, institution, or person
060. private club or facility
061. coal company or coal mine operator
062. computer business or manufacturer, hardware or software
063. consumer, consumer organization
064. creditor, including institution appearing as such; e.g., a finance company
065. person allegedly criminally insane or mentally incompetent to stand trial
066. defendant
067. debtor
068. real estate developer
069. disabled person or disability benefit claimant
070. distributor
071. person subject to selective service, including conscientious objector
072. drug manufacturer
073. druggist, pharmacist, pharmacy
074. employee, or job applicant, including beneficiaries of
075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan
076. electric equipment manufacturer
077. electric or hydroelectric power utility, power cooperative, or gas and electric company
078. eleemosynary institution or person
079. environmental organization
080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer.
081. farmer, farm worker, or farm organization
082. father
083. female employee or job applicant
084. female
085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of
086. fisherman or fishing company
087. food, meat packing, or processing company, stockyard
088. foreign (non-American) nongovernmental entity
089. franchiser
090. franchisee
091. lesbian, gay, bisexual, transexual person or organization
092. person who guarantees another's obligations
093. handicapped individual, or organization of devoted to
094. health organization or person, nursing home, medical clinic or laboratory, chiropractor
095. heir, or beneficiary, or person so claiming to be
096. hospital, medical center
097. husband, or ex-husband
098. involuntarily committed mental patient
099. Indian, including Indian tribe or nation
100. insurance company, or surety
101. inventor, patent assigner, trademark owner or holder
102. investor
103. injured person or legal entity, nonphysically and non-employment related
104. juvenile
105. government contractor
106. holder of a license or permit, or applicant therefor
107. magazine
108. male
109. medical or Medicaid claimant
110. medical supply or manufacturing co.
111. racial or ethnic minority employee or job applicant
112. minority female employee or job applicant
113. manufacturer
114. management, executive officer, or director, of business entity
115. military personnel, or dependent of, including reservist
116. mining company or miner, excluding coal, oil, or pipeline company
117. mother
118. auto manufacturer
119. newspaper, newsletter, journal of opinion, news service
120. radio and television network, except cable tv
121. nonprofit organization or business
122. nonresident
123. nuclear power plant or facility
124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels
125. shareholders to whom a tender offer is made
126. tender offer
127. oil company, or natural gas producer
128. elderly person, or organization dedicated to the elderly
129. out of state noncriminal defendant
130. political action committee
131. parent or parents
132. parking lot or service
133. patient of a health professional
134. telephone, telecommunications, or telegraph company
135. physician, MD or DO, dentist, or medical society
136. public interest organization
137. physically injured person, including wrongful death, who is not an employee
138. pipe line company
139. package, luggage, container
140. political candidate, activist, committee, party, party member, organization, or elected official
141. indigent, needy, welfare recipient
142. indigent defendant
143. private person
144. prisoner, inmate of penal institution
145. professional organization, business, or person
146. probationer, or parolee
147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer
148. public utility
149. publisher, publishing company
150. radio station
151. racial or ethnic minority
152. person or organization protesting racial or ethnic segregation or discrimination
153. racial or ethnic minority student or applicant for admission to an educational institution
154. realtor
155. journalist, columnist, member of the news media
156. resident
157. restaurant, food vendor
158. retarded person, or mental incompetent
159. retired or former employee
160. railroad
161. private school, college, or university
162. seller or vendor
163. shipper, including importer and exporter
164. shopping center, mall
165. spouse, or former spouse
166. stockholder, shareholder, or bondholder
167. retail business or outlet
168. student, or applicant for admission to an educational institution
169. taxpayer or executor of taxpayer's estate, federal only
170. tenant or lessee
171. theater, studio
172. forest products, lumber, or logging company
173. person traveling or wishing to travel abroad, or overseas travel agent
174. trucking company, or motor carrier
175. television station
176. union member
177. unemployed person or unemployment compensation applicant or claimant
178. union, labor organization, or official of
179. veteran
180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL)
181. wholesale trade
182. wife, or ex-wife
183. witness, or person under subpoena
184. network
185. slave
186. slave-owner
187. bank of the united states
188. timber company
189. u.s. job applicants or employees
190. Army and Air Force Exchange Service
191. Atomic Energy Commission
192. Secretary or administrative unit or personnel of the U.S. Air Force
193. Department or Secretary of Agriculture
194. Alien Property Custodian
195. Secretary or administrative unit or personnel of the U.S. Army
196. Board of Immigration Appeals
197. Bureau of Indian Affairs
198. Bonneville Power Administration
199. Benefits Review Board
200. Civil Aeronautics Board
201. Bureau of the Census
202. Central Intelligence Agency
203. Commodity Futures Trading Commission
204. Department or Secretary of Commerce
205. Comptroller of Currency
206. Consumer Product Safety Commission
207. Civil Rights Commission
208. Civil Service Commission, U.S.
209. Customs Service or Commissioner of Customs
210. Defense Base Closure and REalignment Commission
211. Drug Enforcement Agency
212. Department or Secretary of Defense (and Department or Secretary of War)
213. Department or Secretary of Energy
214. Department or Secretary of the Interior
215. Department of Justice or Attorney General
216. Department or Secretary of State
217. Department or Secretary of Transportation
218. Department or Secretary of Education
219. U.S. Employees' Compensation Commission, or Commissioner
220. Equal Employment Opportunity Commission
221. Environmental Protection Agency or Administrator
222. Federal Aviation Agency or Administration
223. Federal Bureau of Investigation or Director
224. Federal Bureau of Prisons
225. Farm Credit Administration
226. Federal Communications Commission (including a predecessor, Federal Radio Commission)
227. Federal Credit Union Administration
228. Food and Drug Administration
229. Federal Deposit Insurance Corporation
230. Federal Energy Administration
231. Federal Election Commission
232. Federal Energy Regulatory Commission
233. Federal Housing Administration
234. Federal Home Loan Bank Board
235. Federal Labor Relations Authority
236. Federal Maritime Board
237. Federal Maritime Commission
238. Farmers Home Administration
239. Federal Parole Board
240. Federal Power Commission
241. Federal Railroad Administration
242. Federal Reserve Board of Governors
243. Federal Reserve System
244. Federal Savings and Loan Insurance Corporation
245. Federal Trade Commission
246. Federal Works Administration, or Administrator
247. General Accounting Office
248. Comptroller General
249. General Services Administration
250. Department or Secretary of Health, Education and Welfare
251. Department or Secretary of Health and Human Services
252. Department or Secretary of Housing and Urban Development
253. Interstate Commerce Commission
254. Indian Claims Commission
255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement
256. Internal Revenue Service, Collector, Commissioner, or District Director of
257. Information Security Oversight Office
258. Department or Secretary of Labor
259. Loyalty Review Board
260. Legal Services Corporation
261. Merit Systems Protection Board
262. Multistate Tax Commission
263. National Aeronautics and Space Administration
264. Secretary or administrative unit of the U.S. Navy
265. National Credit Union Administration
266. National Endowment for the Arts
267. National Enforcement Commission
268. National Highway Traffic Safety Administration
269. National Labor Relations Board, or regional office or officer
270. National Mediation Board
271. National Railroad Adjustment Board
272. Nuclear Regulatory Commission
273. National Security Agency
274. Office of Economic Opportunity
275. Office of Management and Budget
276. Office of Price Administration, or Price Administrator
277. Office of Personnel Management
278. Occupational Safety and Health Administration
279. Occupational Safety and Health Review Commission
280. Office of Workers' Compensation Programs
281. Patent Office, or Commissioner of, or Board of Appeals of
282. Pay Board (established under the Economic Stabilization Act of 1970)
283. Pension Benefit Guaranty Corporation
284. U.S. Public Health Service
285. Postal Rate Commission
286. Provider Reimbursement Review Board
287. Renegotiation Board
288. Railroad Adjustment Board
289. Railroad Retirement Board
290. Subversive Activities Control Board
291. Small Business Administration
292. Securities and Exchange Commission
293. Social Security Administration or Commissioner
294. Selective Service System
295. Department or Secretary of the Treasury
296. Tennessee Valley Authority
297. United States Forest Service
298. United States Parole Commission
299. Postal Service and Post Office, or Postmaster General, or Postmaster
300. United States Sentencing Commission
301. Veterans' Administration
302. War Production Board
303. Wage Stabilization Board
304. General Land Office of Commissioners
305. Transportation Security Administration
306. Surface Transportation Board
307. U.S. Shipping Board Emergency Fleet Corp.
308. Reconstruction Finance Corp.
309. Department or Secretary of Homeland Security
310. Unidentifiable
311. International Entity
Answer:
|
songer_initiate
|
B
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify what party initiated the appeal. For cases with cross appeals or multiple docket numbers, if the opinion does not explicitly indicate which appeal was filed first, assumes that the first litigant listed as the "appellant" or "petitioner" was the first to file the appeal. In federal habeas corpus petitions, consider the prisoner to be the plaintiff.
WOODARD LABORATORIES, Inc., et al. v. UNITED STATES.
No. 13259.
United States Court of Appeals Ninth Circuit.
Aug. 29, 1952.
Eugene M. Elson, Los Angeles, Cal., for appellant.
Walter S. Binns, U. S. Atty., Ray Kin-nison, Tobias G. Klinger, Asst. U. S. Attys., Los Angeles, Cal. (Arthur A. Dick-erman, Atty., U. S. Food & Drug Administration, Federal Security Agency, Los Angeles, Cal., of counsel), for appellee.
Before STEPHENS, BONE and ORR, Circuit Judges.
ORR, Circuit Judge.
This is an appeal from judgments of conviction on an information charging appellants with violation of the Federal Food, Drug, and Cosmetic Act, 21 U.S.C.A. § 301 et seq. Appellant Woodard. Laboratories packaged and shipped in interstate commerce certain drugs manufactured by Crest Laboratories. Appellants Murphy and Sullivan are, respectively, president and general manager of Woodard Laboratories. The information charged the appellants in ten counts with five interstate shipments of alpha-estradiol tablets whose strength was below that' declared on the labels; each shipment was the basis for two counts, one relating to adulteration and one to mis-branding. 21 U.S.C.A. §§ 331(a), 351(c), and 352(a). The, District Court, sitting without a jury, found each of the defendants guilty on the five counts relating to adulteration. A total fine of $2500 was imposed upon Woodard and a total fine of $250 was imposed on each of the individual defendants.
The tablets in question are shipped under the trade name “Estrocrine” and contain alpha-estradiol, a female sex hormone which is dispensed only by or on the prescription of a physician. Samples of the tablets were subjected to laboratory analysis by the Food and Drug Administration; the results of these assays led directly to the filing of the information. A drug distributor has an absolute liability for adulterated and misbranded drugs that he introduces into interstate commerce. “Balancing relative hardships, Congress has preferred to place it on those who have at least the opportunity of informing themselves of the existence of conditions imposed for the protection of consumers before sharing in illicit commerce, rather than to throw the hazard on the innocent public who are wholly helpless.” United States v. Dotter-weich, 1943, 320 U.S. 277, 285, 64 S.Ct. 134, 138, 88 L.Ed. 48. The appellants contend, however, that the evidence was insufficient to sustain the judgment. A determination of this question requires a brief summarization of the evidence.
Two witnesses testified for the Government. They are outstanding authorities in the general field of pharmaceutical chemistry and both have had a large experience in the study of estrogenic hormones. They described in detail the methods of assay used in determining whether the Woodard tablets contained the 22 megs, of alpha-estradiol their labels represented the tablets to possess.
Witness Carol used what is known as the infra-red method of analysis in order to double check on the United States Pharmacopoeia, known as U.S.P., method used by the other Government chemists in analyzing samples from the shipments in question. He testified that special procedures were used in an effort to insure complete extraction of the alpha-estradiol from the tablets. Carol stated that his assays disclosed that the amount of alpha-estradiol present per tablet ranged from 23% to 68% of the amount declared on the label.
Witness Carol also described the results of assays conducted by his associate, Dr. Edward Haenni, upon samples from three of the shipments by means of the U.S.P. method which had been developed by Mr. Carol and his associates. Dr. Haenni’s assays indicated that the alpha-estradiol content of the tablets in these three shipments ranged from 32% to 63% of the amount declared on the label. Witness Carol further testified that he had previously tested a number of samples of other commercially prepared alpha-estradiol tablets containing 22 megs, by means of the U.S.P. method with successful results.
Dr. Banes, using the U.S.P. method, assayed samples taken from all five of the shipments in question. He then conducted further special experimental procedures not required by the U.S.P. method, involving additional extractions and the use of a simulated tablet mix, to verify his findings which indicated that the alpha-estradiol content of the tablets ranged from 30% to' 73% of the stated amount. Dr. Banes also testified that in the development of the U.S.P. method of assay the developing chemists made certain the method would extract all but a minute portion of the alpha-estradiol in the particular tablets regardless of the ratio of the drug to excipi-ents.
The appellants do not dispute the fact that less than the purported 22 megs, of alpha-estradiol was extracted from the tablets packaged, as measured by the U.S.P. procedure. Their argument is that the U.S.P. method, while perhaps effective in analyzing tablets of greater potency, is inaccurate and unsuitable in extracting alpha-estradiol when combined with the large mass of excipients present in these particular tablets.
A Mr. Galindo, Vice-President of Crest Laboratories, identified worksheets which purported to indicate meticulous care by Crest in the manufacture of the tablets. He testified that an overage of 5% more alpha-estradiol was used than necessary to make a tablet containing 22 megs, of the drug. The worksheets were said to show the process of manufacture, step by step, and disclose that the required amount of the drug was placed in the tablets.
Dr. C. E. P. Jeffreys, consulting chemist and technical director of Truesdail Laboratories, testified that he was asked by Woodard to run an assay on tablets from the shipments in question. Using the U.S.P. procedure, he was able to extract only 8.1 to 9.5 megs, of alpha-estradiol from the tablets. Dr. Jeffreys stated that he believed the U.S.P. method of assay did not extract all of the alpha-estradiol present in tablets of such low potency because of adsorption to the solid surface of the excipients, and was thus not a suitable method.
Dr. Hoyt and Dr. Sobel, associated with the Cedars of Lebanon Hospital, testified to certain experiments conducted at the request of the appellants subsequent to the hearing before the Food and Drug Administration. These experiments, involving assays upon pure estradiol, tablets specially manufactured by Crest to insure the presence of a stated quantity of alpha-estradiol, and tablets containing all the excipients of the usual tablet manufactured by Crest into which Dr. Hoyt and Dr. Sobel personally added certain quantities of alpha-estradiol, were asserted to demonstrate that it was not possible by the use of the U.S.P. method to recover all of the alpha-estradiol when it was held in excipients of the sort that were found in the Woodard tablets.
The usual rule to be followed in determining the sufficiency of evidence to sustain a judgment is well settled. “It is not for us to weigh the evidence or to determine the credibility of witnesses. The verdict of a jury must be sustained if there is substantial evidence, taking the view most favorable to the Government, to support it.” Glasser v. United States, 1942, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680. See Banks v. United States, 9 Cir., 1945, 147 F.2d 628. However, the appellant strongly urges that the Government’s case is founded upon circumstantial evidence, and that therefore the proper test of whether the evidence is sufficient to sustain the judgment depends upon whether all of the substantial evidence is as consistent with a reasonable hypothesis of innocence as with guilt; if it is, the judgment must be reversed. Karn v. United States, 9 Cir., 1946, 158 F.2d 568; McCoy v. United States, 9 Cir., 1948, 169 F.2d 776. We find it unnecessary to decide whether the nature of the inference required to logically connect the experimental procedures used by the Government chemists with the factual issue of adulteration requires a characterization of the evidence as circumstantial. Even if we were to concede that the evidence of results obtained in the assays should be regarded as circumstantial, it cannot be said as a matter of law that all the substantial evidence is as consistent with a reasonable hypothesis of innocence as with guilt. The fact that some of the evidence admitted is consistent with innocence is not determinative of the sufficiency of the evidence. Ferris v. United States, 9 Cir., 1930, 40 F.2d 837. Witness Galindo’s worksheets contained a number of discrepancies and omissions which the District Court reasonably could consider on the question of credibility. Although Dr. Hoyt;. Dr. Sobel and Dr. Jeffreys testified that their experiments led them to believe the U.S.P. method of assay was unsuitable in these circumstances, the District Court properly could choose to believe instead the testimony of the Government scientists who developed the assay procedure and who testified that the procedure will enable extraction and measurement of alpha-estradiol in tablets of any potency. Substantial evidence is " * * * such relevant evidence as a reasonable mind might accept as adequate to support a conclusion * * N. L. R. B. v. Columbian Co., 1939, 306 U.S. 292, 300, 59 S.Ct. 501, 505, 83 L.Ed. 660. The testimony of witnesses Carol and Banes was substantial and cannot be said to have been as consistent with a reasonable hypothesis of innocence as with guilt.
Appellants did not attempt to prove the potency of their tablets by some procedure other than the U.S.P. method of assay ; they object to the Court’s treatment of this as being in the nature of a failure of proof. It is argued that since alpha-estradiol was recognized and the method of assay appeared in an official compendium, U.S.P. XIV, seven months prior to the filing of the information the determination as to the strength of the drug could be made only according to the official method of assay set forth in the compendium. 21 U.S.C.A. § 351(b) states that when a drug is recognized in an official compendium the “ * * * determination as to [its] strength, quality, or purity shall be made in accordance with the tests or methods of assay set forth in such compendium * * *Appellants could be held criminally responsible only in the event the drugs were adulterated at the time of their interstate shipment. 21 U.S.C.A. § 331(a). See Pasadena Research Laboratories v. United States, 9 Cir., 1948, 169 F.2d 375, 380, certiorari denied, 335 U.S. 853, 69 S.Ct. 83, 93 L.Ed. 401. Since at the time of such interstate shipments between August 22, 1949 and May 25, 1950 the United States Pharmacopoeia did not officially recognize alpha-estradiol tablets, 21 U.S.C.A. § 351(b) is inapplicable. The information in fact was based upon 21 U.S.C.A. § 351(c), which defines adulteration in those situations where § 351(b) does not apply, and which is silent as to the method of determination. There was therefore no restriction upon the method of assay to be employed, although of course the subsequently adopted U.S.P. method was entitled to great weight. As the District Court itself noted, the most direct way for the appellants to have impeached the U.S.P. method of assay would have been for them to have attempted to prove the potency of their tablets by some other assay method.
Judgment affirmed.
. Jonas Carol lias been a chemist with the United States Food and Drug Administration for 21 years, and is chief of the Synthetic Branch of the Division of Pharmaceutical Chemistry. Practically all of his work has been in the analysis of drugs and in the development of methods for their analysis; during the past six years he has been engaged almost exclusively in developing methods for analysis of estrogenic hormones.
Dr. Daniel Banes has been a chemist with the Food and Drug Administration since 1939, specializing in drug analysis since 1940, and doing his chief work since 1948 on the analysis of estrogenic drug preparations.
. The United States Pharmacopoeia is designated an official compendium by the Federal Food, Drug and Cosmetic Act. 21 U.S.C.A. § 321 (j). U.S.P.XIV first officially recognized alpha-estradiol and provided a method for assay of the drug November 1, 1950. See p. 227. The U. S.P. assay procedure involves a series of extractions in a prescribed method followed by use of a colorimeter to determine the amount of alpha-estradiol extracted.
. The Woodard tablets were represented to contain a ratio of 22 parts alpha-estradiol to 324,000 parts of excipients.
. Other laboratories retained by tbe appellants, with the exception of tbe Adam Laboratories, also were unable to extract and measure tbe purported 22 megs, by means of tbe U.S.P. method. The Adam Laboratories found no deficiencies in one of a series of assays it conducted and suggested that this discrepancy was caused by some fault in tbe manufacturing process.
. Mr. Don O. Atkins, another witness for tbe appellants, also testified to a belief that tbe U.S.P. method was unsuitable, although bis testimony tended to suggest that tbe excipients would cause an artificially high reading of alpha-estra-diol.
. Dr. Hoyt, the appellants’ own witness, testified that the alpha-estardiol content of the tablets could have been measured by other assay procedures:
“Q. (The Court) Had they been submitted to you, could you have made an analysis and determined the exact amount of alpha-estradiol in those tablets, using, any method you cared to? A. I think it could be done — I think perhaps by biological assay it could be done, if not by the U.S.P. method. I am sure it could be done.”
Question: What party initiated the appeal?
A. Original plaintiff
B. Original defendant
C. Federal agency representing plaintiff
D. Federal agency representing defendant
E. Intervenor
F. Not applicable
G. Not ascertained
Answer:
|
songer_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.
BOOSTER LODGE NO. 405, INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, The Boeing Company, Intervenor. The BOEING COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Booster Lodge No. 405, International Association of Machinists and Aerospace Workers, AFL-CIO, Intervenor.
Nos. 24687, 24744.
United States Court of Appeals, District of Columbia Circuit.
Argued Sept. 15, 1971.
Decided Feb. 3, 1972.
Mr. Bernard Dunau, Washington, D. C., with whom Messrs. Plato E. Papps, Washington, D. C., and C. Paul Barker, New Orleans, La., were on the brief, for petitioner in No. 24,687 and intervenor in No. 24,744.
Mr. C. Dale Stout, New Orleans, La., for petitioner in No. 24,744 and interve-nor in No. 24,687.
Mr. Glen M. Bendixsen, Atty., National Labor Relations Board, with whom Messrs. Arnold Ordman, General Counsel, Washington, D. C., at the time the brief was filed, Dominick L. Manoli, Associate General Counsel, Marcel Mallet-Prevost, Asst. General Counsel, and Stanley R. Zirkin, Atty., National Labor Relations Board, were on the brief, for respondent.
Before MacKINNON and WILKEY, Circuit Judges, and GOURLEY, Senior District Judge for the Western District of Pennsylvania.
Sitting by designation pursuant to 28 U.S.C. § 294(d) (1970).
MacKINNON, Circuit Judge:
In this case, we are called upon to examine the right of a labor organization, consonant with the provisions of the National Labor Relations Act (N.L.R.A.), to discipline those members who have crossed its picket line to work during an authorized strike. We must determine the effect which a member’s resignation from the union, before, during, or after such conduct, has upon the union’s disciplinary authority. We are also requested to consider the legal implications of the “reasonableness” of the fines imposed, where the union has threatened enforcement thereof, or has actually sought collection through legal means.
The essential facts are not in dispute. Booster Lodge No. 405, International Association of Machinists and Aerospace Workers, AFL-CIO (hereinafter sometimes referi’ed to as the Union), and The Boeing Company, (hei’einafter sometimes referred to as the Company), were parties to a collective bargaining agreement which was effective from May 16, 1963, through September 15, 1965. Upon the expiration of the contract, the Union commenced a lawful strike against Boeing at its Michoud plant, as well as at various other locations. This work stoppage lasted 18 days. On October 2, 1965, a new bargaining agreement was signed, and the economic strikers returned to work the following day. Both the expired agreement and the newly executed contract contained maintenance-of-membership clauses, which required all new employees to notify both the Union and the Company within 40 days of their acceptance of employment if they elected not to become Union members. It also required those who were Union members to retain their membership during the contract term.
During the strike period, approximately 143 employees, of the 1900 production and maintenance employees represented by the Union at the Michoud plant, crossed the picket line and reported to work. All of these persons had been Union members during the 1963-1965 contract period. Some of the employees who worked during the strike made no attempt to resign from the Union during the strike. The remaining 119 submitted their voluntary resignations, in writing, to both the Union and the Company. About 61 of the employees who resigned did so before they crossed the picket line and returned to work. Another 58 resigned during the course of the strike, but after they had crossed'the picket line in order to work. All resignations were submitted after the expiration of the 1963-1965 contract, and before the execution of the new agreement, and all wei’e submitted prior to the imposition of any Union discipline. Union members had not been warned prior to the strike that disciplinary measures could, or would, be taken against those who ei-ossed the picket line to woi’k, nor had any such discipline been imposed on members by Booster Lodge 405 prior to this time.
In late October or early November of 1965, the Union notified all members and former members who had crossed the picket line to work during the strike that charges had been preferred against them under the International Union Constitution, for “Improper Conduct of a Member” due to their having “accept[ed] employment ... in an establishment where a strike exist [ed].” They were advised of the dates of their Union trials, which were to be held even in their absence if they did not appear, and they were notified of their right to be represented by any counsel who was a member of the International Association of Machinists and Aerospace Workers. Pursuant to the International Union Constitution provision which permitted the imposition of disciplinary measures, including “reprimand, fine, suspension, or expulsion from membership, or any lesser penalty or combination,” where a member had been found guilty of misconduct after notice and a hearing, fines were imposed on all employees who had worked during the strike. No distinction was drawn between those persons who had resigned from the Union during the course of the strike and those who had remained Union members.
Employees who did not appear for trial before the Union Trial Committee and those who appeared but were found guilty were fined $450.00 each, the amount determined by the membership, and they were barred from holding a Union office for a period of 5 years. The fines of about 35 employees who appeared for trial, apologized, and pledged loyalty to the Union, were reduced to 50 percent of the earnings they received during the strike. In some of these cases the time period during which these persons were prohibited from holding Union office was decreased to a period based upon the number of days of strikebreaking activity each respective person had engaged in. None of the disciplined individuals processed intra-Union appeals.
Although none of the $450.00 fines has been paid, reduced fines have been paid in some instances. The Union has sent out written notices that the matter has been referred to an attorney for collection, that suit will be filed if the fines remain unpaid, and that reduced fines will be reinstated to $450.00 in the event of nonpayment. The Union has also filed suit against nine individual employees to collect the fines (plus attorney’s fees and interest). None of these suits has yet been resolved.
On February 18, 1966, the Company filed a charge with the N.L.R.B., alleging that the Union had violated Section 8(b) (1) (A) of the N.L.R.A., and a complaint was issued by the General Counsel. The Labor Board decided that the Union violated section 8(b) (1) (A): (1) by fining those employees who had resigned from the Union before they returned to work during the strike; and (2) by disciplining those employees who had resigned after returning to work, to the extent that the fines were imposed for their working during the strike after their resignations. The Board further found that the Union did not violate the Act (3) by fining members for crossing the picket line to work, and by fining those employees who had resigned after returning to work during the strike, for work .they performed during the strike prior to their resignations.
Finally, the Board determined (4) that it was not the intention of Congress to have the N.L.R.B. regulate the size of such disciplinary fines and establish standards with respect to their reasonableness, and it dismissed the claim that otherwise legal fines may be rendered violative of the N.L.R.A. if unreasonably large. A cease and desist order was issued, and the Union was ordered to refund any fines collected from employees who had resigned before returning to work. The Union was also required to refund a pro rata portion of those fines collected from employees who had resigned after first engaging in work during the strike, so that the part of the fines retained would only reflect pre-resignation conduct.
Booster Lodge 405 challenges the Board’s conclusion that a mid-strike resignation from a union relieves an individual from the burden of union discipline with respect to his post-resignation activity, while The Boeing Company contends that the N.L.R.B. should have examined the reasonableness of the fines imposed by the Union. The Board seeks enforcement of its order.
Part I of this opinion discusses the legality of the imposition of the disciplinary fines by the Union in response to the strikebreaking by the approximately 143 employees involved. Part II considers the effect the reasonableness of the fines has upon their propriety under the N.L.R.A., and the proper function of the N.L.R.B. in this area. Finally, Part III deals with the propriety of the Board’s remedial order.
I
The Legality of the Disciplinary Fines A. The Employees Who Did Not Resign
As early as 1954, in Minneapolis Star and Tribune Co., 109 NLRB 727 (1954), the Labor Board held that a union did not violate Section 8(b) (1) (A) of the Act by imposing a fine on a member for his failure to perform picket duty during the course of an authorized strike. The Board declared that the proviso to 8(b) (1) (A) precluded any interference by it with the internal affairs of a labor organization in such a situation. In N.L.R.B. v. Allis-Chalmers Manufacturing Co., 388 U.S. 175, 87 S.Ct. 2001, 18 L.Ed.2d 1123 (1967), a divided Supreme Court similarly determined that a union did not violate the N.L.R.A. when it imposed, and attempted to enforce through court action, reasonable fines against members for their failure to honor an authorized picket line. Instead of relying upon the express language of the proviso, however, the Supreme Court carefully analyzed the entire legislative history of Section 8(b) (1) (A), and it concluded that Congress did not intend to prohibit such internal union discipline by the prohibition against “restraint” or “coercion.” See 388 U.S. at 183-195, 87 S.Ct. 2001. The Court noted:
National labor policy has been built on the premise that by pooling their economic strength and acting through a labor organization freely chosen by the majority, the employees of an appropriate unit have the most effective means of bargaining for improvements in wages, hours, and working conditions. The policy therefore extinguishes the individual employee’s power to order his own relations with his employer and creates a power vested in the chosen representative to act in the interests of all employees. “Congress has seen fit to clothe the bargaining representative with powers comparable to those possessed by a legislative body both to create and restrict the rights of those whom it represents ...”
388 U.S. at 180, 87 S.Ct. at 2006. See J. I. Case Co. v. N.L.R.B., 321 U.S. 332, 64 S.Ct. 576, 88 L.Ed. 762 (1944). The Court further stated:
Integral to this federal labor policy has been the power in the chosen union to protect against erosion [of] its status under that policy through reasonable discipline of members who violate rules and regulations governing membership. That power is particularly vital when the members engage in strikes. The economic strike against the employer is the ultimate weapon in labor’s arsenal for achieving agreement upon its terms, and “[t]he power to fine or expel strikebreakers is essential if the union is to be an effective bargaining agent ft
388 U.S. at 181, 87 S.Ct. at 2007.
In more recent decisions, the Supreme Court has reaffirmed the right of a union to impose and enforce reasonable fines against members who engage in strikebreaking activities. In Scofield v. N.L.R.B., 394 U.S. 423, 428-430, 89 S.Ct. 1154, 22 L.Ed.2d 385 (1969), the Court emphasized the right of a union to enforce a properly adopted rule which reflects a legitimate union interest, impairs no statutory labor policy, and is reasonably enforced against union members. See N.L.R.B. v. Industrial Union of Marine etc. Workers, 391 U.S. 418, 423, 88 S.Ct. 1717, 20 L.Ed.2d 706 (1968). See also Rocket Freight Lines Co. v. N.L.R.B., 427 F.2d 202, 205-206 (10th Cir.), cert. denied, 400 U.S. 942, 91 S.Ct. 241, 27 L.Ed.2d 246 (1970); Silard, Labor Board Regulation of Union Discipline After Allis-Chalmers, Marine Workers and Scofield, 38 Geo.Wash.L. Rev. 187 (1969). In light of these developments, it is clear that the Union acted within the sphere of its lawful authority when it decided to impose fines on the 24 strikebreaking members who did not resign from the Union. Similarly, the Union’s threats to enforce these fines, as well as its actual efforts to achieve court enforcement thereof, were not prohibited by the N.L.R.A. However, a more difficult question arises with respect to the 119 employees who resigned from the Union during the strike period.
B. The Employees Who Did Resign
As the Supreme Court recognized in Allis-Chalmers, when Section 8(b) (1) (A) was enacted, “Congress was operating within the context of the ‘contract theory’ of the union-member relationship which widely prevailed at that time.” N.L.R.B. v. Allis-Chalmers Mfg. Co., supra, 388 U.S. at 192, 87 S. Ct. at 2013. See International Association of Machinists v. Gonzales, 356 U.S. 617, 618, 78 S.Ct. 923, 2 L.Ed.2d 1018 (1958). Under this theory union membership was deemed in effect to create a “contract” between the labor organization and the member which imposed certain obligations on the member, and the decision emphasized “that ‘The courts’ role is but to enforce the contract.’ ” 388 U.S. at 182, 87 S.Ct. at 2008. See Summers, The Law of Union Discipline: What the Courts Do in Fact, 70 Yale L.J. 175, 180 (1960). It is, therefore, obvious that membership in the labor organization is the sine qua non to the authority of a union to impose disciplinary burdens upon the employees it represents. This has been widely recognized.
In Allis-Chalmers, the Court expressly limited its holding to “reasonable discipline of members who violate rules and regulations governing membership.” N.L.R.B. v. Allis-Chalmers Mfg. Co., supra, 388 U.S. at 181, 87 S.Ct. at 2007 (emphasis supplied). See also id. at 195-196. The Labor Board specifically recognized this indispensable prerequisite in Scofield, 145 NLRB 1097, 1104 (1964), where it noted that “[a] union rule that a member is subject to a fine if he [violates a valid union rule] does not mean that he is subject to such a fine as an employee.” (Emphasis in original.) This membership requirement for union disciplinary authority was affirmed by the Supreme Court in Scofield v. N.L.R.B., 394 U.S. 423, 429, n. 5, 89 S.Ct. 1154, 1157, 22 L.Ed.2d 385:
As an employee, [an individual] may be a “good, bad, or indifferent” member so long as he meets the financial obligations of the union security contract. * * * But as a union member, so long as he chooses to remain one, he is subject to union discipline. (Emphasis supplied.)
See 394 U.S. at 435, 89 S.Ct. at 1160. Thus the Court recognized that “union members . . . are free to leave the union and escape the [union] rule.” Id. at 430, 89 S.Ct. at 1158. It is therefore apparent that Booster Lodge U05 only had the authority to discipline those employees who were in fact Union members at the time they engaged in the complained of activity.
Approximately 58 of the employees who worked during the strike submitted their resignations to the Union after they had already engaged in some of the conduct proscribed by the International Union Constitution. In light of the above discussion regarding union authority over action undertaken by full members, we must concur in the Board’s determination that the Union did not violate Section 8(b) (1) (A) so far as its imposition of disciplinary fines concerned this preresignation conduct. The fact that the fines were not officially imposed for these pre-resignation breaches of Union regulations until after the strikebreakers had resigned, in no way negated the authority of the Union over these persons with respect to these acts, as the N.L.R.B. properly recognized.
The provisions of a contract are enforceable, and a cause of action can be brought upon them, even after the expiration or termination of the agreement. The rights and duties created by an agreement are extinguished only prospectively by the termination thereof. Thus the termination of some employees’ membership here did not affect the Union’s subsequent assertion of rights which had accrued to the Union during their earlier period of membership, such as the right to discipline the employees for prior strikebreaking. The effect of these employees’ resignations was only to extinguish the Union’s future authority over them.
Booster Lodge No. 405, International Association of Machinists and Aerospace Workers, AFL-CIO, 185 NLRB No. 23, 1970 CCH NLRB ¶ 22,259, at p. 28,693 (1970).
C. Fines Imposed for Post-resignation Conduct
An extremely difficult question is presented with respect to the fines which were imposed upon employees for their posi-resignation conduct. Booster Lodge 405 has made a sophisticated argument which would expose persons who were members at the commencement of a particular strike to union discipline with respect to any strikebreaking action undertaken during that specific work stoppage. Although it concedes that such a restriction is not contained in any of the express language of the International Union Constitution or Bylaws, the Union urges this court to “flesh out” such documents by imposing such an obligation by implication. We must decline this invitation.
It must be emphasized that in situations like this, while “the function of the court is to determine, as far as is possible, the intention of the contracting parties and to give legal effect thereto,” it is generally recognized that courts will not usually imply offenses not specified in a union’s constitution or by-laws. We believe that this latter consideration is controlling with respect to the instant case. As the union recognizes, there is nothing in the record which evidences any intention on the part of the approximately 119 persons who resigned during the strike in question that their initial acceptance of Union membership would impose upon them the type of continuing obligation which Booster Lodge 405 now asks this court to impose. Furthermore, the very fact that they resigned during this period, in an obvious attempt to escape the disciplinary authority of the Union, belies this proposed line of reasoning.
In addition, an extremely important national labor policy militates against the imposition of such an implied obligation. Section 7 of the N.L.R. A. expressly protects the right of any employee to refrain from any or all of the concerted activities guaranteed to employees under the Act. While Allis-Chalmers and Scofield recognized the legality of certain express union provisions limiting an employee’s freedom where he had voluntarily accepted full union membership, nothing in those decisions supports the Union’s theory of implied, post-resignation restrictions. In fact, language in Scofield expressly indicates otherwise. The Supreme Court only recognized the right of a union “to enforce a properly adopted rule which reflects a legitimate union interest, impairs no policy Congress has imbedded in the labor laws, and is reasonably enforced against union members who are free to leave the union and escape the rule.” Scofield v. N.L.R.B., supra, 394 U.S. at 430, 89 S.Ct. at 1158 (emphasis supplied). As the Board properly concluded below, after resignation, “[b]oth the member’s duty of fidelity and the union’s corresponding right to discipline him for breach of that duty are extinguished.” Booster Lodge No. 405, International Association of Machinists and Aerospace Workers, AFL-CIO, supra, 1970 CCH NLRB ¶ 22,259, at p. 28,692.
The Union has relied heavily upon the First Circuit’s holding in N.L.R.B. v. Granite State Joint Board, Textile Workers Union, Local 1029, 446 F.2d 369 (1st Cir.1971), but we believe that the decision is inapposite to the present fact situation. Although the court in Granite State upheld the right of the union involved to impose fines on strikebreakers for post-resignation activity, it emphasized that a specific set of facts was present which it believed rendered such a result equitable, and it specifically recognized that these considerations were not present with respect to the instant Booster Lodge 405 case. In Granite State, the Board conceded that all of the fined employees had voted in favor of the strike in question. It is also important to note that the fines had not been imposed pursuant to a general provision in the union constitution, as here, but rather in accordance with a specific proclamation which had been unanimously adopted by the membership after the work stoppage commenced. See 446 F.2d at 370, 372 n. 5. Furthermore, all of those who were disciplined in Granite State had been expressly pre-warned of possible punishment for strikebreaking, while the employees with whom we are herein concerned received no such pre-strikebreaking notification. Because of these distinguishing facts, we refuse to apply the rationale of Granite State to the instant factual situation. The strong equities which weighed in favor of the union there, are clearly not present here. In fact, their very absence powerfully supports the result which we have accepted.
Since the International Union Constitution and By-laws contained no express restriction upon a member’s right to resign it is clear that the strikebreaker/employees were free to resign at will, subject only to their being bound by any permissible collective bargaining agreement provision limiting this right. Local Union 621, United Rubber, Cork, Linoleum and Plastic Workers of America, 167 NLRB 610 (1967); Communications Workers v. N.L.R.B., 215 F.2d 835 (2d Cir.1954); N.L.R.B. v. Mechanical and Allied Produc tion Workers, Local 444, 427 F.2d 883 (1st Cir.1970). Furthermore, since the resignations all occurred after the termination of the 1963-1965 agreement and before the execution of the new contract, the maintenance-of-membership provision was not applicable to limit this right either. N.L.R.B. v. Mechanical and Allied Production Workers, Local 444, supra, 427 F.2d at 884-885; N.L.R.B. v. Granite State Joint Board, Textile Workers Union, Local 1029, supra, 446 F.2d at 372. Under these circumstances we concur in the reasoning of the Second Circuit in Communications Workers v. N.L.R.B., supra, 215 F.2d at 838:
We agree that the proviso [to § 8(b) (1) (A)] protects the Union’s right to make its own rules with respect to membership, but assuming, arguendo, that a rule wholly prohibiting voluntary resignations would be valid, we think that in the absence of any rule on the subject of voluntary resignation, the proviso is inapplicable. Concededly the Union Constitution and by-laws are absolutely silent as to whether a member can voluntarily resign. Hence we think that the common law doctrine on withdrawal from voluntary associations is apposite. Under that doctrine, a member of a voluntary association is free to resign at will, subject of course to any financial obligations due and owing the association, [citations omitted]
For the reasons set out above, we conclude that the Labor Board correctly determined that “the Union’s right to discipline employees terminated upon the employees’ submission of their letters of resignation [, thus t]he attempted imposition of discipline for subsequent conduct was beyond the powers of the Union.” Booster Lodge No. 405, International Association of Machinists and Aerospace Workers, AFL-CIO, supra, 1970 CCH NLRB ¶ 22,259, at p. 28,692. We therefore affirm the Board’s finding that the Union violated Section 8(b) (1) (A) of the N.L.R.A. by imposing fines upon employees, and by threatening or attempting enforcement of such fines, because of those employees’ post-resignation conduct in working at the Company plant during the authorized work stoppage. Since the imposition of fines under such circumstances violated the policies underlying the N.L.R.A. and had effects outside the area of internal Union affairs, they were clearly “coercive” within the meaning of Section 8(b) (1) (A). See N.L.R.B. v. Industrial Union of Marine etc. Workers, 391 U.S. 418, 88 S.Ct. 1717, 20 L.Ed.2d 706 (1968); District 50, Local 12419, 176 NLRB No. 89, 71 LRRM 1311 (1969); Local 138, International Union of Operating Engineers, AFL-CIO, 148 NLRB 679 (1964). See also International Molders and Allied Workers, Local 125, 178 NLRB 208, 72 LRRM 1049 (1969), enfd., 442 F.2d 92 (7th Cir.1971). We thus grant enforcement of the N.L.R.B.’s cease and desist order so far as it concerns the imposition of fines for post-resignation conduct.
II
The Board’s Duty to Determine the Reasonableness of Fines
In its decision below, the N.L.R.B. relied upon a companion case, International Association of Machinists and Aerospace Workers, Local 504 [Arrow Development Co.], 185 NLRB No. 22, 75 LRRM 1008 (19 70), in concluding that a fine’s "reasonableness” has no effect upon its legality under the N.L. R.A. This conclusion was based upon the Board’s belief that Congress did not intend to empower the Labor Board with the authority to examine the severity of union discipline when ascertaining its legality, and it indicated that it thought that local courts were the most logical tribunals for the establishment of standards of reasonableness. The Board therefore refused to examine the question of reasonableness in the present case, despite an express determination by the Trial Examiner that the imposed fines were impermissibly excessive. We reject the position of the Board, and remand the case for further proceedings in conformity with the views set out below.
The Board’s belief that it does not have the obligation of examining the reasonableness of union fines in Section 8(b) (1) (A) proceedings is based upon a clear misconception of the law and the Supreme Court’s relevant decisions. In Allis-Chalmers, the Court stated:
It is no answer that the proviso to § 8(b) (1) (A) preserves to the union the power to expel the offending member. Where the union is strong and membership therefore valuable, to require expulsion of the member visits a far more severe penalty upon the member than a reasonable fine.
N.L.R.B. v. Allis-Chalmers Mfg. Co., supra, 388 U.S. at 183, 87 S.Ct. at 2008 (emphasis supplied). The Court further recognized that “the proviso preserves the rights of unions to impose fines, as a lesser penalty than expulsion ...” 388 U.S. at 191-192, 87 S.Ct. at 2012 (emphasis supplied). This implicitly recognized that, for a disciplinary fine to be less coercive than expulsion from the union, the fine imposed must be a “reasonable” one, for it is intuitively obvious that enforcement of a grossly excessive fine might visit a far greater burden upon an individual than would mere expulsion. The Supreme Court also expressly recognized this fact in its recent Scofield decision, wherein it concluded that the enforcement of a proper union rule “by reasonable fines does not constitute the restraint or coercion proscribed by § 8(b) (1) (A).” Scofield v. N.L.R.B., supra, 394 U.S. at 436, 89 S.Ct. at 1161 (emphasis supplied). The Scofield Court emphasized that under Allis-Chalmers, “[a] union rule, duly adopted and not the arbitrary fiat of a union officer, forbidding the crossing of a picket line during a strike [is] . . . enforceable against voluntary union members by expulsion or a reasonable fine.” 394 U.S. at 428, 89 S. Ct. at 1157 (emphasis supplied). In light of the Court’s emphasis on the requ i remen t of “reasonable fines” if a union is to avoid a violation of the Act in these circumstances, we must conclude that the imposition of an unreasonably large fine, at least where the union threatens or actually attempts court enforcement of the fine, may be coercive and restraining within the meaning of section 8(b) (1) (A).
Since the imposition of an unreasonably excessive disciplinary fine is violative of Section 8(b) (1) (A), it is clearly the obligation of the N.L.R.B. to resolve the question of reasonableness where such an issue is appropriately raised. The Board asserts that such a result might cause conflicts between it and state courts which attempt to examine the reasonableness issue in actions to collect such fines. However, we do not believe that this possible problem detracts from the Board’s obligation under the N.L.R.A.
We recognize that “state courts have been adjudicating internal union disputes for more than 60 years.” Summers, The Law of Union Discipline: What the Courts Do in Fact, 70 Yale L. J. 175 (I960). We further acknowledge the fact that “the state courts, in reviewing the imposition of union discipline, find ways to strike down ‘discipline, [which] involves a severe [monetary] hardship.’ ” However, these considerations do not relieve the N.L.R. B. of its duties under the N.L.R.A. “[T]he business of the Board, among other things, is to adjudicate and remedy unfair labor
Question: What is the total number of respondents in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number.
Answer:
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songer_genapel2
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A
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the second listed appellant. If there are more than two appellants and at least one of the additional appellants has a different general category from the first appellant, then consider the first appellant with a different general category to be the second appellant.
In re MULTIDISTRICT VEHICLE AIR POLLUTION M.D.L. NO. 31. STATE of CALIFORNIA et al., Appellees, v. AUTOMOBILE MANUFACTURERS ASSOCIATION, INC., et al., Appellants. Robert MORGAN, Appellee, v. AUTOMOBILE MANUFACTURERS ASSOCIATION, INC., et al., Appellants. CITY OF PHILADELPHIA et al., Appellees, v. AUTOMOBILE MANUFACTURERS ASSOCIATION, INC., et al., Appellants. STATE of NEW YORK, Appellee, v. AUTOMOBILE MANUFACTURERS ASSOCIATION, INC., et al., Appellants. CITY OF NEW YORK et al., Appellees, v. AUTOMOBILE MANUFACTURERS ASSOCIATION, INC., et al., Appellants. CITY AND COUNTY OF DENVER, Appellees, v. AMERICAN MOTORS CORPORATION et al., Appellants.
No. 71-1241.
United States Court of Appeals, Ninth Circuit.
June 4, 1973.
See also, D.C., 52 F.R.D. 398.
Robert L. Stern (argued), of Mayer, Brown & Platt, Chicago, 111., Lloyd N. Cutler (argued), of Wilmer, Cutler & Pickering, Washington, D. C., Walter J. Williams, Detroit, Mich., Forrest A. Hainline, Jr., of Cross, Wrock, Miller & Vieson, Ross L. Malone, Robert A. Nitsehke, of General Motors, Detroit, Mich., Richard C. Warmer, of O’Melveny & Myers, Julian O. Von Kalinowski, of Gibson, Dunn,-& Crutcher, G. William Shea, Philip K. Verleger, Jack D. Fudge, David A. Destino, of McCutchen, Black, Verleger & Shea, Carl J. Schuck, of Overton, Lyman & Prince, Marcus Matt-son, of Lawler, Felix & Hall, Carla H. Hills, Atty., of Munger, Tolies, Hills & Rickershauser, Harvey M. Grossman, of Pacht, Ross, Warne, Bernhard & Sears, Los Angeles, Cal., Kirkland, Ellis, Hodson, Chaffetz & Masters, Chicago, 111., Alan N. Halkett, of Latham & Watkins, Los Angeles, Cal., John H. Schafer, III, of Covington & Burling, Washington, D. C., for appellants.
David Berger (argued), Philadelphia, Pa., George C. Mantzoros, Asst. Atty. Gen. (argued), New York City, David I. Shapiro (argued), of Dickstein, Shapiro & Galligan, Washington, D. C., Evelle J. Younger, Atty. Gen., Los Angeles, Cal., Ronald Bloomfield, Atty. Gen., New York City, Anthony C. Joseph, Herbert Davis, Ellen Friedman, Deputy Attys. Gen., Los Angeles, Cal., Edward G. Bauer, Jr., City Sol., Philadelphia, Pa., Max P. Zall, City Atty., Denver, Colo., J. Lee Rankin, Corp. Counsel for the City of New York, Norman Redlich, First Asst. Corp. Counsel, New York City, Harold E. Kohn, Bruce W. Kauffman, Edward F. Mannino, John M. Elliott, of Dilworth, Paxson, Kalish, Levy & Coleman, Herbert B. Newberg, H. Laddie Montague, Jr., Philadelphia, Pa., Perry Goldberg, Chicago, 111., Leo T. Zuckerman, Denver, Colo., Jerome S. Wagshal, of Dickstein, Shapiro & Galligan, George Kauffman, Washington, D. C., for appellees.
Before HAMLIN, BROWNING and ELY, Circuit Judges.
OPINION
ELY, Circuit Judge:
This certified interlocutory appeal under 28 U.S.C. § 1292(b) arises from pretrial proceedings in Multidistrict Air Pollution Control Litigation (C.D.Cal. M.D.L. 31), which is a consolidation of numerous actions under 28 U. S.C. § 1407. In re Motor Vehicle Air Pollution Control Equipment, 311 F. Supp. 1349 (Jud. Panel Mult. Lit. 1970.) Since this appeal is from denial of motions to dismiss, factual allegations are east most favorably to the appellees. See Conley v. Gibson, 355 U.S. 41, 78 S. Ct. 99, 2 L.Ed.2d 80 (1957).
As early as 1953, the nation’s automobile manufacturers and their trade association allegedly conspired to eliminate competition among themselves in the research, development, manufacture, installation and patenting of automotive air pollution control devices. Appellees urge that this horizontal antitrust conspiracy was motivated: (1) by appellants’ conviction that antipollution devices are externalities, whose development would increase price without concomitant spur to consumer interest; (2) by the apprehension that the first competitor to perfect such a device would garner exclusive contracts with governmental purchasers; and (3) by the fear that technological realization of the devices would prompt laws compelling their use.
Appellees argue that this conspiracy inflicted financial losses that would not have occurred but for the conspiracy-induced absence of antipollution equipment. Governmental entity appellees claim losses resulting from diminution in value of, and expenditures in connection with, government property and interests. Crop farmer appellees assert direct damage to crop yields. Variously proceeding in their individual capacities, as parens patriae and as class representatives, all appellees seek treble damages and equitable relief under sections 4 and 16 of the Clayton Act, 15 U.S.C. §§ 15, 26.
On appeal, appellants challenge the District Court’s rulings that appellees have standing to sue under sections 4 and 16 of the Clayton Act, that certain appellees may proceed as parens patriae, and that others may proceed as class representatives under Fed.R.Civ.P. 23.
1. STANDING UNDER SECTION 4
Appellees ground their claims for treble damages on section 4 of the Clayton Act, 15 U.S.C. § 15, which reads:
“Any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor in any district court of the United States in the district in which the defendant resides or is found or has an agent, without respect to amount in controversy, and shall recover threefold the damages by him sustained, and the cost of suit including a reasonable attorney’s fee.”
Read literally, this statute could afford relief to all persons whose injuries are causally related to an antitrust violation. Recognizing the nearly limitless possibilities of such an interpretation, however, the judiciary quickly brushed aside this construction. Instead, a measured approach has prevailed; ¿ourts have impressed a standing doctrine so as to confine the availability of section 4 relief only to those individuals whose protection is the fundamental purpose of the antitrust laws. Cf. Barlow v. Collins, 397 U.S. 159, 90 S.Ct. 832, 25 L.Ed.2d 192 (1970); Association of Data Processing v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970); Mount Clemens Industries, Inc. v. Bell, 464 F.2d 339, 341-344 (9th Cir. 1972). Unfortunately, no “bright line” has yet emerged to divine this group, and courts have formulated varied definitions.
In this case, however, the District Court declined to apply any of the extant definitions, choosing instead to expand the coverage of section 4:
“We are now concerned with the phrase ‘injured in his business or property by reason of anything forbidden in the antitrust laws’ in the light of the allegations of these complaints, rather than the traditional, legalistic approach defined by the eases cited by defendants in their motion to dismiss. Each of the plaintiffs allege injury to their respective business or property by reason of anti-trust violations of the defendants.
“Plaintiffs may fail in their proof, but until then, they should be given the benefit of employing ‘any available remedy to make good the wrong done.’ ” [footnote citing J. I. Case Co. v. Borak, 377 U.S. 426, 433, 84 S. Ct. 1555, 12 L.Ed.2d 423 (1964); Bell v. Hood, 327 U.S. 678, 684, 66 S.Ct. 773, 90 L.Ed. 939 (1946)].
52 F.R.D. 398, 401 (C.D.Cal.1970). In the aftermath of the Supreme Court’s recent decision in Hawaii v. Standard Oil Co., 405 U.S. 251, 92 S.Ct. 885, 31 L.Ed.2d 184 (1972), however, we cannot so easily disregard the so-called “traditional, legalistic approach” of the cases.
Judicial constructions of standing under section 4 have keyed on the phrases “business or property” and “by reason of” as indicating twin requisites for standing. First, a plaintiff must allege injury to his “business or property”, a term definitively limited to interests in commercial ventures or enterprises : “the words ‘business or property’ . . . refer to commercial interests or enterprises.” Hawaii, supra at 264, 92 S.Ct. at 892. See Control Data Corp. v. IBM, 306 F.Supp. 839, 845 (D.Minn.1969) (corporate plaintiff not in legal existence at time of antitrust violation is without commercial injury). Secondly, a plaintiff must allege that the injury suffered was occasioned “by reason of” an antitrust violation. Hawaii, supra at 263-264 n.14, 92 S.Ct. 885.
Applying the first predicate, since neither the government’s individual claims, nor their class claims, nor their parens patriae claims allege any injury to commercial ventures or enterprises, the governmental entities cannot seek recovery under section 4 of the Clayton Act. In contrast, the farmers satisfy the first requisite, since a diminished crop yield, for example, would constitute injury to commercial interests.
Application of the second prong of the standing formulation is more difficult since “by reason of” has consistently eluded efforts at uniform definition or application. Compare, e. g., Mulvey v. Samuel Goldwyn Productions, 433 F.2d 1073 (9th Cir. 1970) with, Fields Productions, Inc. v. United Artists Corp., 432 F.2d 1010 (2d Cir. 1970), aff’g, per curiam 318 F.Supp. 87 (S.D.N.Y.1969), cert. denied, 401 U.S. 949, 91 S.Ct. 932, 28 L.Ed.2d 232 (1971); and compare Steiner v. 20th Century-Fox Film Corp., 232 F.2d 190 (9th Cir. 1956) and Congress Building Corp. v. Loew’s, Inc., 246 F.2d 587 (7th Cir. 1957) with Melrose Realty Co. v. Loew’s, Inc., 234 F.2d 518 (3d Cir.), cert. denied, 352 U.S. 890, 77 S.Ct. 128, 1 L.Ed.2d 85 (1956) and Harrison v. Paramount Pictures, Inc., 115 F. Supp. 312 (E.D.Pa.1953), aff’d, 211 F.2d 405 (3 Cir.), cert. denied, 348 U.S. 828, 75 S.Ct. 45, 99 L.Ed. 653 (1954); and compare Volasco Products Co. v. Lloyd A. Fry Roofing Co., 308 F.2d 383 (6th Cir. 1962), cert. denied, 372 U.S. 907, 83 S.Ct. 721, 9 L.Ed.2d 717 (1963) with South Carolina Council of Milk Producers, Inc. v. Newton, 360 F.2d 414 (9th Cir.), cert. denied, 385 U.S. 934, 87 S.Ct. 295, 17 L.Ed.2d 215 (1966). The resulting confusion prompted speculation that the Supreme. Court would disapprove judicial application of “by reáson of” to limit potential antitrust claimants. In Hawaii, however, the Court appeared to approve the standing doctrine to require more from a would-be plaintiff than some remote connection in the causal chain.
“The lower courts have been virtually unanimous in concluding that Congress did not intend the antitrust laws to provide a remedy in damages for all injuries that might conceivably be traced to an antitrust violation.”
405 U.S. at 263 n.14, 92 S.Ct. at 891-892. Although the Court cited cases in support from every circuit, it failed to distinguish essentially two disparate analytical techniques — the “direct injury” and the “target area approaches— employed by different circuits.
Courts adhering to the “direct injury” test focus principally on the relationship between the alleged antitrust violator and the claimant. Generally, if the claimant is separated from the violator by an intermediate antitrust victim, standing is denied by attaching conclusory labels such as “remote”, “indirect”, and “consequential”. Resurrecting notions of privity, this test thus arbitrarily forecloses otherwise meritorious claims simply because another antitrust victim interfaces the relationship between the claimant and the alleged violator. Moreover, the “direct injury” requirement has engendered among some adherents a regrettable tendency to deny standing to any plaintiff who happens to fall within certain talismanic rubrics: “creditor”, “landlord”, “lessor”, “franchisor”, “supplier”. This disposition is, we think, unsatisfactory insofar as it transforms judicial inquiry into a mere search for labels.
In contrast, courts employing the “target area” approach focus on claimant’s relationship to the area of the economy allegedly injured by the defendant.
“[T]o state a cause of action under the anti-trust laws a plaintiff must show more than that one purpose of the conspiracy was a restraint of trade and that an act has been committed which harms him. He must show that he is within that area of the economy which is endangered by a breakdown of competitive conditions in a particular industry. Otherwise he is not injured ‘by reason’ of anything forbidden in the anti-trust laws.”
Conference of Studio Unions v. Loew’s Inc., 193 F.2d 51, 54-55 (9th Cir. 1951), cert. denied, 342 U.S. 919, 72 S.Ct. 367, 96 L.Ed. 687 (1952). To attain standing, a plaintiff must thus allege that the antitrust violation injured a commercial enterprise of the plaintiff in the area of the economy in which the elimination of competition occurred. Standing is denied, on the other hand, if the claimant’s commercial activity occurred outside that area of the economy. See id. Hence the “target area” approach provides a logical and flexible tool for analyzing whether a particular claimant falls within the class of persons slated by Congress for protection under section 4 of the Clayton Act.
“[T]he basic and underlying purposes of the anti-trust laws [are] to preserve competition and to protect the consumer. Recovery and damages under the anti-trust law is available to those who have been directly injured by the lessening of competition and withheld from those who seek the windfall of treble damages because of incidental harm.”
Id. at 55. See Karseal Corp. v. Richfield Oil Corp., 221 F.2d 358, 365 (9th Cir. 1955).
The “direct injury” approach to section 4 was implicitly undermined by the Supreme Court in Perkins v. Standard Oil Co., 395 U.S. 642, 89 S.Ct. 1871, 23 L.Ed.2d 599 (1969), rev’g 396 F.2d 809 (9th Cir. 1968). Attention centered on whether “fourth level” price discrimination is proscribed by section 2 of the Clayton Act, as amended by section 13 of the Robinson-Patman Act, 15 U.S.C. § 13. A panel of our court, focusing on the indirect commercial relationship between claimant and defendant, had concluded in the negative:
“Section 2(a) of the Act does not recognize a causal connection, essential to liability, between a supplier’s price discrimination and the trade practices of a customer [removed four rungs] . on the distributive [sic] ladder . . . .”
396 F.2d at 816. In the Supreme Court’s reversing opinion, Mr. Justice Black admonished that this direct-indirect “limitation is wholly artificial and is unwarranted by the language or purpose of the Act.” He reasoned that “the competitive harm done ... is certainly no less because of the presence of an additional link in this particular distribution chain from the producer to the retailer.” 395 U.S. at 648, 89 S.Ct. at 1874. Though applying a different section of the Clayton Act, the opinion argues forcefully by analogy against “direct injury” analysis. The Court eschewed consideration of the nexus between claimant and defendant and concentrated instead on the nature of the “competitive harm”.
Direct support of the “target area” approach also emerges from the Supreme Court’s opinion in Perkins, supra. The plaintiff had appended an auxiliary claim under section 4 for injuries allegedly suffered in his individual capacities as creditor, landlord, and broker. In constructing its analytical framework, our court unfortunately — but quite understandably — indiscriminately j uxtaposed cases espousing both the “direct injury” and the “target area” tests. We resurrected-notions of privity, and, attaehing the determinative “lessor” label, concluded that the plaintiff’s claim was comprised of elements not “properly the subject of damages.” 396 F.2d at 815. The Supreme Court’s reversal was grounded solely on a “target area” quotation from Karseal Corp. v. Richfield Oil Corp., 221 F.2d 358, 363 (9th Cir. 1955) that the Court applied consistently with its disposition of the section 2 issue. The Court avoided any categorical characterization of claimant as, for example, a “lessor” or a “creditor”, and affirmed the propriety of section 4 relief by emphasizing the economic impact of the anticompetitive conduct.
Perkins therefore clarifies any ambiguity inhering in Hawaii’s failure to adopt expressly either of the two predominant judicial glosses on the language “by reason of”. By repudiating all those aspects of the “direct injury” test that distinguish it from the “target area” approach, and by embracing and applying the latter, the Court in Perkins, at least inferentially, impresses its imprimatur upon the “target area” approach articulated by this court: a plaintiff has standing under section 4 of the Clayton Act if the claimed losses fall “within that area of the economy which is endangered by a breakdown of competitive conditions in a particular industry.” E. g., Mulvey v. Samuel Goldwyn Productions, 433 F.2d 1073 (9th Cir. 1970) ; Hoopes v. Union Oil Co., 374 F. 2d 480, 485 (9th Cir. 1967); Karseal Corp. v. Richfield Oil Corp., 221 F.2d 358 (9th Cir. 1955); Conference of Studio Unions v. Loew’s Inc., 193 F. 2d 51 (9th Cir. 1951), cert. denied, 342 U.S. 919, 72 S.Ct. 367, 96 L.Ed. 687 (1952). A proper application of “by reason of” focuses on whether the anti-competitive conduct directed against an area of the economy injured business operations conducted by the claimant in that sector of the economy. The resulting two-step approach first requires identification of the affected area of the economy and then the ascertainment of whether the claimed injury occurred within that area.
Here the crop farmers’ complaint alleges that the automobile manufacturers conspired
“(a) To eliminate all competition among the automobile manufacturers in the research, development, manufacture and installation of motor vehicle air pollution equipment;
“(b) To eliminate competition . . . in the purchase of patents and patent rights from other parties covering motor vehicle air pollution equipment.”
It is manifest from these averments that the area of the economy against which anticompetitive conduct was allegedly directed was that concerned with research, development, manufacture, installation and patenting of automotive air pollution control devices. No commercial interest of the crop farmers falls within this area. Not only were the crop farmers not targets of the alleged conspiracy, they were not even on the firing range. Accordingly, the farmers lack standing under section 4 of the Clayton Act, to maintain this action. Upon remand, therefore, all actions arising under section 4 will be dismissed.
Insofar as the common weal was injured the federal- government was the proper party to seek redress; and, in fact, it attempted to do so. See Note 1, swpra. If the Government did not prosecute its action with sufficient vigor, the remedy lies in executive or legislative reform, not in judicial overreaching.
11. STANDING UNDER SECTION 16
Appellees’ claims for injunctive relief are based on section 16 of the Clayton Act, 15 U.S.C. § 26, which reads in relevant part:
“Any person, firm, corporation, or association shall be entitled to sue for and have injunctive relief, in any court of the United States having jurisdiction over the parties, against threatened loss or damage by a violation of the antitrust laws when and under the same conditions and principles as injunctive relief against threatened conduct that will cause loss or damage is granted by courts of equity, under the rules governing such proceedings . . . .”
As the Court noted in Hawaii, supra, 405 U.S. at 260, 92 S.Ct. 885, 31 L.Ed.2d 184, this section varies significantly from section 4 insofar as the broader language of section 16 lacks mention of “business or property”, an omission signalling different standing requirements. This treatment is fully justified by the difference between the remedies available under each section. In contrast to section 4, section 16 does not involve punitive and potentially disastrous judgments for treble damages and attorneys’ fees; neither is there the potential threat of duplicative recoveries. See Hawaii, supra at 261-264. Consequently, courts have not exercised the same pronounced restraint in granting standing under section 16 as they have done under section 4. As we observed in Hawaii v. Standard Oil Co., 431 F.2d 1282, 1284-1285 (9th Cir. 1970), aff’d, 405 U.S. 251, 92 S.Ct. 885, 31 L.Ed.2d 184 (1972):
“[Section 16] is far broader than § 4. Any person may secure injunctive relief against threatened loss or damage by violation of the antitrust laws. Section 4 provides for recovery of treble damages only by a person injured in his business or property by [reason of] such a violation.”
Unlike standing under section 4, standing under section 16 does not require an injury to “commercial interests” but only an injury cognizable in equity. For example, housing segregations enforced by an antitrust conspiracy of realtors constitutes an injury to excluded minority members that confers standing for injunctive relief under section 16, see Bratcher v. Board of Realtors, 381 F.2d 723 (6th Cir. 1967), although not for treble damages under section 4. Since all appellees herein have alleged “threatened loss or damage” to interests cognizable in equity, they have standing to seek equitable protection under section 16 of the Clayton Act.
We emphasize that we now intimate no conclusions as to either the merits of the equitable claims or the availability of any form of injunctive relief. These issues must, in the first instance, be resolved by the District Court.
III. PARENS PATRIAE
At common law, the concept of parens patriae invested the English Sovereign with powers and duties — the “royal prerogative” — to protect certain interests of his subjects! See Hawaii, supra, 405 U.S. at 257-260, 92 S.Ct. 885. In this country the parens patriae function expanded somewhat and devolved upon the states that, to some extent, ceded it to the federal government. See Massachusetts v. Mellon, 262 U.S. 447, 485-486, 43 S.Ct. 597, 67 L.Ed. 1078 (1923); Public Utilities Commission v. United States, 356 F.2d 236, 241 n.1 (9th Cir.), cert. denied, 385 U.S. 816, 87 S.Ct. 35, 17 L.Ed.2d 54 (1966). Hence, the federal government and the states, as the twin sovereigns in our constitutional scheme, may in appropriate circumstances sue as parens patriae to vindicate interests of their citizens. E. g., Hawaii, supra; Georgia v. Pennsylvania Railroad Co., 324 U.S. 439, 65 S.Ct. 716, 89 L.Ed. 1051 (1945); North Dakota v. Minnesota, 263 U.S. 365, 44 S.Ct. 138, 68 L.Ed. 342 (1923); Pennsylvania v. West Virginia, 262 U.S. 553, 43 S.Ct. 658, 67 L.Ed. 1117 (1923); New York v. New Jersey, 256 U.S. 296, 41 S.Ct. 492, 65 L. Ed. 937 (1921); Georgia v. Tennessee Copper Co., 206 U.S. 230, 27 S.Ct. 618, 51 L.Ed. 1038 (1970); Kansas v. Colorado, 206 U.S. 46, 27 S.Ct. 655, 51 L.Ed. 956 (1907); Missouri v. Illinois, 180 U.S. 208, 21 S.Ct. 331, 45 L.Ed. 497 (1901); Louisiana v. Texas, 176 U.S. 1, 20 S.Ct. 251, 44 L.Ed. 347 (1900). On the other hand, political subdivisions such as cities and counties, whose power is derivative and not sovereign, cannot sue as parens patriae, although they might sue to vindicate such of their own proprietary interests as might be congruent with the interests of their inhabitants.
We have already concluded that, inasmuch as appellee states failed to allege any injury to their “commercial interests”, they lack standing qua parens patriae, or in any other capacity, to seek relief under section 4 of the Clayton Act. Moreover, our court has recently held that a state cannot sue as parens patriae under section 4 on behalf of its citizen-consumers for injuries suffered by them. California v. Frito-Lay, Inc., 474 F.2d 774 (9th Cir. 1973). Their parens patriae suit under section 16 of the Clayton Act, however, presents a separate but readily manageable issue.
In Georgia v. Pennsylvania Railroad Co., supra, the Supreme Court upheld Georgia’s parens patriae action under section 16 for an injunction against a conspiracy between large railroad companies. The analysis of that case rendered in Hawaii, supra, 405 U.S. at 259-260, 92 S.Ct. 885, bespeaks the continuing availability of parens patriae actions under section 16 for injunctive relief for injuries to a state’s economy. Insofar as the state appellees have alleged injury to their economies, they have standing under section 16. In reaffirming this principle, we quote the presaging language of Mr. Justice Holmes:
“[T]he State has an interest independent of and behind the title of its citizens, in all the earth and air within its domain. It has the last word as to whether its mountains shall be stripped of their forests and its inhabitants shall breathe pure air.
“It is a fair and reasonable demand on the part of a sovereign that the air over its territory should not be polluted . . that the forests on its mountains . . . should not be further destroyed or threatened . . . that the crops and orchards on its hills should not be endangered
206 U.S. at 237-38, 27 S.Ct. at 619.
IV. CLASS ACTIONS
In light of our determination that all appellees lack standing to seek antitrust damages, the District Court must reevaluate the propriety, under Fed.R.Civ.P. 23(b) (3), of the class actions for equitable relief. In addition, the court may need to examine the applicability of Fed.R.Civ.P. 23(b)(2). Both in anticipation of probable changes among the parties plaintiff, and in deference to the accumulated experience of district courts in framing classes under Rule 23, we deem it inappropriate at this juncture to comment further upon the class action issues.
' Affirmed in part; reversed and remanded in part.
. These are the progeny of a civil antitrust action filed by the federal government against the largest domestic automobile manufacturers and the Automobile Manufacturers’ Association. In October of 1969, the Government accepted a consent decree, United States v. Automobile Mfgrs. Ass’n, 307 F.Supp. 617 (C.D.Cal. 1969) aff’d per curiam sub nom. New York v. United States, 397 U.S. 248, 90 S.Ct. 1105, 25 L.Ed.2d 280 (1970), the text of which is reported in 1969 Trade Cas. ¶[72,907.
Similar factual claims were presented to the original jurisdiction of the Supreme Court in Washington v. General Motors Corp., 406 U.S. 109, 92 S.Ct. 1396, 31 L.Ed.2d 727 (1972). After the Court declined to assume jurisdiction in that case, and after this court accepted certification of the present appeal, an additional spate of actions was filed in the District Court under the multi-district tag-along procedures.
. Sucli compulsion would be unattractive to manufacturers insofar as required use of an externality would likely increase price while not necessarily increasing demand, thus diminishing overall product marketability and profit.
. See, e. g., Loeb v. Eastman Kodak Co., 183 F. 704 (3d Cir. 1910) (limiting standing under section 7 of the Sherman Act, predecessor of section 4 of the Clayton Act). Cf. Southern Pacific Co. v. Darnell-Taenzer Lumber Co., 245 U.S. 531, 534, 38 S.Ct. 186, 62 L.Ed. 451 (1918) (Holmes, J.) '(“the endlessness and futility of the effort to follow every transaction to its ultimate result”). See also L. Green, The Rationale of Proximate Cause 122-23, 195-97 (1927); Pollock, The “Injury” and “Causation” Elements of a Treble-Damage Antitrust Action, 57 Nw.U.L.Rev. 691, 697-700 (1963).
. Even some commentators who have lauded the ingenuity of the district court’s decision recognize its clear departure from prior law. See, e. g., 12 B.C.Ind. & Com. LJEtev. 686 (1971) ; Note, 24 Vand.L.Rev. 126 (1970).
. See, e. g., Klingsberg, Bull’s Eyes & Carom Shots, XVI Antitrust Bull. 351, 368-69 (1971).
. We have employed the terms “target area” and “direct injury” only as convenient, shorthand methods of identifying the two major approaches to the interpretation of “by reason of”. Use of either label in other cases, in contrast, has frequently suggested an approach opposite that so denominated here. E. g., Perkins v. Standard Oil Co., 396 F.2d 809 (9th Cir. 1968) (court labeled approach “target area” but employed the “direct injury” analysis), rev’d, 395 U.S. 642, 89 S.Ct. 1871, 23 L.Ed.2d 599 (1969). Likewise, some courts have failed to perceive significant distinctions between the tests. E. g., Nationwide Auto Apprasier Serv., Inc. v. Ass’n of Cas. & Sur. Cos., 382 F.2d 925 (10th Cir. 1967
Question: What is the nature of the second listed appellant whose detailed code is not identical to the code for the first listed appellant?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_interven
|
B
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine whether one or more individuals or groups sought to formally intervene in the appeals court consideration of the case.
KOSAK v. UNITED STATES.
No. 4399.
Circuit Court of Appeals, Third Circuit.
Feb. 10, 1931.
Wm. T. Connor and John R. K. Scott, both of Philadelphia, Pa., for appellant.
M. J. S. Stoney and Paul Freeman, Asst. U. S. Attys., both of Philadelphia, Pa.
■ Before WOOLLEY and DAVIS, Circuit Judges, and JOHNSON, District Judge.
WOOLLEY, Circuit Judge.
Prohibition agents raided á building in Reading, Pennsylvania, and discovered a large still in operation and large quantities of com sugar mash and alcohol. They also found ten men in the place. These they arrested under circumstances or on evidence which indicated in one way or another their respective connections with the plant. Stanley Kosak, the appellant, was arrested when trying to escape and, on being searched, there were found on his person incriminating papers which, over his objection seasonably made, were introduced in evidence against him at the trial.
Kosak, together with nine others, were indicted for having manufactured intoxicating liquor, for possessing property designed and intended for the manufacture of intoxicating liquor and for maintaining a common nuisance in violation of the National Prohibition Act. All save one were tried and all who were tried were convicted on all counts and sentenced. Kosak «appealed.
The several assignments of error raise but three substantial questions. They are:
First, Did the learned trial judge err in admitting in evidence papers found upon the appellant after his arrest; second, was tho search and seizure unlawful; and third, did the trial judge err in his eharge to the jury?
The first and second questions are resolved adversely to the appellant. The circumstances indicated to the prohibition officers that the defendant, when caught, was engaged in the acts for which later he was indicted. These circumstances, constituting probable cause, warranted his arrest. Being probable cause for the arrest they were probable cause for the search and justified the seizure of the papers and validated their use in evidence.
Our main concern is with the third question, namely; possible error in the eharge.
Nino men were on trial for the three offenses we have stated. The learned trial judge charged the jury on each of the three counts in substantially the same way. On the manufacturing count he said:
“The testimony of the Government witnesses in this case is, in most instances, varied somewhat. * * * The question is whether there has been sufficient proof here to satisfy you, beyond a reasonable doubt, that these defendants, or any of them, were manufacturing intoxicating liquor, when you come to consider the first count. * * * if you find, from the evidence, that these men were engaged in and about the operation of the still, then you would be justified in returning a verdiet of guilty on the first count. It is not necessary to prove that the men were standing at tho still and were actually controlling the operation of the still at the time that the witnesses saw them in and about it. If you find from all the evidence that these men were engaged in the operation of the manufacture of alcohol, then you would he justified in returning a verdiet of guilty. * * *
“As I say, the testimony is circumstantial * • » s, kut, you have heard all the testimony as to the surrounding circumstances, and you will take that into consideration. If you are not satisfied, beyond a reasonable doubt, that these men, or any of them, were operating a still, then your verdiet should he not guilty.”
On the count charging unlawful possession of property designed for the manufacture of intoxicating liquor the learned trial judge charged:
“The second count charges unlawful possession. * * * But in this case, you may take into consideration all the surrounding-circumstances, the same as in considering the-testimony with respect to the first count. In fact, the testimony overlaps, and it is-practically the same testimony from whiehi the District Attorney sought to draw these different conclusions. Are there sufficient circumstances here to say that these defendants, or any of them, were in possession of that still and the apparatus, mash and so on that was there, and was it being nsed in and about,the manufacture of alcohol? If you, are satisfied of those faets, draw those conclusions from tho evidence, you would ,be justified in returning a verdict of guilty on that count; otherwise you would return a verdict of not guilty.”
On the count charging the maintenance of a common nuisance the learned trial judge charged:
“As to maintaining a common nuisanee, the same rules of evidence apply. * * * If any of the evidence discloses that these defendants were in such possession of that still, or operating that still, if you believe that, then you would be justified in believing that they were maintaining a common nuisance on the premises where the still was operated and kept. If you believe from the testimony in the case, are satisfied beyond a reasonable doubt, that that was a fact, you would bo justified in returning a verdiet of guilty on that count. If you are not satisfied, beyond a reasonable doubt, you will return a verdiet of not guilty.”
It will be observed that in these instructions the court referred to the defendant» collectively and in language which, it is claimed, is susceptible of the inference thaft proof of the guilt or innocence of any of them is proof of the guilt or innocence of all.
Clearly an.y lawyer would understand these instructions and would gather from them the meaning the trial judge certainly intended, which was that, if on the evidences the jury should find that the defendants, or any one .of them, had committed one or m&re of the offenses charged, they should, on the respective eounts, return a verdict of guilty as to those defendants, whether all of them, some of them, or any one of them. Yet we gravely fear that the jurors, not being learned in the law and not trained in making legal distinctions, might have gotten an erroneous impression from the judge’s charge to the effect that evidence of guilt of any one of the defendants was evidence of guilt of all and, accordingly, that the defendants, caught and arrested together, indicted together and on trial together, were being tried in a body and should be acquitted or convicted as a body. The fact that the jury convicted all defendants on, all counts on evidence varying as to the individuals and as to the eounts lends force to this apprehension.
We are constrained to find that in the stress of trial the learned judge fell into error in the one particular that his charge might have misled lay minds and have brought about a verdict of guilty as to the appellant, whom the jury might conceivably have acquitted on the evidence as to him individually.
The judgment so far as it affects Stanley Kosak, the appellant, is reversed.
Question: Did one or more individuals or groups seek to formally intervene in the appeals court consideration of the case?
A. no intervenor in case
B. intervenor = appellant
C. intervenor = respondent
D. yes, both appellant & respondent
E. not applicable
Answer:
|
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.
Otis MERRITT, Jr., Plaintiff-Appellee, v. Lt. Alfredo DE LOS SANTOS, Defendant-Appellant.
Nos. 82-2336, 82-2486.
United States Court of Appeals, Seventh Circuit.
Submitted Oct. 24, 1983.
Decided Nov. 17, 1983.
Imelda R. Terrazino, Deputy Atty. Gen., Chicago, Ill., for defendant-appellant.
Otis Merritt, Jr., pro se.
Before BAUER, CUDAHY and FLAUM, Circuit Judges.
The appellee herein never filed an appellate brief. The case has been submitted to the court for decision on the record and on appellant’s brief. We conclude oral argument will not significantly aid the court in deciding the case. See Rule 34(a), Fed.R.App.P.; Circuit Rule 14(f).
PER CURIAM.
Defendant-appellant, Lt. Alfredo De Los Santos, appeals from the judgment entered against him by the magistrate below for violating plaintiff’s due process right to an impartial Adjustment Committee. Nominal damages of $1 and punitive damages of $100 were awarded to the plaintiff. For the reasons which follow, we affirm the judgment in favor of plaintiff against defendant De Los Santos.
I
Plaintiff-appellee, Otis Merritt, Jr., filed the instant civil rights suit pursuant to 42 U.S.C. § 1983 alleging that the named defendants violated his constitutional rights by using excessive force without just cause; by denial of medical treatment; and by deprivation of his procedural due process right to an impartial disciplinary committee. The magistrate, after a bench trial, entered judgment against plaintiff on the first two counts and against defendant-appellant De Los Santos on the latter count. The propriety of the judgment in favor of the plaintiff is the issue presented to this court on appeal.
II
The factual findings of the magistrate are not in dispute. The incident which was the subject of this suit occurred on April 6, 1980. There was an altercation between the plaintiff and one guard. Several guards were called to assist. Eventually, defendant Lt. De Los Santos, the Command Officer, was summoned to the plaintiff’s cell. De Los Santos ordered the guards to enter the cell, handcuff the plaintiff, remove him from the cell, and search the cell. In following this order, a struggle ensued; however the task was completed. The officers were treated in the infirmary and De Los Santos requested that plaintiff be examined by medical personnel. One of the guards prepared a disciplinary report charging plaintiff with several violations. The charged violations occurred prior to De Los Santos’ arrival at the cell. One of the guards and De Los Santos prepared an incident report. An incident report is used only for the purpose of informing superiors of incidents occurring in the prison and is not used at the disciplinary proceeding. The incident report described De Los Santos’ involvement in the incident upon his arrival at the scene and also included a description of what occurred before his arrival, including the fact that a guard was injured.
A disciplinary hearing was held on April 8, 1980. Lt. De Los Santos was a member of the Adjustment Committee. Plaintiff objected to defendant’s presence on the committee. After a discussion on the objection, the committee concluded that it would not violate Administrative Regulation 804 if defendant remained on the Adjustment Committee.
The committee found plaintiff guilty of the charges and issued sanctions of one more year in segregation, loss of one year good time and loss of audio-visual. Petitioner filed a grievance challenging the disciplinary proceeding. The Administrative Review Board, with Warden Fairman’s approval, reversed the charges and expunged the charge from the prisoner’s record on approximately July 31, 1980. Petitioner served no time in segregation as a result of the committee’s guilty finding because he was already placed in the segregation unit at the time of the offense. Plaintiff did not lose any good time.
The magistrate found that plaintiff was denied his right to an impartial decision maker because the defendant De Los Santos investigated the charges, if he was not an actual witness, thus making it improper for him to serve on the Adjustment Committee pursuant to Administrative Rule 804. The magistrate assessed nominal damages of $1. In addition, because De Los Santos testified that he was aware of Administrative Regulation 804, the magistrate found the violation to be willful and assessed punitive damages of $100. Defendant appeals from the judgment entered against him.
Ill
Defendant-appellant challenges as error the district court holding that plaintiff was denied his right to an impartial decision maker when De Los Santos remained on the Adjustment Committee over plaintiff’s objection. Defendant contends that his presence on the committee violated neither Administrative Regulation 804 nor the due process requirement of an impartial decision making body. We disagree.
Defendant was called to the scene of the altercation to help subdue plaintiff when the guards were experiencing, difficulty. Defendant supervised the situation thereafter, including ordering plaintiff to be handcuffed, sending plaintiff to the infirmary and writing up an incident report. Defendant claims that this incident report did not constitute an investigation; however, we note that the incident report written by defendant described the events which occurred prior to his arrival. This may not have been a full-fledged investigation in defendant’s mind, but clearly defendant was required to inquire as to the events which took place before he came to plaintiff’s cell.
Defendant cites Meyers v. Alldredge, 492 F.2d 296 (3d Cir.1974) and United States ex rel. Silverman v. Commonwealth of Pennsylvania, 527 F.Supp. 742 (W.D.Pa.1981), aff’d 707 F.2d 1397 (3d Cir.1983), in support of a reversal in this case. These cases, however, support an affirmance. In Meyers, an associate warden’s substantial involvement in negotiating an end to an inmate strike led the court to conclude that his service on the disciplinary committee in which many of the strikers were disciplined violated the due process rights of those inmates. Id., 492 F.2d at 305-307. In Sil-verman, the court held that a ranking officer who signs misconduct reports while on duty even though he is not the reporting officer did not violate the prisoner’s due process clause rights by serving on the disciplinary committee hearing the misconduct report. Both courts held that the requirement of impartiality mandates the disqualification of an official who is directly involved in the incident or is otherwise substantially involved in the incident but does not require the disqualification of someone tangentially involved. Defendant De Los Santos was not merely signing a report as ranking officer with no connection to the incident. He viewed the tail end of the incident even though no charges arose directly from what he witnessed. He directed the operation upon his arrival at the scene, and he wrote up an incident report which described some events which occurred prior to his arrival. This is not merely a tangential involvement in the incident charged. This court has recently reaffirmed the importance of impartial decision makers serving on prison disciplinary committees. Redding v. Fairman, 717 F.2d 1105 (7th Cir.1983). We find that the district court made no error in determining that De Los Santos violated Administrative Regulation 804 and plaintiff’s due process right to an impartial tribunal by serving on the Adjustment Committee.
Under no circumstances may any person who initiated the allegations which serve the basis for the Resident Disciplinary Report, or who investigated those allegations, or who witnessed the incident sit on the Adjustment Committee hearing the Resident Disciplinary Report.
IV
Defendant-appellant also challenges the magistrate’s award of punitive damages because there was no evidence of aggravating circumstances or malicious intent. The magistrate, in assessing punitive damages, found that defendant’s violation of plaintiff’s due process right was willful.
Punitive damages are recoverable in a § 1983 suit in an appropriate case. See Carey v. Piphus, 435 U.S. 247, 257 n. 11, 98 S.Ct. 1042, 1049 n. 11, 55 L.Ed.2d 252 (1978). The standard for determining whether it is appropriate to award punitive damages has been described in various ways. In a recent Supreme Court decision it was decided that punitive damages may be assessed “when the defendant’s conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others.” Smith v. Wade, — U.S. —, 103 S.Ct. 1625, 75 L.Ed.2d 632 (1983). This court has required a “showing of aggravating circumstances or malicious intent” to justify the award of punitive damages. Endicott v. Huddleston, 644 F.2d 1208 (7th Cir.1980); Konczak v. Tyrrell, 603 F.2d 13 (7th Cir. 1979), cert. denied, 444 U.S. 1016, 100 S.Ct. 668, 62 L.Ed.2d 646 (1980). Punitive damages may be awarded for the purpose of deterring or punishing constitutional violations. See Endicott v. Huddleston, 644 F.2d at 1217; see also Smith v. Wade, 103 S.Ct. at 1636. In addition, the Supreme Court recently rejected the argument that “the deterrent purposes of punitive damages are served only if the threshold for punitive damages is higher in every case than the underlying standard for liability in the first instance.” Id., 103 S.Ct. at 1638.
The instant case was a bench trial, therefore the decision to award punitive damages was within the discretion of the trial court. Busche v. Burkee, 649 F.2d 509 (7th Cir.), cert. denied, 454 U.S. 897, 102 S.Ct. 396, 70 L.Ed.2d 212 (1981). A trial court cannot be required to award punitive damages. A determination to award punitive damages, however, must have support in the record. In Busche, this court refused to overturn an award of punitive damages because the award was not clearly erroneous.
We find that the magistrate’s award of punitive damages is not clearly erroneous. The magistrate found defendant De Los Santos’ action was a willful violation because he was aware of Regulation 804 and its requirements. The magistrate found that the defendant willfully and knowingly violated plaintiff’s right to an impartial tribunal. We note that this case involves a clear violation of the Administrative Regulation and of plaintiff’s constitutional rights. Defendant’s attempts to argue otherwise are disingenuous at best. In addition, the award has a readily apparent deterrent effect on this type of willful violation of a plaintiff’s due process right. We will not disturb the magistrate’s award of $100 in punitive damages.
V
For the foregoing reasons, we affirm the magistrate’s entry of judgment against the defendant-appellant and the award of both nominal and punitive damages.
. This finding of fact was an amendment to the district court’s original findings added upon defendant’s request.
. The relevant portion of Administrative Regulation 804 reads as follows:
. Other courts have concluded that punitive damages are appropriate when the defendant has acted with “actual knowledge that he was violating a federally protected right or with reckless disregard at whether he was doing so,” Cochetti v. Desmond, 572 F.2d 102, 106 (3d Cir.1978); or when a defendant was “by action or knowledgeable inaction, involved in the wrongdoing.” Marr v. Rife, 503 F.2d 735, 745 (6th Cir.1974). Defendant in the instant case falls within these two categories of persons who may have punitive damages awarded against them.
Question: Did the interpretation of federal rule of procedures, judicial doctrine, or case law by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
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songer_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.
Hubert Wayne JOHNSON, Plaintiff-Appellant, v. JOHN F. BEASLEY CONSTRUCTION COMPANY, a Corporation, Defendant-Appellee.
No. 83-3196.
United States Court of Appeals, Seventh Circuit.
Argued April 3, 1984.
Decided Aug. 24, 1984.
Jay H. Janssen, Law Office of Jay H. Janssen, Peoria, Ill., for plaintiff-appellant.
Rex K. Linder, Mark D. Howard, Heyl, Royster, Voelker & Allen, Peoria, Ill., Manfred W. Leckszas, Ober, Kaler, Grimes & Shriver, Baltimore, Md., for defendant-appellee.
Before WOOD and CUDAHY, Circuit Judges, and NICHOLS, Senior Circuit Judge.
The Honorable Philip Nichols, Jr., Senior Circuit Judge for the United States Court of Appeals for the Federal Circuit, is sitting by designation.
HARLINGTON WOOD, Jr.,
Circuit Judge.
On July 13, 1981, appellant Hubert Johnson sustained injuries while working on a construction barge owned by appellee Beasley Construction Company (“Beasley”). Appellant sued Beasley under the Jones Act, 46 U.S.C. § 688, and Beasley moved for summary judgment on the ground that appellant was not a “seaman” as required under the Act. The district court granted Beasley’s motion and entered judgment in its favor. We affirm.
I.
The facts are not in dispute. Beasley is a structural steel contractor. It was hired to remove the swing span portion of a railroad bridge over the Illinois River at Pearl, Illinois, and to replace that span with a lift section to facilitate navigation in the river channel (the existing swing span rested on a pier-supported turntable that created an obstruction in the middle of the navigation channel). The lift section was to be raised by machinery situated in a control house set on concrete pedestals on the south side of the bridge. Because the navigation channel had to remain unobstructed during the time Beasley was constructing the lift section, the lift section had to be assembled on the west bank of the river on falsework downstream from the bridge crossing (the falsework consisted of towers made of steel braces set upon pilings that had been driven into the river bottom). Following construction of the lift section, it was to be floated into the gap left by the removal of the swing span and then hoisted into place for incorporation into the existing bridgework.
Appellant was a foreman in charge of a crew whose responsibilities were to construct the lift section and the control house. Because the work was to be performed over water, Beasley employed several barges and a tugboat. One of the barges, called the JFB-15, was a steel-decked floating work platform on which had been installed a large lifting crane. The JFB-15 measured 135 feet by 40 feet by 8 feet, and had a displacement of 405 tons. It had no motive power of its own and no steering capability, and was not equipped with cabins, galley, fresh water storage, permanent toilets, or fixed navigational lights. The workers on the JFB-15 were transported to and from the barge daily.
The primary role of the JFB-15 was to provide a site for the assembly of the control house and to assist in the construction of the lift section on top of the falsework. The JFB-15 was also used to transport iron to the work site. On these occasions, a tugboat would push the barge downstream to points where the supply trucks could get close enough to be reached with the crane. Appellant and his crew would assist with loading and preparing lines to shore. Thereafter, the tugboat would push the barge back upstream.
On July 13, 1981, the day of appellant’s injury, the specific project then ongoing was the construction of the control house. The JFB-15 was moored 80 to 100 feet from the shore at the edge of the river channel. Appellant was supervising the construction of the control house when Beasley’s tugboat collided with a 2,000 pound beam protruding over the edge of the JFB-15. The beam pivoted after being struck and caught appellant’s left leg, causing severe injury that eventually resulted in amputation of the leg. Appellant has received Illinois worker’s compensation for his injury, but brought this suit because the Jones Act would allow him to recover traditional tort damages.
II.
Claims brought under the Jones Act have not been litigated frequently in this circuit. We take this opportunity, therefore, to review briefly the development of the law in this area and what we believe to be the relevant and controlling principles. The Jones Act,’ 46 U.S.C. § 688, provides in relevant part:
Any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury and in such action all statutes of the United States modifying or extending the common law of right or remedy in cases of personal injury to railroad employees shall apply____
Under this Act, the prior maritime law of the United States was modified to give seamen the rights given to railway employees under the statutes comprising the Federal Employer’s Liability Act, 45 U.S.C. .§§ 51-60, which provide a right of action by a railway worker for damages arising from the negligence of the owner of a railway on which the worker was employed at the time of the accident. See Lindgren v. United States, 281 U.S. 38, 40, 50 S.Ct. 207, 208, 74 L.Ed. 686 (1930). Applying the principles of the railway statutes, the Supreme Court early on extended coverage
under the Jones Act “to the liability of the owners of vessels for injuries to seamen extending territorially as far as Congress can make it go,” id. at 47, 50 S.Ct. at 211, consistent with admiralty jurisdiction.
Because the term “seaman” is not defined by the Jones Act, it has been left to the courts to define the compass of this term. Unfortunately, however, the case law interpreting the Jones Act has never been applied in a consistent manner. Not long after passage of the Act, the Supreme Court held that the term “seaman” was broad enough to include even longshoremen who were employed in maritime work on navigable waters, as their work was “a maritime service formerly rendered by the ship’s crew.” International Stevedoring Co. v. Haverty, 272 U.S. 50, 52, 47 S.Ct. 19, 71 L.Ed. 157 (1926). This decision “could have led, with the greatest of ease, to the conclusion that all maritime workers injured in the course of their employment were Jones Act seamen.” G. Gilmore & C. Black, The Law of Admiralty § 6-21, at 330 (2d ed. 1975). The next year, however, Congress enacted the Longshoremen’s and Harbor Worker’s Compensation Act (“LHWCA”), 33 U.S.C. §§ 901 et seq., which provides for the payment of compensation to all maritime workers injured upon navigable waters, regardless of the negligence of their employers, except to an employee who is “a master or member of a crew of any vessel.” Through judicial interpretation, the phrase “member of crew of any vessel” eventually became equated with the term “seaman,” see Swanson v. Marra Brothers, Inc., 328 U.S. 1, 7, 66 S.Ct. 869, 872, 90 L.Ed. 1045 (1946); Senko v. LaCrosse Dredging Corp., 352 U.S. 370, 371, 77 S.Ct. 415, 416, 1 L.Ed.2d 404 (1957), thus making coverage under the acts mutually exclusive. The route by which the terms became equated is important because it sheds light on the ambit of Jones Act coverage.
In South Chicago Coal & Dock Co. v. Bassett, 309 U.S. 251, 60 S.Ct. 544, 84 L.Ed. 732 (1940), the Supreme Court was faced with the question whether an employee who worked on a vessel used for fueling steamboats and whose chief task was to facilitate the flow of coal from his vessel to the boat being fueled was a member of a crew of the vessel and thus excluded from coverage under the LHWCA. The employer argued that the question whether the employee was a member of a “crew” was a question of law. The Court, however, concluded that “the word ‘crew’ does not have an absolutely unvarying legal significance.” Id. at 258, 60 S.Ct. at 548. Accordingly, the determination whether a person is a “member of the crew,” a word that has a “wide range of variation,” id., is a question of fact to be left to the trier of fact. The Court did observe, however, that as used in the statute, “crew” appeared to mean “employees on the vessel who are naturally and primarily on board to aid in her navigation.” Id. at 260, 60 S.Ct. at 549. It concluded that because the employee’s duties “did not pertain to navigation, aside from the incidental task of throwing the ship’s rope or making the boat fast,” id., and because he had no duties while the boat was in motion, his position was that of a longshoreman or other casual worker on water and thus covered by the LHWCA.
Bassett was relied on in another LHWCA ease, Norton v. Warner Co., 321 U.S. 565, 64 S.Ct. 747, 88 L.Ed. 931 (1944). In Norton, the employee worked on a barge as a boatman; his duties consisted of taking general care of the barge. In determining whether he should be excluded from coverage under the LHWCA, the Court concluded:
If a barge without motive power of its own can have a “crew” within the meaning of the Act and if “crew” may consist of one man, we do not see why [the boatman] does not meet these requirements .... We said in the Bassett case that the term “crew” embraced those “who are naturally and primarily on board” the vessel “to aid in her navigation.” [309 U.S. at] 260 [60 S.Ct. at 549]. But navigation is not limited to “putting over the helm.” It also embraces duties essential for other purposes of the vessel. Certainly members of the crew are not confined to those who can “hand, reef and steer.” Judge Hough pointed out in The Buena Ventura, 243 F. 797, 799 [D.C.N.Y. (1916) ], that “every one is entitled to the privilege of a seaman who, like seamen, at all times contributes to the labors about the operation and welfare of the ship when she is upon a voyage.” And see The Minna, 11 F. 759 [D.C.Mich. (1882)]; Disbrow v. Walsh Bros., 36 F. 607, 608 [D.C.N.Y. (1888)] (bargeman). We think that “crew” must have at least as broad a meaning under the Act____
[The boatman here] performed on the barge functions of the same quality as those performed in the maintenance and operation of many vessels. His were indeed different from the function of any other “crew” only as they were made so by the nature of the vessel and its navigational requirements.
321 U.S. at 572, 64 S.Ct. at 751 (footnote omitted).
The Supreme Court in both Bassett and Norton, however, did not explicitly equate “seaman” under the Jones Act with “member of a crew” under the LHWCA. Indeed, in Norton the Court observed that “ ‘[s]ea-man’ as used in a particular context may of course have a broader meaning than ‘crew.’ ” 321 U.S. at 572 n. 5, 64 S.Ct. at 751 n. 5 (citations omitted). Two years later, however, the Court took the step of equating the two terms. After reviewing the reach of the LHWCA, the Court in Swanson v. Marra Brothers, Inc., 328 U.S. 1, 66 S.Ct. 869, 90 L.Ed. 1045 (1946), concluded that “[w]e must take it that the effect of these provisions of the Longshoremen’s Act is to confine the benefits of the JGnes Act to the members of the crew of a vessel plying in navigable waters ____” Id. at 7, 66 S.Ct. at 872. In commenting on Swanson, we stated in Desper v. Starved Rock Ferry Co., 188 F.2d 177 (7th Cir.1951), aff'd, 342 U.S. 187, 72 S.Ct. 216, 96 L.Ed. 205 (1952), that:
This decision clearly demonstrates that, since the passage of the Longshoremen’s Act, the court has retreated from the position taken in the Haverty case [International Stevedoring Co. v. Haverty, 272 U.S. 50, 47 S.Ct. 19, 71 L.Ed. 157 (1926) ] and has narrowed the Jones Act concept of “seaman” to the point where it includes only one who is a member of the crew of a vessel plying in navigable waters.
Id. at 180.
These general parameters were taken by the appellate courts and put into a three-prong test that has become the touchstone of Jones Act analysis. This test, as articulated in Wilkes v. Mississippi River Sand & Gravel Co., 202 F.2d 383 (6th Cir.1953), states that whether a claimant under the Jones Act is a member of a crew is “primarily a question of fact” to be considered in light of three requirements: “(1) that the vessel be in navigation; (2) that there be a more or less permanent connection with the vessel; and (3) that the worker be aboard primarily to aid in navigation.” Id. at 388; accord McKie v. Diamond Marine Co., 204 F.2d 132, 136 (5th Cir.1953). See IB Benedict on Admiralty § 11a, at 2-5 (7th ed. 1976). Because this test rests on several unexplained definitions such as “vessel in navigation” and “aid to navigation,” however, it has never been applied consistently or literally. Indeed, in construing the third requirement, the Wilkes court itself noted that it should not be confined to those who “hand, reef and steer,” but is applicable “to all whose duties contribute to the operation and welfare of the vessel,” 202 F.2d at 388, relying on the Supreme Court’s statements in Norton.
The Supreme Court has never given any more precise meaning to these requirements. Although certain classes of persons, such as passengers, guests, and trespassers, are clearly excluded from coverage because the Act requires that the “seaman” be injured “in the course of his employment,”
[w]ho else might be excluded (or included) was, as a matter of initial construction, impossible to say. After a half-century of litigation the answer to the riddle is not apparent. The Supreme Court has alternated between giving the term “seaman” an exceedingly broad construction and giving it a much narrower one. Consequently defendants have been encouraged to argue, in all but the most obvious cases, that plaintiff is not a Jones Act seaman and that the action must be dismissed. Thus there has always been, there continues to be, and presumably there will go on being a substantial amount of depressing litigation of this type.
G. Gilmore & C. Black, supra, at 328.
A brief review of the later Supreme Court cases demonstrates that there are few clues as to what the critical factors are in determining crew status. In Gianfala v. Texas Co., 350 U.S. 879, 76 S.Ct. 141, 100 L.Ed. 775 (1955), for example, the employee was a member of a drilling crew who performed his duties aboard a submersible drilling barge. He was killed while helping to unload drilling pipe onto the barge. The trial court denied the employer’s motion for a directed verdict and held that the decedent’s status was a question for the jury, which went on to find for the employee. The Fifth Circuit reversed, holding that as a matter of law the decedent was not aboard primarily to aid in navigation; the appellate court stated that he was aboard ship not as a member of the ship’s crew, but as a member of the drilling crew doing work done only by oil field workers. Without discussion, the Supreme Court reversed the court of appeals and remanded the ease to the district court with instructions to reinstate the judgment on the jury verdict in favor of the employee.
Two years later, in Senko v. LaCrosse Dredging Corp., 352 U.S. 370, 77 S.Ct. 415, 1 L.Ed.2d 404 (1957), the Court decided that there was sufficient evidence to allow the jury to decide the question whether a handyman on a dredge who was injured on shore while placing a signal lantern into a shed was a member of a crew. The handyman had been employed only a short time and had never been on the dredge when it was in transit, since it had not moved from anchorage. His duties, as recounted by the Court, required him to “clean and take care of the deck, splice rope, stow supplies, and, in general, to keep the dredge in shape.” Id. at 372, 77 S.Ct. at 417. In finding support for the jury’s finding that he was a member of the crew of the dredge, the Court took into consideration these duties “to maintain the dredge during its anchorage and for its future trips,” and concluded that he “would have a significant navigation function when the dredge was put in transit.” Id. at 374, 77 S.Ct. at 417.
The two most expansive readings of Jones Act coverage occurred in two short per curiam opinions. In Grimes v. Raymond Concrete Pile Co., 356 U.S. 252, 78 S.Ct. 687, 2 L.Ed.2d 737 (1958), the employee worked as a pile driver assisting in the erection of a “Texas Tower,” a radar station, 110 miles out at sea. During the time the tower was being towed out to its permanent site, the employee lived on the tower and kept it in condition prior to installation. After the tower was anchored at its permanent site, he worked only at pile driving. On the day of his injury, which was six days after the tower had been anchored, he was hurt while being transported in a navy life ring from a tug to the tower. The Supreme Court reversed the First Circuit and held that a sufficient evidentiary basis existed for a jury to decide whether the employee was a member of a crew of a vessel. The minority disagreed sharply, stating that there was “no room for debate that this individual is not a seaman, unless a ‘seaman’ is to mean nothing more than a person injured while working at sea.” Id. at 255, 78 S.Ct. at 689 (Harlan, J., dissenting).
Finally, in the last case in which the Court specifically addressed this issue, Butler v. Whiteman, 356 U.S. 271, 78 S.Ct. 734, 2 L.Ed.2d 754 (1958), the Court held that an employee doing odd jobs around his employer’s wharf might be a seaman. The employee was killed when he fell off either a barge moored to the wharf or a tug, which had been withdrawn from navigation, lashed to the barge. The Court reversed the First Circuit and remanded the case to the trial court for jury findings on three issues, including whether or not the decedent was “a seaman and member of the crew of the tug within the meaning of the Jones Act.” Id. at 271, 78 S.Ct. at 734. Justice Harlan, again writing for the minority, stated that “it taxes imagination to the breaking point to consider this unfortunate individual to have been a seaman at the time of the accident within the meaning of the Jones Act____” Id. at 272-73, 78 S.Ct. at 735 (Harlan, J., dissenting).
Diderot may very well have had the previous Supreme Court cases in mind when he wrote, “We have made a labyrinth and got lost in it. We must find our way out.” In an attempt to extract some controlling principles from these cases and other relevant appellate court cases, Judge Wisdom in Offshore Co. v. Robison, 266 F.2d 769 (5th Cir.1959), concluded that
there is an evidentiary basis for a Jones Act case to go to the jury: (1) if there is evidence that the injured workman was assigned permanently to a vessel (including special purpose structures not usually employed as a means of transport by water but designed to float on water) or performed a substantial part of his work on the vessel; and (2) if the capacity in which he was employed or the duties which he performed contributed to the function of the vessel or to the accomplishment of its mission, or to the operation or welfare of the vessel in terms of its maintenance during its movement or during anchorage for its future trips.
266 F.2d at 779 (footnote omitted). The Robison test has been accepted by many courts not only as a test of whether a case should go to the jury in a Jones Act dispute, but also as a test to be used “in delimiting the power of the factfinder to deny or confer [seaman’s] status.” McDermott, Inc. v. Boudreaux, 679 F.2d 452, 457 (5th Cir.1982). Still, some courts start with the three-prong test and do not apply the liberal construction given to all parts of that test by Robison. See Simko v. C & C Marine Maintenance Co., 594 F.2d 960, 964-65 (3d Cir.1979); Griffith v. Wheeling Pittsburgh Steel Corp., 521 F.2d 31, 36-38 (3d Cir.1975), cert. denied, 423 U.S. 1054, 96 S.Ct. 785, 46 L.Ed.2d 643 (1976).
III.
The district court in this case applied the traditional three-prong test without reference to the Robison reformulation of that test. It noted that the parties were in agreement that there was a material question of fact on the issue whether appellant, at the time of his injury, had a more or less permanent connection with the JFB-15. On the other two issues, the district court found that the vessel was not in navigation at the time appellant was injured, and that his duties were not primarily in aid of navigation; the court observed that appellant was employed as an ironworker and that his duties were those of an ironwork-er: “The fact that he did occasionally aid the deck hands in securing JFB-15 at various locations was a casual undertaking which was wholly coincidental to the achievement of the purpose for which he and his gang were employed.”
Appellant contends that the district court erred in both these findings and that it should have submitted the issues to the jury. In particular, appellant objects to the district court’s failure to apply the Robison test, under which appellant’s duties aboard the JFB-15 undoubtedly contributed to its “mission,” as that term was applied in Robison and as the cases following Robison have interpreted it, see, e.g., Bennett v. Perini Corp., 510 F.2d 114, 116-17 (1st Cir.1975), of providing a support base for the construction of the lift section of the bridge and the control house.
Although the Robison formula devised by Judge Wisdom is based on a well-rear soned attempt to extract relevant principles from then-existing case law, the formula has been appropriately described as an “analytical starting point rather than a self-executing formula.” Brown v. I.T.T. Rayonier, Inc., 497 F.2d 234, 237 (5th Cir.1974). We think that the starting point provided by Robison is in most respects sound; however, we think that its restatement of the third prong of the traditional test (that the employee’s duties must be primarily in aid of navigation), especially as Robison’s restatement has been interpreted by courts subsequently, is too broad in that it accords insufficient weight to the relationship between the employee and the transportation function of the vessel. More specifically, we think the second part of the Robison test strays from important Jones Act principles when it speaks of the employee’s duties as having to relate only to the “function of the vessel or the accomplishment of its mission” without further qualifying “function” and “mission” in terms of the transportation function and mission of the vessel. The Robison court’s failure to qualify this requirement may have stemmed from attaching too much importance to the facts in the Supreme Court’s few short per curiam opinions — Gianfala, Grimes, and Butler — and giving insufficient consideration and weight to the Supreme Court's earlier explicit statements an<^ ^he thrust of its opinion in Senko.
Only Gianfala, Grimes, and Butler, of the Supreme Court cases, appear to be anomalous in giving insufficient attention to the employee’s duties as they relate to the transportation function of the vessel (insofar as this lack of attention is revealed by the facts in those cases); all were decided without extended discussion. Other Supreme Court cases, however, emphasize the duties of the employee as they relate to the operation and welfare of the vessel as a vessel —as a means of transport on water, In Senko, for example, the Court discussed ^he issue fulty and emphasized the navigational tasks Performed by the employee, This is consistent with the Supreme Court’s earlier emphasis in Bassett and Norton on duties tied to the transportation function of vessel as essential to a finding that an employee is a member of the crew.
We think Senko’s emphasis on “significant navigational functions” and Bassett and Norton’s emphasis on activities contributing to the operation and welfare of the vessel as a means of transport on water are critical to jurisdiction under the Jones Act. Because a Jones Act “seaman” is one who is a member of a crew of a vessel, see Senko, 352 U.S. at 371, 77 S.Ct. at 416, and because a “vessel” under the Jones Act, while interpreted liberally, has been consistently defined as a floating structure that must have as one of its functions the transportation of personnel or materials across navigable waters, see Powers v. Bethlehem Steel Corp., 477 F.2d 643, 647 (1st Cir.1973), we believe it is the employee’s relation to the transportation function of the vessel, i.e., whether the employee contributes to the maintenance, operation, or navigation of the vessel as a means of transport on water, that is critical for Jones Act purposes. Such an interpretation fulfills what we believe to be the central purpose of the Act: to provide protection for those subjected to risks associated with the transportation function of vessels on navigable waters.
This view is consistent with the approach the Third Circuit has taken in more narrowly construing the “primarily in aid of navigation” requirement. In Griffith v. Wheeling Pittsburgh Steel Corp., 521 F.2d 31 (3d Cir.1975), for example, the court noted that the only navigational function performed by the employee was that he assisted in the throwing of lines from one barge to the other while they were being “rounded,” a procedure used in moving loaded barges away from the seawall. It characterized these tasks as “insignificant” navigational functions, id. at 37-38, and held that these duties could not support “seaman” status.
This approach was reaffirmed in Simko v. C & C Marine Maintenance Co., 594 F.2d 960 (3d Cir.1979). There, the court stated that:
The clear import of our opinion in Griffith is that a maritime worker who does not actually go to sea but who is injured while performing duties on a navigable vessel must establish that he performed significant navigational functions with respect to that vessel in order to recover under the Jones Act.
Id. at 964-65. The court concluded that the injured employee failed to perform such functions, as his duties were limited to the cleaning and minor repairs of barges brought to his employer's facilities. See also Lynn v. Heyl and Patterson, Inc., 483 F.Supp. 1247, 1250-52 (W.D.Pa.1980); Mellon v. John F. Beasley Construction Co., 1981 A.M.C. 549, 555 (D.Md.1980).
No doubt one of the reasons courts originally gave a liberal interpretation to “crew” status was to cover new categories of workers such as offshore-oilmen. Indeed, in Robison, Judge Wisdom hinted that a broad reading of the Jones Act was necessary to give such workers, who in “many instances ... are exposed to more hazards than are blue-water sailors,” protection. 266 F.2d at 780. He observed: “They run the risk of top-heavy drilling barges collapsing. They run all the risks incident to oil drilling.” Id. While such categories of workers previously may have fallen through the cracks of existing compensation schemes, they are now protected through the Outer Continental Shelf Lands Act, 43 U.S.C. § 1333(b), which incorporates the coverage of the LHWCA. Another obvious reason for the broad interpretations of crew member status under the Jones Act is that recoveries under the Jones Act have generally been considerably greater than those available under state workmen’s compensation schemes or the LHWCA. Since the 1972 amendments to the LHWCA, however, awards under the LHWCA have increased substantially, thus removing some of the equitable economic reasons for construing the Jones Act broadly.
While the liberal attitude of courts in finding employees of questionable status “seamen” may be commendable when the employee’s duties fall into the gray areas, we believe the purpose of the Jones Act is distorted when persons who are obviously not seamen recover damages at the ship owner’s expense. If the Jones Act is to retain any limitations on its coverage, we believe the employee’s duties with respect to the transportation function of the vessel should define them. We conclude that when the person’s status as a member of a crew is equivocal, “the work done by [the] employee will be crucial ____” Braen v. Pfeifer Transportation Co., 361 U.S. 129, 131, 80 S.Ct. 247, 249, 4 L.Ed.2d 191 (1959). Relying on the traditional three-prong test, but emphasizing the employee’s duties as they relate to the transportation function of the vessel, we hold that in these equivocal situations there is an evidentiary basis for submitting to the jury the question whether the person was a member of the crew of a vessel at the time of injury if: (1) the person injured had a more or less permanent connection with a vessel in navigation, and (2) the person injured made a significant contribution to the maintenance, operation, or welfare of the transportation function of the vessel.
Applying these guidelines to the present facts, we must conclude that while appellant’s activities fall within the ambit of part 1, they fail to meet part 2. As for part 1, the district court acknowledged that the parties stipulated that there are facts suggesting that appellant had a more or less permanent connection with the JFB-15, but it concluded that the JFB-15 “was not a vessel in navigation in the context of the event of plaintiff’s injury.” Although recognizing that in a different factual setting the JFB-15 might be considered to be a vessel in navigation, the court reasoned that at the time of injury it could not be considered so.
It was at that time a stationary platform secured to the falsework near the river bank. Its only function was that of a platform to facilitate the erection of structural steel. Although it was floating upon a navigable stream, it cannot be found to have been in navigation.
We believe the approach adopted by the district court was in error. The “vessel in navigation” requirement pertains not to the vessel’s mobility at the precise moment of injury, but to whether it has at times been employed as a means of transport on water for passengers or cargo and has not been withdrawn from navigable waters and laid up, say, for the season. The “vessel in navigation” requirement is, like the second part of our test, aimed at determining the injured party’s status as a member of a “crew.” Any floating structure, including those designed for special purposes, is a “vessel” capable of having
Question: What is the total number of appellants in the case? Answer with a number.
Answer:
|
sc_issue_9
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42
|
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.
CONNOR et al. v. COLEMAN, UNITED STATES CIRCUIT JUDGE, et al.
No. 75-1184.
Decided May 19, 1976
Per Curiam.
This case is here on movants' motion, supported by the United States, for leave to file a petition for writ of mandamus. The motion is granted. Since the District Court may be expected to conform its proceedings to the views expressed in this opinion, consideration of the petition for writ of mandamus is continued to June 17, 1976.
Ten years of litigation have not yet resulted in a constitutionally apportioned Mississippi Legislature. The District Court for the Southern District of Mississippi in 1966 invalidated the 1962 apportionment. Connor v. Johnson, 256 F. Supp. 962 (1966). A legislative apportionment that followed was also declared unconstitutional. Thereupon the District Court promulgated its own plan for the 1967 elections. Connor v. Johnson, 265 F. Supp. 492 (1967). Still another legislative plan enacted in 1971 was held unconstitutional by the District Court and another court-ordered plan, this for the 1971 elections, was formulated. Connor v. Johnson, 330 F. Supp. 506 (1971). That court-promulgated plan, however, was stayed by this Court with direction that the District Court, “absent insurmountable difficulties,” should “devise and put into effect a single-member district plan for Hinds County” by June 14, 1971. Connor v. Johnson, 402 U. S. 690, 692 (1971). The District Court did not divide Hinds County into single-member districts because the court found that there were insurmountable difficulties.
After the 1971 elections this Court addressed the constitutionality of the 1971 court-formulated plan. Because the District Court had retained jurisdiction over plans for Hinds, Harrison, and Jackson Counties and had stated its intention to appoint a special master in January 1972 to consider the subdivision of those counties into single-member districts, we vacated the District Court judgment, without disturbing the 1971 elections, and remanded with direction to the District Court that “[s]uch proceedings should go forward and be promptly concluded,” declining meanwhile to consider the prospective validity of the court-formulated 1971 plan until the proceedings were completed and a final judgment was entered respecting the entire State. Connor v. Williams, 404 U. S. 549, 551-552 (1972). The District Court did not appoint a special master.
In April 1973 the Mississippi Legislature enacted an apportionment plan. Pending decision by the District Court of objections to that plan, however, the legislature in April 1975 adopted new legislation that differed from the 1971 court-formulated plan only in that Harrison, Hinds, and Jackson Counties remained multimember districts. The District Court thereupon dismissed the complaint addressed to the 1973 legislative plan and directed the filing of an amended complaint addressing the 1975 legislation. This was done and the District Court entered judgment approving the 1975 law. Connor v. Waller, 396 F. Supp. 1308 (1975). We reversed, holding that the 1975 legislation could not be effective as law until after clearance in compliance with § 5 of the Voting Rights Act of 1965, 79 Stat. 439, as amended, 42 U. S. C. § 1973c, and holding further that the District Court erred in deciding constitutional challenges to the Mississippi legislation based upon claims of racial discrimination. Connor v. Waller, 421 U. S. 656 (1975). We stated expressly, however, id., at 656-657, that the reversal was
“without prejudice to the authority of the District Court, if it should become appropriate, to entertain a proceeding to require the conduct of the 1975 elections pursuant to a court-ordered reapportionment plan that complies with this Court’s decisions in Mahan v. Howell, 410 U. S. 315 (1973); Connor v. Williams, 404 U. S. 549 (1972); and Chapman v. Meier, 420 U. S. 1 (1975).”
Thereafter Mississippi submitted the 1975 legislation to the Attorney General of the United States in compliance with § 5 of the Voting Rights Act. The Attorney General objected and accordingly the District Court held a hearing to formulate a court plan for the conduct of the 1975 elections. By orders entered in June 1975 the District Court promulgated a “temporary plan for the election of Senators and Representatives for the 1975 elections ONLY,” Motion for Leave to File Pet., App. 85a, and ordered the parties to file alternative permanent reapportionment plans. The District Court’s order of June 25, 1975, stated: “A permanent plan for reapportionment cannot be now formulated due to lack of time. When permanent plan for election of legislators in quadrennial elections of 1979 has been accomplished, special elections may be ordered in those legislative districts where required by law, equity, or the Constitution of the U. S.” Ibid. Motions by the United States and mov-ants sought the fixing of a specific date by which a permanent plan would be formulated and the fixing of a definite schedule for special elections. February 1, 1976, was suggested by the movants as the outside date for making a permanent plan effective, and the date of the November 1976 Presidential election as the date for special elections. On August 1, 1975, the District Court entered an order, Motion for Leave to File Pet., App. 88a, stating: “The Court declines to set a deadline of 2-1-76 for completion of a permanent plan for reapportionment . . . but reiterates its firm determination to have such plan approved before 2-1-76; as to all instances in which a special election may be required, the Court expects to direct the same shall be held in conjunction with the 1976 Presidential election . . . Proposed permanent plans were thereafter submitted by the United States and movants, and on January 26, 1976, the United States moved that a hearing be held on February 10, 1976, on the proposed permanent plans. However, three days later, January 29, 1976, the District Court denied the motion stating as its sole and only ground, Motion for Leave to File Pet., App. 90a, that “[f] urther hearing and decision of this case will be deferred until the Supreme Court shall have decided cited cases, at which time this Court will bring this case to trial forthwith . . .
The “cited cases” are East Carroll Parish School Board v. Marshall, No. 73-861, cert. granted, 422 U. S. 1055 (1975); Beer v. United States, No. 73-1869, probable jurisdiction noted, 419 U. S. 822 (1974); and United Jewish Organizations of Williamsburgh, Inc. v. Carey, No. 75-104, cert. granted, 423 U. S. 945 (1975). There is no occasion for the District Court any longer to postpone the hearing on the proposed permanent plan awaiting this Court's decisions of those cases. East Carroll was decided March 8, 1976, 424 U. S. 636, and Beer was decided March 30, 1976, ante, p. 130. United Jewish Organizations is not scheduled for argument this Term but no question similar to the question presented in that case is presented in this case. There is accordingly no justification on the ground stated for delaying further a final decision in this long-pending case that complies with Connor v. Williams, supra. Rather, in our view the District Court should in the circumstances promptly carry out the assurance given in its order of January 29, 1976, to “bring this case to trial forthwith . . .” and schedule a hearing to be held within 30 days on all proposed permanent reapportionment plans to the end of entering a final judgment embodying a permanent plan reapportioning the Mississippi Legislature in accordance with law to be applicable to the election of legislators in the 1979 quadrennial elections, and also ordering any necessary special elections to be held to coincide with the November 1976 Presidential and congressional elections, or in any event at the earliest practicable date thereafter. Assuming as we do that the District Court will promptly conform its proceedings to give effect to these views, consideration of the petition for writ of mandamus is continued to June 17, 1976.
It is so ordered.
The Chief Justice concurs in granting the motion but does not join the per curiam opinion.
Question: What is the issue of the decision?
01. comity: civil rights
02. comity: criminal procedure
03. comity: First Amendment
04. comity: habeas corpus
05. comity: military
06. comity: obscenity
07. comity: privacy
08. comity: miscellaneous
09. comity primarily removal cases, civil procedure (cf. comity, criminal and First Amendment); deference to foreign judicial tribunals
10. assessment of costs or damages: as part of a court order
11. Federal Rules of Civil Procedure including Supreme Court Rules, application of the Federal Rules of Evidence, Federal Rules of Appellate Procedure in civil litigation, Circuit Court Rules, and state rules and admiralty rules
12. judicial review of administrative agency's or administrative official's actions and procedures
13. mootness (cf. standing to sue: live dispute)
14. venue
15. no merits: writ improvidently granted
16. no merits: dismissed or affirmed for want of a substantial or properly presented federal question, or a nonsuit
17. no merits: dismissed or affirmed for want of jurisdiction (cf. judicial administration: Supreme Court jurisdiction or authority on appeal from federal district courts or courts of appeals)
18. no merits: adequate non-federal grounds for decision
19. no merits: remand to determine basis of state or federal court decision (cf. judicial administration: state law)
20. no merits: miscellaneous
21. standing to sue: adversary parties
22. standing to sue: direct injury
23. standing to sue: legal injury
24. standing to sue: personal injury
25. standing to sue: justiciable question
26. standing to sue: live dispute
27. standing to sue: parens patriae standing
28. standing to sue: statutory standing
29. standing to sue: private or implied cause of action
30. standing to sue: taxpayer's suit
31. standing to sue: miscellaneous
32. judicial administration: jurisdiction or authority of federal district courts or territorial courts
33. judicial administration: jurisdiction or authority of federal courts of appeals
34. judicial administration: Supreme Court jurisdiction or authority on appeal or writ of error, from federal district courts or courts of appeals (cf. 753)
35. judicial administration: Supreme Court jurisdiction or authority on appeal or writ of error, from highest state court
36. judicial administration: jurisdiction or authority of the Court of Claims
37. judicial administration: Supreme Court's original jurisdiction
38. judicial administration: review of non-final order
39. judicial administration: change in state law (cf. no merits: remand to determine basis of state court decision)
40. judicial administration: federal question (cf. no merits: dismissed for want of a substantial or properly presented federal question)
41. judicial administration: ancillary or pendent jurisdiction
42. judicial administration: extraordinary relief (e.g., mandamus, injunction)
43. judicial administration: certification (cf. objection to reason for denial of certiorari or appeal)
44. judicial administration: resolution of circuit conflict, or conflict between or among other courts
45. judicial administration: objection to reason for denial of certiorari or appeal
46. judicial administration: collateral estoppel or res judicata
47. judicial administration: interpleader
48. judicial administration: untimely filing
49. judicial administration: Act of State doctrine
50. judicial administration: miscellaneous
51. Supreme Court's certiorari, writ of error, or appeals jurisdiction
52. miscellaneous judicial power, especially diversity jurisdiction
Answer:
|
songer_casetyp1_2-2
|
A
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "civil rights".
Henry Z. SPELL, Appellee, v. Charles D. McDANIEL, Individually and as Patrolman, City of Fayetteville Police Department, and John P. Smith, City Manager, City of Fayetteville, Defendants, and William P. Dalton, Command Sergeant, City of Fayetteville Police Department; Roger T. Holman, Command Sergeant, City of Fayetteville Police Department; William C. Johnson, Director of Internal Affairs Division, City of Fayetteville Police Department; Daniel K. Dixon, Chief, City of Fayetteville Police Department; and the City of Fayetteville, N.C., a municipal corporation organized under and pursuant to the laws of the State of N.C., Appellants (Three Cases). Henry Z. SPELL, Appellee, v. Charles D. McDANIEL, Individually and as Patrolman, City of Fayetteville Police Department, Appellant, and William P. Dalton, Command Sergeant, City of Fayetteville Police Department; Roger T. Holman, Command Sergeant, City of Fayetteville Police Department; William C. Johnson, Director of Internal Affairs Division, City of Fayetteville Police Department; Daniel K. Dixon, Chief, City of Fayetteville Police Department; John P. Smith, City Manager, City of Fayetteville and the City of Fayetteville, N.C., a municipal corporation organized under and pursuant to the laws of the State of N.C., Defendants. Henry Z. SPELL, Appellee, v. Charles D. McDANIEL, Individually, Appellant, and Charles D. McDaniel, Patrolman, City of Fayetteville Police Department; William P. Dalton, Command Sergeant, City of Fayetteville Police Department; Roger T. Holman, Command Sergeant, City of Fayetteville Police Department; William C. Johnson, Director of Internal Affairs Division, City of Fayetteville Police Department; Daniel K. Dixon, Chief, City of Fayetteville Police Department; John P. Smith, City Manager, City of Fayetteville and the City of Fayetteville, N.C., a municipal corporation organized under and pursuant to the laws of the State of N.C., Defendants.
Nos. 85-1524, 85-1523, 85-1691, 85-1714 and 85-1757.
United States Court of Appeals, Fourth Circuit.
Argued June 4, 1986.
Decided July 24, 1987.
John N. Fountain and Gary S. Parsons (Gary K. Joyner, Raleigh, N.C., Carolin D. Bakewell, Richmond, Va., Bailey, Dixon, Wooten, McDonald, Fountain & Walker, Raleigh, N.C., Bobby G. Deaver; Brown, Fox & Deaver, Fayetteville, N.C., George Colvin Cochran, Law Center, University of Mississippi, on brief), for appellants.
Alfred S. Bryant (Bruce M. Marshall; Carter H. Tucker; Obenshain, Hinnant, El-lyson, Runkle & Bryant, Richmond, Va., on brief) and H. Gerald Beaver (William Richardson; Beaver, Thompson, Holt & Richardson, P.A., Fayetteville, N.C., on brief), for appellee.
Before PHILLIPS, CHAPMAN and WILKINSON, Circuit Judges.
JAMES DICKSON PHILLIPS, Circuit Judge:
This is a 42 U.S.C. § 1983 action in which after two trials Henry Spell was awarded substantial damages against the City of Fayetteville, North Carolina (the City), and Charles McDaniel, a City police officer, as a result of physical injury inflicted on Spell by McDaniel while Spell was in McDaniel’s custody following Spell’s arrest. McDaniel and the City have appealed, assigning various trial rulings as error and challenging as unreasonable the amount of attorney fees awarded to Spell as prevailing party.
We find no reversible error in the trials and therefore affirm the judgment on the merits against McDaniel and the City. Except for its inclusion of a “contingency multiplier,” we also affirm the district court’s award of attorney fees.
I
Spell, admittedly inebriated on alcohol and quaaludes, was stopped by Officer McDaniel while driving an automobile in the City of Fayetteville. After talking with Spell and finding a quantity of quaaludes in his automobile, McDaniel arrested him along with a passenger in Spell’s automobile, handcuffed the two of them and took them in a patrol car to the police station. There Spell was subjected to various sobriety tests, including a breathalyzer test, and was formally charged with driving while impaired and with the possession of quaa-ludes. Just after Spell completed the breathalyzer test and was returned, still handcuffed and inebriated, to McDaniel's direct custody, McDaniel, possibly angered by Spell’s failure to respond to his questioning, and in any event without any physical provocation, brutally assaulted Spell. When Spell warded off a blow toward his head by raising his arms, McDaniel seized his handcuffed arms, pulled them down and violently kneed Spell in the groin. The blow to Spell’s groin ruptured one of his testicles, necessitating its surgical removal. This resulted in irreversible sterility and of course in considerable associated pain and suffering.
Spell then brought this § 1983 action naming as defendants McDaniel, the City of Fayetteville, the City Manager, the City Chief of Police, the Director of the police department’s Internal Affairs Division and two police department command sergeants. He structured the action as one against McDaniel in his individual and official capacities; against the City Manager, Smith, the Police Chief, Dixon, the Internal Affairs Division Director, Johnson, and the two command sergeants, Dalton and Holman, in their several official capacities; and against the City as a suable municipal corporation.
His pleaded theory of recovery against McDaniel individually was that McDaniel, acting under color of state law, had deprived him of rights secured by the fourth, fifth and fourteenth amendments by using excessive physical force against him in a custodial situation, thereby inflicting serious personal injuries. For this conduct he sought recovery of money damages against McDaniel in his individual capacity.
His pleaded theory of recovery against the City of Fayetteville was that the City was liable for damages under the doctrine of Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), for the constitutional deprivation with consequent physical injuries directly inflicted by its employee McDaniel, because McDaniel’s conduct was pursuant to a municipal “policy or custom.’’ Id. at 694, 98 S.Ct. at 2037.
McDaniel denied inflicting any injury on Spell as a defense to the individual-capacity claim against him. The City also denied (for lack of sufficient knowledge or information) that McDaniel had inflicted injury on Spell, and alternatively denied that there was any basis for imposing municipal liability upon it under Monell.
The case then went to trial before a jury on the issues whether, as a matter of fact, McDaniel had assaulted Spell and was therefore liable individually, and if so, whether there existed a basis in law and fact for also imposing joint liability upon the City for the resulting constitutional deprivation.
After an 18-day trial, the jury returned verdicts finding McDaniel, in his individual capacity, and the City in its municipal capacity, jointly and severally liable. It awarded $1,000 in compensatory damages, and declined to award the punitive damages sought against McDaniel.
Spell then moved to set aside the $1,000 compensatory award as inadequate and for a new trial on the compensatory damages issue alone. The district court granted this motion, denying, inter alia, the defendants’ counter-motion for new trial on all the issues if the verdict was to be set aside for inadequacy of the damage award.
On the re-trial of the damages issue, the jury returned a verdict for $900,000 compensatory damages. After denying defendants’ renewed post-verdict motions for judgment n.o.v. or, alternatively, a new trial, the district court awarded Spell attorney fees and costs totalling $335,942.57. 616 F.Supp. 1069. Joint and several judgments against McDaniel and the City were then entered on the damage and fee awards.
This appeal followed.
Before us, the defendants join in contending that the district court erred in ordering a new trial on damages alone after setting aside as inadequate the first jury verdict; in making various evidentiary rulings; and in awarding unreasonably excessive attorney fees to Spell as prevailing party under 42 U.S.C. § 1988.
The City alone contends that the evidence did not warrant submission of the municipal liability issue to the jury and, in the alternative, that the court’s jury instructions on that issue were prejudicially erroneous.
Because they are the most serious and difficult, we consider first the municipal liability issues, then the others in order.
II
The City’s challenge to the submission of the municipal liability issue and the jury instructions upon it are interrelated. Both essentially question the district court’s understanding, hence application, of the law of municipal liability under § 1983, as it relates to incidents of police brutality such as that charged here.
We therefore begin by discussing that body of law as it applies to this case.
A
The Basic Principle
Municipalities are not liable under respondeat superior principles for all constitutional violations of their employees simply because of the employment relationship. Monell, 436 U.S. at 692-94, 98 S.Ct. at 2036-37. Instead, municipal liability results only “when execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury.” Id. at 694, 98 S.Ct. at 2037-38.
Municipal “Policy” and “Policymaking”
While municipal “policy” is found most obviously in municipal ordinances, regulations and the like which directly command or authorize constitutional violations, see, e.g., Monell, id., at 661, 694, 98 S.Ct. at 2020, 2037 (official pregnancy leave policy) it may also be found in formal or informal ad hoc “policy” choices or decisions of municipal officials authorized to make and implement municipal policy, see Pembaur v. City of Cincinnati, 475 U.S. 469, 106 S.Ct. 1292, 1301, 89 L.Ed.2d 452 (1986) (single “policy” decision by county prosecutor).
“Policy” in this context implies most obviously and narrowly a “course of action consciously chosen from among various alternatives” respecting basic governmental functions, as opposed to episodic exercises of discretion in the operational details of government. See City of Oklahoma City v. Tuttle, 471 U.S. 808, 823, 105 S.Ct. 2427, 2436, 85 L.Ed.2d 791 (1985); see also Pembaur, 106 S.Ct. at 1299 & n. 9. Correspondingly, “policymaking authority” implies authority to set and implement general goals and programs of municipal government, as opposed to discretionary authority in purely operational aspects of government. See Pembaur, 106 S.Ct. at 1299-1300 & n. 12; Bennett v. Slidell, 728 F.2d 762, 769 (5th Cir.1984) (en banc) (“policymaking authority is more than discretion ... more than the final say-so, as a matter of practice, on what water main will be replaced today”).
While “finality” is a necessary attribute of “policymaking authority,” the possession of “final authority” does not alone constitute a municipal official a “policymaker.” The most critical factor is not the practical finality of an official’s “acts and edicts,” but their “policy” nature. See Pembaur, 106 S.Ct. at 1299-1300 (responsibility for establishing policy the key); Bennett, 728 F.2d at 769 (“policymakers ... decide the goals for a particular city function and devise the means for achieving those goals”). On the other hand, a municipal agency or official may have final authority to make and implement policy despite a municipality’s retention of powers of ultimate control over both policy and policymaker. The question is one of authority-in-fact. A municipal governing body may not avoid attribution of policy to itself simply by officially retaining unexer-cised ultimate authority to countermand a policy or to discipline or discharge the policymaker. See Bowen v. Watkins, 669 F.2d 979, 989-90 (5th Cir.1982); see also Bennett, 728 F.2d at 769 (policymaking authority exists despite retention by governing body of “prerogative of the purse and final legal control [to] limit or revoke the authority”).
Municipal “Custom” and its Creation
“Official policy” in the relatively narrow sense of discrete, consciously chosen courses of action by “policymakers” is not the only basis for imposing municipal liability. “Custom, or usage,” in the exact language of § 1983, may also serve. Monell, 436 U.S. at 690-91, 98 S.Ct. at 2035-36. And the existence of such a “custom or usage” may be found in “persistent and widespread ... practices of [municipal] officials [which] [although not authorized by written law, [are] so permanent and well-settled as to [have] the force of law.” Id. at 691, 98 S.Ct. at 2036 (citing and quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 167-68, 90 S.Ct. 1598, 1613-14, 26 L.Ed.2d 142 (1970)).
Attribution and Causation as Essentials of Municipal Fault
Because municipal liability results only when the municipality itself can be directly charged with fault for a constitutional violation, it results only when policy or custom as above defined is (1) fairly attributable to the municipality as its “own,” Monell, 436 U.S. at 683, 98 S.Ct. at 2032, and is (2) the “moving force” behind the particular constitutional violation. Polk County v. Dodson, 454 U.S. 312, 326, 102 S.Ct. 445, 454, 70 L.Ed.2d 509 (1981).
Attribution of “Policy”
Policy, in the narrow sense of discrete, consciously adopted courses of governmental action may be fairly attributed to a municipality either because (1) it is directly “made by its lawmakers,” i.e., its governing body, Monell, 436 U.S. at 694, 98 S.Ct. at 2037, or (2) it is made by a municipal agency, see, e.g., id. at 661 & n. 2, 98 S.Ct. at 2020 & n. 2 (policy of city board of education and department of social services) or official, see Pembaur, 106 S.Ct. at 1300-01 (policy decision of county prosecutor), having final authority to establish and implement the relevant policy. A municipal agency or official may have final policy-making authority by direct delegation from the municipal lawmaking body, see, e.g., Wellington v. Daniels, 717 F.2d 932, 936 (4th Cir.1983) (delegation of law enforcement policymaking authority to police chief assumed) or by conferral from higher authority, see, e.g., Pembaur, 106 S.Ct. at 1301 (county prosecutor’s authority to act for county conferred by state law). Delegation may be express, as by a formal job-description, see Bennett, 728 F.2d at 769, or implied from a continued course of knowing acquiescence by the governing body in the exercise of policymaking authority by an agency or official, see id. (delegation “by conduct or practice [which] encourage[s] or acknowledge^] the agent in a policymaking role”).
Attribution of “Custom”
“Custom and usage,” in the sense of “persistent and widespread ... practices” by municipal agents and employees, may be attributed to a municipality when the duration and frequency of the practices warrants a finding of either actual or constructive knowledge by the municipal governing body that the practices have become customary among its employees. See id. at 768. Actual knowledge may be evidenced by recorded reports to or discussions by a municipal governing body. Constructive knowledge may be evidenced by the fact that the practices have been so widespread or flagrant that in the proper exercise of its official responsibilities the governing body should have known of them. See id.
Similarly, where a municipal policymaker has actual or constructive knowledge of such a course of customary practices among employees subject to the policymaker’s delegated responsibility for oversight and supervision, the “custom or usage” may fairly be attributed to the municipality as its own. See id at 769 (“custom” may be attributed to municipality through policymaker who has acceded to it).
Causation
When a municipal “policy or custom” is itself unconstitutional, i.e., when it directly commands or authorizes constitutional violations, see, e.g., Monell, 436 U.S. at 661, 694-95, 98 S.Ct. at 2020, 2037-38 (pregnancy leave policy), the causal connection between policy and violation is manifest and does not require independent proof. See Tuttle, 471 U.S. at 822, 105 S.Ct. at 2435 (“no evidence ... needed [in such a case] other than a statement of the policy”). But a policy or custom that is not itself unconstitutional in this strict sense must be independently proven to have caused the violation. Proof merely that such a policy or custom was “likely” to cause a particular violation is not sufficient; there must be proven at least an “affirmative link” between policy or custom and violation; in tort principle terms, the causal connection must be “proximate,” not merely “but-for” causation-in-fact. Id. at 823, 105 S.Ct. at 2436; id. at 833 n. 9, 105 S. Ct. at 2441 n. 9 (Brennan, J., dissenting); see also Wellington, 717 F.2d at 936 (policy must be shown to have given at least “tacit authorization" to unconstitutional employee conduct). Neither the existence of such a policy or custom nor the necessary causal connection can be established by proof alone of the single violation charged. Tuttle, 471 U.S. at 823, 824, 105 S.Ct. at 2436, 2437; Wellington, 717 F.2d at 937.
The Principles as Applied to Constitutional Violations by Police
Application of these general principles to claims of municipal liability for specific incidents of unconstitutional conduct by law enforcement officials has raised special conceptual problems for the courts. This undoubtedly reflects conflicting, fundamental policy concerns about the exposure of municipalities to monetary liability for this most fundamental of “constitutional torts” at the local government level.
On one hand, there is concern that actual municipal culpability in these matters should not be masked and final responsibility avoided by overly rigid interpretations and applications of the concepts of policy or custom, policymaking authority, and causation. See, e.g., Tuttle, 471 U.S. at 833 n. 8, 105 S.Ct. at 2441 n. 8 (Brennan, J., concurring) (rejecting “metaphysical distinction between policies that are themselves unconstitutional and those that cause constitutional violations”). On the other hand, there is concern that a back-door vicarious liability principle should not be developed by overly tolerant interpretations and applications of those same key concepts. See, e.g., id. at 821, 105 S.Ct. at 2435 (plurality opinion) (overly tolerant concepts of policy and causation would impose municipal liability “simply because the municipality hired one ‘bad apple’ ”).
Municipal policymakers, including governing bodies, may of course in theory directly authorize unconstitutional police conduct just as any other form. In practice, however, such authorizations — “policies unconstitutional in themselves” — are understandably rare, or at least rarely surface in litigation in this realm. “Official” statements of law enforcement policy almost inevitably will specifically condemn rather than condone uses of excessive force or other unconstitutional conduct by police. And where there is no official statement respecting specific police conduct, it will be difficult if not impossible to imply an official municipal policy directly authorizing conduct at odds with federal and state constitutions and laws. Cf. Pembaur, 106 S.Ct. at 1301 (White, J., concurring) (“Local law enforcement officers are expected to obey the law_”).
Typically, therefore, claims of municipal liability for specific constitutional violations by police have had to seek municipal fault in other sources than direct authorizations by policymakers and the necessary causation between fault and violation in more attenuated connections than direct commands.
Two basic theories have emerged for imposing municipal liability in the more typical situation where fault and causation cannot be laid to a municipal policy “itself unconstitutional.” The principal theory locates fault in deficient programs of police training and supervision which are claimed to have resulted in constitutional violations by untrained or mis-trained police officers. A second theory, sometimes imprecisely subsumed within the first, locates fault in irresponsible failure by municipal policymakers to put a stop to or correct a widespread pattern of unconstitutional conduct by police officers of which the specific violation is simply an example.
Although we have implicitly recognized the general viability of these theories in the course of rejecting particular claims of municipal liability, we have not been required earlier to elaborate their full details; nor has the Supreme Court yet done so. This case requires that we now do so, guided primarily by those Supreme Court decisions that have most directly suggested the theories’ bounds.
At the outset, we accept that in appropriate circumstances either or both of these theories may appropriately be invoked to impose municipal liability under the basic Monell principles above summarized. But we also accept that the most relevant Supreme Court decisions now require that each of the theories be carefully controlled at critical points to avoid imposing by indirection a form of vicarious municipal liability flatly rejected by Monell. Those critical points are (1) identifying the specific “policy” or “custom”; (2) fairly attributing the policy and fault for its creation to the municipality; and (3) finding the necessary “affirmative link” between identified policy or custom and specific violation. See Tuttle, 471 U.S. at 822-24, 105 S.Ct. at 2435-37 (plurality opinion); id. at 827-33, 105 S.Ct. at 2438-41 (Brennan, J., concurring); see also, Kibbe, — U.S. at -, 107 S.Ct. at 1120-22 (O’Connor, J., dissenting from dismissal of writ).
On this basis, we conclude as follows respecting the two theories.
Deficient training as culpable municipal “policy”
The way in which a municipal police force is trained, including the design and implementation of training programs and the follow-up supervision of trainees, is necessarily a matter of “policy” within the meaning of Monell. To the extent a particular training policy is fairly attributable to a municipality, it is “official municipal policy.” To the extent such an official municipal policy has deficiencies resulting from municipal fault that then cause specific constitutional violations by deficiently trained police officers, the municipality is liable under 42 U.S.C. § 1983.
Such a training policy is fairly attributed to a municipality when it is designed, implemented, and its trainees supervised by municipal officials to whom the municipal governing body has effectively delegated final authority so to act. Delegation to such policymakers may be by formal directive, such as a job description, or by informal acquiescence in a known, continued exercise of authority, or by both in combination. Policymaking authority with respect to police training, as generally, is final if it is effectively final; the mere fact that the governing body or some other official retains ultimate but unexercised authority over both police training policy and policymakers does not allow a municipality to disclaim the policy as its own.
Only those deficiencies in police training policies that result from policymaker fault of at least the degree of deliberate indifference to or reckless disregard for the constitutional rights of persons within police force jurisdiction can give rise to municipal liability; mere negligence on the part of policymakers is not sufficient. Subject to this fault requirement, training policy deficiencies for which municipal liability may be imposed include not only express authorizations of specific unconstitutional conduct, but tacit authorizations, and failures adequately to prohibit or discourage readily foreseeable conduct in light of known exigencies of police duty.
Finally, a sufficiently close causal link must be shown between potentially inculpating training deficiency or deficiencies and specific violation. This requires first that a specific deficiency rather than general laxness or ineffectiveness in training be shown. It then requires that the deficiency or deficiencies be such, given the manifest exigencies of police work, as to make occurrence of the specific violation a reasonable probability rather than a mere possibility. In common parlance, the specific deficiency or deficiencies must be such as to make the specific violation “almost bound to happen, sooner or later,” rather than merely “likely to happen in the long run.” See Patzner, 779 F.2d at 1367 (training so deficient that “police misconduct inevitably occurs”).
Unconstitutional police practices as municipal “custom or usage” by condonation
Without having been directly authorized, or tacitly encouraged, or inadequately trained in specific ways by responsible municipal policymakers, police officers, like other public employees, may fall into patterns of unconstitutional conduct in their encounters with suspects, arrestees, persons in custody and others involved in law enforcement situations. This may result from a variety of factors not sufficiently traceable in origin to any fault of municipal policymakers to warrant treating the conduct as a reflection of “municipal policy” in the Monell sense.
If these unconstitutional practices become sufficiently widespread, however, they may assume the quality of “custom or usage” which, per § 1983, has the force of state “law” for purposes of invoking the remedies provided by § 1983. Adickes, 398 U.S. at 167-68, 90 S.Ct. at 1613-14. Such a developed “custom or usage” may then become the basis of municipal liability, but only if its continued existence can be laid to the fault of municipal policymakers, and a sufficient causal connection between the “municipal custom and usage” and the specific violation can then be established.
Municipal fault for allowing such a developed “custom or usage” to continue requires (1) actual or constructive knowledge of its existence by responsible policymakers, and (2) their failure, as a matter of specific intent or deliberate indifference, thereafter to correct or stop the practices. Constructive knowledge may be inferred from the widespread extent of the practices, general knowledge of their existence, manifest opportunities and official duty of responsible policymakers to be informed, or combinations of these. The inculpating knowledge, whether actual or constructive, may be either that of the municipal governing body itself, or of municipal officials having final policymaking authority in municipal law enforcement matters.
A sufficiently close causal link between such a known but uncorrected custom or usage and a specific violation is established if occurrence of the specific violation was made reasonably probable by permitted continuation of the custom. Again, as in the case of deficient training policy, failure to correct the known practices must be such as to make the specific violation “almost bound to happen, sooner or later,” rather than merely “likely to happen in the long run.”
Deficient training “policy” and condoned “custom and usage” as alternative theories for establishing municipal liability
Because the “deficient training policy” and “condoned custom” theories are simply alternative ways of establishing municipal fault, hence potential Monell liability, for specific constitutional violations by police officers, they may be asserted as alternative theories in particular litigation. Fed.R.Civ.P. 8(e)(2). If sufficiently supported by proof, they may then be submitted to a jury as alternative bases for liability, and noncumulative liability may be found on the basis of either or both. This simply reflects the fact that in particular cases the question whether the “moving force” behind a specific violation was a policy that originated with municipal policymakers, or a custom that policymakers did not originate but effectively condoned, or both, may be determinable only by litigation. The most critical substantive difference between the two theories is that municipal fault may be ascribed for the first specific violation that results from proven policy, Tuttle, 471 U.S. at 822, 105 S.Ct. at 2435; Pembaur, 106 S.Ct. at 1297 n. 6, while fault for a violation resulting from condoned custom can only be ascribed when a pattern of comparable practices has become actually or constructively known to responsible policymakers, Wellington, 717 F.2d at 936 (“knowledge [may] be imputed to the supervisory personnel” only on basis of “history of widespread abuse”). Closely related is the principle that just as proof of a single violation will not support the inference that the violation resulted from a municipal “policy” of deficient training, see Tuttle, 471 U.S. 808, 105 S.Ct. 2427, 85 L.Ed.2d 791, so it obviously cannot support an inference that the violation resulted from a municipally condoned custom of comparable practices, see Wellington, 717 F.2d at 936.
B
As above outlined, the substantive requirements for establishing municipal liability for police misconduct are stringent indeed. The critical Supreme Court decisions have imposed this stringency in a deliberate effort to avoid the indirect or inadvertent imposition of forms of vicarious liability rejected in Monell. The City here contends that the evidence was insufficient to meet those stern substantive requirements, and that the district court therefore erred in denying its motions for directed verdict and judgment n.o.v.
We disagree. We conclude instead that the evidence was sufficient to support the jury verdict imposing municipal liability on either deficient training policy or condoned custom or usage theories.
A good framework for assessing the sufficiency of the evidence is the claimant’s core allegations of municipal liability, for his proof followed his allegations with considerable faithfulness and in great factual detail.
Specifically, Spell pleaded that at the time of McDaniel’s assault upon him the various city officials named as defendants, “jointly and severally,” had the legal “duty ... for [sic] establishing, enforcing, directing, supervising and controlling policies, customs, practices, usages, and procedures to be used by police officials” of the City, so that their “edicts and/or acts” might “fairly be said to represent the official policy” of the City; that acting within that “duty” these named officials had by various acts of omission and commission “foster[ed] and encourage[d] an atmosphere of lawlessness, anarchy, repression and a repetitive policy, custom and practice of aggressive, abusive, and assaultive behavior and procedures toward individual detainees and arrestees which [on the date of McDaniel’s assault on Spell] represented the policy, practice, custom, usage and procedure” of the City, and that McDaniel’s assault upon Spell was “in furtherance of ... the practice, custom and procedure” of the City.
In greater detail, the complaint alleged, inter alia, that these defendant officials,
with knowledge of repeated allegations of abusive and assaultive behavior toward ... detainees and arrestees by [City] police officers ... repeatedly ... fail[ed] to enforce established procedures to insure the safety of individual arres-tees and detainees; ... established] and enforce[d] quota systems for arrests and citations ...; ... fail[ed] to discipline ... police officers ... who had been found to have committed abusive and assaultive behavior toward ... detainees and arrestees; fail[ed] and refuse[d] to competently investigate allegations of abuse and assault ... by ... police officers ...; reprimanded] ... intimidate[d], demote[d], and fire[d] police officers and officials who reported acts of abuse of authority by other[s] ...; covered] up acts of misconduct and abuse of authority by individual police officers and officials; ... rewarded] and commend[ed] ... police officers who displayed aggressive, abusive and assaultive behavior towards ... detainees and arrestees; repeatedly ... fail[ed] to adequately train and educate police officers in the use of reasonable force and proper use of authority; repeatedly fail[ed] to adequately supervise the actions of police officers and officials under their control and supervision.
As indicated, plaintiff’s evidence substantially tracked these essential allegations. Though that evidence was of course disputed in many details by the defendants’ countering evidence, much of it was undisputed and that which was disputed was not made manifestly incredible or implausible by anything in the record. Under the settled standard for assessing the sufficiency of evidence to survive a motion for directed verdict or judgment n.o.v., see, e.g., Lovelace v. Sherwin-Williams, 681 F.2d 230 (4th Cir.1982), plaintiff’s evidence clearly sufficed to establish the essential elements of both theories of municipal liability above summarized.
Assuming the credibility of the most critical oral testimony adduced by plaintiff and assessing the total evidence in its most favorable light, there emerged a picture of a police department whose members were either positively encouraged by training and deliberate cover-up to engage in uses of excessive force of the very type charged to McDaniel; or were tacitly encouraged to continue self-developed practices of this type by the deliberate failure of responsible municipal officials to exercise discipline or corrective supervision to halt the widespread, known practices; or were encouraged or authorized by both in combination.
To establish the existence of such a municipal policy or custom as the effective cause of Spell’s injury, plaintiff relied principally upon the testimony of seven lay citizens of the City, eight present or former officers of the City police department, an assistant state district attorney, the former legal advisor to the police department and upon internal records of the City police department. This evidence was essentially concentrated upon a time period of three years preceding McDaniel’s assault on Spell.
The lay witnesses testified to a number of observed or directly experienced acts of brutality by city police officers of the type charged to McDaniel. They further testified that in each instance they filed complaints with the police department which resulted in no corrective or punitive action.
Even more critical was the testimony of former and still serving members of the police department. Officer Livingston testified to various incidents involving excessive uses of force by City police officers which were not punished because of an effective “code of silence” within the department; that City police officers were specifically trained in the technique of kneeing or grabbing testicles in order to subdue arrestees or persons in custody; that he had been concerned about the prevalence of physical violence within the department and had never heard of anyone being disciplined for such violence.
Officer Luskis testified to an observed pattern and specific incidents of brutality and excessive uses of force by members of the department; that he had seen new officers being trained in the technique of kneeing persons in the groin and that McDaniel’s kneeing of Spell was consistent with the training that he had received in the department; that there was little reason to report observed acts of brutality because his supervisor had told him that there was nothing that could be done about it.
Former officer Gardner testified that uses of excessive, unwarranted force were condoned by her supervisors, and that when she complained she was forbidden by her superior to interrupt or complain again about such incidents.
Officer Pirro, a twenty-five year veteran of the department, testified that defendant Dixon’s philosophy as chief of police was to “kick ass and take names”; that Dixon wanted “supercops” tougher than the soldiers at nearby Ft. Bragg; and
Question: What is the specific issue in the case within the general category of "civil rights"?
A. civil rights claims by prisoners and those accused of crimes
B. voting rights, race discrimination, sex discrimination
C. other civil rights
Answer:
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songer_casetyp1_1-2
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A
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "criminal".
UNITED STATES of America, Plaintiff-Appellee, v. Joe Allen BOUNDS, Defendants Appellant.
No. 89-4665
Summary Calendar.
United States Court of Appeals, Fifth Circuit.
Sept. 20, 1991.
Joe Allen Bounds, pro se.
William J. Flanagan, Asst. U.S. Atty., Joseph S. Cage, Jr., U.S. Atty., Shreveport, La., for U.S.
Before KING, GARWOOD, and DUHÉ, Circuit Judges.
DUHÉ, Circuit Judge.
A defendant who pleaded guilty in the trial court to two felony counts asks us to vacate his sentence and allow him to plead anew because the judge failed to inform him that he could be subject to a term of supervised release. We agree that the court erred. We reverse the conviction, vacate the sentence and remand to allow defendant to plead anew.
A federal grand jury returned an indictment charging Joe Allen Bounds with various drug and firearm offenses. Bounds originally pleaded not guilty to the indictment. On the day of trial, however, Bounds announced his decision to plead guilty to count one — conspiracy to manufacture phenylacetone and amphetamine— and to count five — possession of a firearm by a convicted felon — in exchange for the government’s agreement to dismiss the remaining charges against him.
During the plea colloquy required by Rule 11(c)(1), Bounds’s attorney waived the formal reading of the indictment, explaining that Bounds had read it many times. See Fed.R.Crim.P. 11(c). The court informed Bounds that count one carried a twenty-year maximum penalty and that count five carried a five-year maximum penalty. The court also advised Bounds of the possible monetary fines and fees that might be assessed against him.
Bounds assured the court that he was entering into the plea agreement freely, knowingly, and voluntarily. The court determined that Bounds understood the rights he was waiving by pleading guilty and the consequences of his plea. The court also explained that a probation officer would prepare a presentence report and would use the sentencing guidelines to calculate a score from which to derive a minimum and maximum sentencing range. Bounds learned that unless the judge wrote special reasons for departing from that range, the sentence would fall within it. The court then accepted Bounds’s plea of guilty.
At no time during the plea colloquy did the court advise Bounds that his sentence might include a period of supervised release. Neither did the court explain to Bounds the effect of supervised release. The plea agreement itself does not mention the possibility of supervised release.
Bounds’s attorney received the presen-tence report in early February of 1989. On one page of the fourteen-page report, the possibility of supervised release is mentioned under a section titled “Sentencing Options.” The report provides: “If a term of imprisonment is imposed, a term of supervised release of at least 3 years must also be imposed. 21 U.S.C. § 841(b)(1)(C).”
In March 1989, Bounds — through his attorney — filed a motion to withdraw his guilty plea, explaining that: (1) he had not fully understood the charges; (2) he had not fully understood his constitutional right to a jury trial; (3) he had not fully understood the consequences of his plea; (4) he had not voluntarily and knowingly entered his plea; and (5) he was innocent of the charges pending against him. The motion included no facts to support Bounds’s request to withdraw the guilty plea.
The district court denied the request, explaining that the plea was knowingly and voluntarily entered and that Bounds had been assisted by able counsel. In August 1989, the district court sentenced Bounds to a total prison term of 300 months (twenty-five years) and to an additional three-year term of supervised release.
Proceeding pro se, Bounds appealed, complaining that: (1) the district court had abused its discretion in denying his request to withdraw the guilty plea; (2) he had been denied his constitutional right to effective assistance of counsel; (3) the quantity of drugs used to calculate the applicable sentencing guideline range was clearly erroneous; and (4) the court’s failure to inform him of the possibility of supervised release constituted a complete failure to address a core concern of Rule 11, requiring this Court to vacate his sentence and remand the case to permit him to plead anew. Bounds also asserted several other alleged errors concerning acceptance of responsibility, enhancement for possession of a firearm, imposition of consecutive sentences, and admission of tainted evidence.
Denial of Request to Withdraw Plea
Under Federal Rule of Criminal Procedure 32, a district court may, in its discretion, allow a defendant to withdraw a plea of guilty. Rule 32, however, does not provide an absolute right to withdraw a plea. See United States v. Daniel, 866 F.2d 749, 751 (5th Cir.1989). We review only for an abuse of discretion the district court’s denial of a motion to withdraw a guilty plea. See United States v. Rojas, 898 F.2d 40, 43 (5th Cir.1990); United States v. Hurtado, 846 F.2d 995, 997 (5th Cir.), cert. denied, Aguas v. United States, 488 U.S. 863, 109 S.Ct. 163, 102 L.Ed.2d 133 (1988).
We find no abuse of discretion in the district court’s decision to deny Bounds’s request. In its clear, thorough order, the court articulated the appropriate standard for considering the request and carefully applied this standard to the facts. See Daniel, 866 F.2d at 751 (citing Hurtado, 846 F.2d at 997). We agree with the district court that Bounds failed to allege facts showing that his withdrawal of the plea was justified. Instead, he merely asserted conclusory allegations that are clearly refuted by the record.
Ineffective Assistance of Counsel
Bounds also complains that during trial and on appeal, he has been denied of his right to effective assistance of counsel guaranteed by the sixth and fourteenth amendments. In a lengthy, detailed analysis of the behavior of his attorney, Bounds essentially claims that his attorney failed: (1) to conduct a pretrial investigation, (2) to subpoena certain witnesses, (3) to properly advise him on the application of the sentencing guidelines, (4) to remove himself as counsel after a conflict of interest arose, and (5) to file a timely notice of appeal.
In this Circuit the general rule is that a claim of ineffective assistance of counsel cannot be resolved on direct appeal unless it has been first raised before the district court. See United States v. Higdon, 832 F.2d 312, 313-14 (5th Cir.1987), cert. denied, 484 U.S. 1075, 108 S.Ct. 1051, 98 L.Ed.2d 1013 (1988); United States v. McClure, 786 F.2d 1286, 1291 (5th Cir.1986); United States v. Freeze, 707 F.2d 132, 138-39 (5th Cir.1983). This rule is not merely a procedural technicality. Unless the district court has developed a record on the defendant’s allegations, we cannot fairly evaluate the merits of the claim.
On direct appeal we have occasionally resolved claims of inadequate representation, but only when the record has provided substantial details about the attorney's conduct. See, e.g., United States v. Phillips, 664 F.2d 971, 1040 (5th Cir.1981), cert. denied, Meinster v. United States, 457 U.S. 1136, 102 S.Ct. 2965, 73 L.Ed.2d 1354 (1982); United States v. Brown, 591 F.2d 307, 310 (5th Cir.), cert. denied, 442 U.S. 913, 99 S.Ct. 2831, 61 L.Ed.2d 280 (1979). In this case, the only details to which we have access are Bounds’s assertions in his brief. Accordingly, we decline to address the merits of Bounds’s ineffective assistance claim. We dismiss this portion of the appeal, however, without prejudice to Bounds’s right to raise the issue in a habe-as corpus proceeding. See 28 U.S.C. § 2255 (1988); United States v. Ugalde, 861 F.2d 802, 804 (5th Cir.1988), cert. denied, 490 U.S. 1097, 109 S.Ct. 2447, 104 L.Ed.2d 1002 (1989).
If Bounds chooses to proceed with a collateral challenge, “he must show that: (1) the attorney’s representation fell below an objective standard of reasonableness, and (2) there is a reasonable probability that except for the attorney’s unprofessional errors, the results of the proceeding would have been different.” United States v. Kinsey, 917 F.2d 181, 183 (5th Cir.1990) (citing Strickland v. Washington, 466 U.S. 668, 687-88, 694, 104 S.Ct. 2052, 2064-65, 2068, 80 L.Ed.2d 674 (1984)). To demonstrate sufficient prejudice in the context of a guilty plea, Bounds must show that there is a reasonable probability that, except for his attorney’s errors, he would not have pleaded guilty but would have insisted on going to trial. Id. (citing Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985)); see Craker v. McCotter, 805 F.2d 538, 541 (5th Cir.1986); United States v. Gavilan, 761 F.2d 226, 228 (5th Cir.1985).
In addition, Bounds should be aware that his attorney’s delay in filing a notice of appeal provides no support for his claim of ineffective assistance. After concluding that the delay in filing this notice was caused by excusable neglect, the district court permitted the appeal to proceed. See Fed.R.App.P. 4(b). Since the attorney’s delay resulted in no prejudice to Bounds’s rights, this alleged failure is irrelevant to the claim of ineffective assistance of counsel.
Calculation of Drug Quantities
Bounds next argues that the district court used an incorrect quantity of amphetamine to calculate the applicable sentencing guideline range. We must not disturb the court’s factual findings, including the quantity of drugs used to calculate the sentencing range, unless they are clearly erroneous. United States v. Michael, 894 F.2d 1457, 1459 (5th Cir.1990).
Bounds objected broadly to the conclusion in the original presentence report that the applicable quantity of drugs was 47.935 kilograms. The government later amended the report to reflect that the appropriate quantity of drugs was 32.5 kilograms. Without explaining the factual basis for the objection, Bounds also objected to this calculation.
At the sentencing hearing, Bounds again objected to the quantity of drugs used to calculate his sentencing range. The court heard the testimony of two coconspirators and a forensic chemist for the DEA. This testimony clearly supports the court’s finding that the applicable quantity of drugs was 32.5 kilograms. Furthermore, the only attempts to contradict this evidence were suggestions that the coconspirators were not credible and Bounds’s own implausible testimony that he had not been involved in the manufacture of amphetamine.
For the first time on appeal, Bounds provides an impressive scientific explanation of precursor chemicals, theoretical yields, and the dramatic differences between phenylacetone and phenylacetic acid. He claims that the calculations of the government’s expert witness were erroneous, that the government’s expert witness was not qualified in forensic chemistry, and that the government failed to prove that the chemicals found could have been used to produce amphetamine.
We will not consider on appeal, however, evidence not produced at the sentencing hearing and arguments not raised in the trial court. See United States v. Desurra, 865 F.2d 651, 653-54 (5th Cir.1989); United States v. Hicks, 624 F.2d 32, 33 (5th Cir.1980). As the district court noted, Bounds was represented by able counsel in the trial court. His only alternative at this stage is to show, if he can, that his attorney’s failure to produce evidence, to challenge witnesses, and to assert a failure of proof constituted ineffective assistance of counsel. As discussed in the previous section, such a claim cannot be resolved on direct appeal.
Court’s Failure to Discuss Supervised Release
In an argument entitled to more serious consideration, Bounds contends that he did not understand the consequences of his guilty plea because the court failed to advise him of the possibility that he could be sentenced to a period of supervised release. He contends that the court’s failure constitutes a complete failure to address a core concern of Federal Rule of Criminal Procedure 11. The Fifth Circuit has recently considered this argument en banc. See United States v. Bachynsky, 934 F.2d 1349 (5th Cir.1991) (en banc).
Before our en banc decision in Bachyn-sky, we had held that a court’s failure during the plea colloquy to advise the defendant of the effect of supervised release constitutes a total failure to address a core concern of Rule 11. See, e.g., United States v. Bachynsky, 924 F.2d 561, 566, rev’d, 934 F.2d 1349, 1361 (5th Cir.1991) (en banc); United States v. Andrews, 918 F.2d 1156, 1159 (5th Cir.1990), overruled, Bachynsky, 934 F.2d at 1362; United States v. Blair, 902 F.2d 323, 324 (5th Cir.1990), overruled, Bachynsky, 934 F.2d at 1362. We had established that this single omission mandates reversing the defendant’s conviction and vacating the guilty plea.
In Bachynsky, however, we recognized that the court’s failure to mention supervised release is, at worst, a partial failure to address a core concern. Bachynsky, 934 F.2d at 1351-52, 1355. The core concern itself is that the defendant understand the consequences of the plea. In Bachynsky, we decided that if a court inadequately addresses a core concern, automatic reversal is not required. Instead, the result may be examined for harmless error under Rule 11(h) if the aggregate maximum period of incarceration under the actual prison sentence and supervised release does not exceed the statutory maximum explained to the defendant.
For Bounds, this condition is not met. Bounds’s aggregate maximum period of incarceration is twenty-five years plus an additional three-year period of supervised release plus possible additional incarceration if his supervised release is revoked before it is served. This aggregate maximum is obviously greater than the twenty-five-year statutory maximum explained by the district court.
We noted in Bachynsky that the Court expressed no opinion about the result a panel should reach if the condition is not met. Id. at 1360 n. 11. Specifically, we did not decide whether “reversing the conviction and vacating the plea will always be necessary or whether there may be circumstances in which a reduction of the sentence (for example, by removing or reducing the term of supervised release) may eliminate the prejudice.” Id. The circumstances of this case now require us to make that decision.
Bounds was warned in the plea colloquy that he might receive a prison sentence of twenty-five years. If we remove the three-year period of supervised release, Bounds is left with a sentence of exactly twenty-five years. This modification would eliminate any possible prejudice because it would remove that part of the penalty about which the court failed to advise Bounds under Rule 11(c)(1). We are not, however, at liberty to do that since one of the statutes under which Bounds pleaded mandates the imposition of a period of supervised release. 18 U.S.C. § 3583(a). We must, therefore, reverse his conviction, vacate his sentence, and remand so that he may plead anew.
Other Alleged Errors
Bounds raises several other alleged errors concerning acceptance of responsibility, enhancement for possession of a firearm, imposition of consecutive sentences, and admission of tainted evidence. Since Bounds failed to raise these contentions in the trial court, however, we need not consider them on appeal unless they constitute plain error. See United States v. Scott, 688 F.2d 368, 370 (5th Cir.1982).
After reviewing the record, we are convinced that these contentions have no merit. The district court carefully considered the evidence before it and correctly applied the sentencing guidelines. There is simply no basis for disturbing the court’s rulings.
Conclusion
We conclude that the district court did not abuse its discretion in refusing to allow Bounds to withdraw his guilty plea. We need not consider the evidence on calculation of drug quantities since it was presented for the first time in Bounds’s appellate brief. For the same reason, we need not consider the alleged errors concerning acceptance of responsibility, enhancement for possession of a firearm, imposition of consecutive sentences, and admission of tainted evidence.
The court erred in failing to advise Bounds in open court of the possibility of supervised release. We cannot examine this failure for harmless error because the total length of the imposed penalty based on the periods of incarceration and supervised release is greater than the statutory maximum of which Bounds was advised. We dismiss the claim for ineffective assistance without prejudice to Bounds’s right to raise the issue in a habeas corpus proceeding.
The conviction is REVERSED, the sentence of the defendant is VACATED and the matter is REMANDED.
. The Federal Rules of Criminal Procedure provide, in relevant part:
If a motion for withdrawal of a plea of guilty ... is made before sentence is imposed, the court may permit withdrawal of the plea upon a showing by the defendant of any fair and just reason.
Fed.R.Crim.P. 32(d).
. Federal Rule of Criminal Procedure 11 provides, in relevant part:
Before accepting a plea of guilty ..., the court must address the defendant personally in open court and inform the defendant of, and determine that the defendant understands the following:
(1) the nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law, including the effect of any special parole or supervised release term_
Fed.R.Crim.P. 11(c)(1); see Bachynsky, 934 F.2d at 1355.
. In Bachynsky, the court had failed to advise Bachynsky of the possibility of a period of supervised release. But the court had explained that he could receive a maximum sentence of twenty-five years. As a result of his plea, Ba-chynsky was sentenced to ten years and one month in prison plus three years of supervised release.
We considered the error under the harmless-error rule because the maximum possible period of incarceration based on the actual sentence and the period of supervised release was less than the statutory maximum mentioned by the court.
. We reject the government's argument that the court’s omission constitutes harmless error because the presentence report mentioned the possibility of supervised release. Rule 11(c)(1) requires the judge to "address the defendant personally in open court” to explain the possible penalties, including the effects of supervised release. Fed.R.Crim.P. 11(c)(1). Even if Bachyn-sky had not precluded our consideration of this case under the harmless-error rule, a written presentence report is not an adequate substitute for the advice clearly required by Rule 11.
Question: What is the specific issue in the case within the general category of "criminal"?
A. federal offense
B. state offense
C. not determined whether state or federal offense
Answer:
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songer_appel2_1_2
|
D
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to classify the scope of this business into one of the following categories: "local" (individual or family owned business, scope limited to single community; generally proprietors, who are not incorporated); "neither local nor national" (e.g., an electrical power company whose operations cover one-third of the state); "national or multi-national" (assume that insurance companies and railroads are national in scope); and "not ascertained".
TRUSTEES OF THE CHICAGO TRUCK DRIVERS, HELPERS AND WAREHOUSE WORKERS UNION (INDEPENDENT) PENSION FUND, Plaintiff-Appellee, v. RENTAR INDUSTRIES, INCORPORATED, Ratner Enterprises, Incorporated and Rentar Trailer and Container, et al., Defendants-Appellants.
Nos. 90-3214, 90-3473.
United States Court of Appeals, Seventh Circuit.
Argued Sept. 23, 1991.
Decided Dec. 20, 1991.
Joseph M. Bums, David S. Allen (argued), Karen I. Engelhardt, Jacobs, Burns, Sugarman & Orlove, Vincent D. Pinelli, Edward J. Burke, Mary P. Burns, Burke, Smith & Williams, Chicago, Ill., for plaintiff-appellee.
Arnold L. Burke (argued), Siegan, Barba-koff & Gomberg, David R. Kugler, Daniel Kuznetsky, Kugler, Deleo & D’Arco, Chicago, Ill., for defendants-appellants.
Before COFFEY and FLAUM, Circuit Judges, and ENGEL, Senior Circuit Judge.
Honorable Albert J. Engel, Senior Circuit Judge for the United States Court of Appeals for the Sixth Circuit, sitting by designation.
ENGEL, Senior Circuit Judge.
Rentar appeals from denial of its motion for a hearing to demonstrate irreparable harm resulting from an order compelling interim payment of ERISA withdrawal liability. 29 U.S.C. § 1399(c)(2). The sole issue before us is whether the magistrate had discretion to grant relief from the seemingly inflexible requirement under 29 U.S.C. § 1399(c)(2) that an allegedly withdrawing employer make interim payments pending arbitration on the issue of its liability. While the Seventh Circuit has found a narrowly limited discretion to intervene, we hold the court did not abuse its discretion here because the employer failed to make any colorable initial showing of clear right or irreparable injury. We therefore affirm.
I. Background
Couzens was an affiliate and/or wholly owned subsidiary of Rentar, Inc. On December 29, 1982, Rentar, Inc. sold ninety percent of Couzens’ stock to Levitt. On February 7, 1983, Couzens filed an involuntary petition in bankruptcy. Prior to this Couzens had been an employer contributing to the Chicago Truck Drivers, Helpers and Warehouse Workers Union Pension Fund (“the Fund”). See 29 U.S.C. § 1002. On January 21, 1983, Couzens had stopped contributing to the Fund, and when it ceased operations it effectuated a complete withdrawal from the Fund. See 29 U.S.C. § 1383.
When an employer withdraws from a multiemployer pension plan, the employer becomes immediately liable for its proportionate share of unfunded vested benefits. 29 U.S.C. § 1381. Congress designed this requirement in order to establish greater financial stability for these plans. H.Rep. No. 869, Part I, 96th Cong., 2d Sess. 51-54 (1980), reprinted in 1980 U.S.Code Cong. & Admin.News, 2918, 2919-2922. The Employee Retirement Income Security Act (ERISA) further provides that upon withdrawal, a multiemployer pension fund is to determine the employer’s withdrawal liability, notify it of the amount, and then collect the money. 29 U.S.C. § 1382. The Fund calculated Couzens’ withdrawal liability to be $1,082,517, and notified it of the amount.
Collection of the funds proved to be a bit more difficult; Couzens’ insolvency forced the Fund to seek other less direct avenues for payment. The Fund decided to look to the previous owner of Couzens, Rentar, Inc. and its associated companies to satisfy the liability. The Fund attempted to have the sale of Couzens disregarded for purposes of determining and collecting withdrawal liability by alleging that the principal purpose of the December 1982 sale of Couzens by Rentar, Inc. was “to evade or avoid [withdrawal] liability.” 29 U.S.C. § 1392(c).
Understandably, the Rentar defendants (“Rentar”) disputed the Fund’s view of their liability. In November 1989, the magistrate ordered Rentar and the Fund to arbitrate their differences. See 29 U.S.C. § 1401. The Fund then sought interim payments of withdrawal liability from Ren-tar. The 1980 Multiemployer Pension Plan Amendments Act (MPPAA), to further guarantee fund stability, requires withdrawal payments be made pending arbitration:
Withdrawal liability shall be payable in accordance with the schedule set forth by the plan sponsor ... no later than 60 days after the date of the demand notwithstanding any request for review or appeal of determinations of the amount of such liability or of the schedule.
29 U.S.C. § 1399(c)(2). The MPPAA also provides:
Payments shall be made by an employer in accordance with the determinations made under this part until the arbitrator issues a final decision with respect to the determination submitted for arbitration
29 U.S.C. § 1401(d).
Despite this inflexible language, in limited situations courts have been held to have some discretion in ordering payments. See Robbins v. McNicholas Transportation Co., 819 F.2d 682 (7th Cir.1987). McNicho-las provides for a review by the court of the employer’s likelihood of success and the irreparable harm to be suffered due to payment. Rentar sought to present evidence regarding the composition of the control group and the harsh economic effect of the order. Rentar appeals from the order compelling interim payment, and denial of its motion seeking a hearing to present more evidence.
II. Jurisdiction
Before our recent decision in Trustees of the Chicago Truck Drivers, Helpers and Warehouse Workers Union (Independent) Pension Fund v. Central Transport, Inc., 935 F.2d 114 (7th Cir.1991), orders compelling interim withdrawal payments were treated as orders granting or denying injunctions under 28 U.S.C. § 1292(a)(1). See McNicholas, 819 F.2d at 685. As such, the orders could be appealed only if they “might have a ‘serious, perhaps irreparable consequence.’ ” Id., quoting I.A.M. Nat’l. Pension Fund v. Cooper Indus., 789 F.2d 21, 24 (D.C.Cir.1986). To “simplify the subject,” Central Transport held that these orders are not injunctions, but rather are money judgments, final and appealable under 28 U.S.C. § 1291. Central Transport, 935 F.2d at 117.
The Fund challenges the application of the Central Transport rule to the order in this case. While the order in Central Transport compelled payment of the accrued liability and ordered the employer to make future payments as they came due, the Rentar order did not grant prospective relief but ordered payment only of the amount currently due and owing. Because they did not get all of the relief they were seeking and could go back to court to force future payments, the Fund contends that the order could not be considered final. We disagree because this argument places too much emphasis on the scope of the relief granted. Central Transport held that “the terminating order of any suit seeking ‘interim payments’ under § 1399(c)(2) is a final decision, appealable under 28 U.S.C. § 1291.” Central Transport, 935 F.2d at 117. The failure to include prospective relief does not make the order any less final.
III. Requirement of a Hearing to Show Irreparable Harm
Rentar claims the district court had to establish “some procedure” by which an allegedly withdrawing employer could demonstrate the irreparable harm it would suffer as a result of the court’s order compelling it to make interim payments. Originally, Rentar sought a hearing, but has since modified the request to the broader form outlined above. For support Rentar relies upon McNicholas.
In McNicholas the employer appealed from an order compelling interim payments, arguing that making the payments would result in “severe financial hardship and essentially preclude its resumption of operations.” McNicholas, 819 F.2d at 685. It produced figures showing a current annual income barely exceeding the required monthly payments. Under these circumstances the court ruled, “where the trustees bring an action to compel payment pending arbitration, the court should consider the probability of the employer’s success in defeating liability before the arbitrator and the impact of the demanded interim payments on the employer and his business” when exercising its discretion over the issuance of the order compelling payments. Id.
In Central Transport we also addressed the question of the court’s discretion to order interim payments:
McNicholas is at most a recognition that if the fund’s claim is frivolous — if the arbitrator is almost certain to rule for the employer — then the plan is engaged in a ploy that a court may defeat.... Having assured itself that the plan’s claim is legitimate, however, the court should order the making of interim payments and leave the rest to the arbitrator.
Central Transport, 935 F.2d 114, 119 (7th Cir.1991). We hold here that irreparable harm becomes important only if the employer makes an affirmative showing that the pension fund lacks a colorable claim. This standard is compatible, we believe, with the due process interests of the employer and with those of the statutory scheme.
Rentar offers two reasons why the Fund’s case is frivolous. First, the “Rentar defendants were not a parent company or controlled group of Couzens at the time of its alleged withdrawal.” Rentar’s continued reliance on this as a defense ignores the nature of the Fund’s claim. Section 1392 allows a pension fund to reach even companies who did not own or control a company at the time of withdrawal. Second, “[c]omposition of Rentar group should be determined at hearing or by other presentation of evidence of its composition.” Rentar offers no support for this assertion in its briefs, choosing instead to focus on the irreparable harm issue.
Even assuming these two claims would be enough to warrant a determination that Rentar might succeed before the arbitrator, Rentar has offered no evidence whatever to support its assertion of irreparable harm. Rentar has submitted no affidavit or balance sheet to the court. Nor does it argue that due process requires a hearing, but merely asserts its view that the request was “not out of line.” While this may be true, it does not mean that the district court was required to grant a hearing or “other procedure” when no issue of fact existed. It should have come as no surprise to Rentar that without the production of at least some evidence to raise a factual question, the district court was under no obligation to hold a hearing on the question or to establish some other procedure to receive evidence.
For these reasons, the decision below is Affirmed.
. 29 U.S.C. § 1392(c) provides: "If the principal purpose of any transaction is to evade or avoid [withdrawal] liability, this part shall be applied (and liability shall be determined and collected) without regard to such transaction.” The premise of this section is that the defendant did not actually own or control the employer at the time of its withdrawal.
Question: This question concerns the second listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business?
A. local
B. neither local nor national
C. national or multi-national
D. not ascertained
Answer:
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songer_usc1sect
|
5845
|
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 26. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".
UNITED STATES of America, Plaintiff-Appellee, v. Gerald Paul HARWOOD, Defendant-Appellant.
No. 72-1498.
United States Court of Appeals, Tenth Circuit.
Dec. 18, 1972.
Jerry Cord Wilson, Asst. U. S. Atty., (William R. Burkett, U. S. Atty., on the brief), for plaintiff-appellee.
Mac Oyler, Oklahoma City, Okl., for defendant-appellant.
Before BREITENSTEIN and MC-WILLIAMS, Circuit Judges, and CHRISTENSEN, District Judge.
McWILLIAMS, Circuit Judge.
Gerald Paul Harwood was charged in a one count indictment with knowingly and unlawfully possessing six automatic firearms not registered to him in violation of r 26 U.S.C. §§ 5845(b) and 5861(d). Thereafter, Harwood filed a motion to suppress the use as evidence of the six firearms which formed the basis for the indictment on the grounds that such were obtained in an unlawful search and seizure. Upon hearing, the trial court, apparently without comment, simply denied the motion to suppress.
Trial by jury before a- judge other than the one who denied the motion to suppress resulted in a guilty verdict and Harwood now appeals. The only issue presented to us is the correctness of the trial court’s denial of the motion to suppress. We conclude that the trial court erred and under the circumstances should have granted the motion to suppress the use as evidence of the six weapons in question. The evidence adduced at the hearing on the motion to suppress is all important and we shall review it in some detail.
The search in question was pursuant to a warrant issued on the basis of the affidavit of one James P. Wheeler, a special investigator for the Alcohol, Tobacco and Firearms Division of the United States Treasury. The facts alleged in the affidavit as grounds for the issuance of a search warrant are set forth below. The italicized portion of the factual recital was penned in, with the balance of the recital being in typewritten form.
At the hearing on the motion to suppress, it developed that an informer had called the police chief for Midwest, Oklahoma, on November 21, 1971, concerning some automatic weapons. The police chief testified that although he had prior acquaintance with the informer, he had no occasion to ever use any of the informer’s information as the basis for any criminal investigation.
Wheeler, whose affidavit formed the basis for the issuance of the search warrant, testified at the hearing on the motion to suppress that he first learned about the matter when he was called by the police chief on November 22, 1971, and that later that same evening he conferred with the police chief and the informer. Wheeler went on to testify that he had no prior acquaintance with the informer and that accordingly he had no occasion to ever use any information given him by the informer, let alone that such information had resulted in two convictions.
The search warrant issued on Wheeler’s affidavit authorized a search of a one-story frame dwelling house, all appurtenances and all outbuildings located at 1228 SE 20th Street, in Oklahoma City, Oklahoma. These premises were occupied by one David Leon Harvey, who testified that sometime in September 1971 he had given Harwood permission to store some containers in the attic of his garage. The weapons in question were later found in these containers stored in the attic of Harvey’s garage. Harvey further testified that he gave Harwood permission “to come and go in regard to these containers” and that Harwood had on at least one occasion checked the containers in question.
The search warrant was issued by a United States Commissioner at 6:30 A. M. on November 23, 1971, and, as indicated, a search of the premises described in the search warrant about an hour after the issuance of the warrant disclosed the six automatic firearms packed in containers stored in the attic of the Harvey garage.
It was on this general state of the record that the trial court denied the motion to suppress, notwithstanding the fact that the testimony of Wheeler was patently at odds with the recitals in his affidavit. In our view of the matter, when it came to the attention of the trial court that the recitals in the affidavit upon which the search warrant had been issued were incorrect in significant particulars, the trial court should have promptly granted the motion to suppress. In support of our conclusion, see such cases as United States v. Upshaw, 448 F.2d 1218 (5th Cir. 1971), cert. denied, 405 U.S. 934, 92 S.Ct. 970, 30 L.Ed.2d 810; United States v. Roth, 391 F.2d 507 (7th Cir. 1968); and United States v. Pearce, 275 F.2d 318 (7th Cir. 1960).
In Upshaw appears the following pertinent comment:
“Once it came to the attention of the court, from the testimony at the motion to suppress hearing, that evidence had been seized on the basis of statements of facts erroneously made by the affiant which struck at the heart of the affidavit’s showing of probable cause, the court was required to grant the motion [to suppress]. -x- -x- ”
To like effect, in Roth it was stated:
“At the hearing on the motion to suppress in the instant case, testimony was elicited which exposed a fatal flaw in the affidavit. The affiant, Morrison, testified tha't the confidential informant told him, ‘there was a load of Hamilton Beach products that were stored in a grocery store out on the 6500 block of Calumet Avenue in Hammond, Indiana.’ In contrast, Morrison’s affidavit stated that the informant told him that ‘the said electric blenders [the stolen items]’ were on the defendant’s premises. (Emphases added.) When Morrison’s testimony is compared with his statement in the affidavit, a contradiction is disclosed, glaring enough to require the trial court to find the affidavit insufficient as a matter of law.”
And in Pearce it was held that in a hearing on the defendant’s motion to suppress it was proper for the court to hear evidence bearing on the asserted falsity of recitals in the affidavit and when such falsity was demonstrated the evidence obtained in the search should be suppressed.
In the instant case, it was demonstrated beyond any question that the recitals made by Wheeler in his affidavit presented to the Commissioner as grounds for issuing a search warrant were manifestly incorrect. Wheeler, in his testimony at the hearing on the motion to suppress, testified that he had never even seen the informant before his meeting with him and the police chief on November 22, 1971. Such completely negates, for example, the assertion in his affidavit that “the reliable source, has furnished me with reliable information, in the past several months, which has resulted in two convictions.” It also refutes the assertion in the affidavit that he (Wheeler) had received information “from a heretofore reliable source * -X- -x- »
In sum, the demonstrated falsity of material recitals in the affidavit rendered invalid the ensuing search. That is not to say that every misstatement in an affidavit would necessitate a holding that a search warrant issued thereon is invalid. But in the instant case, the incorrect statements related to material matters, and if the incorrect statements be eliminated, there is nothing left which would meet the requirements of such cases as United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971); Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); and Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960).
There remains the issue as to whether Harwood has standing to challenge the search of Harvey’s premises and the seizure therein of his (Harwood’s) property. We conclude that he has. In this regard, the undisputed evidence was that Harwood stored the containers in question in the attic of Harvey's garage with the latter’s permission and that Harwood was granted permission to “come and go” to the end that he did on occasion check his property. In our view, these , facts bring the instant case clearly within the rationale of such cases as Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960); and United States v. Jeffers, 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59 (1951). Indeed, the facts of the instant case are quite analogous to those in Jeffers. There, the defendant was held to have standing to challenge the unlawful search of his aunts’ hotel room which resulted in the seizure of certain drugs allegedly belonging to the defendant. Though the aunts had not given the defendant permission to store drugs in their room, the defendant nevertheless had permission to use the room at will and had often used the room for various purposes. Such is believed to be quite comparable to the facts of this case.
The Government suggests that our recent case of United States v. Galvez, 465 F.2d 681 (10th Cir. 1972), requires the conclusion that Harwood has no standing to challenge the search of Harvey’s garage. However, on oral argument counsel conceded that the facts of Galvez are so dissimilar as to render Galvez of little help in resolving the present controversy. We agree.
Also upon oral argument it was agreed that should this court reverse, the case should be remanded with directions to dismiss, inasmuch as the gravamen of the charge was the possession of the weapons taken in the unlawful search. Without such evidence, the Government concedes, its case must fall. Again, we agree.
In our disposition of the case we need not, and do not, concern ourselves with the legality of a “second” search of the defendant’s own premises situated at 410 SE 17th in Oklahoma City.
Judgment reversed and cause remanded with direction that the trial court grant the motion to suppress and dismiss the indictment.
. “On Nov 23, 1971, I received information from a heretofore proven reliable source, which I believe, that a large quantity of machineguns were stashed at the above premises. The reliable source further stated to me that he had been at 1228 SE 20th Street, Okla City, Oklahoma on Nov 22, 1971; that he saw a machine gun pistol, a grease gun, a MI4 Al machinegun, a anti tank gun and about 8 foreign maehineguns. He further stated to me that the firearms were stashed in the attic above the garage at 1228 SE 20th Street, Okla City, Oklahoma and that the foreign maehineguns, greasegun, and machino gun pistol were in a box about 3 ft long and 2 ft wide, olive drab in color, with white lettering on the box. He also stated that the anti tank gun and other firearms in olive drab canvas cases were laying beside the box in the attic. The reliable source, has furnished me with reliable information, in the past several months, which has resulted in two convictions.”
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 26? Answer with a number.
Answer:
|
songer_state
|
14
|
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".
UNITED STATES of America, Plaintiff-Appellee, v. William GOODSTEIN, Defendant-Appellant.
No. 88-1377.
United States Court of Appeals, Seventh Circuit.
Argued March 30, 1989.
Decided Sept. 11, 1989.
As Amended on Denial of Rehearing and Rehearing En Banc Nov. 14, 1989.
Joan B. Safford, Asst. U.S. Atty., Anton R. Valukas, U.S. Atty., David J. Stetler, Joan Bainbridges, James R. Ferguson, Victoria J. Peters, Asst. U.S. Attys., Crim. Receiving, Appellate Div., Chicago, for plaintiff-appellee.
Julie L. Friedman, Chicago, for defendant-appellant.
Before CUDAHY and EASTERBROOK, Circuit Judges, and HENLEY, Senior Circuit Judge.
The Honorable J. Smith Henley, Senior Circuit Judge for the Eighth Circuit, is sitting by designation.
CUDAHY, Circuit Judge.
Defendant William Goodstein appeals his conviction for bankruptcy fraud in violation of 18 U.S.C. section 152; conversion of profit sharing funds in violation of 18 U.S.C. section 664; mail and wire fraud in violation of 18 U.S.C. sections 1341, 1343; and interstate transportation of fraudulently obtained securities in violation of 18 U.S.C. section 2314. We affirm his conviction on all counts.
I.
In 1977, defendant Goodstein had been a practicing lawyer for over forty years with considerable experience in bankruptcy law, when he arranged to acquire a business with his long-time cohort, Stanley Karp. Goodstein and Karp agreed to purchase the Paine Company (“Paine”), an Illinois manufacturer of hardware used in the construction industry, from Dan Polos. Goodstein incorporated a holding company, Travcor, Inc., as a vehicle to acquire Paine. The original purchase agreement required Trav-cor to pay $260,000 for the Paine stock, $240,000 for a covenant not to compete and $5,000 per month to lease the real estate where Paine was located. Goodstein and Karp borrowed substantial funds to meet these financial requirements and to invest working capital in the new enterprise. By 1981, Goodstein had personally invested $200,000 in Paine. Tr. at 205.
Due to a significant decline in the home building industry, the new venture did not prove lucrative. When Travcor fell into default on payments to Polos, Goodstein negotiated refinancing for Paine through Foothill Capital Corporation (“Foothill”). In an effort to rescue Paine (and himself) from imminent financial collapse, Good-stein structured a deal with an acquaintance, Carl Hagle, in which Hagle agreed to manage Paine. According to Good-stein’s arrangement with Hagle, if the latter succeeded in generating profits and if he assumed Paine’s $200,000 debt to Good-stein, Hagle would be entitled to exercise an option to acquire a controlling interest in Paine. By 1982, Paine was facing immense financial pressures from Polos, who had filed suit for back rent and payments under the purchase agreement, and from Foothill, to which Paine owed over $300,-000. Ultimately, on May 5, 1982, Paine filed a voluntary petition under Chapter 11, listing its ten largest unsecured creditors including Polos, and its principal secured creditor, Foothill. Meanwhile, Paine continued to hold Goodstein’s $200,000 investment, a portion of which Goodstein had borrowed from third parties. In July and September of 1982, with approval of the bankruptcy court, Paine conducted sales of its assets and applied the proceeds to the outstanding Foothill debt.
By 1983, Hagle had not resuscitated Paine to a financially satisfactory condition as contemplated. Consequently, he resigned without purchasing the controlling stock or assuming Paine’s debt to Good-stein pursuant to their agreement. While Paine was in reorganization as debtor-in-possession, Goodstein and Karp embarked on another endeavor to recapture their investments: they met with Robert Caldwell to negotiate a merger of Paine and Caldwell’s company, Mid-Northern Industries (“Mid-Northern”). The merger proposal provided that Paine would consolidate its operations with Mid-Northern’s at the Mid-Northern facility and that Travcor (Goodstein’s ownership vehicle) would transfer ownership and control of Paine to Mid-Northern and, hence, ultimately to Caldwell. In exchange for all the outstanding stock in Paine, Mid-Northern would issue 20 percent of Mid-Northern’s stock to Karp, while Paine’s outstanding shareholder loans from Karp and Goodstein would be “recast” by Mid-Northern in the form of Mid-Northern corporate notes issued to Karp and Goodstein. See Tr. at 1377-79; Government App. A. According to Karp, Paine was to move its physical property to the Mid-Northern premises “[a]s soon as permission had been secured from the bankruptcy court and from Foothill which was the principal ... creditor.” Tr. at 135. The parties agreed that Goodstein was responsible for notifying the bankruptcy court. Id.
In late August 1983, Foothill discovered that Paine had transferred its accounts receivable collections to an unauthorized account and had transferred some equipment to Mid-Northern’s location without notice to Foothill or to the bankruptcy court, thereby allegedly jeopardizing Foothill’s security interest in certain collateral. On August 30, 1983, Foothill filed a motion with the bankruptcy court objecting to Paine’s transfers. Before the motion was heard, Foothill engaged in negotiations with Goodstein and drafted a tentative letter agreement consenting to Paine’s relocation on the condition that Paine first sell its telephone system product line and apply the proceeds to the Foothill debt. The proposal stated that “Paine may take preparatory steps in pursuance [of the agreement], with Foothill’s consent, prior to closing of the sale of the ‘telephone lines.’ ” Appellant’s Supp.App. at 3, 18. In addition, the proposal required approval of the bankruptcy court to effectuate the terms of the agreement. Id. at 4-16, 19.
On or about September 25, 1983, without having reached a final agreement with Foothill, without having consummated the sale of the telephone system, without having notified any creditors and without having obtained permission of the bankruptcy court, Goodstein, Karp and Caldwell proceeded to move additional Paine equipment and all the Paine inventory to the Mid-Northern premises. Thereafter, both a relocation agreement and a purchase agreement for the telephone system were backdated to September 14, 1983.
On September 27, 1983, Foothill filed a complaint in the bankruptcy court objecting to the relocation on the ground that Foothill had consented to the move only upon the condition that Paine sell its telephone system, which it had failed to do. See id. at 21-24. Thereafter, Paine and Foothill again entered negotiations and ultimately, on October 4, 1983, submitted to the bankruptcy court an agreed order purporting to prospectively approve the relocation, although, in fact, the move had already occurred. The court approved the submitted order the same day. Id. at 33-35.
In the spring of 1984, the unrelenting Goodstein/Karp/Caldwell confederacy made a final desperate effort to salvage Paine. Caldwell acquired DuPage Boiler Works (“DuPage”), a well-established, “cash-rich” manufacturer of steel water tanks. DuPage maintained a non-contributory profit sharing plan (the “Plan”) for its employees, providing for lump sum payments of benefits. Goodstein assumed the position of director and corporate secretary of DuPage. In October 1984, Goodstein, expressing exasperation at the protracted litigation, reassured Foothill that Paine’s outstanding debt to Foothill (approximately $471,000) would be liquidated by December 2, 1984. Tr. at 364-68; Government Ex. Terras 30. Thereafter, Caldwell appointed himself as the trustee of the DuPage Plan, which previously had been administered by the Union Mutual Life Insurance Company (“Union Mutual”). Pursuant to an agreement negotiated by Goodstein, Union Mutual wired $350,000 from the DuPage profit sharing account to the Harris Bank of Na-perville. These funds were deposited into an account entitled “DuPage Boiler Works Profit Sharing Account,” with respect to which Caldwell was the signatory.
Meanwhile, Goodstein and Foothill had agreed to restructure the Paine debt. Paine was to make three payments in December 1984 for a total of $155,000, then $20,000 a month until the debt was retired. Tr. at 369-70; Government Ex. Terras 31. These payments were made according to schedule with funds from the DuPage profit sharing account in Naperville. Checks were also issued from this account directly to Goodstein, who used the funds to discharge some of his personal debts. Tr. at 1431, 1460, 1463; Government App. K. As the government established at trial, such use of the DuPage Plan funds violated the terms of the Plan as well as ERISA.
On December 20, 1984, Caldwell amended the DuPage Plan by deleting the beneficiaries’ option to receive a lump sum payment. Tr. at 1323; Government App. D. The government presented evidence at trial that this amendment also was contrary to the terms of the Plan and to ERISA. Beginning in early 1985, several beneficiaries of the DuPage Plan demanded payment of their benefits. Goodstein informed them that the law did not permit lump sum payments and that, in lieu of such payments, they would receive five equal installments. Throughout the bankruptcy proceedings, Goodstein continued to provide spurious excuses to disgruntled Plan beneficiaries and to reassure them that payments would be forthcoming.
Paine continued to default on its payments to Foothill even after several restructured financing agreements. In the summer of 1985, Goodstein called Union Mutual requesting another $175,000 from the DuPage profit sharing funds still on deposit there. He sent a letter enclosing an authorization signed by Caldwell to expedite the withdrawal and requested that the proceeds be addressed to him personally by express mail. Tr. at 846-47; Government Ex. UNM 26, 27. Union Mutual sent the check to Goodstein and it was deposited in the Naperville DuPage profit sharing account. See Government App. D. On August 22, 1985, Goodstein received a $39,-000 check signed by Caldwell drawn on the DuPage profit sharing account, which he deposited in the “William Goodstein Special Account” at Amalgamated Bank. Tr. at 1502. Goodstein applied a portion of this money toward the Foothill liability and a portion to his own personal debts. See Government Brief at 24.
Meanwhile, in July 1985, the bankruptcy case had been converted to a Chapter 7 liquidation and the debtor, Paine, lost all its corporate rights in the property. But the shell game continued, and in September, again without notice to the bankruptcy court or to Foothill, Paine and Mid-Northern covertly moved their operations to Northbrook, Illinois and their inventory to Glenview, Illinois. The trustee and Foothill eventually obtained a temporary restraining order to segregate the assets and to prevent their disposal.
In December 1985, pursuant to Good-stein’s request, Union Mutual sent him the final payment from the profit sharing plan in the amount of $181,232, which was deposited in a new DuPage pension plan account at First Illinois Bank of Evanston. Subsequently, $100,000 was wired to “William Goodstein’s Special Account,” which Goodstein then withdrew and remitted to Foothill. This check, along with a $60,000 check drawn on an escrow account of an estate for which Goodstein served as trustee, were given to Foothill in full satisfaction of Paine’s obligations to Foothill. During the year and a half in which the DuPage profit sharing funds were being withdrawn from Union Mutual, Goodstein himself received a total of $182,500 from the Plan funds. After deducting the payments Goodstein made in turn to Foothill, Goodstein retained $56,239 and reduced his personal indebtedness on loans related to his investment in Paine by $54,220. Government’s Brief at 31. Goodstein was eventually charged in a multi-count indictment with bankruptcy fraud, conversion of profit sharing funds, mail and wire fraud and interstate transportation of fraudulently obtained securities. A jury found him guilty on all counts. He was sentenced to three years’ imprisonment and five years’ probation. Goodstein appeals his conviction, challenging the sufficiency of the evidence on all counts.
II.
The standard of review applicable to challenges to the sufficiency of the evidence is clear. We will reverse a conviction on grounds of insufficiency of evidence only if, viewing the evidence in the light most favorable to the prosecution, we conclude that no rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979).
A. Bankruptcy Fraud
The criminal bankruptcy fraud statute, 18 U.S.C. section 152, makes it a crime for an agent or officer of a corporation knowingly and fraudulently to transfer or conceal the property of the corporation with intent to defeat the provisions of the bankruptcy laws. See United States v. Turner, 725 F.2d 1154,1156 (8th Cir.1984). Counts 1 and 2 of the indictment charge Goodstein with separate violations of section 152. Count 1 alleges that “in and around” September 1983, Goodstein, as an agent of Paine, “knowingly and fraudulently caused to be transferred certain property of Paine, namely an interest in Paine,” to Caldwell (acting on behalf of Mid-Northern) with intent to defeat the bankruptcy laws. See Superseding Indictment ¶ 4 at 2. Count 2 similarly charges that in and around September 1983, Goodstein, with intent to defeat the bankruptcy laws, “knowingly and fraudulently transferred certain property, namely inventory and equipment of Paine, which the defendant[] caused to be transferred from Paine ... to the premises of Mid-Northern_” See id. ¶ 3 at 3.
Goodstein’s principal argument on appeal with respect to both counts is that the government failed to establish beyond a reasonable doubt that Goodstein possessed the requisite fraudulent intent to transfer property in circumvention of the bankruptcy laws. Goodstein contends that the government failed to prove fraudulent intent because the transfers of property complied adequately with the Bankruptcy Code’s notice requirements. First, Good-stein argues that the government failed to prove fraudulent intent with respect to the transfer of “an interest in Paine” alleged in Count 1 because under the law Goodstein was free to transfer his own stock in Paine without notice or bankruptcy court approval. In his challenge to Count 2, Goodstein submits that the transfer of equipment and inventory to Mid-Northern’s premises was not fraudulent because Foothill knew of the move in advance and it was retroactively approved by the bankruptcy court. In addition, Goodstein insists that the bankruptcy laws only required notice of this transfer to Foothill, Paine’s sole secured creditor, since all the remaining creditors were unsecured and stood to recover nothing in bankruptcy. Finally, he asserts that, in any event, notice to creditors was unnecessary since both transfers occurred in the ordinary course of business and thus were exempt from the Bankruptcy Code’s notice requirements. We shall discuss these arguments in turn.
The Bankruptcy Code forbids a debtor to use or sell property of the bankrupt estate other than in the ordinary course of business except “after notice and a hear-ing_” 11 U.S.C. § 363(b)(1). Before approving such a transaction, notice must be provided to “all creditors” at least 20 days in advance, except in certain limited circumstances (inapplicable here) where the bankruptcy court has found such notice unnecessary. See Fed.R.Bankr.P. 2002(a).
With respect to Count 1, Goodstein argues in his reply brief, as he did at oral argument, that the transfer of Goodstein’s “interest in Paine” to Mid-Northern (and, hence, ultimately to Caldwell) cannot be deemed fraudulent under section 152. See Appellant’s Reply Brief at 4. According to Goodstein, he was free to transfer his ownership interest in Paine (in the form of stock) to a third-party without complying with the Bankruptcy Code’s notice and court approval requirements. For support, Goodstein relies on testimony presented at trial that a shareholder of a bankrupt corporation can transfer his stock without impediment.
In effect, Goodstein seems to argue that the government failed to prove a transfer of property belonging to Paine (and to the bankrupt estate), an essential element of bankruptcy fraud under section 152, although he cloaks his argument in different terms (primarily, in terms of lack of fraudulent intent). In this respect, Count 1 presents an apparently difficult problem because the transfer of the stock of a corporation in bankruptcy is not necessarily equivalent to the transfer of property of the corporation as required by the statutory language. However, Count 1 encompasses more than a routine sale of a few shares of stock. As the government established at trial, Count 1 entails a transfer of control of Paine and, in effect, a merger of Paine with Mid-Northern (with ultimate control passing to Caldwell). In essence, the stock transfer resulted in a transfer of property of the corporation because Paine was merged into Mid-Northern; presumably, Paine would cease to exist as a business entity and the ownership of Mid-Northern would be substituted for that of Paine. In any event, by reason of the change in control, the ultimate “interest” in the property of Paine would be transferred to Caldwell. A “transfer” is defined under the Bankruptcy Code to include “the sale and every other and different mode, direct or indirect, of disposing of or parting with property or with an interest therein_” See 11 U.S.C. § 101(50) (emphasis supplied). See also 2 E. Devitt & C. Black-man, Federal Jury Practice & Instructions § 49.04 at 333 (3d ed. 1977) (defining “fraudulent transfer” for purposes of bankruptcy fraud under section 152). Thus, we think that the transfer of an “interest in Paine” established here could constitute a prohibited transfer under section 152 if done with fraudulent intent.
Moreover, such a transfer of ownership and control in Paine has as great, or greater, potential for prejudice to creditors as a transfer of Paine’s physical property to another corporation or individual and, in our view, may be found to be fraudulent if done without notice to creditors or bankruptcy court approval as required under section 363(b) of the Bankruptcy Code. In In re First International Services Corp., 25 B.R. 66 (Bankr.D.Conn.1982), the bankruptcy court concluded:
[T]he transfer of control of the debtor corporations is an event so inextricably related to the property of the debtors’ estates that Code Section 363(b) must be read to include the requirement of notice and a hearing prior to the transfer.... The requirements of section 363(b) protect the creditors’ interest in the assets of the estate. Thus it may be inferred from that Code section and others that creditors have an interest in those who control the assets of the estate.... [Creditors’] rights may well be lost, if the transfer of control of a debtor may occur without notice and an opportunity for a hearing.
Id. at 70 (citations omitted). Cf. United States v. Weichert, 89 B.R. 346, 348 & n. 7, 350 (Bankr.S.D.N.Y.) (companies were fraudulently merged and newly created “shell companies” fraudulently acquired the inventory and assets of the bankrupt corporation without approval by the bankruptcy court in violation of the criminal bankruptcy fraud statute), aff'd mem., 862 F.2d 305 (2d Cir.1988), and United States v. Weichert, 783 F.2d 23, 25 (2d Cir.) (jury could infer fraudulent intent from defendant’s diversion of substantial assets of bankrupt corporation to a newly formed company, with which the bankrupt corporation had effectively merged), cert. denied, 479 U.S. 831, 107 S.Ct. 117, 93 L.Ed.2d 64 (1986).
The government established at trial that the transfer of an “interest in Paine” referred to the transfer of control pursuant to the merger agreement. Further, the district court carefully instructed the jury that, in order to convict under section 152, the government must establish that the property transferred belonged to the bankrupt estate. The court also instructed the jury that a transfer of property of the bankrupt estate under the Bankruptcy Code includes a transfer of an “interest” in that property. Defense counsel did not object to these instructions or proffer alternative instructions containing additional elucidation. Cf. United States v. Weinstein, 834 F.2d 1454, 1461 (9th Cir.1987). In light of the evidence presented by the government at trial describing the transfer of control in Paine through a merger with Mid-Northern, together with the above-noted instructions to the jury, we think that the transfer of an “interest in Paine” charged in Count 1 contravened the bankruptcy notice requirements and could indeed be deemed a fraudulent transfer of property of the bankrupt estate under section 152.
With respect to Count 2, which charges a transfer of Paine’s equipment and inventory to the Mid-Northern premises, Goodstein insists that Foothill knew in advance of the transfer and that, therefore, formal notice under the bankruptcy rules was not required. He cites numerous cases in support of an “actual” or “constructive” notice theory. See In re DCA Development Corp., 489 F.2d 43 (1st Cir.1973); Cameron v. Roemelmeyer, 389 F.2d 599 (5th Cir.1968); Hersh v. United States, 68 F.2d 799 (9th Cir.1934); In re Glinz, 66 B.R. 88, 91 (Bankr.D.N.D.1986); In re Toth, 61 B.R. 160, 164, 166 (Bankr.N.D.Ill.1986); In re Torres, 15 B.R. 794, 797 (Bankr.E.D.N.Y.1981). In these cases, the courts determined that the bankruptcy notice requirements were adequately complied with if a creditor, who had not received formal written notice, had actual knowledge of the transaction and an opportunity to raise objections. See id.
Goodstein argues that a letter dated September 6, 1983, from Foothill indicates that Foothill in fact knew of the planned relocation. The letter (which appears in various unsigned, revised forms) purports to confirm an agreement between Paine and Foothill in which Foothill agreed to the relocation of Paine’s business to the Mid-Northern premises. But this agreement provided, inter alia, that Paine first sell its telephone system and remit the proceeds to Foothill. The agreement was also subject to court approval. See Appellant’s Supp. App. at 1-20.
The import of this unsigned letter is questionable. The September 6 draft agreement permitted Paine to transfer its property, subject to court approval, only if Paine first sold its telephone system and applied the proceeds to the Foothill debt. However, in derogation of this agreement, Paine proceeded to transfer its property without complying with the pre-condition of sale of the telephone system, without notifying Foothill and without obtaining prior approval from the bankruptcy court. When Foothill learned that the move had occurred prematurely, it filed a motion with the bankruptcy court on September 27, 1983, objecting to the relocation. Before the bankruptcy court had the opportunity to rule on this motion, the parties entered negotiations and, on October 4, 1983, submitted an agreed order to the court purporting to grant Paine approval to transfer equipment, inventory and lines of business to the Mid-Northern premises. Nowhere does the stipulated order mention that, in fact, the relocation had already been consummated. See Appellant’s Supp.App. at 33-35. Indeed, there is no indication that the bankruptcy court was ever apprised of the fact that the move had already occurred, or that the court intended to retroactively ratify the transfer of property that Paine had made without notice to creditors. We need not decide whether (for purposes of criminal bankruptcy fraud) the bankruptcy court possessed the authority to ratify such a transfer of property nunc pro tunc for it appears that the agreed order had some of the earmarks of a fraud, de-eeiving the court into granting Paine permission to do what it had in fact already done without the required notice or court approval. The fact that Foothill learned of the relocation after the fact, and submitted an agreed order seeking retroactive court approval, does not necessarily cure the illegality of the transfer. Cf. In re Adeeb, 787 F.2d 1339, 1345 (9th Cir.1986) (subsequent disclosure does not undo an illegal transfer).
At all events, even if Goodstein had provided Foothill with notice (constructive or otherwise) of the transfer of equipment and inventory charged in Count 2, such notice would not have excused Paine from its obligation to notify its other unsecured creditors. Goodstein asserts that notice to Foothill, Paine’s only secured creditor, was sufficient because the other creditors were unsecured and would receive nothing in the bankruptcy. However, Goodstein cites no persuasive authority for the proposition that the bankruptcy notice requirements can be dispensed with simply by notifying secured creditors if the prospects of other creditors are sufficiently unpromising. Bankruptcy Rule 2002(a)(2) by its express terms requires notice to “all creditors.” See In re Robert L. Hallamore Corp., 40 B.R. 181, 182 (Bankr.D.Mass.1984); In re WHET, Inc., 12 B.R. 743, 746 (Bankr.D.Mass.1981); In the Matter of Cameo Tile Distribs., Inc., 17 B.R. 28 (Bankr.M.D.Fla.1981); cf. In re Adeeb, 787 F.2d at 1343 (In order to bar discharge, title 11 U.S.C. section 14(c) requires only that the debtor transfer property with intent to hinder, delay, or defraud “a creditor” not “all creditors.”); Kolesinski v. Mashey, 127 F.2d 528 (2d Cir.1942). Nowhere do the Bankruptcy Code or Rules suggest that the notice requirements do not apply to unsecured creditors. Indeed, carving out such an exception to the broad notice rules would be inimical to the Bankruptcy Code’s purpose of ensuring equitable treatment of all creditors. See In re Adeeb, 787 F.2d at 1345 (citations omitted). In describing the contours of the criminal bankruptcy fraud statute, the court in In re May, 12 B.R. 618 (N.D.Fla.1980) stated:
Section 152 of Title 18 is a congressional attempt to cover all of the possible methods by which a debtor or any other person may attempt to defeat the intent and effect of the bankruptcy law through any type of effort to keep assets from being equitably distributed among creditors. Stegeman v. United States, 425 F.2d 984, 986 (9th Cir.1970); 2A Collier § 29.04[2].
Id. at 625. In furthering the aims of the bankruptcy statutes, we must rigorously enforce the rights of creditors, both secured and unsecured. Hence, despite Goodstein’s protestations that he acted lawfully and with benign motivations, we think that the evidence was sufficient for a jury to conclude that the transfer of property without notice to any of Paine’s unsecured creditors and without the required approval of the bankruptcy court was accomplished fraudulently in violation of section 152.
Finally, Goodstein claims that the consolidation and relocation of Paine’s business was in the ordinary course of business and, therefore, exempt from the notice requirements of section 363(b). We dis-It is not a routine or ordinary event to transfer control of one manufacturing company to another, effectively merging the two companies, or to relocate substantial portions of a company’s equipment and inventory to the premises of another. See In re First International Services Corp., 25 B.R. at 70; In re Fountain Bay Mining Co., 46 B.R. 122, 124 (Bankr.W.D.Va.1985); In re Johns-Manville Corp., 60 B.R. 612 (Bankr.S.D.N.Y.), rev’d on other grounds, 801 F.2d 60 (2d Cir.1986).
In sum, we believe that a jury could have concluded that the transfers of property alleged in Counts 1 and 2 were fraudulent and committed with intent to defeat the bankruptcy laws as required to support a conviction under section 152. Fraudulent intent may be proved by circumstantial evidence. In re Mays, 12 B.R. at 626.
Persons whose intention is to shield their assets from creditor attack while continuing to derive the equitable benefit of those assets rarely announce their purpose. Instead, if their intention is to be known, it must be gleaned from inferences drawn from a course of conduct. In re Saphire, 139 F.2d 34, 35 (2d Cir.1943); In re Freudmann, 362 F.Supp. 429 (S.D.N.Y.1973), aff'd, 495 F.2d 816 (2d Cir.1974).
In re May, 12 B.R. at 627.
The evident pattern of Goodstein’s self-dealing endowed his actions with an aura of fraud. Goodstein advanced $200,000 to Paine for stock and as operating capital, and sought vigorously to recapture these funds. Acutely aware of Paine’s ailing financial condition, Goodstein employed Ha-gle to manage Paine and offered him an option to buy out Goodstein’s investment. Goodstein then opposed Hagle’s recommendation to convert Paine’s Chapter 11 proceedings into a Chapter 7 liquidation since such a conversion would prevent Goodstein from recouping his investment. Once in bankruptcy, with disregard for the interests of creditors, he instructed his partner, Karp, to pursue the possibility of selling Paine. The merger agreement between Paine and Mid-Northern recast Paine’s obligation to Goodstein, making him a creditor of Mid-Northern rather than of the bankrupt Paine and thus affording Good-stein another chance to recover his investment. In addition, Goodstein’s extensive legal background and integral role in Paine’s bankruptcy affairs indicate that the failure to notify the bankruptcy court and creditors of the transfers was not inadvertent. Goodstein was a knowledgeable businessman and lawyer. (He apparently needed a refresher course in Legal Ethics, not Bankruptcy 101.) He participated in two sales of assets, prior to the proposed merger with Mid-Northern, which took place with proper notice to creditors and with bankruptcy court approval. Moreover, the draft agreements that Goodstein negotiated with Mid-Northern and Foothill contained clauses recognizing the parties’ obligations to procure bankruptcy court approval of their actions. Viewing the evidence in the light most favorable to the government, we think a jury could reasonably conclude that Goodstein possessed the requisite fraudulent intent to defeat the bankruptcy laws. See United States v. McClellan, 868 F.2d 210, 216 (7th Cir.1989).
B. Conversion
Goodstein also contends that the evidence was insufficient to convict him of converting profit sharing funds in violation of 18 U.S.C. section 664. This is a much easier question than those related to the bankruptcy fraud counts. Goodstein does not deny that the DuPage profit sharing funds were used unlawfully. See Appellant’s Reply Brief at 10. Instead, Good-stein submits that, while the evidence at trial indeed demonstrated that Goodstein misapplied profit sharing funds, the evidence did not establish conversion because Goodstein never had lawful possession of, or access to, the Plan funds. Thus, he argues that there was a fatal variance between the proof offered at trial, demonstrating misapplication of funds, and the indictment, which alleged conversion.
Goodstein cites numerous case authorities stating that, in order to be convicted of embezzlement, the defendant must have been in lawful possession of or had lawful access to the property at the time of its appropriation. See United States v. Marquardt, 786 F.2d 771, 780 (7th Cir.1986); United States v. Whitlock, 663 F.2d 1094, 1098 (D.C.Cir.1980); United States v. Mack, 525 F.Supp. 382 (N.D.Texas 1981). But Goodstein was not charged with the crime of embezzlement; rather, the indictment charges that both Goodstein and Caldwell “did unlawfully and wilfully convert and cause to be converted to their own use [funds] drawn on the DuPage Boiler Works Profit Sharing Account, ... which were moneys, ... of the DuPage [Plan], ...” See Superceding Indictment at 19-21, 36. Goodstein cites no relevant authority to support his contention that lawful possession and access is an essential element of conversion under section 664. Contrary to Goodstein’s assertion, the fact that he was not a signatory on the DuPage profit sharing accounts, a status that would have afforded him lawful possession of the funds, is not dispositive.
Judge Kocoras thoroughly instructed the jury that the government was required to prove that Goodstein converted or caused to be converted, to his own use or the use of another, moneys belonging to the Plan, and that the
Question: In what state or territory was the case first heard?
01. not
02. Alabama
03. Alaska
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. Florida
11. Georgia
12. Hawaii
13. Idaho
14. Illinois
15. Indiana
16. Iowa
17. Kansas
18. Kentucky
19. Louisiana
20. Maine
21. Maryland
22. Massachussets
23. Michigan
24. Minnesota
25. Mississippi
26. Missouri
27. Montana
28. Nebraska
29. Nevada
30. New
31. New
32. New
33. New
34. North
35. North
36. Ohio
37. Oklahoma
38. Oregon
39. Pennsylvania
40. Rhode
41. South
42. South
43. Tennessee
44. Texas
45. Utah
46. Vermont
47. Virginia
48. Washington
49. West
50. Wisconsin
51. Wyoming
52. Virgin
53. Puerto
54. District
55. Guam
56. not
57. Panama
Answer:
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songer_circuit
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I
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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.
NATIONAL LABOR RELATIONS BOARD, Petitioner, v. INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 640, and its agent, Glynn Ross, Respondents.
No. 71-2837.
United States Court of Appeals, Ninth Circuit.
July 18, 1972.
Pregerson, District Judge, filed dissenting opinion.
William H. DuRoss, III, Atty. (argued), Robert A. Giannasi, Atty., Marcel Mallet-Prevost, Asst. Gen. Counsel, Peter G. Nash, Gen. Counsel, N.L.R. B., Washington, D. C.; C. Woodrow Greene, Director, Region 28, N.L.R.B., Albuquerque, N. M., for petitioner.
A. D. Ward (argued), of Ward & Contreras, Charles E. Jones, of Jennings, Strouss & Salmon, Phoenix, Ariz., for respondents.
Before CHAMBERS and WRIGHT, Circuit Judges, and PREGERSON, District Judge.
Honorable Harry Pregerson, United States District Judge for the Central District of California, sitting by designation.
EUGENE A. WRIGHT, Circuit Judge:
The National Labor Relations Board asks the court to enforce its order directing IBEW Local 640 to cease and desist from certain secondary boycott activities and to post the customary notices. The Board adopted the Trial Examiner’s findings that the union violated Section 8(b) (4) (i) and (ii) (B) of the National Labor Relations Act by threatening Phoenix electrical contractors with refusal to handle or install materials purchased from Brown Wholesale Electrical Company and by actually refusing to handle Brown materials, for the purpose of forcing the contractors to cease doing business with Brown. We hold that substantial evidence supports the Board’s findings and we enforce the order.
Brown is a major wholesale supplier of fixtures, wiring and equipment for electrical contractors in the Phoenix area. Its employees are not represented by a labor organization. The contractors involved here belong to the Phoenix division of the National Electrical Contractors Association, which has a collective bargaining agreement with the union. Nearly all employees of the contractors are union members.
The union began to picket Brown’s place of business on November 20, 1969, as part of a campaign to obtain recognition from Brown. In addition to this primary activity, union members at construction sites began refusing to unload, handle, or install Brown materials. These refusals continued after the Board obtained a district court order enjoining further picketing of Brown’s premises.
The Trial Examiner found that the NECA contractors had agreed among themselves to refrain from placing new orders with Brown, for so long as the union’s campaign against Brown had the color of legality. After the March 11, 1970 court order, the contractors inquired of the union whether further difficulties would be encountered if they ordered Brown materials. The Trial Examiner found that the union responded with subtle and indirect threats of continued secondary boycott activity against supplies ordered from Brown, as well as with several incidents of actual refusal to handle Brown materials.
Without detailing the evidentiary support for these conclusions, suffice it to say that we find it to be substantial. The union mounts two attacks against the findings. One rests upon its disagreement with the credibility findings by the Trial Examiner.
We have said, “[t]his Court is required to respect the duty of the trier-of-fact to decide who to believe to reconcile conflicting evidence, and to draw such inferences as the evidence reasonably supports. We will not disturb the resolution of conflicting testimony made by the trier-of-fact.” N. L. R. B. v. Construction & General Laborers’ Union Local 270, 398 F.2d 86, 89 (9th Cir. 1968). See also N. L. R. B. v. Intalco Aluminum Corp., 446 F.2d 1232 (9th Cir. 1971). The Trial Examiner explained the basis for his credibility resolutions in some detail, and we will not disturb them.
The union’s second challenge to the findings is grounded upon the lack of direct evidence to show that any agent of the union encouraged or induced the employees who refused to handle or install Brown materials. We quote the Trial Examiner on this issue:
“The Examiner concedes that no witness testified to hearing a union agent actually tell a contractor employee represented by the Union not to handle or install materials purchased by his employer from or through Brown. The evidence, however, demonstrates a consistent pattern of refusals by contractor employees represented by the Union to handle or install such materials until and unless their employers contacted a representative of the Union, satisfied such representative that the materials came within a recognized exception to the union bar against such handling and installation, and received orders from a union representative to go ahead and handle and install the materials in question. The Examiner believes the discipline apparent from this behavior warrants the inference that it stemmed from union encouragement and inducement, and so finds and concludes.”
We believe the Examiner’s inference could reasonably be drawn from the evidence and, as we view the record, was by far the most plausible explanation of the employees’ conduct.
The petition of the Board for enforcement of its order is granted.
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_district
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B
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What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable".
Washington NEAL et al., Appellants, v. SYSTEM BOARD OF ADJUSTMENT (MISSOURI PACIFIC RAILROAD) et al., Appellees.
No. 17728.
United States Court of Appeals Eighth Circuit.
July 21, 1965.
Wilson Gray, St. Louis, Mo., for appellants.
Robert W. Yost, St. Louis, Mo., for appellee, Missouri Pac. R. Co.
Edward J. Hickey, Jr., Washington, D. C., for all appellees other than Missouri Pac. R. Co.
M. M. Hennelly and Robert W. Yost, St. Louis, Mo., Edward J. Hickey, Jr., James L. Highsaw, Jr., of Mulholland, Hickey & Lyman, Washington, D. C., Carroll J. Donohue, Stephen W. Skrainka, of Husch, Eppenberger, Donohue, Elson & Cornfeld, St. Louis, Mo., were on joint brief for appellees.
Before VAN OOSTERHOUT, BLACK-MUN and MEHAFFY, Circuit Judges.
BLACKMUN, Circuit Judge.
Judge Regan has entered summary judgment for the defendants in this proceeding by which seven Negro plaintiffs, alleging racial discrimination, seek in-junctive relief and damages for claimed violations of the Railway Labor Act, as amended, 45 U.S.C. §§ 151-163.
The plaintiffs are employees of the Missouri Pacific Railroad Company in the Saint Louis Terminal. They and other employees are persons for whom the Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employes is the designated representative, within the definition of § 1 Sixth of the Act, 45 U.S.C. § 151 Sixth. The Brotherhood is an unincorporated association with headquarters at Cincinnati. It and the Missouri Pacific have negotiated a collective bargaining agreement which groups freight warehouse employees into Classes A, B and C, consisting, respectively, of clerks, messengers, and laborers. It also contains seniority provisions.
In 1962 the Missouri Pacific began the installation of an electronically controlled conveyor system at the Miller Street freight house in Saint Louis. The System Board of Adjustment (Missouri Pacific Railroad), which is a committee of the Brotherhood formed under the union’s Protective Laws to represent employees of the Missouri Pacific, in November 1962 served on the railroad notice under § 6 of the Act, 45 U.S.C. § 156, of a desire to enter into an agreement defining the rights of employees affected by the installation of the conveyor system. In due course a Supplemental Agreement, dated April 17, 1963, was executed. This provides,
“It is agreed that when the Carrier desires to establish positions of ‘Checker-Stowman’ which will result in the abolishment of warehouse laborer positions, notice will be given the General Chairman and conference arranged to work out details regarding promotion of ‘Class C’ employes to the ‘Class A’ roster.
“The positions of ‘Checker-Stow-man’, when established, shall be considered ‘Class A’ positions and will be paid the prevailing Check-Clerk rate of pay.”
The plaintiffs’ original petition presumed the status of a class action and named as defendants the System Board, two of its officers, the Brotherhood, three officers of it, and the railroad. It alleged, among other things, that: (a) The clerks of Class A and the messengers of Class B were white and the laborers of Class C were Negro, (b) The Brotherhood, through the System Board, maintained two locals, Nos. 280 and 1740, in the bargaining unit. The former was 97% white; the latter was all Negro. The plaintiffs were members of No. 1740. (c) The conveyor system, when complete and operative, would cause the abolition of most of the Class A and Class B positions but would not affect the Class C positions, (d) The System Board, with the advice and consent of the Brotherhood, set up a plan by which the Class A and Class B employees would be reclassified under a new Class A roster of checker-stowmen who would do the work now being done by Class C employees. This would result in the displacement of the plaintiffs and other Class C employees and the loss of seniority rights, (e) The System Board, solely because of race, did nothing to protect the Negro Class C employees. This constituted a violation of the plaintiffs’ rights under the Act. (f) All three classes should be dovetailed on the new Class A roster, (g) The railroad, by agreeing to the plan, was also refusing to recognize the rights of the plaintiffs and other Class C employees.
The relief requested included an injunction against placing the agreement of April 1963 into effect, and requiring its appropriate modification, and actual and punitive damages.
The following events then took place:
1. In September 1963 the district court quashed Ohio service upon the Brotherhood and two of its officers, and also dismissed the action as to those three defendants and as to the third officer on grounds of improper venue.
2. In November the court entered its order dismissing the case as to the railroad and as to the System Board and its two officers for failure to join indispensable parties and for failure to allege exhaustion of administrative, contractual and union remedies, “unless plaintiffs amend within ten days so as to cure these defects”. In its accompanying memorandum the court upheld its general ju-risdietion “over a claim of hostile discrimination” and concluded that the petition, although not too clear, stated a claim against the railroad. But it also held that the Brotherhood was an indispensable party; that, although the System Board did not have capacity to be sued, its membership and officers might constitute representatives of a class which includes the Brotherhood; that process upon it as a representative might then be notice to the whole class; that some employees who were members of the locals would benefit or be bound by a decree; that those members of No. 280 who might be adversely affected by it were indispensable parties; and that exhaustion of contractual and internal remedies was a prerequisite to equitable relief in federal court.
3. In December the plaintiffs filed their amended petition. This named as additional defendants three other officers of the System Board, the two local Lodges, and eight individuals as officers of the locals. It did not name the Brotherhood as such, although it named the Grand Lodge and the same three national officers. It alleged, among other things, that the several System Boards had the duty to negotiate working conditions and other employment relations; that the individual defendants were made parties individually and as representatives of the “International and Local Lodges”, the System Board, and the entire membership of each of them; that since the suit was instituted the two locals have consolidated; that it was impractical to make the entire membership of the Brotherhood, of the System Board, and of the locals parties to the action; that the individual plaintiffs and defendants were appropriate representatives of all; that there was no administrative remedy available because the National Railroad Adjustment Board did not have jurisdiction and could not determine the rights of the parties; that under the supplemental agreement of April 1963 the new Class A checker-stowmen positions would be filled by former Class A clerks and Class B messengers ahead of all Class C employees, regardless of seniority possessed by the latter; that this was hostile, prejudiced, and discriminatory toward the plaintiffs and other Class C employees similarly situated; that the railroad, when joining in the supplemental agreement, was aware of this discrimination; and that the acts of the Brotherhood, its officers, and the System Board were willful and injurious to the plaintiffs and others similarly situated.
4. Motions by the System Board and two of its officers, by the officers of the locals, and by the railroad for summary judgment were then made and sustained by the court.
We thus have a situation where the trial court granted the plaintiffs an opportunity to remedy what it felt were the deficiencies in their petition as to persons and allegations, and where it concluded that those defects were not remedied by the amended petition.
A. The availability of internal union and contractual remedies and the necessity of their exhaustion. The plaintiffs’ argument, as we understand it, is that an employees’ representative under the Railway Labor Act is obliged to represent all in the bargaining unit fairly and without discrimination; that the courts have power to protect employees against any such discrimination; and that in racial cases of this kind the usual rule that internal or contractual remedies must first be exhausted has no application.
1. The union and its officers. It is of course long settled that a designated representative under the Railway Labor Act has the duty to represent all employees of a class without discrimination as to race, and that the courts have jurisdiction to protect a minority from a violation of that obligation. Steele v. Louisville & N. R. R., 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173 (1944); Tunstall v. Brotherhood of Locomotive Firemen, 323 U.S. 210, 65 S.Ct. 235, 89 L.Ed. 187 (1944); Conley v. Gibson, 355 U.S. 41, 46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Haley v. Childers, 314 F.2d 610, 616 (8 Cir. 1963). See Humphrey v. Moore, 375 U.S. 335, 342, 84 S.Ct. 363, 11 L.Ed.2d 370 (1964). This principle of itself, however, does not render the plaintiffs’ amended petition here immune from fatal attack.
There is no dispute that plaintiffs are members of the Brotherhood and that remedies within the union are provided. There are carefully delineated grievance procedures in the Protective Laws with appeals allowed ultimately as high as the Grand Executive Council. And Article 5 of the Constitution provides, as plaintiffs concede, that it is the obligation and responsibility, of every member to comply with the Constitution and that no member shall resort to the courts until he “first shall have exhausted all remedies by appeal or otherwise provided herein”. Each plaintiff, by becoming a member of the Brotherhood, necessarily made himself a party to that obligation and established a contractual relationship with the union. Hall v. Morrin, 293 S.W. 435, 439 (Mo.App.1927); Robinson v. Nick, 235 Mo.App. 461, 136 S.W.2d 374, 387 (1940); Junkins v. Local 6313, Communication Workers, 241 Mo.App. 1029, 271 S.W.2d 71, 76 (1954); Farrar v. Messmer, 368 S.W.2d 933, 936 (Mo. App.1963); Greater Kansas City Laborers Dist. Council, etc., v. Builders’ Ass’n., 383 S.W.2d 293, 295 (Mo.App.1964); Local 1104, United Elec. Workers, etc., v. Wagner Elec. Corp., 109 F.Supp. 675, 677 (E.D.Mo.1951). See International Ass’n of Machinists v. Gonzales, 356 U.S. 617, 618, 8 S.Ct. 923, 2 L.Ed.2d 1018 (1958).
The existence of these internal remedies in this very Brotherhood has already been judicially recognized. Gainey v. Brotherhood of Railway Clerks, 177 F.Supp. 421, 427, 431 (E.D.Pa.1959), aff’d, 275 F.2d 342 (3 Cir. 1960), cert. denied 363 U.S. 811, 80 S.Ct. 1248, 4 L.Ed.2d 1153; Fagan v. Pennsylvania R. R., 173 F.Supp. 465, 474 (M.D.Pa.1959); Martin v. Kansas City So. Ry., 197 F.Supp. 188, 192-93 (W.D.La.1961); Long Island City Lodge 2147, etc., v. Railway Express Agency, 217 F.Supp. 907, 909 (S.D. N.Y.1963).
With these internal remedies so definitely available, resort to them, or an adequate reason for failure so to do, is a prerequisite' to equitable relief against the union or its officers in the federal courts. Tunstall v. Brotherhood of Locomotive Firemen, supra, pp. 213-14 of 323 U.S., 65 S.Ct. 235; Fingar v. Seaboard Air Line R. R., 277 F.2d 698, 700-01 (5 Cir. 1960); Gainey v. Brotherhood of Railway Clerks, supra, 275 F.2d 342, 345 (3 Cir. 1960); Long Island City Lodge 2147, etc., v. Railway Express Agency, supra, 217 F.Supp. 907, 909-10 (S.D.N.Y.1963); Martin v. Kansas City So. Ry., supra, pp. 191-93 of 197 F.Supp.
The plaintiffs would draw an exception to this rule for cases of racial discrimination. See our comments in Haley v. Childers, supra, p. 617 of 314 F.2d. But the six cases they cite support no such exception and we are not inclined to create and engraft one on established labor law. Three of the cases cited by the plaintiffs were brought by petitioners who were not then members of the union and thus had no internal union procedures available to them. Steele v. Louisville & N. R. R., supra, pp. 194 and 199 of 323 U.S., 65 S.Ct. 226; Tunstall v. Brotherhood of Locomotive Firemen, supra (see the Fourth Circuit’s opinions at 140 F.2d 35, 36 and 163 F.2d 289, 291); Richardson v. Texas & N. O. R. R., 242 F.2d 230, 231 (5 Cir. 1957). The same is to be said of the fourth case, Brotherhood of R. R. Trainmen v. Howard, 343 U.S. 768, 773, 72 S.Ct. 1022, 96 L.Ed. 1283 (1952), although there the Negro plaintiffs were represented by another union of their own selection. All four of these cases then pivoted on the unavailability of remedy under the Railway Labor Act itself. The posture of the Act in this respect is not, of course, the issue here. See Haley v. Childers, supra, pp. 614-15 of 314 F.2d.
One perhaps might argue that certain language in the fifth case, Conley v. Gibson, supra, 355 U.S. 41, 78 S.Ct. 99, may be read in such a way as to give the plaintiffs some comfort but we cannot find in that opinion any clear indication that the plaintiffs, although members of the bargaining unit, were members of the union, or that internal union remedies were available to them, or, if such remedies were available, that they, had not been exhausted. There, again, the emphasis was on the Railway Labor Act and jurisdiction of the Adjustment Board.
The sixth case, Robinson v. Nick, supra, 235 Mo.App. 461, 136 S.W.2d 374, 387, seems to us to oppose the plaintiffs’ position, rather than to support it.
We therefore adhere to the firmly established rule that remedies within the union, when available, as here, are to be pursued as a prerequisite to relief in the federal courts and we indulge in no exception merely because the discrimination alleged is based on race. The rule was recognized in both Steele, p. 207 of 323 U.S., 65 S.Ct. 226; and Tunstall, pp. 213-14 of 323 U.S., 65 S.Ct. 235, even though each of these cases concerned claimed racial discrimination.
2. The railroad. A like result is forthcoming with respect to the Missouri Pacific. Rule 18 of the collective bargaining agreement between the Brotherhood and the railroad relates to “Discipline and Grievances”. It calls for prompt investigation before dismissal, for representation, and for appeal. It also provides similar treatment for an employee who considers himself “unjustly treated”. This is broad language and obviously applicable to the type of complaint the plaintiffs present. See Harrison v. Pullman Co., 68 F.2d 826 (8 Cir. 1934). The necessity of exhausting these contractual remedies as a condition to relief in the courts is recognized, both under Missouri law, Transcontinental & W. Air, Inc. v. Koppal, 345 U.S. 653, 662, 73 S.Ct. 906, 97 L.Ed. 1325 (1953); Gomillia v. Missouri Pac. R.R., 345 S.W.2d 202, 208-09 (Mo.1961); Reed v. St. Louis S. W. R.R., Mo.App., 95 S.W.2d 887, 889 (Mo.App.1936), and under federal law, Republic Steel Corp. v. Maddox, 379 U.S. 650, 652-59, 85 S.Ct. 614, 13 L.Ed.2d 580 (1965); Tunstall v. Brotherhood of Locomotive Firemen, supra, pp. 213-214 of 323 U.S., 65 S.Ct. 235.
B. Indispensable parties. What we have said as to exhaustion of remedies makes it unnecessary for us to consider the additional issue relative to indispensable parties. Nevertheless, because of the nature of the case, we touch briefly upon it. The parties so claimed by the defendants to be indispensable are the Brotherhood and those employees whose seniority would be adversely affected by any decree in favor of these plaintiffs,
1. The Brotherhood. The amended petition incorporates verbatim the supplemental agreement of April 1963 and reveals the agreement to be one between the Brotherhood and the Missouri Pacific. In addition to claiming actual and punitive damages against the Brotherhood, the amended petition challenges the supplemental agreement and seeks to enjoin action under it. The Brotherhood, therefore, being a party to that agreement, is clearly an entity whose presence is indispensable to the maintenance of the present suit. Order of Railroad Telegraphers v. New Orleans T. & M. Ry., 229 F.2d 59, 67 (8 Cir. 1956), cert. denied 350 U.S. 997, 76 S.Ct. 548, 100 L.Ed. 861; Shields v. Barrow, 17 Howard (58 U.S.) 130, 139, 15 L.Ed. 158 (1855); Order of Railroad Telegraphers v. Union Pac. R.R., 231 F.Supp. 33, 36-37 (D.Colo.1964).
Yet the Brotherhood is certainly not here as a direct party defendant. It is not even named in the amended petition. Three of its officers and its Gra,nd Lodge are named but service has not been effected even upon them. Although the particular System Board, the local lodges, and their respective officers are named and some of these have been served, it is the Brotherhood, not any subdivision or affiliate, which is the collective bargaining representative. Childers v. Brotherhood of R.R. Trainmen, 192 F.2d 956, 959-60 (8 Cir. 1951); Westchester Lodge 2186, Brotherhood of Railway Clerks, etc., v. Railway Express Agency, 218 F.Supp. 187, 189 (S.D.N.Y.1963), modified on other grounds, 329 F.2d 748 (2 Cir. 1964).
The attempt at representation of the Brotherhood by a defendant class also fails. Rule 23(a), F.R.Civ.P., makes it clear that, for a federal court class action, it is necessary that (a) there be a class; (b) the class be so numerous as to make it impracticable to bring all before the court; (c) those representing the class be such as will fairly insure the adequate representation of all; and (d) the right sought to be enforced against the class is joint or common. See Montgomery Ward & Co. v. Langer, 168 F.2d 182, 187 (8 Cir. 1948). The existence of these factors in the present posture of this case is tested by the allegations of the complaint. The second factor is alleged but we fail to find sufficient indication of the others. The System Board, the lodges, and their officers, as such, are not members of any appropriate class here and, in any event, we are given no assurance that these essentially local entities are representative of the membership of this large Brotherhood as a whole or possess interests common to the entire Brotherhood so as fairly to “insure the adequate representation of all”. Johnson v. Riverland Levee Dist., 117 F.2d 711, 714-715 (8 Cir. 1941). See Hansberry v. Lee, 311 U.S. 32, 61 S.Ct. 115, 85 L.Ed. 22 (1940).
2. Employees with seniority adversely affected. It is readily apparent that any local lodge member who holds Class A or Class B seniority and any Class C employee who has accepted the benefit of the supplemental agreement might well be adversely affected by any decree in this action. Such persons therefore are indispensable parties. Order of R.R. Telegraphers v. New Orleans T. & M. Ry., supra, p. 67 of 229 F.2d; Nix v. Spector Freight System, Inc., 264 F.2d 875, 877 (3 Cir. 1959). There has been no attempt, however, to define these particular adversely affected persons as a class. The need to do so is not fulfilled by an attempt to include the entire local membership, for this also embraces persons of differing and perhaps favored seniority status. There is, thus, an absence of the common interest essential for an appropriate class.
The plaintiffs’ original petition was not peremptorily dismissed for lack of indispensable parties but, as indicated by Warner v. First Nat’l. Bank, 236 F.2d 853, 858 (8 Cir. 1956), cert. denied 352 U. S. 927, 77 S.Ct. 226, 1 L.Ed.2d 162; Olson v. Miller, 105 U.S.App.D.C. 55, 263 F.2d 738, 140-41 (D.C.Cir.1959); 3 Moore’s Federal Practice, Par. 21.04, pp. 2906-07 (2d Ed. 1964); 2 Barron & Holtzoff, Federal Practice & Procedure, § 542, p. 214 (Wright Rev. 1961), opportunity was afforded to remedy the procedural defect. However, the defect remains and there is now no alternative to dismissal.
Affirmed
. Art. 5, § 2(c), of the Constitution of the Brotherhood reads in full as follows:
“(c) No officer, member or subordinate unit of this Brotherhood may resort to any Court of Law or Equity or other civil authority either as parties plaintiff or for the purpose of securing an opinion or decision in connection with any alleged grievance or wrong concerning any case in controversy arising within the organization or under its law, until such officer, member or subordinate unit first shall have exhausted all remedies by appeal or otherwise provided herein, not inconsistent with applicable law, for the settlement and disposition of such alleged rights, grievances or wrongs.”
. Rule 18.
“(k) An employe who considers himself unjustly treated shall have the same right of investigation, hearing and appeal as herein provided, if written request therefor is made to his immediate supervisor within seven days of the cause for complaint.
“(l) The time limits herein may be extended by mutual agreement and do not apply in cases of request for leniency.”
Question: From which district in the state was this case appealed?
A. Not applicable
B. Eastern
C. Western
D. Central
E. Middle
F. Southern
G. Northern
H. Whole state is one judicial district
I. Not ascertained
Answer:
|
songer_circuit
|
J
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case.
HASTINGS v. HUDSPETH.
No. 2400.
Circuit Court of Appeals, Tenth Circuit.
Feb. 26, 1942.
Andrew R. Hastings, pro se.
Summerfield S. Alexander, U. S. Atty., and Homer Davis, Asst. U. S. Atty., both of Topeka, Kan., for appellee.
Before PHILLIPS, BRATTON, and HUXMAN, Circuit Judges.
PHILLIPS, Circuit Judge.
This is an appeal from a judgment denying a petition for a writ of habeas corpus.
Hastings, hereinafter referred to as the petitioner, was charged by an indictment returned December 12, 1939, in the District Court of the United States for the District of Nebraska, with a violation of 18 U.S.C. A. § 338. On June 4, 1940, at petitioner’s request, the court appointed John Berger, Esq., attorney for petitioner. Thereafter, on the same day, petitioner was arraigned and entered a plea of not guilty. On July 3, 1940, petitioner appeared in person and by his counsel and withdrew his plea of not guilty and entered a plea of guilty. On July 11, 1940, he was sentenced to a term of imprisonment of four years in an institution of the penitentiary type to be designated by the Attorney General. Commitment duly issued and petitioner was delivered into the custody of Hudspeth, Warden.
The indictment charged that petitioner devised a scheme to defraud by obtaining money from one Joseph O’Rourke, of Omaha, Nebraska, South Omaha Savings Bank, Stock Yards National Bank of Omaha, and the Hibernia National Bank of New Orleans, Louisiana, and other persons and corporations to the grand jurors unknown, by inducing them to accept and pay money on forged checks by means of false and fraudulent pretenses and representations ; that petitioner planned and schemed that he would travel from place to place and defraud such persons and corporations as he could induce to cash or endorse false and forged checks drawn on banks situated in distant places; that he would represent to such persons and corporations to be defrauded that such checks were genuine, and upon receiving money thereon, in order to avoid apprehension and in order that he might continue the promotion of his scheme, would move on to another city before it could be ascertained that such checks were forged and false; that as a part of such scheme, petitioner planned and schemed that he would write a false and forged check drawn on the Hibernia National Bank of New Orleans, Louisiana; that he would, without authority, sign on the check a forged name as drawer; that he would represent to O’Rourke that the check was genuine and that he was the payee thereof, and induce O’Rourke to endorse the check and identify him as the payee thereof at some hank, and thereby cause the bank to advance money thereon; that in truth and in fact, there was no such drawer nor deposit; that on June 12, 1939, petitioner, for the purpose of executing such scheme, caused the Federal Reserve Bank of Kansas City, through its Omaha branch, to place and cause to be placed in the Post Office at Omaha, to be sent and delivered by the Post Office establishment to the addressee thereof, the above-mentioned check enclosed in an envelope with prepaid postage thereon, addressed to the Federal Reserve Bank, New Orleans, Louisiana.
Petitioner contends that the indictment did not charge a federal offense, that the Federal Court for the Nebraska District did not have jurisdiction of the offense, and that the sentence was void.
It is well settled that defects in an indictment, not going to the jurisdiction of the court which pronounced sentence, may not be raised on habeas corpus. Hence, on habeas corpus the question is not whether the indictment is vulnerable to direct attack by motion or demurrer, but whether it is so fatally defective as to deprive the court of jurisdiction.
If there is a federal offense which the indictment apparently attempts to charge, and the court has jurisdiction over such offense and over the person of the accused, the sufficiency of the indictment is not open to challenge on habeas corpus.
Here, the offense which the indictment attempted to charge is neither colorless nor an impossible one under the law. The trial court had jurisdiction over such offense and over the person of the petitioner. It was for it to determine the elements of the offense sought to be charged, the construction to be placed on the indictment, and its sufficiency. If it erred in determining those matters, its judgment was not for that reason void.
We do not think the allegations of the indictment affirmatively show the continuing scheme was fully consummated when the money was paid over by the bank in Omaha or refute the specific allegations of the indictment that the mails were used to execute the scheme. Moreover, the scheme was a continuing one and contemplated the defrauding of a number of persons. The forwarding of the check for collection by mail from Nebraska to Louisiana effected a lapse of time during which the Omaha bank and O’Rourke were kept free from suspicion. This gave petitioner an opportunity to avoid detection and arrest and to perpetrate the scheme on others. The use of the mails, therefore, contributed to the execution of the scheme as against O’Rourke and the Omaha bank and aided in its subsequent execution against others.
The allegation in the application for the writ that petitioner did not cause the check to be sent through the mails cannot stand against the affirmative allegation of the indictment to the contrary, which the petitioner admitted by his plea of guilty thereto.
The judgment is affirmed.
Creech v. Hudspeth, 10 Cir., 112 F. 2d 603, 605; Knight v. Hudspeth, 10 Cir., 112 F.2d 137, 139.
Knight v. Hudspeth, 10 Cir., 112 F. 2d 137, 139; Creech v. Hudspeth, 10 Cir., 112 F.2d 603, 606.
Creech v. Hudspeth, 10 Cir., 112 F. 2d 603, 606; Aderhold v. Hugart, 5 Cir., 67 F.2d 247; Goto v. Lane, 265 U. S. 393, 402, 44 S.Ct. 525, 68 L.Ed. 1070; Knewel v. Egan, 268 U.S. 442, 445, 446, 45 S.Ct. 522, 69 L.Ed. 1036.
Creech v. Hudspeth, 10 Cir., 112 F. 2d 603, 606; Brady v. United States, 9 Cir., 26 F.2d 400, 401.
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_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.
Carl J. DODSWORTH, Appellant, v. Anthony CELEBREZZE, Secretary of Health, Education and Welfare of the United States of America, Appellee.
No. 21731.
United States Court of Appeals Fifth Circuit.
July 26, 1965.
Robert O’Conor, Jr., Laredo, Tex., for appellant.
James R. Gough, Asst. U. S. Atty., Houston, Tex., for appellee.
Before MARIS RIVES and BROWN, Circuit Judges.
Of the Third Circuit, sitting by designation.
JOHN R. BROWN, Circuit Judge:
The issue here is whether the District Court was correct in holding that there was substantial evidence to support the Administrator’s decision denying to Dodsworth disability insurance benefits under the freeze provisions of the Social Security Act, 42 U.S.C.A. §§ 416(i), 423(c), on the ground that as of the critical date his disability was not of such severity that he could engage in no “substantial gainful activity.” We have concluded the Appellant is right and the case must be remanded for further administrative proceedings.
Dodsworth applied to the Social Security Administration in October 1961 to establish a period of disability and for insurance benefits stating that he had become unable to work in March 1961. The Board of Old Age and Survivors Insurance denied the application and on its refusal to reconsider, Dodsworth requested a hearing which was held on January 8, 1963 before a Hearing Examiner at the VA Hospital in Temple, Texas, where Dodsworth was a resident at the Veterans Domiciliary. The medical reports and testimony of the Applicant revealed these facts about the man and his background.
Dodsworth was born in 1908, received an 8th grade education, and had worked most often as a laborer in construction jobs. During World War II, he was in the service for three years and was discharged in 1945. Between 1946 and 1950, he was a victim of pulmonary tuberculosis — most of this time being hospitalized in Denver. In the five or six years prior to the filing of his application he did heavy construction work, but by March 1961 found himself unable to continue in this kind of work. Dods-worth had applied for one of the many salaried positions at the VA Domicilary in Temple, but had been turned down because he “wasn’t in condition to do it.” At the time of the hearing, he, as did all residents of the Domiciliary, had a work duty — his job being to sort laundry a few hours, several days each week. He was unable to obtain outside employment for the simple reason that due to his inability to pass employer imposed pre-em-ployment medical examinations, no employer would hire him. He testified that he could no longer do construction work because he was short-winded, and that his inability to pass medical examinations prevented him from doing lighter work in machine shops. He recounted an instance in the past when he was dismissed from employment as a railroad signalman (termed light work by him) after examination by the company doctor. He had been refused employment in a Temple meat market because of his prior TB condition.
He obviously felt that his tubercular condition had reactivated for his chief complaints were shortness of breath and swelling of the chest. The medical reports offered little objective substantiation for a claim of reactivated tuberculosis. They do, however, make it quite clear that we are by no means dealing with a hale and well man.
Dr. Kitchens examined Dodsworth on October 16, 1961, diagnosing his condition as pulmonary tuberculosis (inactive) and amblyopia, left eye, cause unknown. He apparently has been without the use of his left eye all his life. Following discharge in Memphis he took up residence at the domiciliary at the VA Center in Biloxi, Mississippi where on March 1, 1962, he was again examined, this time by Dr. Hall. The diagnoses were:
“1. Tuberculosis, pulmonary, minimal, inactive.
“2. Amblyopia, left eye, cause unknown.
“3. Hiatus hernia.
“4. Paranoid personality.”
Inquiry leading to the fourth conclusion was the result of an impression formed by the Domicilary physician “that his disability was more mental than physical.” Dr. Knox, a staff psychologist, confirmed this hypothesis. She concluded that while Dodsworth appeared to be of low-normal intelligence, his reasoning was defective.
“His rigid, suspicious manner of thinking interferes markedly with his functioning on this type of task. He is quite evasive on the Rorschach Test and in the few associations he produces, a thinking disorder is suggested [though none was demonstrated by symptoms]. * * * this man appears to employ schizophrenic modes of thinking.”
The Hearing Examiner’s decision, dated March 28, 1963, was that Dodsworth was not disabled within the meaning of the statute and after denial of review by the Appeals Council, this decision became final. The Examiner, after reviewing the data contained in the medical reports, concluded that there was no objective substantiation for the asserted disability. Strong reliance was made on Dodsworth’s own statement that he could “work now if they will eliminate compensation boards so that they will pass you so that you can work” (emphasis supplied). The qualification following the big “if” was given short shrift by the Examiner’s explanation that: “ * * this is not in accordance with the estab lished facts in this case. There is no evidence of reactivation of the tubercular process since 1950 and he has had the left eye condition all his life, yet he worked regularly with construction companies for more than ten years after 1950.” (Emphasis supplied.) This far we think there is ample basis for the fact findings of the Hearing Examiner. Although the post-hearing medical reports submitted to the Appeals Council of Dr. Eanes reveals that Dodsworth’s physical condition was perhaps worsened, the Examiner was entitled to conclude that there was no real evidence that any physical, medically determinable condition is preventing Dodsworth from engaging in some form of light but substantial gainful activity.
But here we reach a point of departure. For what is shown by the record is that Dodsworth quite obviously has some serious psychosomatic difficulties which may render him unemployable.
With regard to the psychologist’s report that Dodsworth had a paranoid personality which inhibited his reasoning ability, the Examiner first emphasized that Dodsworth “was not considered to he psychotic”, and then wrote:
“ * * * even if it be assumed that from time to time there have been, or are, clouds on claimant’s horizon, so to speak, claimant is in that respect in the company of a large, perhaps predominant segment of the human population, and cannot be considered merely by reason thereof to have earned entitlement to full social security benefits.”
It is therefore quite apparent that the Hearing Examiner viewed this evidence from the standpoint of determining whether Dodsworth was, by virtue of a mental condition alone, statutorily incapacitated. Tying this in to the unrevealing statement that the evidence showed “no phychosis,” the Examiner lapsed into the notion so often rejected by us, that unless Dodsworth was suffering from conditions beyond that which life calls on many to bear, there can be no compensable disability. This was error. This was far too limited an approach. See Page v. Celebrez-ze, 5 Cir., 1963, 311 F.2d 757, 762-763; Hayes v. Celebrezze, 5 Cir., 1963, 311 F.2d 648. No attempt was made to evaluate the uncontradicted evidence of paranoid personality in the light of the clear impression, afforded by both the medical and clinical records and the testimony of Dodsworth himself, that Dods-worth had psychosomatic difficulties which in fact kept him from obtaining work. See Englander v. Flemming, S.D. N.Y., 1960, 186 F.Supp. 773. The question is not what man must bear, nor what men generally bear. The question is whether in the light of all of the evidence it is medically demonstrable that from the operation of these mental-psychological defects on his general physical condition, it was improbable that he could obtain and hold gainful employment.
As the fact findings of the Administrator carry such awesome weight, it is essential that the proper legal standard be employed in the appraisal of the evidence. This was not done here. Accordingly, the case must be reversed and remanded for further and consistent administrative proceedings.
In remanding this case, as in Hayes v. Celebrezze, supra, 311 F.2d at 654, “ [w] e do not undertake to blueprint these proceedings on remand.” The present record may be used with both parties being free to supplement it, and a new decision should be reached on that total record, in light of the guidelines here laid down.
Reversed and remanded.
. This is the only ground involved as it was recognized by everyone that Dods-worth clearly met the earnings requirement.
. The record shows that his work record was very sporadic for health reasons between 1951 and 1956, but was fairly consistent between 1956 and 1961.
Question: What is the total number of respondents in the case that fall into the category "private business and its executives"? Answer with a number.
Answer:
|
songer_procedur
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant.
WRIGHT v. WILSON.
No. 9017.
Circuit Court of Appeals, Third Circuit.
Argued Feb. 8, 1946.
Decided March 5, 1946.
William W. Mentzinger, Jr., of Philadelphia, Pa. (Elliott Marshall, of Front Royal, Va., on the brief), for appellant.
David A. Saltzburg, of Philadelphia, Pa., (Morris W. Kolander, of Philadelphia, Pa., on the brief), for appellee.
Before MARIS, GOODRICH, and O’CONNELL, Circuit Judges.
GOODRICH, Circuit Judge.
This is an action brought in federal ■court by reason of diversity only, to recover for injuries sustained by the plaintiff when he was struck by a motor car operated by the defendant. There was a verdict for the defendant in the District Court. The plaintiff charges several errors in the trial. Only one of them presents a question which requires discussion.
While the litigation was pending the defendant died. The plaintiff claims that he is now the only living eyewitness to the accident. His testimony with regard to it was rejected by the trial judge. The correctness of this course is the interesting and important question in the case.
Our starting point now is Rule 43 (a) of the Rules of Civil Procedure. It is there provided that all evidence comes in if admissible under United States statutes, or under theretofore existing rules of United States equity courts or state law, whichever favors the reception of the evidence. It has been correctly pointed out that this is a rule of admissibility not exclusion. The evidence comes in under whichever one of the tests of admissibility is most favorable.
Is the proffered testimony to be allowed under any of the criteria set out in Rule 43(a)? It certainly is not by the law of Pennsylvania. The Pennsylvania statute is explicit in prohibiting the testimony of the survivor. It applies to tort actions as well as contract though the latter may predominate. Adversity of interest is the test. Death is only the line of demarcation. The Pennsylvania Supreme Court has sharply indicated that the plain language of the statute is not to be circumvented. So far as Pennsylvania law is concerned, it is clear that the door is tightly closed against admissibility of the proffered testimony. The federal rule cannot he so tersely stated, though, as will he seen, the various figures add up to the same sum as that found by Pennsylvania statutes and decisions.
At common law both the parties to a suit were incompetent as witnesses on the ground of interest. Greenleaf notes the general rule of the common law with the statement that the rule of the Roman Law was the same. An encyclopedia of the same year as the Lewis edition of Greenleaf relates the common law rule specifically to survivors. Chamberlayne some years later sets out the rule and its rationale. More recently Jones in speaking of the same rule adds that it applied both in chancery and at law. And finally Wigmore succinctly emphasizes the fact that a disqualifying interest concept was behind the common law rule of exclusion of parties as witnesses.
In 1862 a federal statute referred'the rule of admissibility to state law. This first statutory period persisted until 1864 when another federal statute prohibited exclusion of any witness on the ground of interest. This general admissibility rule was similar to that of the states. While it changed the common law, it was open to an exception so far as survivors were concerned. This will be discussed later. The second statutory period ended a year later in 1865 when the federal statute was amended to indicate specifically that survivors were still incompetent as party witnesses, just as at common law. The survivor rule remained as an evolutionary vestige when the general statutes changing the common law rule of party witness incompetency were passed. This third period which lasted until 1906, saw passed in 1878 the Competency of Witnesses Act which “evolved from [the] three statutes passed in 1862, 1864 and 1865 * * * ’’. This act did not change the federal law with respect to a survivor’s testimony.
In 1906, however, a basic change was made. The laws of the states were made controlling. This took the situation back to the first statutory period mentioned. Otherwise, however, this fourth period did not change the tenor of the law, for as will be pointed out, the state courts also barred the testimony of party survivors. In 1938, when the new federal rules came into effect, the situation was once again altered. The nature of this change has been discussed. This fifth period brings the statutory situation up to date.
The state statutes which changed the common law did so only to a limited extent. While parties were no longer excluded as witnesses, an exception was made with respect to survivor parties. As to them the common law rule still applied. The change was gradual but today pervades almost all the states. Earlier writers speak of the exception obtaining in “most states.” A later commentator makes it clear that the exception now is firmly established in all but six of the states.
The inevitable conclusion is that whatever door one tries it is firmly locked against the admissibility of the proffered testimony in this case. There never has been a federal rule admitting such evidence because the course of federal legislation has either been to make only incomplete changes in the original common law or to refer the matter to state law by which, as shown, the evidence is inadmissible. There is no help to be gained from the reference to suits in equity, the language used in Rule 43 (a) because of lack of application and because the survivor rule principle applied in equity suits as well as actions at common law. The only conclusion we can reach is to say that the testimony offered by a survivor of the accident in this case is not admissible against his opponent.
We reach the result without enthusiasm. The rule excluding a survivor’s testimony seems to stand in the almost unique situation of being condemned by all of the modern writers on the law of evidence. It is said to be as unsound and undesirable as the rule excluding the testimony of parties of which the survivor rule is a part. But we believe this to be a case where a rule so thoroughly established through many generations of judicial history should be removed by legislative action or court rule which applies generally and not by judicial legislation against a party in a particular case. Affirmed.
28 U.S.C.A. following section 723c. The appropriate section reads: “Rule 43. Evidence
“(a) Form and Admissibility. In all trials the testimony of witnesses shall be taken orally in open court, unless otherwise provided by these rules. All evidence shall be admitted which is admissible under the statutes of the United States, or under the rules of evidence heretofore applied in the courts of the United States on the hearing of suits in equity, or under the rules of evidence applied in the courts of general jurisdiction of the state in which the United States court is held. In any case, the statute or rule which favors the reception of the evidence governs and the evidence shall be presented according to the most convenient method prescribed in any of the statutes or rules to which reference is herein made. The competency of a witness to testify shall be del ermined in like manner.”
3 Moore, Federal Practice (Supp.1945) 03 § 43.02 (referring back to page 3004) “Tile cast of subdivision (a) [of Rule 43J is toward admissibility not exclusion.” Green, “The Admissibility of Evidence Under The Federal Rules”, (1941), 55 Harv.L.R. 197, 203, “Perhaps the simplest interpretation is to imply a provision that the evidence is to be excluded. But isn’t such a reading superficial? * * * The rule merely provides that if any of the three makes the evidence admissible it shall be admitted.”
United States v. Aluminum Co. of America, S.D.N.Y.1938, 1 F.R.S. 43a.3, Case 1 “[Rule 43(a)] is intended to liberalize admissibility of testimony, but has nothing to do with what should bo excluded.”
See also Seward v. Nissen, D.C.Del.,1942, 2 F.R.D. 545 and Iloltzoff, New Federal Procedure And The Courts, 1940, 120.
28 P.S. § 322 reads in part: “Nor, where any party to a thing or contract in action is dead * * * shall any surviving or remaining party to such thing or contract, or any other person whoso interest shall be adverse to the said right of such deceased * * * bo a competent witness to any matter occurring before the death of said party * * , The remainder of the section as well as § 825 set out circumstances where the above language of exclusion does not apply. However, none of those circumstances fit tbe present facts.
Lockard v. Vare, 1911, 230 Pa. 591, 595, 79 A. 802.
Chapman, Principles of the Law of Evidence, 1930, 362 “It is an adverse interest, not survivorship or adverse testimony which disqualifies a witness. Edmundson’s Estate, 259 Pa. 429, 436, 103. A. 277, 2 A.L.R. 1150.”
Id. 364. “An interested witness may testify to faets existing after death of the other party, even though by inference the existence prior to death is shown. * * * Krepps v. Carlisle, 157 Pa. 358, 27 A. 741 Keating v. Nolan, 51 Pa.Super. 320.”
Id. 365: “The survivor cannot make himself competent by calling the living witness and then attempting to testify. * * * As was said in Cake v. Cake, 162 Pa. 584, 585, 29 A. 797, ‘The living witness whose testimony is to make competent the surviving or remaining party to the-record, must be called in the interest- of and by the party representing the right of the deceased. The calling of such witness by the adversary could not have been in contemplation of the Legislature. It was not the intention of that Act to provide so sure and easy a method of removing the bar of incompetency.’ ” See also Patterson v. Hughes, 236 Pa. 315, 318, 84 A. 829.
1 Greenleaf, Treatise on the Law of Evidence, Lewis’s Ed., 1899, § 329:
“Common Law Did Not Allow a Party to the Record tb Be a Witness. — And first, in regard to parties, the general rule of the Common Law is, that a party to the record, in a civil suit, cannot be a witness either for himself, or for a co-suitor in the case. The rule of the Roman Law was the same. Omnibus in re propria dicendi testimonii facultatem jura submoverunt.”
11 American and English Encyclopaedia of Law, 2d Ed., 1899, 543:
“4. Transactions with Deceased Persons — a. At Common Law. — As the common law disqualified all persons from testifying in any suit in which they had an interest, Tt follows that at common law a person would be incompetent to testify against a representative of a deceased person if the witness were interested in the result.”
5 Chamberlayne, Treatise on the Modern Law of Evidence, Joyce’s Ed., 1916, § 3669 “Under the practice at common law it was deemed that persons who were interested or were parties to the proceedings, were, by reason of such fact, so under the temptation to testify falsely that they should be rejected.”
3 Jones on Evidence Civil Cases, 4th Ed., 1938,1305, § 727:
“The authorities announcing the earlier common law held that parties to a suit' were incompetent ,as witnesses therein.”
1308, § 728 “ * * * it was the gen-' eral rule in chancery, as at law, that parties were not competent witnesses *
2 Wigmore on Evidence, 3rd Ed., 1940, § 577: “The notion of interest at common law applied of course to the parties to the suit, for their interest in the event of the litigation was obviously the most marked.
“That this general principle of disqualifying interest was the real ground of their exclusion from testifying in their own favor is clear; and certain details of the rule rested directly on this- theory, —for example, the consequence that a mere titular or nominal party was admissible, or a party against whom judgment had gone by default. The hardship and the anomaly, however, of this ground for exclusion were even more emphatic and apparent than in the case of ordinary interested persons.”
12 Stat. 588, July 16, 1862, ch. 189, sec. 1. “That the laws of the State in which the court shall be held shall be the rules of decision as to the competency of witnesses in the courts of the United States, in trials at common law, in equity, and admiralty.” See 1 Wigmore on Evidence, 3rd Ed., § 6a, for a complete statutory classification.
13 Stat. 351, July 2, 1864, ch. 210, sec. 3. “That in the courts of the United States there shall be no exclusion of any witness pn account of color, nor in civil actions because he is a party to, or inter- . ested in, the issue tried.” See 1 Wigmore on Evidence, 3rd Ed., § 6a.
13 Stat. 533, Mar. 3, 1865, ch. 113. That chapter 210, sec. 3, be “amended by adding thereto the following proviso: Provided, further, That in actions by or against executors, administrators, or guardians, in which judgment may be rendered for or against them, neither party shall be allowed to testify against the other as to any transaction with, or statement by the testator, intestate, or ward, unless called to testify thereto by the opposite party, or required to testify thereto by the court.” See 1 Wigmore on Evidence, 3rd Ed., § 6a.
R.S. (Title 13, eh. 17) sec. 858, 28 IT. S.G.A. note. “In the courts of the United States no witness shall be excluded in any action on account of color, or in any civil action because he is a party to or interested in the issue tried: Provided, That in actions by or against executors, administrators, or guardians, in which judgment may be rendered for or against them, neither party shall be allowed to testify against the other, as to any transaction with, or statement by, the testator, intestate, or ward, unless called to testify thereto by tlie opposite party, or required to testify thereto by the court. In all other respects, the laws of the State in which tho court is held shall bo the rules of decision as to the competency of witnesses in tlie courts of the United States in trials at common law, and in equity and admiralty.” See 1 Wigmore on Evidence, 3rd Ed., § 6a.
1 Wigmore on Evidence, 3rd Ed., 178, § 6a.
34 Stat. 618, June 29, 1906, ch. 3608, 28 U.S.C.A. § 631 (Amended Revised Statutes 858 as follows) “The competency of a witness to testify in any civil action, suit, or proceeding in the courts of the United States shall be determined by the laws of the State or Territory in which the court is held.” See 1 Wigmore on Evidence, 3rd Ed., § 6a.
See note 1.
1 Wharton on Evidence, 2d Ed.1879, 414, § 466 “In most of tho statutes, cases are excepted where the suit is against executors or administrators, in which cases the surviving party to a contract is not permitted to testify; or as it is sometimes put, cases in which one of the parties to a contract is dead, in which case tho other party is not competent as a witness.”
Sir J. F. Stephen, Digest of the Law of Evidence, Chase’s Ed.1892, 193 Art. 106, Note “And, moreover, there is established by statute in most States one important exception, prohibiting a party from testifying in an action against an executor or administrator concerning a transaction with tho decedent. These statutes differ in details * * *.”
2 Wigmore on Evidence, 3rd Ed., § 578 “The scope of this modem rule excludes the testimony of the survivor of a transaction with a decedent, when offered against the latter’s estate.” The note to this adds “ * * * the jurisdictions not recognizing this disqualification are half a dozen only.”
An early authority, 1 Wharton on EVidence, 2d Ed.1879, 419, § 467, states: “The exception has been more cordially recognized from the fact that it rests on a principle which courts of equity concur in accepting.”
More recently, we find in 1 Wigmore on Evidence, 3rd Ed.1940, 201, § 6c: “Under Rule 43, the ‘rules of Evidence heretofore applied in the courts of the United States on the hearing of suits in equity’ form the second choice to control. But where are these rules to be found? How vain will be the search for them has been shown ante, § 6. This part of Rule 43 seems to have little prospect of service.”
The answers that have been found only serve to emphasize the lack of aid in the equity practice portion of Rule 43(a): 41 * * * reported federal equity decisions have almost never applied rules of evidence to specific cases. What will guide the court in its decision as to the propriety of including a given rule of admissibility in the equity system of evidence? The answer to this question is found in the maxim, aequitas sequitur legem. It is well established that generally speaking the law of evidence in courts of equity is identical with the law of evidence in courts ■of common law. [Citations noted]” ■Greene, “The Admissibility of Evidence Under The Federal Rules”, 1941, 55 Harv. L.Rev. 197, 201. See also note 11.
Wigmore attacks it with characteristic vigor: “As a matter of policy, this survival of a part of the now discarded interest-qualification is deplorable in every respect; for it is based on a fallacious and exploded principle, it leads to as much or more false decision than it prevents, and it encumbers the profession with a profuse mass of barren quibbles over the interpretation of mere words.” 2 Wigmore on Evidence, 3rd Ed.1940, 697, § 578.
“ * * * such a statute destroys the possibility of collecting honest claims by the living. It may prevent perjury of a •claimant but it does not prevent subornation of perjury by a claimant and perjury ‘by witnesses,” comment, Model Code of Evidence, 1942, 92.
The Report of the Legal Research Committee of The Commonwealth Fund says “The ordinary statute has proved to be extremely cumbersome and difficult of operation.” The survey conducted by the committee led them to -the conclusion that “In a word the opposition to these [new or pr-oposed] statutes [abolishing the survivor rule] is in inverse ratio to experience with them * * See 2 Wig-more on Evidence, 3rd Ed.1940, 699, § 578a.
Chamberlayne also sharply criticizes the survivor rule: “It seems strange that, in view of.the acknowledged and recognized advantages which have been gained by sweeping aside the barriers of the common law respecting competency, such a situation should be allowed to exist. It is the old giant, misnamed ‘policy of the law’ or 'public policy’, which for so long a time held judicial tribunals in its grasp * * which still remains tottering and feeble, apparently nearing the end.” 5 Chamberlayne, Treatise on the Modern Law of Evidence, 1916, § 3670.
Bentham almost 100 years before, turned the hard light of reason on the whole common law rule of party disqualification: “In principle there is but one mode of searching out the truth: * * * Be the dispute what it may, see everything that is to be seen; hear everybody who is likely to know anything about the matter: hear everybody, but most attentively of all, and first of all, those who are likely to know most about it — the parties” Bentham, Rationale of Judicial Evidence, b. IX, pt. Y, e. I, Bowring’s Ed.1827, Vol. VII, pp. 487, 507. See 2 Wigmore on Evidence, 3rd Ed.1940, 693,.§ 577.
The periodical literature yields an equally overwhelming opposition to the survivor rule. We may take a sample almost at random. Thus Callahan and Ferguson, “Evidence And The Federal Rules of Civil Procedure”, 1937, 47 Yale L.J. 194, 198: “Although the state competency statutes are generally satisfactory, there is one notorious exception which requires spe- • eial attention. Most states have seen fit to enact statutes whose devious forms clothe the common principle that the survivor * * * may not testify * *
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_trialpro
|
D
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What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court's ruling on procedure at trial favor the appellant?" This includes jury instructions and motions for directed verdicts made during trial. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
GILLETTE SAFETY RAZOR CO. v. CLIFF WEIL CIGAR CO., Inc.
No. 4526.
Circuit Court of Appeals, Fourth Circuit.
Nov. 6, 1939.
Henry R. Ashton, of New York City (Edmund M. Preston and Hunton, Williams, Anderson, Gay & Moore, all of Richmond, Va., and Fish, Richardson & Neave, New York City, on the brief), for appellant.
David S. Kane, of New York City (McGuire, Riely, Eggleston & Bocock, of Richmond, Va., Duell & Kane and Philip T. Dalsimer, all of New York City, and Murray M. McGuire, of Richmond, Va., on the brief), for appellee.
Before PARKER, SOPER, and NORTHCOTT, Circuit Judges.
SOPER, Circuit Judge.
This suit was brought by the Gillette Safety Razor Company to secure an adjudication that a one piece safety razor manufactured and sold by the Segal Safety Razor Corporation infringes claim 1 of United States Patent No. 1,543,587 issued to J. F. O’Malley on June 23, 1925, on an application filed on March 28, 1924. The defendant in the case is the Cliff Weil Cigar Company, Incorporated, a distributor of the Se-gal razor, and the Segal Company is defending the suit.
A razor of the Gillette type is provided with a two edged flexible blade, so thin as to require the external support of two members between which it is clamped adjacent to its cutting edges; that is, a curved head member with straight edges that engage the blade adjacent to its edges, and a guard member provided with protecting teeth. In addi.tion *fre }s aJhfndl® Pr°vided an inte5nally threaded end which can be screwed upon a threaded spindle m the head that projects through openings in the blade and guard. Thereby the blade is flexed and clamped between the head and the guar(j. Such a razor, consisting of blade and a holder of three separate parts, has heen on the market for many years, and the Gillette patent covering it has been sustained in litigation. Clark Blade & Razor Co. v. Gillette Safety Razor Co., 3 Cir., 194 F. 421.
In «30. after the Gillette patent had expired, the Segal Company put on the mar- ^ a razo"of the Gldette ^ three holding members above described were joined in a permanently assembled unitary structure, which did not have to be taken apart in order to insert or remove the hlade. This improvement met with considerable success, since it tended to obviate the inconvenience and injury in the use of the earlier device caused by dropping the separate parts of the razor upon the floor. The Segal Company obtained certain patents relating to this project. In October, 1934, the Gillette Company also put upon the market a razor in which the three holding members were perrhanently joined. The Segal Company brought suit for patent infringement in New York against a subsidiary of the Gillette Company which was engaged in distributing its new razor. Thereafter, on January 17, 1936, the Gillette Company acquired the O’Malley patent, and on January 24, 1936, notified the Segal Company that its razor infringed the patent. The instant suit in the Eastern District of Virginia was filed by the Gillette Company on February 4 1938. The¡suit in New. York has not yet been reached for tnal.
„ The O’Malley patent was issued on June 23, 1925, It has been described as a paper patent since the precise structure it discloses has never been manufactured and put upon the market; and the patent has found no practical application at all unless it be true, as the Gillette Company asserts in this suit, that the Segal Company has embodied the patent in its razor since 1930, and the Gillette Company itself has likewise made use , r , ■ r\ t. 1 noyi j.1. of the patent since October, 1934, more than K r ., . , . h , , a year before it acquired the right to do so.
O’Malley describes a razor of the Gillette type, having a head member and a guard member, between which the flexible blade is adjustably clamped; but unlike the earlier Gillette type the three pieces of the holder' are permanently joined together. The guard is rigidly attached to a threaded shank of the handle. The head is movably attached to the handle through depending side arms which are pivoted to a yoke supported in a groove in a nut that is free to turn and to move up and down on the threaded shank of the handle. When the nut is screwed upwardly, the head is thereby moved upwardly in a line parallel to the axis of the handle. As the head is ra.ised, its depending^ side arms move or slide through notches in the ends of the guard, and since the notches are wider than the side arms, the result is a lateral motion of the head to either side by gravity for a sufficient distance to permit the insertion and removal of the blade. When the nut is screwed downwardly, the side arms move downwardly through the slots and the head is brought into clamping engagement with the guard.
The specification of the patent states that its outstanding object resides in the construction of the blade holding means whereby the several parts are permanently connected together so as to facilitate the application and removal of the blade without dropping or loss of the members. This object is accomplished by the two mechanical movements of the head, -the first movement being in a line parallel to the axis of the handle to separate the head from the guard, and the second movement being a sidewise or lateral movement to get the head out of the way and permit the insertion or removal of the blade. These movements of the head are said to be due to its pivotal and slidable connection with the handle. Claim 1 of the patent is as follows:
A safet razor including a flexibIe double edged Wade and holding and clamp. ing means therefor comprising a handle, a guard member rigidly attached thereto and a head having pivotal and slidable connection with the handle to permit of lateral movement in addition to movement in a line parallel to the axis of the handle whereby to effect clamping and unclamping of the blade to associate and disassociate the same with the holding and clamping means.”
., r . ,,, r., The idea of a one piece razor of the Gil- , ,, . ... , . . .., ,, lette type did not originate with O Malley. ^ thif respect he wSas anticipated by the Edmonds patent No. 944,989 of 1909, and the Dunn patent No. 1,064,457 of 1913. Both 0f these patents were issued to the Gillette Company as assignee. Edmonds pointed out the inconvenience of the ordinary Gillette razor in that the holder has to be taken entirely apart to insert or remove the blade, His structure 'is so arranged that the head 0f the razor is rigidly attached to the handle, while the guard is' mounted on a swinging member which is pivoted to the handle so that it can swing out laterally away from the handle to permit the removal or insertion 0f the blade. The guard is released from clamping engagement with the head by turning a manipulating sleeve or nut which may be located at the top or the base 0£ ^ handle. By turning the nut in either djrecti0n the clamp is forced toward the head or withdrawn from it, as the case may be. To adjust the blade in position, tbe nid: mus(. be turned in the proper directjon £0 withdraw the guard a short distance f rom the head, and then the swinging member moved ou^ from the handle as far as may necessary. The blade is then placed jn p0shion, the guard is swung back, and the nut is then turned to drive the clamp against the head with sufficient pressure to hold the blade in place. The arrangement is not so convenient as in O’Malley, since it would seem the razor would have to be held head down when the guard is withdrawn, or otherwise the blade would fall out; also the swinging member must be pushed aside laterally by hand.
It is noteworthy that the O’Malley structure differs from the Edmonds’ structure in that in the former the guard is rigidly attached to the handle and the head moves toward and away from the guard, while in the latter the head remains stationary and the movement takes place in the guard. In both structures, however, there are two movements of the moving member, a movement parallel to the axis of the handle, .and second, a lateral or sidewise movement with respect thereto.
The Dunn patent also calls for a razor of the Gillette type with a one piece construetion of the means for holding and clamping the blade in place. The guard member is rigidly attached^ to the handle. The head, as in O’Malley, is provided at opposite ends with downwardly extending arms. In the arms are formed longitudinal slots which are traversed by bolts or screws connected with the ends of the^ guard. The slotted arms provide a yielding and pivotal connection between the guard and the head so that these members may be separated suiliciently to permit the insertion and removal of the blade. Thus, the guard remains stationary with respect to the handle, while the head moves to and from the guard in a line parallel with the axis of the handle. When the head is moved away from the guard, the head is also capable of a lateral or sidewise movement with reference to the handle, since the head can be swung to either side by reason of the pivotal connection of the depending side arms with the guard,
The movement of the head to and from the guard is not controlled mechanically by a nut in the handle, as in O’Malley, but a cam construction is provided for adjustably forcing the clamping members together and locking them in position. Hence there is no operative connection between the head and the handle, and the head must be lifted above the guard by hand. There is also a difference in the pivotal connection between the two patents, since in Dunn the connection is with the outer edges of the guard, while in O’Malley the connection is with a yoke supported by a nut attached to the handle below the guard. Like O’Malley, however, the guard is rigidly attached to the handle, while the head has a pivotal and slidable connection with the handle to permit of lateral movement in addition to movement in a line parallel to the axis of the handle.
Neither of these earlier patents were cited by the patent office when the 0’Mal-ley application was pending, and since they unquestionably constitute a most important part 0f (-he prjor art, the presumption of validity arising from the grant of the patent is greatiy weakened. Maibohm v. R. C. A. Victor Co., 4 Cir., 89 F.2d 317. The plaint¡ff ^a^es t!h.e position that the operative mechanism) that is> the nut on the handle by which the two clamping members are separated or brought together, is the essence of the patent; and the absence of such a mechanism in the Dunn patent and its presence in the O’Malley device is emph'asized as indicating that O’Malley’s’ conception involved the genius of an inventor, Tut even the idea of releasing the clamping engagement between head and guard by mechanical means did not originate with O’Malley. The Edmonds patent disclosed a manipulating sleeve or nut located either át the top or the base of the handle, to be used when it was desired to adjust the relat¡ve position of the head and the guard, To be sure the guard and riot the head was m0Ved by turning the nut, but the desirahihty and usefulness in this connection of a familiar mechanical means was clearly indicated.
The plaintiff’s contention as to the validity of the O’Malley patent is not supported by commercial application and success for the device disclosed has never been manufactured. The plaintiff says that the Segal and Gillette unitary razors were manufactured in accordance with the teaching of the patent, and that their widespread use demonstrates the inventive character of its disclosures. But as appears below, the cornmercial success of these razors has been due in large measure to features not found in the patent; and in any event, commercial success does not alter the rule that in considering a question of infringeriient, the scope of a patent must be determined by reference to the disclosures of the prior art. Victor Cooler Door Co. v. Jamison Cold Storage Door Co., 4 Cir., 44 F.2d 288. Applying this rule, it is our opinion that the Segal razor does not infringe the patent in suit, and hence it is not necessary to pass upon its validity.
The Segal is also a one piece razor, The guard is rigidly attached to the handle, and the head is centrally pivoted to a. rod which passes through the guard and into the handle. The movements of the rod and head are controlled by a nut at the end of the handle. The arrangement of the mechanism within the handle is such that when the nut is turned, the head is first raised above' the guard in a line parallel to the axis of the handle; and then when the nut is turned further, the interior rod turns and the head tilts about its central pivot to one side until it occupies a position par.allel to the central rod within the handle, in this position the blade, which has a large central opening, may be inserted or removed.
The plaintiff contends that claim 1 of the patent is infringed, because in both Segal and O’Malley, the'guard member is rigidly attached to the handle, and the Head has a pivotal and slidable connection with the handle, giving to the head both a lateral movement and a movement in a line' parallel to the axis of the handle and because in both structures the movement of the head is controlled by operative mechanical means, Hence it is said that the language of the claim covers the Segal device.
Differences have arisen between the experts as to the precise meaning of the descriptive phrase found in claim 1 of the patent, that is, “pivotal and slidable connection” between the head and the handle permitting the two movements of the former, For our purposes, the dispute seems unimportant, for it is evident that the patentee had reference to the sort of structure depicted in the specification and drawings, by which the two movements of the head were to be accomplished. When the language of the claim is read in the light of the specification, it is obvious that the Segal device does not have the slidable and pivotal connection of the patent, or the movements of the head there disclosed. It is true that in both, devices the first turns of the manipulating screw cause the head to be raised above the guard, but thereafter the movement and the mechanical structures which cause the movement are quite different. In O’Malley, the head is rigidly attached to the side arms so that when they swing on the pivot, the head is moved to one side or the other of the guard, and when it finally comes to rest, the side arms meet the handle at an oblique angle. But in the Segal device, the head does not move to one side or the other of the guard after the first turns of the screw are finished, but turns upon a central pivot and finally occupies a position parallel to the handle and at right angles to the guard,
These differences are sufficient, in our opinion, to avoid the charge of infringement when the patent is given the strict constructi011 required by the prior art. It must be borne in mind that the basic idea of a unitary razor was disclosed by the Edmonds patent in 1909, with the suggestion that the movement of the parts may be controlled by mechanical means; and that in Edmonds and Dunn, it was shown that the object may be obtained either by a fixed guard and a mo7f^e or by a fixed head and a movable guard, provided that there is first a movement to separate the clamping parts, and second a lateral movement to give access to tbe blade. ^ Manifestly the O Malley patent must be strictly confined to the pecubar features which distinguish it from these earller disclosures, and when this is done, the Patent does not cover the S?Sal struc- '
. . "be Segal razor is much more effective *n actual use than the O Malley razor would bave been had it ever been made, because bhe object is obtained by a relatively circumscribed movement of the head controlled by mechanical means.^ This statement is equally true of the Gillette unitary razor, In the latter device also, the guard is rigidly attached to the handle. The head is divided centrally into two parts that are pivoted to a structure attached to the end of the guard and °Pen upwardly and outwardly like a Pa^r swinging doors after the head has been lifted from the guard by manipulating the screw in the handle. While the two razors have features that are found in the Edmonds, Dunn and O’Malley patents, their commercial success is doubtless due to the rt^ore convenient features in which they differ from the structures described in these earlier patents.
The decree of the District Court, by which the bill of complaint was dismissed, is affirmed.
Question: Did the court's ruling on procedure at trial favor the appellant? This includes jury instructions and motions for directed verdicts made during trial.
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
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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.
In the Matter of Schokbeton Industries, Inc., Debtor. SCHOKBETON INDUSTRIES, INC., Debtor, and Arcrete, Inc., Appellants-Cross Appellees, v. SCHOKBETON PRODUCTS CORPORATION, Appellee-Cross Appellant.
No. 71-2629
Summary Calendar.
United States Court of Appeals, Fifth Circuit.
Aug. 16, 1972.
Edmund L. Cogburn, Houston, Tex., Melvin A. Dow, Dow, Cogburn & Friedman, Houston, Tex., for Arcrete, Inc.
Jerry E. Bain, Tyner & Bain, Tyler, Tex., for Schokbeton Industries.
Charles F. Potter, Tyler, Tex., Roby Hadden, U. S. Atty., Stanley D. Bynum, Robert R. Reid, Jr., Birmingham, Ala., for Schokbeton Products Corp.; Bradley, Arant, Rose & White, Birmingham, Ala., of counsel.
Before JOHN R. BROWN, Chief Judge, and GOLDBERG and MORGAN, Circuit Judges.
Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I.
JOHN R. BROWN, Chief Judge:
Following an arrangement proceeding under Chapter XI of the Federal Bankruptcy Act, 11 U.S.C.A. § 701 et seq., the District Court (i) dissolved an injunction entered by the referee to restrain Schokbeton Products Corp. (Products) from terminating an exclusive licensing agreement with the debtor in possession, Schokbeton Industries, Inc. (Debtor), and (ii) affirmed the referee’s confirmation of the plan of arrangement. Debtor and Arcrete, Inc., an intervenor which proposes to operate Debtor as a corporate subsidiary after acquiring all of its capital stock, appeal from the dissolution of the referee’s injunction. Products cross appeals from the order approving the plan of arrangement. We affirm.
On December 26, 1964 Products granted Debtor an exclusive franchise to manufacture and sell precast concrete construction materials in Texas and parts of Louisiana, utilizing Products’ unique dry concrete production method (“the Schokbeton process”). The licensing agreement required Debtor to make periodic royalty payments in return for the exclusive franchise and also provided that any default in the payment of such royalties for a period of sixty days following receipt of written notice from Products would justify termination of the contract.
On November 13,1970 Products mailed written notice of default for nonpayment of royalties. On December 8, 1970, before expiration of the sixty-day grace period for curing the default, Debtor filed a petition for an arrangement under Chapter XI. On January 16, 1971 Debtor was still in default and Products mailed a second written notice purporting to terminate the agreement. More than four months later, discovering that Products was attempting to grant its exclusive franchise to another licensee, Debtor sought injunctive relief from the referee on the theory that the Schokbeton process was its most valuable asset and that it would suffer irreparable financial damage if Products were permitted to disregard its license. The referee agreed and granted the injunction after concluding that the licensing agreement still subsisted as an asset of Debtor, that the filing of the arrangement petition postponed Debtor’s obligation to cure the default in royalty payments, and that. such default would be corrected “during an extended period as may be determined by this Court.”
Debtor’s Appeal: The Validity of the Injunction
We concede as indisputable the abstract assertion that the referee in a Chapter XI proceeding possesses plenary authority to protect the assets of a debt- or in possession by means of an injunction. The jurisdiction is derived from a variety of sources — sections 2(a) (15) and 372 of the Bankruptcy Act itself, the All Writs Act, and the inherent equity powers of a court of bankruptcy. Continental Illinois National Bank & Trust Co. of Chicago v. Chicago, Rock Island, & Pacific Railway Co., 1935, 294 U.S. 648, 675-676, 55 S.Ct. 595, 605-606, 79 L.Ed. 1110, 1128; 1 Collier, Bankruptcy, ¶ 2.61 (14th ed. 1970). No one disputes the general proposition that the power is there and that it may be exercised in an appropriate situation.
But generalizations seldom provide satisfactory solutions to specific problems. The facts of this case present two sharply defined and interrelated questions. First, did the concededly pervasive authority of the referee permit him to preserve Debtor’s contractual rights by indefinitely postponing the performance required by the terms of the contract (i. e. the payment of past due royalties) ? We hold that it did not. Second, did the filing of the petition for an arrangement automatically extend the sixty-day period for curing the default? We hold that it did not.
Our conclusions are predicated upon the manifest Congressional policy that proceedings under Chapter XI incorporate, except where inconsistent, the principles applicable in bankruptcy proceedings generally, 11 U.S.C.A. § 702. A debtor in possession is thus the practical equivalent of a trustee in bankruptcy, 11 U.S.C.A. § 742, and so like the trustee usually acquires only those rights and assumes only those liabilities in existence when the petition is filed, 11 U.S.C.A. § 110(a).
In the present context the most significant example of this parallelism is the statutory option afforded both trustees in 'bankruptcy 7 and debtors in posssession to reject executory contracts. Given their identicality in this respect, the result here is almost foreordained because of the universally recognized rule that a trustee cannot accept the benefits of an executory contract without accepting the burdens as well. Hurley v. Atchison, Topeka, & Sante Fe Railway Co., 1909, 213 U.S. 126, 29 S.Ct. 466, 53 L.Ed. 729; Bank of America National Trust and Savings Association v. Smith, 9 Cir., 1964, 336 F.2d 528, 529; In re Italian Cook Oil Corp., 3 Cir., 1951, 190 F.2d 994, 997; 8 Collier, Bankruptcy, ¶3.15 [6]. As a logical result, a trustee’s decision to adopt such a contract following the filing of a bankruptcy petition does not preclude the exercise of the other party’s pre-existing right to terminate the agreement. Thompson v. Texas Mexican Railway Co., 1946, 328 U.S. 134, 141, 66 S.Ct. 937, 942, 90 L.Ed. 1132, 1137; Finn v. Meighan, 1945, 325 U.S. 300, 301, 65 S.Ct. 1147, 1148, 89 L.Ed. 1624, 1626; Hewit v. Berlin Machine Works, 1904, 194 U.S. 296, 24 S.Ct. 690, 48 L. Ed. 986; Kirby v. United States, 10 Cir., 1964, 329 F.2d 735, 737; Urban Properties Corp. v. Benson, 9 Cir., 1940, 11& F.2d 321; In re Lindy-Friedman Clothing Co., 5 Cir., 1922, 285 F. 22; Empress Theatre Co. v. Horton, 8 Cir., 1920, 266 F. 657; Greif Bros. Cooperage Co. v. Mullinix, 8 Cir., 1920, 264 F. 391, 397; Lindeke v. Associates Realty Co., 8 Cir., 1906, 146 F. 630, 640; In re Little & Ives Co., S.D.N.Y., 1966, 262 F.Supp. 719; 8 Collier, Bankruptcy, ¶ 3.15 [4].
Debtor attempts to distinguish these decisions by pointing out the fact that many of them involved contracts that were by their own terms subject to termination upon the filing of a petition in bankruptcy. Since its agreement with Products explicitly provided that the mere filing of a Chapter XI petition would not terminate the contract (see note 2, supra), Debtor reasons that here contractual rights existed, were subject to the referee’s equitable jurisdiction and were therefore enforceable on Debt- or’s behalf, whereas in the other cases the debtor could not change the fact that the petition had been filed (i. e. the defect was “non-eurable”).
We find the suggested distinction unpersuasive. In the first place the principle is in all instances the same — a contractual termination provision is unaffected by the filing of a petition in -bankruptcy and may be enforced against the trustee or debtor in-possession. In the second place there is no logical basis for distinguishing between the asserted authority of the referee to modify a contract by indefinitely extending the time for curing a default under it and equivalent authority to modify or nullify any other contractual provision. If a referee could grant relief,on equitable grounds from compliance with a sixty-day grace period for paying past due royalties, he might as easily find it “inequitable” to enforce a forfeiture arising from the filing of a bankruptcy petition. In the third place, absent a concession of the referee’s power to rewrite the contract between the parties, the grounds for termination here were as irreversible as those in each of the other cases. The sixty days elapsed. The royalties remained unpaid. Debtor’s rights under the licensing agreement evaporated upon receipt of the written notice of termination, and neither the mere filing of the arrangement petition nor the referee’s order purporting to “extend” the grace period for cure of the default nor a mystical combination of both could effect their recondensation.
Debtor’s reliance on section 11(e) of the Bankruptcy Act is misplaced. Obviously that statute permits a trustee, receiver or debtor in possession to avoid a statutory (and perhaps a contractual) time limitation that would otherwise bar a claim asserted on behalf of the debtor. United States v. Paul Hardeman, Inc., M.D. Fla., 1966, 260 F.Supp. 723; Henkin v. Rockower Bros., Inc., S.D.N.Y., 1966, 259 F.Supp. 202. It provides no basis for suspending the debtor’s obligations under an executory contract while simultaneously holding the other party to the bargain.
Debtor’s reliance on In the Matter of Lane Foods, Inc., S.D.N.Y., 1963, 213 F. Supp. 133 is grossly misplaced. That decision and others like it stand for no more than the proposition that upon termination of a lease the referee may order that the debtor temporarily retain possession pending confirmation of the arrangement in order to avert the radical dislocation that would otherwise result from a forced eviction from the premises. More importantly, the Court in Lane Foods cites In re Walker, 2 Cir., 1937, 93 F.2d 281 to reaffirm the obvious fact that such an extraordinary holdover tenant has no more than equitable possession of the building. There is no contractual right to occupancy because the lease has already been terminated. Since the debtor was in possession, and since possession — rather than ownership or legal title — underlies the exercise of bankruptcy jurisdiction, the temporary continuation of possession, contingent upon payment for such occupancy, 213 F.Supp. at 137, n. 12, was appropriate.
But the facts of the present case cannot be molded to fit within the Lane Foods doctrine. We do not doubt that in some circumstances intangible property rights are subject to “possession” by the debtor and therefore fall within the equitable jurisdiction of the referee. Katchen v. Landy, 1966, 382 U.S. 323, 86 S.Ct. 467, 15 L.Ed.2d 391; 2 Collier, Bankruptcy, ¶ 23.05 [4], However, here it is plain that after January 16, 1971 Debtor had no rights in the franchise — intangible, contractual or otherwise — and hence could have “possessed” nothing when it applied to the referee four months later for protection of its “rights” under the licensing agreement. Even if the referee had acted earlier he still could not have given Debtor indefinite “temporary possession” of the franchise, with no more than a bare promise of some speculative future compensation for it. The filing of an arrangement petition under Chapter XI does not divest the debtor in pos-session of its contractual rights, but it likewise does not provide a blanket exemption from contractual obligations. Debtor’s failure to satisfy those obligations justified Products’ termination of the agreement.
Besides directly contradicting its position in the District Court (App. 172), Debtor’s theory that Products’ action was equivalent to the foreclosure of a lien subject to injunction under section 314 of the Bankruptcy Act, 11 U.S.C.A. § 714, requires only two short answers: (i) the “foreclosure” was not enjoined until after it took place, and (ii) there was no “foreclosure.”
Finally, Debtor places great faith in our previous order reinstating the referee’s injunction pending appeal (see note 1, supra). Obviously such interim relief was designed only to preserve the status quo pending final disposition of the .issues by an appeal on the merits. This is it.
We do not overlook the fact that in addition to providing a swift and economical method for facilitating simple compositions among relatively sophisticated unsecured creditors, a Chapter XI arrangement is even more vitally concerned with the ultimate rehabilitation of the debtor. Nor do we disregard the referee’s findings of fact that the loss of the exclusive franchise will seriously jeopardize Debtor’s competitive position and cause it irreparable injury. We conclude that this is simply not a case for the invocation of high equity. Products’ contractual right to terminate the contract clearly survived both the filing of the arrangement petition ánd the referee’s belated attempt to resurrect an already moribund agreement. In such circumstances Debtor must live with its forfeiture.
Products’ Cross Appeal: Confirmation of the Arrangement
Debtor strenuously argues that Products’ cross appeal from the District Court’s affirmance of the refereee’s confirmation of the arrangement is merely a sham designed to delay implementation of the plan and to provide Products with a competitive advantage. In fact, Debt- or is so firmly convinced of the frivolity of the appeal that it seeks the extraordinary relief of money damages and double costs provided by F.R.A.P. 38. For several reasons we reject this approach.
In the first place Products’ cross appeal is not altogether meritless. Debtor limits its attack almost exclusively to Products’ argument challenging the voting procedure by which the creditors approved the plan of arrangement, correctly pointing out that Products apparently conceded the legitimacy of this procedure in a letter to the District Court. But Products also contends that confirmation of the plan was intimately related to the continuing vitality of the licensing agreement, inasmuch as the arrangement contemplated extending Debt- or’s franchise for an indefinite period of time. Since the District Court’s second order merely affirmed the referee’s confirmation without specifically referring to the earlier dissolution of the injunetion, Products had ample reason for initiating a protective cross appeal, particularly after Debtor sought review and reinstatement of the referee’s injunctive order, which was granted (note 1, supra).
In the second place the disposition of these proceedings by means of two separate orders in the District Court may very well have left Products genuinely uncertain with respect to its legal obligation and liability under the licensing agreement. Any lingering doubts on that score may now be resolved because both orders have been appealed. Proceeding on the premise that the District Court’s judgment is to be interpreted in light of its opinions, findings, and conclusions of law, we hold that the most reasonable interpretation is also the correct one: the Court approved confirmation of the arrangement in all respects except as it provided for a perpetuation of the exclusive licensing agreement, which the Court held had been lawfully terminated by Products. That decision nullified anything to the contrary in the referee’s order.
The injunction granted by this Court’s order of September 27, 1971 is dissolved. The judgment of the District Court is affirmed in its entirety.
Affirmed.
. This Court reinstated the injunction pending appeal. In the Matter of Schokbeton Industries, 5 Cir., 1971, 449 F.2d 321.
. “17. Right to Terminate hy Licensor. If Licensee shall default in any of the terms, conditions and covenants undertaken by it under this Agreement and said default shall continue for a period of sixty (60) days after receipt of written notice of such default or if Licensee shall make a general assignment for the benefit of creditors or shall become or be adjudicated a bankrupt, or shall voluntarily file a petition in bankruptcy, or file an answer admitting the material allegations of a petition filed against it for an adjudication in bankruptcy, or shall, by reason of its insolvency, apply for or suffer the appointment of a receiver of its property and assets and such receiver so appointed shall not be discharged within sixty (60) days after his appointment, then in any such event Licensor shall have the right to terminate this Agreement by written notice to Licensee. This Agreement shall terminate upon the receipt of such notice, except with respect to all accrued and unpaid royalties. ‘Bankruptcy’ as used herein, shall not include proceedings under Chapters X or XI of the Banlcruptcy Act.
“Failure to terminate this Agreement for any breach shall not be construed a waiver of the right to terminate for any continuation of such breach or for any subsequent breach of the same or dissimilar character.” ■ (Emphasis added.)
. The exact amount of unpaid royalties is contested. While Products claims it is approximately $98,000, Debtor asserts this is only an estimate. For present purposes we need only point out that the fact of default in some amount is undisputed.
. Courts of bankruptcy are authorized to “make such orders, issue such process and enter such judgments, in addition to those specifically provided for, as may be necessary for the enforcement of the provisions of this title * * 11 U.S.C.A. § 11(a) (15).
See also section 311, 11 U.S.C.A. § 711, providing for exclusive jurisdiction of the debtor and his property.
. “Upon the consummation of a proceeding-under this chapter after confirmation of an arrangement, the court shall enter a final decree discharging the receiver or trustee, if any; closing the estate; and making such provisions, by way of injunction or otherwise, as may be equitable.” 11 U.S.C.A. § 772.
. “The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” 28 U.S.C.A. § 1651(a).
. “The trustee succeeds only to such rights as the bankrupt possessed; and the trustee is subject to all claims and defenses which might have been asserted against the bankrupt but for the filing of the petition.” Bank of Marin v. England, 1966, 385 U.S. 99, 101, 87 S.Ct. 274, 276, 17 L.Ed.2d 197, 200 (emphasis added) ; Zartman v. First National Bank, 1910, 216 U.S. 134, 30 S.Ct. 368, 54 L.Ed. 418; Knapp v. Milwaukee Trust Co., 1910, 216 U.S. 545, 30 S.Ct. 412, 54 L.Ed. 610.
Of course, this principle must be qualified to the extent that the trustee is invested with extraordinary powers by a specific provision of the Bankruptcy Act itself — for example, section 70(c), the so-called “strong-arm clause,” 11 U.S.C.A. § 110(c) ; 4A Collier, Bankruptcy, HIT 70.04, 70.47. But nothing in the Act specifically empowers either a trustee (debtor in possession) or a referee to extend unilaterally a contractual time limitation dictating a forfeiture if the debtor fails to perform.
. “Withing sixty days after the adjudication, the trustee shall assume or reject any executory contract, including unexpired leases of real property: Provided, however, That the court may for cause shown extend or reduce such period of time. Any such contract or lease not assumed or rejected within such time, whether or not a trustee has been appointed or has qualified, shall be deemed to be rejected * * *.” 11 U.S.C.A. § 110(b).
. “Upon the filing of a petition, the court may, in addition to the jurisdiction, powers, and duties conferred and imposed upon it by this chapter—
(1) permit the rejection of executory contracts of the debtor, upon notice to the parties to such contracts and to such other parties in interest as the court may designate * * 11 U.S.C.A. § 713.
See also 11 U.S.C.A. § 757 (Chapter XI arrangement may include provision for rejection of executory contracts).
. Obviously this principle encompasses licensing agreements. In re Spitzel & Co., E.D.N.Y., 1909, 168 F. 156; 4A Collier, Bankruptcy, 11 70.22 [4].
. But not all of them. See, e. g., Lindeke v. Associates Realty Co., supra,, involving a sequence of events similar to that in the present case.
. The second sentence reads as follows :
“Where, by any agreement, a period of limitation is fixed for instituting a suit or proceeding upon any claim, or for presenting or filing any claims, proof of claim, proof of loss, demand, notice, or the like, * * * period of limitation is fixed, either in such proceeding or by applicable Federal or State law, for taking any action, filing any claim or pleading, or doing any act, and where in any such case such period had not expired at the date of the filing of the petition in bankruptcy, the receiver or trustee of the bankrupt may, for the benefit of the estate, take any such action or do any such act, required of or permitted to the bankrupt, within a period of sixty days subsequent to the date of adjudication or within such further period as may be permitted by the agreement, or in the proceeding or by applicable Federal or State law, as the case may be.” 11 Ü.S.C.A. § 29.
. 1 Collier, Bankruptcy, ¶ 11.18, n. 17.
. We have carefully considered Debtor’s argument on this point in the District Court (App. 167-170) and found it altogether specious.
. See, e. g., In the Matter of Program Aids Co., E.D.N.Y., 1969, 310 F.Supp. 198.
. Thompson v. Magnolia Petroleum Co., 1940, 309 U.S. 478, 481, 60 S.Ct. 628, 630, 84 L.Ed. 876, 880.
. Securities and Exchange Commission v. American Trailer Rentals Co., 1965, 379 U.S. 594, 606-607, 85 S.Ct. 513, 520-521, 13 L.Ed.2d 510, 518.
. Nicholas v. United States, 1966, 384 U.S. 678, 687, 86 S.Ct. 1674, 1681, 16 L.Ed.2d 853, 861.
. For some reason unknown to us Products has apparently acquiesced in Debt- or’s continued use of the Schokbeton process under its arrangement with Arcrete and seeks only the right to franchise a competitive licensee and Debtor’s discontinuance of the use of the trade name. Arcrete appears willing to participate on that basis.
. “If a court of appeal shall determine ' that an appeal is frivolous, it may award just damages and single or double costs to the appellee.” See Commercial Wholesalers, Inc. v. Investors Commercial Corp., 9 Cir., 1949, 172 F.2d 800; McCray v. Sapulpa Petroleum Co., 8 Cir., 1929, 31 F.2d 437.
. We do not consider Products’ theory that the method of securing voting acceptances was defective, not because it is frivolous or because Products misrepresented its position before the District Court, but because it obviously has no standing to raise the point. Products’ argument is that one member of a separate .class of unsecured creditors may eventually recover a larger pro rata share of its claim than creditors generally. Even so, Products is not aggrieved, since it is not a member of that class. Cf. In re Michigan Ohio Building Corp., 7 Cir., 1941, 117 F.2d 191; Milgram. v. Loew’s, Inc., 3 Cir., 1951, 192 F.2d 579, 586.
. Great Lakes Dredge & Dock Co. v. Huffman, 1943, 319 U.S. 293, 295, 63 S.Ct. 1070, 1071, 87 L.Ed. 1407, 1409.
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:
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songer_appel1_2_3
|
I
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "private organization or association", specifically "business, trade, professional, or union (BTPU)". Your task is to determine what subcategory of private association best describes this litigant.
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES (AFL-CIO), LOCAL 1904, AFGE (AFL-CIO), LOCAL 1498, AFGE (AFL-CIO), et al., Appellants, v. Stanley R. RESOR, Secretary of the Army, et al.
No. 18952.
United States Court of Appeals, Third Circuit.
Argued March 5, 1971.
Decided May 24, 1971.
Joseph Meehan, Long Branch, N. J., for appellants.
James C. Hair, Jr., Dept. of Justice, Washington, D. C., for appellees.
Before HASTIE, Chief Judge, and ADAMS and GIBBONS, Circuit Judges.
OPINION OF THE COURT
ADAMS, Circuit Judge.
This case concerns the application of the doctrine of exhaustion of administrative remedies to a suit challenging demotions and discharges by a governmental agency.
The plaintiffs are civilians employed by the United States Army Electronics Command (ECOM) at Fort Monmouth, New Jersey and Philadelphia, Pennsylvania and their union, the American Federation of Government Employees (AFL-CIO). Early in March, 1970, ECOM decided to reduce the number of its employees at Fort Monmouth and Philadelphia. Pursuant to such decision, ECOM notified approximately 4,000 employees that in May, 1970 the number of civilians employed by ECOM would be substantially reduced. In May, 1970, the individual plaintiffs and the union filed a complaint in the District Court for the District of New Jersey seeking preliminary and mandatory injunctions to prevent the discharges and demotions contemplated by ECOM. The plaintiffs charged that various statutes, civil service regulations, army regulations, and executive orders would be violated by the proposed reduction in the number of government employees working for ECOM, and by the substitution for them of military personnel and independent contractors.
The primary responsibility for formulating and enforcing standards relating to the release and demotion of government employees lies with the Civil Service Commission. 5 U.S.C.A. § 3502(a); (b). Pursuant to the authority granted by Congress, the Civil Service Commission requires that an employee before being released or demoted must be notified of such action “at least thirty full days, but not more than ninety full days before the effective date” of his separation or change in status. 5 C.F.R. § 351.801-807. After receiving notice of the proposed action, the employee may appeal to. the Civil Service Commission. 5 C.F.R. § 351.901. If the affected employee is dissatisfied with the initial Commission action, he may appeal to the Board of Appeals and Review, 5 C.F.R. § 772.307. Finally, an employee may petition the Civil Service Commissioners to reopen and reconsider the decision of the Board of Appeals and Review. 5 C.F.R. § 772.308.
Pursuant to the congressional direction of 5 U.S.C.A. § 3502(a), the Civil Service Commission has provided regulations controlling the procedures by which the government may reduce its civilian work force. These regulations provide criteria for assigning relative retention standing to individual employees and for the establishment of competitive areas within which the assigned retention standing operate to regulate the order for dismissing employees. 5 C.F.R. Part 351.
The District Court did not err in declining to decide the substantive allegations made by the plaintiffs because, although administrative remedies have been pursued by all the individual plaintiffs, the administrative procedures have not been exhausted. The general rule regarding the requirement of exhaustion of remedies is clear — when Congress has provided an administrative procedure which is capable of resolving a controversy such procedure must be utilized. It is only after the final administrative decision that the aggrieved parties may invoke the jurisdiction of the courts, e. g. Aircraft & Diesel Corp. v. Hirsch, 331 U.S. 752, 67 S.Ct. 1493, 91 L.Ed. 1796 (1947); Hills v. Eisenhart, 256 F.2d 609 (9th Cir. 1958); Burns v. McCrary, 229 F.2d 286 (2nd Cir. 1956). For the courts to act prematurely, prior to the final decision of the appropriate administrative agency, would raise a serious question regarding the doctrine of the separation of powers, and in any event would violate a congressional decision that the present controversy be initially considered by the Civil Service Commission.
As explained by the Supreme Court in Aircraft & Diesel Corp.,
“The very purpose of providing either an exclusive or an initial and preliminary administrative determination is to secure the administrative judgment either, in the one case, in substitution for judicial decision or, in the other, as foundation for or perchance to make unnecessary later judicial proceedings. Where Congress has clearly commanded that administrative judgment be taken initially or exclusively, the courts have no lawful function to anticipate the administrative decision with their own, * * *” 331 U.S. at 767, 67 S.Ct. at 1500.
To be sure, as with most general rules of decision, there are exceptions. Thus, if the prescribed administrative procedure is clearly shown to be inadequate to prevent irreparable injury, or when there is a clear and unambiguous statutory violation, then a court need not defer decision until the conclusion of the administrative inquiry. Aircraft & Diesel Corp., supra, at 773, 67 S.Ct. 1493; Fitzpatrick v. Snyder, 220 F.2d 522, 525 (1st Cir. 1955), cert. denied 349 U.S. 946, 75 S.Ct. 875, 99 L.Ed. 1272; Wettre v. Hague, 168 F.2d 825 (1st Cir. 1952). Shargel v. Hollis, 120 F.Supp. 814 (S.D.N.Y.1954); Reeber v. Rossell, 91 F.Supp. 108 (S.D.N.Y.1950).
The plaintiffs contend that their complaint presents allegations sufficient to justify the application of this exception to the exhaustion of remedies doctrine. However, the exception is an extraordinarily narrow one, and whether the plaintiffs may successfully invoke it is within the discretion of the district court. Wettre v. Hague, supra,, 168 F.2d at 826. Before the district court’s discretion may be exercised, it must be shown that the alleged violation “is patently at variance” with one of the plaintiffs’ rights. Fitzpatrick v. Snyder, supra, 220 F.2d at 526. As stated by the District Court plaintiffs’ allegations have not set forth the existence of irreparable harm nor have they asserted unambiguous statutory or constitutional violation which would justify a departure from the congressional mandate requiring civil service disputes to be presented initially to the Civil Service Commission.
Plaintiffs place heavy reliance upon Lodge 1858 v. Paine, 436 F.2d 882 (D.C. Cir. 1970) (per Judge Robinson, Judge Tamm concurring in result) as authority for their contention that administrative remedies need not be exhausted in this case. In Lodge 1858, however, Judge Robinson made it clear that the exhaustion of remedies doctrine was not at issue, because prior to the court’s de-cisión administrative remedies had been completely exhausted. 436 F.2d at 897. Thus Lodge 1858 is not support for plaintiffs’ position regarding exhaustion of administrative remedies.
The plaintiffs also alleged in their complaint that they have a right to inspect and copy certain employees files, denominated “retention lists.” Since the Civil Service Commission apparently is not empowered to provide the relief sought by the plaintiffs in this regard, the exhaustion of remedies doctrine is inapplicable to such portion of the complaint.
Accordingly, we affirm the District Court’s decision to defer hearing the portion of the complaint which raises issues cognizable by the Civil Service Commission, and remand for a hearing on the merits of the portion of the complaint regarding the inspection and copying of records.
. Judge Robinson stated:
“Resort to tlie courts must ordinarily be postponed until administrative remedies available for rectification of tile errors complained of have been exhausted. And the court, as a general rule, must stay its band in reduction in force controversies until administrative resolution of the matters in issue in a proceeding efficacious to that end.” 436 F.2d 882, at 896.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private organization or association", specifically "business, trade, professional, or union (BTPU)". What subcategory of private association best describes this litigant?
A. Business or trade association
B. utilities co-ops
C. Professional association - other than law or medicine
D. Legal professional association
E. Medical professional association
F. AFL-CIO union (private)
G. Other private union
H. Private Union - unable to determine whether in AFL-CIO
I. Public employee union- in AFL-CIO (include groups called professional organizations if their role includes bargaining over wages and work conditions)
J. Public Employee Union - not in AFL-CIO
K. Public Employee Union - unable to determine if in AFL-CIO
L. Union pension fund; other union funds (e.g., vacation funds)
M. Other
N. Unclear
Answer:
|
songer_procedur
|
C
|
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant.
Mary Katherine WALDEN, etc., Plaintiff-Appellee, v. UNITED STATES STEEL CORPORATION, a corporation, et al., Defendants, United States Steel Corporation, a corporation, Defendant-Appellant.
No. 83-7472.
United States Court of Appeals, Eleventh Circuit.
May 6, 1985.
William C. Knight, Birmingham, William F. Murray, Jr., J. Ross Forman, Birmingham, Ala., for defendant-appellant.
Cabaniss, Johnston, Gardner, Dumas & O’Neal, Tony G. Miller, Birmingham, Ala., for amicus Ala., et al.
G. Stephen Parker, Atlanta, Ga., for amicus, Southeastern Legal Foundation, Inc.
John T. Roach, Jr., Birmingham, Ala., for plaintiff-appellee.
Thomas J. Whyte, Thomas A. Smock, David J. Laurent, Pittsburgh, Pa., for American Mining-amicus.
Before VANCE and ANDERSON, Circuit Judges, and PITTMAN , District Judge.
. Honorable R. Lanier Anderson had disqualified himself in this case. The decision is entered by a quorum of the court.
Honorable Virgil Pittman, U.S. District Judge for the Southern District of Alabama, sitting by designation.
PER CURIAM:
United States Steel Corporation (U.S. Steel) appeals from an adverse jury verdict in a suit by Mary Katherine Walden for the wrongful death of her husband Harold. At the time of his death, Harold Walden was employed by Cowin & Co. (Cowin), an independent contractor hired by U.S. Steel to do construction and excavation work at U.S. Steel’s Oak Grove coal mine. The district court submitted the case to the jury on three separate negligence theories and they returned a general verdict in Mrs. Walden’s favor. U.S. Steel filed a motion for judgment n.o.v. asserting that it was entitled to a directed verdict on each of the negligence theories. The district court denied the motion. 567 F.Supp. 1443. We affirm the district court’s denial of the motion as to two of the theories and certify the third to the Supreme Court of Alabama for clarification of the duty owed by U.S. Steel to employees of this independent contractor.
Harold Walden was killed in 1974 in an accident during the construction of U.S. Steel’s Oak Grove coal mine. Walden was employed by Cowin, which had been hired by U.S. Steel to sink a fan shaft and an elevator-ventilation shaft for the mine. U.S. Steel provided plans and specifications for the shafts to Cowin and the other contractors that bid on the job. The “bid package” given the contractors bidding on the elevator-ventilation shaft included a geologic survey and a construction drawing showing the desired dimensions and shape of the finished shaft, but no other construction specifications. Cowin’s contract with U.S. Steel specifically delegated all responsibility for safety at the construction site to Cowin. Cowin prepared the construction plans, including the method for sinking the shaft, which were submitted by U.S. Steel to the Mining Enforcement and Safety Administration (MESA) for approval. The plans identified both U.S. Steel Safety Director Walter Fleming and Cowin Safety Director Richard Gallentine as the principal officers in charge of health and safety.
Cowin sank the shaft by drilling holes into the ground and inserting and discharging dynamite charges to fragment the rock. The resulting debris, called “muck,” was loaded into a bucket attached to a hoist for removal at the top of the shaft. Cowin used the two-bucket hoist method. Workmen loaded one bucket on the floor of the shaft while another bucket was being hoisted to the top. Once the elevator shaft reached the coal seam (approximately 1100 feet down) Cowin began constructing horizontal headings (tunnels). As required, Cowin submitted a new plan to MESA detailing the method for removing coal and muck from the headings. Although the plan stated that a conveyor feeder would be used to load the buckets at the bottom of the shaft, Cowin chose to load the buckets with an EIMCO 630 loader instead. Because Cowin’s EIMCO 630 loader was too tall to permit loading in the horizontal headings, workers were forced to remain in the shaft underneath the bucket being hoisted while loading the other bucket. The hoist did not have an automatic brake or any other safety mechanisms and Cowin did not install a safety trap door or any other safety device in the shaft.
John Allen, U.S. Steel’s Project Engineer, was at the site continuously from March 1973, monitoring the contractors’ progress and their compliance with the plans. When Cowin began constructing the headings, he was involved in day-to-day planning to determine the best method for extracting the coal and connecting the shafts. He was in the shaft almost daily to check the work. Allen had an intimate knowledge of the federal and state regulations for mining and mine construction. He was aware of the safety requirements for the hoist being used by Cowin and he had checked all the equipment on the site at one time or another. He made suggestions to contractors from time to time for improving the operation and safety at the site. At one point he asked Cowin to tighten the ventilation curtain in the bottom of the mine shaft to prevent the build-up of noxious gases, and Cowin did so. Cowin always promptly complied with Allen’s suggestions.
On May 23, 1973, Herbert Wilson was killed at the Oak Grove site when the brakes on a hoisting mechanism failed and a three-ton bucket of muck fell back down the fan shaft on top of him. Walter Fleming of U.S. Steel reported the accident to MESA. MESA investigated the accident and in the requirements section of its report directed that “[wjorkmen shall not work directly beneath a bucket being hoisted or lowered.” No changes were made in the plans or construction method after Wilson’s death. Allen knew of the citations issued by MESA after the accident and was aware that Cowin nevertheless continued its excavation efforts without complying with the plan that had been submitted to and approved by MESA.
On April 8, 1974, less than a year after Wilson’s death, Harold Walden was killed at the bottom of the elevator-ventilation shaft. The bucket of coal being hoisted came up too high out of the shaft and hit the hoist frame at high speed. The steel hoist cable broke and the bucket fell back down the shaft, crushing Walden.
Walden’s wife brought a wrongful death action against U.S. Steel based on several theories of liability. The district court submitted the case to the jury on the following three negligence theories: (1) that U.S. Steel was allegedly negligent in its design, plans, and specifications for the Oak Grove mine; (2) that U.S. Steel was allegedly negligent in its inspection of the equipment used where Walden was killed, after voluntarily undertaking safety inspections; and (3) that U.S. Steel was allegedly negligent in failing to warn of dangers at the site and in providing a safe work place for Walden as the employee of an independent contractor on U.S. Steel’s property who was engaged in intrinsically dangerous activity.
The jury returned a general verdict in favor of the plaintiff. U.S. Steel appeals, assigning error to the trial court’s refusal to grant a directed verdict or judgment n.o.v. on each claim. We will address each-theory in turn.
In reviewing the denial of a motion for judgment n.o.v., this court is obligated to consider all the evidence, not just the evidence supporting the non-moving party’s case, in the light most favorable to the non-moving party. The question should be left to the jury’s judgment if there is substantial evidence that would allow reasonable people to reach different conclusions. See Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir.1969) (en banc). Under this standard, the verdict on the negligent plans and negligent voluntary inspections theories must be affirmed. It was not unreasonable for the jury to conclude that U.S. Steel’s submission of the original plans and specifications, coupled with its day-to-day participation in planning the extraction of coal from the headings, constituted sufficient involvement to give rise to a duty. It was also well within the jury’s province to decide that the failure to provide for any safety devices on the hoist or in the shaft constituted negligence.
Under Alabama law, once a person voluntarily undertakes safety inspections, he must act as a reasonably prudent person regardless of whether he originally intended to assure the safety of anyone other than himself. See Beasley v. MacDonald Engineering Co., 287 Ala. 189, 192-94, 249 So.2d 844, 846-48 (1971). The jury would be justified in concluding that U.S. Steel’s employees at Oak Grove voluntarily undertook inspections. Project Engineer Allen was always at the site and in the shaft nearly every day. He had made suggestions for improvements to Cowin and he had ample opportunity to observe the hoisting operation and equipment. Although U.S. Steel presented contrary evidence on both issues, this court cannot substitute its judgment for the jury’s decision unless it is clear that no reasonable people could have come to such a verdict. In this case substantial evidence supports the jury’s conclusions, and they should not be disturbed.
The third theory, based on U.S. Steel’s duty as owner/operator of a mine to employees of its independent contractor, is less readily resolved. The trial court charged the jury that the general rule in Alabama is that a landowner owes no duty to the employees of an independent contractor. The court further explained that an exception to the rule existed “where the work is of such kind or class that the doing of it, however carefully or skillfully performed, is necessarily and intrinsically dangerous.” Beck v. Olin, 437 So.2d 1236 (Ala.1983), seems to indicate, however, that even if there is an exception to the rule for intrinsically or inherently dangerous activities, the landowner can delegate that duty by contract to the independent contractor.
Several factors combine in this case to complicate the interpretation of Alabama law. U.S. Steel employees were at the site constantly and were continuously involved in planning during the final stages of construction. Cowin was mining coal for U.S. Steel during the construction of the headings. Both federal and state law place a burden on mine owners and operators to comply with specific safety standards. The minimum safety precautions for hoisting operations were not used in the shaft at Oak Grove. The jury was also allowed to consider whether or not the mine shaft excavation was a “necessarily and inherently dangerous” activity. U.S. Steel argues that, as a matter of Alabama law, neither mining nor mine construction is an intrinsically or inherently dangerous activity. We have found no cases which deal with this type of excavation.
We find that the issue of U.S. Steel’s duty is controlled by Alabama law and that there are no clear precedents governing the circumstances of this case. Because the jury returned a general verdict, this court must affirm that all three theories were properly submitted to the jury to sustain the court below. Failure of any one mandates a new trial in the district court. See King v. Ford Motor Co., 597 F.2d 436, 439 (5th Cir.1979). This question thus controls the outcome of this appeal. Because there are no clear controlling precedents in the decisions of the Alabama Supreme Court, we certify this question to the Alabama Supreme Court under Rule 18 of the Alabama Rules of Appellate Procedure.
AFFIRMED IN PART. REMAINING QUESTION CERTIFIED TO THE ALABAMA SUPREME COURT.
CERTIFICATE FROM THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT TO THE SUPREME COURT OF ALABAMA, PURSUANT TO RULE 18, ALABAMA RULES OF APPELLATE PROCEDURE.
(1) Style of the Case
The style of the case in which this certificate is made is Mary Katherine Walden, etc. Plaintiff-Appellee, versus United States Steel Corporation, a corporation, et al., Defendants, United States Steel Corporation, a corporation, Defendant-Appellant, Case No. 83-7472, United States Court of Appeals for the Eleventh Circuit, on appeal from the United States District Court for the Northern District of Alabama.
(2) Statement of Facts
The pertinent facts are discussed above in the opinion.
(3) Questions to be Certified
A. Assuming that mine construction is an intrinsically or inherently dangerous activity, does the owner/operator of a coal mine owe a duty to employees of an independent contractor hired to excavate the mine shafts to warn of dangers on the premises and provide a safe work place?
B. Is a jury finding that this mining and mine excavation were intrinsically or inherently dangerous precluded by Alabama law?
The particular phrasing used in the certified questions is not to restrict the Supreme Court’s consideration of the issues in its analysis of the record certified in this case. This latitude extends to the Supreme Court’s restatement of the issue or issues and the manner in which the answers are given. See Martinez v. Rodriquez, 394 F.2d 156, 159 n. 6 (5th Cir.1968).
The clerk of this court is directed to transmit this certificate, as well as the briefs and record filed with the court, to the Supreme Court of Alabama, and simultaneously to transmit copies of the certificate to the attorneys for the parties.
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_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.
NORTON v. UNITED STATES.
No. 8567.
Circuit Court of Appeals, Ninth Circuit.
Oct 28, 1937.
Morris Lavine, of Los Angeles, Cal., for appellant.
Ben Harrison, U. S. Atty., and Jack L. Powell and Carl Eardley, Asst. U. S. Attys., all of Los Angeles, Cal.
Before DENMAN, STEPHENS, and HEALY, Circuit Judges.
HEALY, Circuit Judge.
The appellant was convicted of the crime of using the mails to defraud. Criminal Code § 215 (18 U.S.C.A. § 338).
The appeal presents the question of the sufficiency of the indictment to state an offense under the statute. The sufficiency of the evidence is also challenged, but the latter point need not be determined.
For a proper understanding of the problem presented to this court it is essential to review the allegations of the indictment.
It is charged .that the appellant, Violet Wells Norton (and certain other parties who were later dismissed), devised “a scheme and artifice to defraud Clark Gable” and to obtain money from him “by means of false and fraudulent pretenses, representations, statements, and promises.” The nature of the scheme and artifice is detailed in substance as follows;
That the appellant would represent and claim that she had illicit relations with Gable in the month of September, 1922, in England, and that as a result of such relations a child, Gwendoline, of which Gable was the father, was born to her in June, 1923; and that appellant would thus fraudulently obtain money from Gable for the support and education of Gwendoline, without any right thereto on her part, or any obligation on the part of Gable.
It is charged that all these representations and pretenses were made; that all of them were false, in that appellant had not had sexual relations with Gable in September, 1922, or at any other time, in England, or in any other place; that in truth Gable was not in England in 1922 or 1923 and did not then, or at any other time, know or meet appellant; that Gable is not the father of the child Gwendoline and is not liable for her support; and that neither she nor appellant has any valid claim against Gable. Further, that appellant knew at all times that these representations and pretenses were false, and that they were made knowingly with the felonious intent to cheat, wrong, and defraud Gable of his money.
The indictment then sets out a letter alleged to have been written by appellant and caused by her to be delivered to Gable through the United States mail for the purpose of executing the scheme and artifice. This letter salutes Gable as “Frank.” It is couched in terms of endearment. In substance, it assumes the existence at some time in the past of an intimate relationship between the writer and Gable, the latter being addressed throughout as “Frank.” It solicits a resumption of the relationship, and Gable is urged to come forward with the means of placing their child, Gwendoline, in school.
On its face the indictment appears to present a scheme to defraud Gable by falsely representing to him that he is the father of appellant’s child, conceived and born in England. Since the intended victim had not been in England, he could not have been tricked by this falsehood. It is not, however, a necessary ingredient of the offense punishable by the statute that the one toward whom false representations are directed shall actually be misled by them. The circumstances may be such as to render him immune to deception. Hill v. U. S. (C.C.A.5, 1934) 73 F.(2d) 223.
But intent to defraud is an essential element of the offense. The person devising the fraudulent scheme must intend in some manner to delude the person upon whom the scheme is to be practiced. There can be no intent to deceive where it is known to the party making the representations that no deception can result.
Here, every circumstance upon which appellant might have based a hope of perpetrating a deception is negatived in the indictment. It is averred that the accused and Gable had not met or known each other. It is necessary to conclude from the language of the averments that each was aware of that fact and each knew the other to be aware of it. Humanly speaking, it is not possible to impute to the accused woman the purpose of inducing Gable to part with his money on the strength of her story, since she knew he could not be taken in by it. In determining the sufficiency of the indictment the court will not consider possibilities beyond the range of rational experience.
Nor do we understand counsel for the government so to interpret the scheme charged. Their position is that appellant’s assertions that she had had intercourse with Gable and that as a result a daughter was born to them, coupled with the demand for the support of the daughter and the threat to expose this situation to the world if her demands were not met, are false statements and false pretenses within the meaning of the act.
While no threat to make public the details of the pretended relationship is charged in the indictment or is contained in the letter incorporated in it, such threat may perhaps be implicit in the very nature of the artifice. But a scheme of that sort is not one to trick or deceive. It is a scheme to coerce or extort, and is a species of blackmail. See act of July 8, 1932, 47 Stat. 649, as amended by act June 28, 1935, 49 Stat. 427, 18 U.S.C.A. § 338a. The means employed are not trickery or deceit, but the putting in fear. Is such a scheme within the purview of the statute punishing the use of the mails to defraud?
The pertinent words of the statute (Cr. Code § 215, 18 U.S.C.A. § 338) are as follows: “Whoever, having devised * * * any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises * * * shall, for the purpose of executing such scheme * * * place, or cause to be placed, any letter * * * in any postoffice * * * to be sent or delivered” shall be punished as provided therein.
In Horman v. U. S. (1902) 116 F. 350, 352, the Court of Appeals of the Sixth Circuit affirmed a conviction under section 5480, Revised Statutes (now, as amended, section 215 of the Criminal Code, 18 U.S.C.A. § 338). There the averments in one count of the indictment were that the accused claimed to have within his knowledge information of a specific crime committed by a named person, of which exposure was threatened by the accused, and of which crime such person was innocent, as accused well knew, and that accused made the charge in an attempt to work out his allegedly fraudulent scheme to obtain a sum of money. A letter was set out containing threats of exposure unless the money was paid. In construing the term “to defraud” as used in the statute, the court held that the phrase is not descriptive of the character of the artifice, but rather of the wrongful purpose involved in devising it. It is stated that, “If the scheme or artifice in its necessary consequence is one which is calculated to injure another, to deprive him of his property wrongfully, then it is to defraud within the meaning of the statute.”
In Hammerschmidt v. U. S. (1924) 265 U.S. 182, 44 S.Ct. 511, 68 L.Ed. 968, it was said that the decision in the Horman Case went to the verge, and it was remarked that since that opinion had been handed down section 5480 had been subjected to a clarifying amendment (the act of March 4, 1909, 18 U.S.C.A. § 338).
In Naponiello v. U. S. (1923) 291 F. 1008, 1010, the Court of Appeals of the Seventh Circuit held that use of the mails to send black-hand letters whereby defendants undertook to extort money by means of threats of bodily harm is not a use of the mails to promote a scheme to defraud within section 215 of the Criminal Code, 18 U.S.C.A. § 338. The court said: “We agree that obtaining money through the intimidating influence of threats is a more heinous crime than obtaining money through deception. But threats which the victim believes will be carried into execution unless he acquiesces in the demands are not deceits.”
In Lupipparu v. U. S. (C.C.A.9, 1925) 5 F.(2d) 504, and in Fasulo v. U. S. (C.C.A.9, 1925) 7 F.(2d) 961, this court, following the opinion in the Horman Case, upheld convictions under section 215, based on schemes to obtain money by writing letters pretending that the writers would murder the addressee unless he deposited at a designated time and place a sum of money. In the Lupipparu Case Judge Rudkin called attention to the contrary conclusion which had been reached in the Naponiello Case, but relied in part on the fact that certiorari had been denied by the Supreme Court in Horman v. U. S., 187 U.S. 641, 23 S.Ct. 841, 47 L.Ed. 345.
In the later of the two cases decided by this court certiorari was granted and the judgment of conviction was reversed. Fasu-lo v. U. S., 272 U.S. 620, 47 S.Ct. 200, 202, 71 L.Ed. 443. After a review of the authorities the Supreme Court there said:
“If threats to kill or injure unless money is forthcoming do not constitute a scheme to defraud within the statute, there is none in this case. The only means employed by petitioner and his co-conspirators to obtain the money demanded was the coercion of fear. A comprehensive definition of ‘scheme * * * to defraud’ need not be undertaken. The phrase is a broad one and extends to a great variety of transactions. But broad as are the words ‘to defraud,’ they do not include threat and coercion through fear or force. The rule laid down in the Horman Case includes every scheme that in its necessary consequences is calculated to injure another or to deprive him of his property wrongfully. That statement goes beyond the meaning that justly may be attributed to the language used. The purpose of the conspirators was to compel action in accordance with their demand.* The attempt was by intimidation and not by anything in the nature of deceit or fraud as known to the law or 'as generally understood. The words of the act suggest no intention to include the obtaining of money by threats. There are no constructive offenses; and, before one can be punished, it must be shown that his case is plainly within the statute.”
The alleged scheme to obtain money from Gable by means of the arguable threat to publish the details of a liaison which he was falsely represented to have had with appellant is not distinguishable, on principle, from those dealt with in the Horman and Fasulo Cases. The nature of the fear sought to be induced in the mind of the intended victim would seem to be immaterial. Whether it be fear of bodily harm invoked by threats of violence, or fear of injury to reputation or good name by threat to publish a false accusation, the effect on the mind of the recipient is the same, and the intent of the perpetrator of the scheme is the same. In neither instance is there a scheme or artifice to defraud or for obtaining money under false representations or promises as contemplated by the statute.
There are no common-law crimes against the United States. U. S. v. Eaton, 144 U.S. 677, 12 S.Ct. 764, 36 L.Ed. 591. “Regard is always to be had to the familiar rule that one may not be punished for crime against the United States unless the facts shown plainly and unmistakably constitute an offense within the meaning of an act of Congress.” Donnelley v. U. S., 276 U.S. 505, 48 S.Ct. 400, 401, 72 L.Ed. 676; Fasulo v. U. S., supra.
The judgment is reversed.
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:
|
sc_caseorigin
|
057
|
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.
ADVOCATE HEALTH CARE NETWORK, et al., Petitioners
v.
Maria STAPLETON, et al.;
Saint Peter's Healthcare System, et al., Petitioners
v.
Laurence Kaplan ;
and
Dignity Health, et al., Petitioners
v.
Starla Rollins.
Nos. 16-74
16-86
16-258.
Supreme Court of the United States
Argued March 27, 2017.
Decided June 5, 2017.
Lisa S. Blatt, Washington, DC, for Petitioners.
Malcolm L. Stewart for the United States as amicus curiae, by special leave of the Court, supporting the Petitioners.
James A. Feldman, Washington, DC, for Respondents.
Lisa S. Blatt, Elisabeth S. Theodore, Sally L. Pei, Arnold & Porter Kaye Scholer LLP, Washington, DC, for Petitioners.
Amy L. Blaisdell, Daniel J. Schwartz, Heather M. Mehta, Greensfelder, Hemker & Gale, P.C., St. Louis, MO, for Petitioners in No. 16-74.
Barry S. Landsberg, Harvey L. Rochman, Joanna S. McCallum, Manatt, Phelps & Phillips, LLP, Los Angeles, CA, David L. Shapiro, Cambridge, MA, for Petitioners in No. 16-258.
Jeffrey J. Greenbaum, James M. Hirschhorn, Katherine M. Lieb, Sills Cummis & Gross P.C., Newark, NJ, for Petitioners in No. 16-86.
Lynn Lincoln Sarko, Matthew Gerend, Laura R. Gerber, Keller Rohrback L.L.P., Seattle, WA, Ron Kilgard, Laurie Ashton, Keller Rohrback L.L.P., Phoenix, AZ, James A. Feldman, Washington, DC, Karen L. Handorf, Michelle C. Yau, Julie G. Reiser, Mary J. Bortscheller, Cohen Milstein Sellers & Toll PLLC, Washington, DC, for Respondents.
Justice KAGAN delivered the opinion of the Court.
The Employee Retirement Income Security Act of 1974 (ERISA) exempts "church plan[s]" from its otherwise-comprehensive regulation of employee benefit plans. 88 Stat. 840, as amended, 29 U.S.C. § 1003(b)(2). Under the statute, certain plans for the employees of churches or church-affiliated nonprofits count as "church plans" even though not actually administered by a church. See § 1002(33)(C)(i). The question presented here is whether a church must have originally established such a plan for it to so qualify. ERISA, we hold, does not impose that requirement.
I
Petitioners identify themselves as three church-affiliated nonprofits that run hospitals and other healthcare facilities (collectively, hospitals). They offer defined-benefit pension plans to their employees. Those plans were established by the hospitals themselves-not by a church-and are managed by internal employee-benefits committees.
ERISA generally obligates private employers offering pension plans to adhere to an array of rules designed to ensure plan solvency and protect plan participants. See generally New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 651, 115 S.Ct. 1671, 131 L.Ed.2d 695 (1995) (cataloguing ERISA's "reporting and disclosure mandates," "participation and vesting requirements," and "funding standards"). But in enacting the statute, Congress made an important exception. "[C]hurch plan[s]" have never had to comply with ERISA's requirements. § 1003(b)(2).
The statutory definition of "church plan" came in two distinct phases. From the beginning, ERISA provided that "[t]he term 'church plan' means a plan established and maintained ... for its employees ... by a church or by a convention or association of churches." § 1002(33)(A). Then, in 1980, Congress amended the statute to expand that definition by deeming additional plans to fall within it. The amendment specified that for purposes of the church-plan definition, an "employee of a church" would include an employee of a church-affiliated organization (like the hospitals here). § 1002(33)(C)(ii)(II). And it added the provision whose effect is at issue in these cases:
"A plan established and maintained for its employees ... by a church or by a convention or association of churches includes a plan maintained by an organization ... the principal purpose or function of which is the administration or funding of a plan or program for the provision of retirement benefits or welfare benefits, or both, for the employees of a church or a convention or association of churches, if such organization is controlled by or associated with a church or a convention or association of churches." § 1002(33)(C)(i).
That is a mouthful, for lawyers and non-lawyers alike; to digest it more easily, note that everything after the word "organization" in the third line is just a (long-winded) description of a particular kind of church-associated entity-which this opinion will call a "principal-purpose organization."
The main job of such an entity, as the statute explains, is to fund or manage a benefit plan for the employees of churches or (per the 1980 amendment's other part) of church affiliates.
The three federal agencies responsible for administering ERISA have long read those provisions, when taken together, to exempt plans like the hospitals' from the statute's mandates. (The relevant agencies are the Internal Revenue Service, Department of Labor, and Pension Benefit Guaranty Corporation.) The original definitional provision- § 1002(33)(A), or paragraph (A) for short-defines a "church plan" as one "established and maintained ... by a church"-not by a church-affiliated nonprofit. But according to the agencies, the later (block-quoted) provision- § 1002(33)(C)(i), or just subparagraph (C)(i)-expands that definition to include any plan maintained by a principal-purpose organization, regardless of whether a church initially established the plan. And, the agencies believe, the internal benefits committee of a church-affiliated nonprofit counts as such an organization. See, e.g., IRS General Counsel Memorandum No. 39007 (Nov. 2, 1982), App. 636-637. That interpretation has appeared in hundreds of private letter rulings and opinion letters issued since 1982, including several provided to the hospitals here. See App. 57-69, 379-386, 668-715.
The three cases before us are part of a recent wave of litigation challenging the agencies' view. Respondents, current and former employees of the hospitals, filed class actions alleging that their employers' pension plans do not fall within ERISA's church-plan exemption (and thus must satisfy the statute's requirements). That is so, the employees claim, because those plans were not established by a church-and ERISA, even as amended, demands that all "church plans" have such an origin. According to the employees, the addition of subparagraph (C)(i) allowed principal-purpose organizations to maintain such plans in lieu of churches; but that provision kept as-is paragraph (A)'s insistence that churches themselves establish "church plans." See id., at 265-268, 435-437, 783-785. The District Courts handling the cases agreed with the employees' position, and therefore held that the hospitals' plans must comply with ERISA.
The Courts of Appeals for the Third, Seventh, and Ninth Circuits affirmed those decisions. The Third Circuit ruled first, concluding that ERISA's "plain text" requires that a pension plan be established by a church to qualify for the church-plan exemption. Kaplan v. Saint Peter's Healthcare System, 810 F.3d 175, 177 (2015). In the court's view, paragraph (A) set out "two requirements" for the exemption-"establishment and maintenance"-and "only the latter is expanded by the use of 'includes' " in subparagraph (C)(i). Id., at 181. The Seventh and Ninth Circuits relied on similar reasoning to decide in the employees' favor. See Stapleton v. Advocate Health Care Network, 817 F.3d 517, 523 (C.A.7 2016) ; Rollins v. Dignity Health, 830 F.3d 900, 906 (C.A.9 2016).
In light of the importance of the issue, this Court granted certiorari. 579 U.S. ----, 137 S.Ct. 546, 547, 196 L.Ed.2d 442 (2016).
II
The dispute in these cases about what counts as a "church plan" hinges on the combined meaning of paragraph (A) and subparagraph (C)(i). Interpretive purists may refer back as needed to the provisions as quoted above. See supra, at 1656 - 1657. But for those who prefer their statutes in (comparatively) user-friendly form, those provisions go as follows:
Under paragraph (A), a " 'church plan' means a plan established and maintained ... by a church."
Under subparagraph (C)(i), "[a] plan established and maintained ... by a church ... includes a plan maintained by [a principal-purpose] organization."
The parties agree that under those provisions, a "church plan" need not be maintained by a church; it may instead be maintained by a principal-purpose organization. But the parties differ as to whether a plan maintained by that kind of organization must still have been established by a church to qualify for the church-plan exemption. The hospitals say no: The effect of subparagraph (C)(i) was to bring within the church-plan definition all pension plans maintained by a principal-purpose organization, regardless of who first established them. The employees say yes: Subparagraph (C)(i) altered only the requirement that a pension plan be maintained by a church, while leaving intact the church-establishment condition. We conclude that the hospitals have the better of the argument.
Start, as we always do, with the statutory language-here, a new definitional phrase piggy-backing on the one already existing. The term "church plan," as just stated, initially "mean[t]" only "a plan established and maintained ... by a church." But subparagraph (C)(i) provides that the original definitional phrase will now "include" another-"a plan maintained by [a principal-purpose] organization." That use of the word "include" is not literal-any more than when Congress says something like "a State 'includes' Puerto Rico and the District of Columbia." See, e.g., 29 U.S.C. § 1002(10). Rather, it tells readers that a different type of plan should receive the same treatment (i.e., an exemption) as the type described in the old definition. And those newly favored plans, once again, are simply those "maintained by a principal-purpose organization"-irrespective of their origins. In effect, Congress provided that the new phrase can stand in for the old one as follows: "The term 'church plan' means
a plan established and maintained by a church
[a plan maintained by a principal-purpose organization]." The church-establishment condition thus drops out of the picture.
Consider the same point in the form of a simple logic problem, with paragraph (A) and subparagraph (C)(i) as its first two steps:
Premise 1: A plan established and maintained by a church is an exempt church plan.
Premise 2: A plan established and maintained by a church includes a plan maintained by a principal-purpose organization.
Deduction: A plan maintained by a principal-purpose organization is an exempt church plan.
Or, as one court put the point without any of the ERISA terminology: "[I]f A is exempt, and A includes C, then C is exempt." Overall v. Ascension, 23 F.Supp.3d 816, 828 (E.D.Mich.2014). Just so. Because Congress deemed the category of plans "established and maintained by a church" to "include" plans "maintained by" principal-purpose organizations, those plans-and all those plans-are exempt from ERISA's requirements.
Had Congress wanted, as the employees contend, to alter only the maintenance requirement, it had an easy way to do so-differing by only two words from the language it chose, but with an altogether different meaning. Suppose Congress had provided that "a plan maintained by a church includes a plan maintained by" a principal-purpose organization, leaving out the words "established and" from the first part of the sentence. That amendment would have accomplished exactly what the employees argue Congress intended: The language, that is, would have enabled a principal-purpose organization to take on the maintenance of a "church plan," but left untouched the requirement that a church establish the plan in the first place. But Congress did not adopt that ready alternative. Instead, it added language whose most natural reading is to enable a plan "maintained" by a principal-purpose organization to substitute for a plan both "established" and "maintained" by a church. That drafting decision indicates that Congress did not in fact want what the employees claim. See, e.g., Lozano v. Montoya Alvarez, 572 U.S. 1, ---- - ----, 134 S.Ct. 1224, 1235, 188 L.Ed.2d 200 (2014) (When legislators did not adopt "obvious alternative" language, "the natural implication is that they did not intend" the alternative).
A corollary to this point is that the employees' construction runs aground on the so-called surplusage canon-the presumption that each word Congress uses is there for a reason. See generally A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 174-179 (2012). As just explained, the employees urge us to read subparagraph (C)(i) as if it were missing the two words "established and." The employees themselves do not contest that point: They offer no account of what function that language would serve on their proposed interpretation. See Brief for Respondents 34-35. In essence, the employees ask us to treat those words as stray marks on a page-notations that Congress regrettably made but did not really intend. Our practice, however, is to "give effect, if possible, to every clause and word of a statute." Williams v. Taylor, 529 U.S. 362, 404, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (internal quotation marks omitted). And here, that means construing the words "established and" in subparagraph (C)(i) as removing, for plans run by principal-purpose organizations, paragraph (A)'s church-establishment condition.
The employees' primary argument to the contrary takes the form of a supposed interpretive principle: "[I]f a definition or rule has two criteria, and a further provision expressly modifies only one of them, that provision is understood to affect only the criterion it expands or modifies." Brief for Respondents 22. Applied here, the employees explain, that principle requires us to read subparagraph (C)(i) as "modify[ing] only the criterion" in paragraph (A) that "it expressly expands ('maintained'), while leaving the other criterion ('established') unchanged."
Id., at 14. The employees cite no precedent or other authority to back up their proposed rule of construction, but they offer a thought-provoking hypothetical to demonstrate its good sense. Id., at 22. Imagine, they say, that a statute provides free insurance to a "person who is disabled and a veteran," and an amendment then states that "a person who is disabled and a veteran includes a person who served in the National Guard." Ibid. (quoting 810 F.3d, at 181 ). Would a non-disabled member of the National Guard be entitled to the insurance benefit? Surely not, the employees answer: All of us would understand the "includes" provision to expand (or clarify) only the meaning of "veteran"-leaving unchanged the requirement of a disability. And the same goes here, the employees claim.
But one good example does not a general rule make. Consider a variant of the employees' hypothetical: A statute offers free insurance to a "person who enlisted and served in the active Armed Forces," with a later amendment providing that "a person who enlisted and served in the active Armed Forces includes a person who served in the National Guard." Would a person who served in the National Guard be ineligible for benefits unless she had also enlisted in the active Armed Forces-say, the regular Army or Navy? Of course not. Two hypotheticals with similar grammatical constructions, two different results. In the employees' example, the mind rebels against reading the statute literally, in line with the logical and canonical principles described above. In the variant, by contrast, the statute's literal meaning and its most natural meaning cohere: Satisfaction of the amendment's single eligibility criterion-service in the National Guard-is indeed enough. What might account for that divergence? And what does such an explanation suggest for ERISA?
Two features of the employees' hypothetical, when taken in combination, make it effective. First, the criteria there-veteran-status and disability-are relatively distinct from one another. (Compare enlistment and service, which address similar matters and tend to travel in tandem, the one preceding the other.) The more independent the specified variables, the more likely that they were designed to have standalone relevance. Second and yet more crucial, the employees' example trades on our background understanding that a given interpretation is simply implausible-that it could not possibly have been what Congress wanted. Congress, we feel sure, would not have intended all National Guardsmen to get a benefit that is otherwise reserved for disabled veterans. (Compare that to our sense of whether Congress would have meant to hinge benefits to Guardsmen on their enlistment in a different service.) That sense of inconceivability does most of the work in the employees' example, urging readers to discard usual rules of interpreting text because they will lead to a "must be wrong" outcome.
But subparagraph (C)(i) possesses neither of those characteristics. For starters, the criteria at issue-establishment and maintenance-are not unrelated. The former serves as a necessary precondition of the latter, and both describe an aspect of an entity's involvement with a benefit plan. Indeed, for various purposes, ERISA treats the terms "establish" and "maintain" interchangeably. See, e.g., § 1002(16)(B) (defining the "sponsor" of a plan as the organization that "establishe[s] or maintain[s]" the plan). So an amendment altering the one requirement could naturally alter the other too. What's more, nothing we know about the way ERISA is designed to operate makes that an utterly untenable result. Whereas the disability condition is central to the statutory scheme in the employees' hypothetical, the church-establishment condition, taken on its own, has limited functional significance. Establishment of a plan, after all, is a one-time, historical event; it is the entity maintaining the plan that has the primary ongoing responsibility (and potential liability) to plan participants. See Brief for United States as Amicus Curiae 31; Rose v. Long Island R.R. Pension Plan, 828 F.2d 910, 920 (C.A.2 1987), cert. denied, 485 U.S. 936, 108 S.Ct. 1112, 99 L.Ed.2d 273 (1988) ("[T]he status of the entity which currently maintains a particular pension plan bears more relation to Congress' goals in enacting ERISA and its various exemptions[ ] than does the status of the entity which established the plan"). So removing the establishment condition for plans run by principal-purpose organizations has none of the contextual implausibility-the "Congress could not possibly have meant that" quality-on which the employees' example principally rides.
To the contrary, everything we can tell from extra-statutory sources about Congress's purpose in enacting subparagraph (C)(i) supports our reading of its text. We say "everything we can tell" because in fact we cannot tell all that much. The legislative materials in these cases consist almost wholly of excerpts from committee hearings and scattered floor statements by individual lawmakers-the sort of stuff we have called "among the least illuminating forms of legislative history." NLRB v. SW General, Inc., 580 U.S. ----, ----, 137 S.Ct. 929, 943, 197 L.Ed.2d 263 (2017). And even those lowly sources speak at best indirectly to the precise question here: None, that is, comments in so many words on whether subparagraph (C)(i) altered paragraph (A)'s church-establishment condition. Still, both the hospitals and the employees have constructed narratives from those bits and pieces about Congress's goals in amending paragraph (A). And our review of their accounts-the employees' nearly as much as the hospitals'-tends to confirm our conviction that plans maintained by principal-purpose organizations are eligible for ERISA's "church plan" exemption, whatever their origins.
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_district
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F
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What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable".
UNITED STATES of America, Plaintiff-Appellee, v. Trino BENAVIDEZ, a/k/a Juan Benavidez, Defendant-Appellant.
No. 76-3120.
United States Court of Appeals, Fifth Circuit.
Aug. 29, 1977.
Rehearing Denied Nov. 4, 1977.
Kenneth L. Yarbrough, Corpus Christi, Tex., for defendant-appellant.
Edward B. McDonough, Jr., U. S. Atty., Anna E. Stool, George A. Kelt, Jr., Robert A. Berg, James R. Gough, Asst. U. S. At-tys., Houston, Tex., for plaintiff-appellee.
Before GODBOLD and CLARK, Circuit Judges, and HOFFMAN , District Judge.
Senior District Judge of the Eastern District of Virginia, sitting by designation.
PER CURIAM:
The appellant, Benavidez, was convicted by a jury on all six counts of an indictment charging him with possession, with the intent to distribute, and the distribution or sale of heroin to a government undercover agent on June 12, 1974, June 26, 1974 and July 2, 1974, in violation of 21 U.S.C. § 841(a)(1). From concurrent sentences of twelve (12) years on each count, to be followed by a special parole term of four (4) years, Benavidez appeals. For reasons herein stated, we reverse and remand for a new trial.
At the conclusion of the evidence, the trial court informed counsel that it would give the jury a general entrapment instruction. Appellant’s counsel requested the court also to give the specialized Bueno instruction, which request was refused. Apparently inadvertently, the trial judge failed to give any general instruction on entrapment. Following the completion of the charge, appellant’s counsel took exception to the court’s failure to give the Bueno instruction, but neglected to note any objection to the omission of the general entrapment charge.
In United States v. Hampton, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976), decided only a few days before the instant case, the Supreme Court effectively reversed United States v. Bueno, supra, 447 F.2d 903 (5 Cir. 1971). The trial court was, therefore, correct in refusing the requested instruction.
The sole remaining issue is whether the trial judge was justified, under the facts of this case, in not giving any instruction predicated upon entrapment. If the facts, as the government contends, do not justify a general instruction on entrapment, there is then no error and we should affirm. We conclude, however, that the failure to give the general entrapment instruction was plain error. Rule 52(b) Fed.R.Crim.P.
Benavidez was charged with, and admitted to, selling heroin to Dracoulis and Eakes, undercover agents of the Drug Enforcement Administration (DEA) to whom he was introduced by Gutierrez, a paid DEA informant. Benavidez testified that he had known Gutierrez three or four years prior to the introduction; that he was visited at his “place” by Gutierrez, who indicated that he was selling marijuana and wanted appellant to work for him. Although appellant rejected the suggestion, Gutierrez visited him again and requested that he sell “some packages” to Dracoulis. Benavidez testified that on June 3, 1974 he picked up a package, identified by Gutierrez as drugs, at the latter’s home and accompanied by Gutierrez, delivered it to Dracoulis.
Subsequent sales, for which Benavidez was indicted, were made on June 12, 1974 to Dracoulis and Eakes, on June 26, 1974 to Eakes and again on July 2, 1974 to Dracoulis. Although Gutierrez denied seeing appellant or having any dealings with him after June 3, 1974, Benavidez testified that for each sale he obtained the drugs from Gutierrez and delivered the sale price to him, less $200 per transaction which he retained for himself. In determining whether a general entrapment charge should have been given, we must accept the testimony most favorable to the defendant.
The concept of entrapment has been recognized by the Supreme Court for a period of 45 years. In Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 19, 77 L.Ed. 511 (1932), the court indicated that the key to an entrapment defense was the accused’s predisposition to commit the crime. The court stated that the government could legitimately provide an opportunity for commission of a crime but held that entrapment provided a valid defense when a person “otherwise innocent” was induced by the government to commit a crime so that the government might prosecute. 287 U.S. at 448-49, 451, 53 S.Ct. 19. This position was affirmed in Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958), in which Chief Justice Warren stated that, in determining whether entrapment occurred, “a line must be drawn between the trap for the unwary innocent and the trap for the unwary criminal.” 356 U.S. at 372, 78 S.Ct. at 821.
The Supreme Court most recently considered the defense of entrapment in United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973) in which it reaffirmed the rationale in Sorrells and Sherman. The court declined to countenance the Ninth Circuit’s position that, regardless of the defendant’s predisposition, “a defense to a criminal charge may be founded upon an intolerable degree of governmental participation in the criminal enterprise.” 459 F.2d 671, 673 (1972). This viewpoint, expounded by Justice Roberts in Sorrells (concurrence), Justice Frankfurter in Sherman (concurring in result) and Justices Douglas and Stewart in Russell (dissenting) was rejected by the Russell court as “unmanageably subjective.” 411 U.S. at 435, 93 S.Ct. 1637. Thus, the standard for determining the validity of an entrapment defense remains the predisposition of the defendant.
It is well settled that the question of entrapment, if fairly raised, is one for the jury. United States v. Harrell, 436 F.2d 606 (5 Cir. 1970); Pierce v. United States, 414 F.2d 163 (5 Cir. 1969); Hannah v. United States, 396 F.2d 785 (5 Cir. 1968); Kivette v. United States, 230 F.2d 749 (5 Cir. 1956); cert. denied, 355 U.S. 935, 78 S.Ct. 419, 2 L.Ed.2d 418 (1958). Judge Learned Hand indicated:
[I]n such cases two questions of fact arise: (1) did the agent induce the accused to commit the offense charged in the indictment; (2) if so, was the accused ready and willing without persuasion and was he awaiting any propositious opportunity to commit the offense. On the first question the accused has the burden; on the second the prosecution has it. United States v. Sherman, 200 F.2d 880, 882-83 (2 Cir. 1952).
In United States v. Groessel, 440 F.2d 602 (5 Cir. 1971), the burden on the defendant was defined as “some evidence, but more than a scintilla.” 440 F.2d at 606. The court in Notaro v. United States, 363 F.2d 169 (9 Cir. 1966) called the burden “insignificant,” 363 F.2d at 174, n. 6, indicating that the defendant’s burden could be met even by evidence presented in the prosecution’s case. 363 F.2d at 174.
The court in Notaro went on to indicate that once the issue was raised it became the burden of the prosecution “to establish beyond a reasonable doubt that the accused was not entrapped into the commission of the offense.” 363 F.2d at 175. In United States v. Harrell, 436 F.2d 606 (5 Cir. 1970), the Fifth Circuit acknowledged that the rule set forth in Notaro is the accepted rule and, although never specifically adopted by the Fifth Circuit, should be followed. 436 F.2d at 612.
In the instant case, we believe that the defendant met his burden of fairly raising the issue of entrapment. He testified that he never sold drugs before; that he was initially unwilling to involve himself in the sale of drugs; that he did so at the instigation of DEA informant Gutierrez who allegedly supplied the drugs. There was additional testimony that the defendant had a good reputation in the community and was not known to be a drug dealer. Although refuted by testimony of government witnesses, the evidence was sufficient to raise an issue of fact for the jury. Taken in a light most favorable to the defendant, the evidence is sufficient to indicate a lack of predisposition to commit the crime.
Because of the court’s failure to instruct on the law of entrapment, the jury was not in a position to fairly evaluate the defendant’s case. The jury could not determine, assuming it accepted defendant’s testimony and rejected that of the government, if there was sufficient evidence to sustain the defense of entrapment. Additionally, without an instruction regarding the prosecution’s burden of proof when entrapment is in issue the jury could not evaluate whether the prosecution had met its burden of proving beyond a reasonable doubt that there was no entrapment. Given that the issue was fairly raised but could not be fairly decided, absent guidance from the court, we conclude that the court was in error in omitting a general entrapment instruction, and that the appellant is entitled to a new trial.
REVERSED AND REMANDED.
. United States v. Bueno, 447 F.2d 903 (5 Cir. 1971). The court in Bueno held that where the government provided the contraband to the defendant for sale to a government agent, there was entrapment as a matter of law.
Question: From which district in the state was this case appealed?
A. Not applicable
B. Eastern
C. Western
D. Central
E. Middle
F. Southern
G. Northern
H. Whole state is one judicial district
I. Not ascertained
Answer:
|
sc_issuearea
|
C
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states.
CALIFORNIA ex rel. COOPER, CITY ATTORNEY OF SANTA ANA, CALIFORNIA v. MITCHELL BROTHERS’ SANTA ANA THEATER et al.
No. 81-271.
Decided November 30, 1981
Per Curiam.
The petition for certiorari is granted limited to Question 2 presented in the petition, namely, whether a city, in a public nuisance abatement action brought against a motion picture theater, must prove beyond a reasonable doubt that the motion pictures at issue are obscene.
The Santa Ana City Attorney brought this action against respondents to abate a public nuisance pursuant to Cal. Civ. Proc. Code Ann. §731 (West 1980). The complaint alleged that numerous films shown by the respondents were obscene and thus constituted a public nuisance as defined by Cal. Civ. Code Ann. §§3479, 3480 (West 1970). The complaint sought, inter alia, court approval of a resolution passed by the Santa Ana City Council revoking all of respondents’ operating licenses and permits, a permanent injunction forbidding respondents to show the films named in the complaint, and a 1-year closure of respondents’ theater.
The trial court determined that the complaint presented both equitable and legal issues and ordered that a jury trial be held on the issues of obscenity, public nuisance, and damages prior to resolution of the equitable issues by the court. The jury trial was divided into liability and damages stages. After the evidence pertaining to obscenity and public nuisance had been presented, the jury was instructed that they could find the films at issue to be obscene only if they were persuaded of such “beyond a reasonable doubt.” The jury found 11 films obscene, 4 not obscene, and was unable to reach a verdict on 2 others.
Following a jury determination of damages, the court issued findings of fact and conclusions of law with respect to the equitable issues. The court found, independently from the jury verdict and based upon its own viewing, that the same 11 films were obscene beyond a reasonable doubt as the term obscene is defined in Cal. Penal Code Ann. § 311(a) (West 1970). There were cross-appeals, the city asserting, among other things, that the trial court erred in imposing the beyond-reasonable-doubt burden of proof. The California Court of Appeal affirmed on this issue. Relying on this Court’s observation that “the regulation of a communicative activity such as the exhibition of motion pictures must adhere to more narrowly drawn procedures than is necessary for the abatement of an ordinary nuisance,” Vance v. Universal Amusement Co., 445 U. S. 308, 315 (1980) (per curiam), and Justice Brennan’s statement that “the hazards to First Amendment freedoms inhering in the regulation of obscenity require that even in ... a civil proceeding, the State comply with the more exacting standard of proof beyond a reasonable doubt,” McKinney v. Alabama, 424 U. S. 669, 683-684 (1976) (concurring opinion), the court concluded that “one of the required procedures is that obscenity be proved beyond a reasonable doubt.” People ex rel. Gow v. Mitchell Bros.’ Santa Ana Theater, 114 Cal. App. 3d 923, 936, 171 Cal. Rptr. 85, 93 (1981). We reverse.
The purpose of a standard of proof is “to instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication.” In re Winship, 397 U. S. 358, 370 (1970) (Harlan, J., concurring). Three standards of proof are generally recognized, ranging from the “preponderance of the evidence” standard employed in most civil cases, to the “clear and convincing” standard reserved to protect particularly important interests in a limited number of civil cases, to the requirement that guilt be proved “beyond a reasonable doubt” in a criminal prosecution. See Addington v. Texas, 441 U. S. 418, 423-424 (1979). This Court has, on several occasions, held that the “clear and convincing” standard or one of its variants is the appropriate standard of proof in a particular civil case. See Addington v. Texas, supra, at 431 (civil commitment); Rosenbloom v. Metromedia, Inc., 403 U. S. 29, 52 (1971) (libel); Woodby v. INS, 385 U. S. 276, 285 (1966) (deportation); Chaunt v. United States, 364 U. S. 350, 353 (1960) (denaturalization); Schneiderman v. United States, 320 U. S. 118, 159 (1943) (denaturalization). However, the Court has never required the “beyond a reasonable doubt” standard to be applied in a civil case. “This unique standard of proof, not prescribed or defined in the Constitution, is regarded as a critical part of the ‘moral force of the criminal law,’ In re Winship, 397 U. S., at 364, and we should hesitate to apply it too broadly or casually in noncriminal cases.” Addington v. Texas, supra, at 428.
Thus while a State may require proof beyond reasonable doubt in an obscenity case, that choice is solely a matter of state law. The First and Fourteenth Amendments do not require such a standard. The judgment of the Court of Appeal is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
So ordered.
The petition is otherwise denied.
Section 731 provides in pertinent part:
“An action may be brought by any person whose property is injuriously affected, or whose personal enjoyment is lessened by a nuisance, as the same is defined in section thirty-four hundred and seventy-nine of the Civil Code, and by the judgment in such action the nuisance may be enjoined or abated as well as damages recovered therefor. A civil action may be brought in the name of the people of the State of California to abate a public nuisance, as the same is defined in section thirty-four hundred and eighty of the Civil Code, ... by the city attorney of any town or city in which such nuisance exists . . . .”
Sections 3479 and 3480 provide in pertinent part:
“§ 3479. . . . Anything which is injurious to health, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, ... is a nuisance.”
“§ 3480. ... A public nuisance is one which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon individuals may be unequal.”
See also People ex rel. Busch v. Projection Room Theater, 17 Cal. 3d 42, 49, 550 P. 2d 600, 603-604 (exhibition of obscene films may be characterized as “indecent” or “offensive to the senses”), cert. denied sub nom. Van de Kamp v. Projection Room Theater, 429 U. S. 922 (1976).
Section 311(a) reads:
“ ‘Obscene matter’ means matter, taken as a whole, the predominant appeal of which is to the average person, applying contemporary standards, is to prurient interest, i.e., a shameful or morbid interest in nudity, sex, or excretion; and is matter which taken as a whole goes substantially beyond customary limits of candor in description or representation of such matters; and is matter which taken as a whole is utterly without redeeming social importance.”
The court’s conclusion rested solely on federal grounds; no state authority was cited for the proposition that obscenity must be proved beyond a reasonable doubt.
The precise verbal formulation of this standard varies, and phrases such as “clear and convincing,” “clear, cogent, and convincing,” and “clear, unequivocal, and convincing” have all been used to require a plaintiff to prove his case to a higher probability than is required by the preponderance-of-the-evidence standard. C. McCormick, Evidence §320, p. 679 (1954). See also Kaplan, Decision Theory and the Factfinding Process, 20 Stan. L. Rev. 1065, 1072 (1968).
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_state
|
47
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the state or territory in which the case was first heard. If the case began in the federal district court, consider the state of that district court. If it is a habeas corpus case, consider the state of the state court that first heard the case. If the case originated in a federal administrative agency, answer "not applicable". Answer with the name of the state, or one of the following territories: District of Columbia, Puerto Rico, Virgin Islands, Panama Canal Zone, or "not applicable" or "not determined".
Gerald E. SMALLWOOD, Appellee, v. UNITED AIR LINES, INC., Appellant. Gerald E. SMALLWOOD, Appellant, v. UNITED AIR LINES, INC., Appellee.
Nos. 82-2115, 82-2116.
United States Court of Appeals, Fourth Circuit.
Argued Nov. 1, 1983.
Decided Feb. 28, 1984.
Herbert Prashker, New York City (William E. Hickman, Poletti, Freidin, Prashker & Gartner, New York City, on brief), for appellant in No. 82-2115, and for appellee in No. 82-2116.
Wyatt B. Durrette, Jr., Fairfax, Va. (Michael C. Montavon, Joyce A. Naumann, Roeder, Durrette & Davenport, P.C., Fairfax, Va., on brief), for appellee in No. 82-2115 and for appellant in No. 82-2116.
Before RUSSELL, HALL and MURNA-GHAN, Circuit Judges.
DONALD RUSSELL, Circuit Judge:
This is an action under the Age Discrimination in Employment Act (ADEA) in which the plaintiff (Smallwood) challenges the refusal of the defendant United Air Lines, Inc. (United) to process his application for employment as a flight officer under a rule providing that an application for employment as a flight officer would not be processed if the applicant were over 35 years of age. The plaintiff was shown on his application to be 48 years of age. At trial of the action the defendant sought to defend against the charge of a statutory violation by asserting, first, that its rule under which it refused to process plaintiff’s application met the requirements of a bona fide occupational qualification (BFOQ) within the Act, and, second, that the plaintiff would not have been hired as a flight officer even if there had been no age discrimination. The district judge, however, confined the trial to the validity of the BFOQ claim and refused to permit the defendant to develop fully, or to rule on the defendant’s second defense. At the conclusion of the testimony, the district judge upheld the validity of the BFOQ defense and ordered the complaint dismissed. On appeal by the plaintiff, we reversed, finding the defendant’s rule not to be a valid bona fide occupational qualification. Since the district court had not ruled on defendant’s second defense, we remanded the cause for trial of that issue, i.e., whether the defendant would not have hired the plaintiff if there had been no age discrimination. Smallwood v. United Air Lines, Inc., 661 F.2d 303 (4th Cir.1981).
After the remand and in preparation for the second trial, the parties engaged in discovery. Because of the direction of such discovery as pursued by the defendant, the plaintiff filed a motion for clarification of issues. In support of his motion, the plaintiff argued 1) that the earlier decision had resolved all issues in the case, including the defense that the defendant would not have hired the plaintiff if there had been no age discrimination; and 2) that, even if that latter issue were still relevant on remand, the defendant was strictly restricted in proof of such defense to evidence on “matters arising subsequent to [the first] trial.” During argument on the motion, the district judge remarked that the Court of Appeals' opinion in the first appeal was “almost a direction for [him] to consider aspects of the case which [he] didn’t consider” and that “the prudent way to proceed [was] to allow the defendant to introduce this additional [evidence which] is apparently not a great deal of evidence.” He opined that if the case went back to the Court of Appeals the record would thereby be “in a position that [the Court of Appeals] can decide [the case] and not send it back here for any more testimony.” For this reason, he said, it was proper “to get all that has to be gotten or is proffered by either side into this record now, so that we can decide this case finally, if possible.” After the hearing, the district judge denied the motion and, in the exercise of his discretion allowed “the reopening of the record and receipt of evidence on the question whether plaintiff would have been hired by the defendant regardless of age.” The cause thereafter proceeded to trial. Both parties offered evidence and at the conclusion of the trial, the district judge, by oral decision, later confirmed by a formal judgment with a later “clarification,” found for the plaintiff.
In his oral decision, the district judge began by expressing doubt that “the wouldn’t-have-hired-anyway defense” was “available as a defense” in this case. Without indicating the reason for such doubt, he proceeded, however, to find that such defense was “available as a defense” but that the burden of establishing such defense by the preponderance of the evidence rested on the defendant. He added, however, that in considering evidence of the plaintiff’s alleged fraud upon his former employer [which was the defense asserted by the defendant], “it’s true that — or at least there is some force to the argument that only those facts available to the defendant as of the time of the rejection of the plaintiff’s application ought to be considered” but that if any evidence after the time of the rejection of plaintiff’s application were deemed “admissible, it seems to me the Court is entitled to be and should be, skeptical of after-the-fact decisions as to what the defendant would have done had it known what it knows now.” It followed with a criticism of defendant’s action, saying that, if there had been no age discrimination, the defendant would at the time of the application have made “suitable inquiry .. . whether or not [plaintiff’s] activity with his former employer was such that it [the defendant] would [have been] warranted] ... [in] rejecting him as an applicant” and whether the defendant would have “interviewed [the plaintiff] ... so that he could have at least ... given his side of the story.” Though he recognized, as the foregoing comments demonstrated, that the critical issue on remand was the plaintiff’s “activity with his former [airline] employer” which caused such employer to fire the plaintiff, the district judge gave no explicit
reasons for his basic decision save this sentence at the end of his decision:
“I find that the defendant has not borne its burden of proof by a preponderance of the evidence that he would not have been hired anyway after viewing this evidence, bolstered as it has been in the interim between the November, 1979 hearing [at the first trial] and now.”
Later, in his judgment order, the district judge added a “clarification” of his decision, “lest there be any uncertainty in the matter.” This clarification consisted of but a single sentence:
“The court’s feelings at the time it ruled, as well as now, are that the after-the-fact rationale and testimony of the defendant in this regard, particularly where no opportunity had been given the plaintiff to explain the prior transaction with his former employer, were just not persuasive.”
The judgment entered by the district court in conformity with this ruling was in two parts: First, it granted injunctive relief by requiring United to “process” plaintiff’s application in the same manner as it processed all other applications received at the time plaintiff filed his application, and, if his application were successfully processed, to include him in the first available class of applicants to be provided flight training, which class the court then found in advance of any processing to be that of January 9, 1978, and to be given all rights and benefits “normally afforded United Air Lines pilot employees, including seniority and longevity rights,” and certain pension benefits. Second, it granted backpay, holding that, if the plaintiff’s application had been processed free of any violation of ADEA, he would be entitled to backpay from January 9,1978, the date it was found he would have been hired absent discrimination, to date of trial of the case, computed to be $92,501.31, which it doubled as liquidated damages, increasing the pecuniary award to the plaintiff $185,002.62. To this it added an attorney’s fee of $125,000, together with costs of $2,160.30.
From that part of the judgment granting the plaintiff backpay and attorney’s fees, the defendant has appealed, asserting that the court’s finding that the defendant had not proved by the preponderance of the evidence that its defense against such award was clearly erroneous, arrived at by the use of improper standards of proof, and in complete disregard of the undisputed evidence. It raised, also, alternatively the contention that, even if the court had been correct in its dismissal of defendant’s defense, it erred in the relief granted. The plaintiff cross-appeals, contending that the denial of his motion for clarification was clearly erroneous. Finding no merit in the plaintiff’s cross-appeal, we dismiss such cross-appeal, but reverse the judgment awarding the plaintiff backpay relief, finding that the district court’s decision and findings in favor of such an award were clearly erroneous.
Before reviewing the evidence connected with the defendant’s appeal herein, it is necessary, particularly in view of certain arguments of the plaintiff later noted and of the language of the district court in its oral decision, to identify specifically the issue with which the present appeal is concerned and to distinguish it from the issue decided by us on the first appeal. We begin such explication by observing that there are generally two issues in disparate treatment cases whether the action be under either the ADEA, Title VII, or Section 1981: One has to do with the substantive issue of violation of the applicable statute or constitutional provision; the other (which, it must be emphasized, only becomes relevant if a violation is proved) involves the remedy which generally presents the question of compelled hiring, reinstatement, or promotion accompanied with backpay. These two issues are separate and distinct and their resolution depends on different, or at least additional, evidence and findings. Thus, in this case, the admitted refusal of the defendant to process the plaintiff’s application because of its rule prohibiting the processing of job applications by flight officers over 35 years of age constituted, as we held in the first appeal, a violation of ADEA and entitled the plaintiff to injunctive relief against the present and future use of such rule. That specific issue — one of violation — was decided by our decision in the first appeal in this case and is the law of the case. But that determination did not trigger anything more than a mere presumption of a right in the plaintiff to the remedy of employment and backpay, a presumption which was subject to being defeated by proof by the preponderance of the evidence on the part of the defendant that the plaintiff would not have been hired anyway if there had been no discrimination.
This distinction between the two issues, involving as they do separate and distinct findings based upon separate and distinct facts, was initially explicated in connection with a constitutional claim in Mt. Healthy, 429 U.S. at 285-87, 97 S.Ct. at 575-76, and was later specifically applied in the employment discrimination context in the companion cases of Teamsters v. United States, 431 U.S. 324, 326, 97 S.Ct. 1843, 1850, 52 L.Ed.2d 396 (1977), and East Texas Motor Freight v. Rodriguez, 431 U.S. 395, 403-04, n. 9, 97 S.Ct. 1891, 1896-97, n. 9, 52 L.Ed.2d 453 (1977). In the latter case, the Court said:
“Even assuming, arguendo, that the company’s failure even to consider the applications was discriminatory, the company was entitled to prove at trial that the respondents had not been injured because they were not qualified and would not have been hired in any event.”
We have consistently recognized and followed this rule as stated in Rodriguez, the most recent illustration of which being Patterson v. Greenwood School Dist. 50, 696 F.2d 293, 295 (4th Cir.1982):
“When a court finds that a plaintiff has been discriminated against in violation of Title VII, it retains broad remedial powers to grant injunctive relief and to order such affirmative action as may be appropriate. See EEOC v. Ford Motor Co., 645 F.2d 183, 200 (4th Cir.1981). When retroactive promotion and back pay are sought, however, further questions must be asked. The statute makes it clear that these forms of relief are available only where the employee would have received the promotion had she not been the victim of discrimination. The case law is also plain that the purpose of a back pay award is to make the plaintiff whole; that is, to restore her to the position she would have occupied but for the discrimination.”
Although the two issues require separate findings, the resolution of which may depend on different evidence, district courts may in the interest of more efficient administration admit evidence on, and dispose of, both issues in one trial. This was the procedure followed in Murnane v. American Airlines, Inc., 482 F.Supp. 135 (D.C.D.1979), aff’d., 667 F.2d 98 (D.C.Cir.1981), cert. denied, 456 U.S. 915, 102 S.Ct. 1770, 72 L.Ed.2d 174 (1982), a case very similar on the facts to this case and one relied on by the plaintiff. As here, the defendant commercial airline had refused to process the plaintiff’s application for employment as a flight officer because of its rule denying initial employment as a flight officer to persons above a fixed age. That rule was challenged under the age discrimination statute. The defendant airline defended, as did the defendant in this case, raising the claim that its rule qualified as a bona fide employment qualification but adding the defense that, if the rule were not a valid BFOQ, and there were age discrimination, still the plaintiff would not have been hired anyway and backpay would accordingly not be appropriate in the case. The court tried the two issues together and made a ruling on both claims. It sustained the BFOQ defense but proceeded, also, to dispose of the second claim, saying in that regard:
“American contends that since the evidence indicates that it would not have hired plaintiff in any event, plaintiff could not have been injured by any alleged age discrimination and consequently is entitled to no relief. The Court concurs.” 482 F.Supp. at 148.
On appeal that ruling on the right to back-pay was affirmed with this statement:
“In the case at hand, as we have already stated, there is ‘credible and persuasive evidence’ that appellant would not have been selected for the position he claims to have been illegally denied, whether or not the age requirement he objects to was illegally discriminatory. Therefore, applying the principles in the Supreme Court cases just discussed, we conclude that appellant cannot prevail on this appeal.” 667 F.2d at 102, cert. denied, 456 U.S. 915, 102 S.Ct. 1770, 72 L.Ed.2d 174.
The Court in that case thus decided both issues on the basis of a single record.
While there is no question that the two issues, though requiring separate and different evidence and standards of evaluation, can be tried together, as was done in Murnane, that is not the only way the issues may be tried. A court may bifurcate the trial of the two issues. Such was the procedure in a class action approved by us. Sledge v. J.P. Stevens & Co., 585 F.2d at 637. The district judge made it clear throughout the first trial in this case that he was considering only the violation issue. Thus, he repeatedly — ultimately, with considerable emphasis and finality — ruled that he would not permit the defendant to inquire either on cross-examination of the plaintiff or by direct evidence fully into the circumstances of plaintiff’s termination as a flight officer by his previous airline employer, Overseas National Airways (ONA). He in effect by these rulings bifurcated the two issues in this case. If in this case the district court had been sustained in its decision on the defendant's BFOQ defense in the bifurcated trial, its method of handling the case would have saved the court the problem of developing a full record and making a ruling on the remedy issue. We, however, found on appeal that the BFOQ defense was faulty, and remanded the cause to resolve the remedy issue, as we said in our first opinion. Therefore, the sole issue on remand, for trial by the district court, was the issue the district court did not decide, i.e., whether the defendant had established by the preponderance of the evidence that it would not have hired the plaintiff absent age discrimination. The resolution of that issue required the full examination of plaintiff’s termination as a flight officer by his former airline employer, Overseas National Airlines (ONA).
The plaintiff, however, disagrees with this analysis of the issue that was presented at the second trial and that is presented on this appeal. He argues that the BFOQ defense (which he denominates as the “statutory defense”) and the remedy defense are not separate issues but are interdependent and that the determination of the first, (the BFOQ defense) is conclusive under principles of res judicata of the second (the back-pay remedy). He phrases this argument in his brief thus: “Asserting a BFOQ defense logically eliminates the other statutory defense — that the rejection was based upon a reasonable factor other than age (citing Murnane, supra). Since United asserted but failed to prove its BFOQ defense, its liability was established, and it cannot now rely upon the (second) defense.” Citing § 7(a) of the ADEA, he urges that a finding of a violation under the Act carries with it a mandatory finding of entitlement to backpay, and “precludes the defense of ‘wouldn’t have hired anyway’ (italics in brief).” Such an argument is manifestly contradictory of what the Supreme Court said in Mt. Healthy, 429 U.S. at 286-87, 97 S.Ct. at 575-76, and what we held in Patterson v. School District 50, 696 F.2d at 295.
In Mt. Healthy, as we have seen, the Supreme Court directed that in discrimination cases, whether under Title VII or under ADEA, the trial court should first determine whether there was a violation and that, if it found a violation, then it should consider and resolve “the defense of ‘wouldn’t have hired anyway.’ ” Moreover, any contention that a finding of violation carries with it an inescapable ruling in favor of backpay is contradictory of our first decision in this case in which we reversed the ruling of the district court of no-violation but remanded the case in order that the district court might resolve the issue which had not been resolved by the district court in its first decision, i.e., the issue of backpay. On that remand, which would have been unnecessary if plaintiff’s argument were sound, it was both proper and necessary for the district court to do what the court in Nanty v. Barrows Co., 660 F.2d 1327, 1334 (9th Cir.1981) said it should do in such a situation and that is: “afford [the defendant] the opportunity to prove by ‘clear and convincing’ evidence that [the plaintiff] ... in the absence of discrimination, ... would not have been hired.” And this is what was done in this case. The dispositive question in the case thus became whether the defendant had satisfied its burden with proof and, if it had, it would have rebutted the plaintiff’s claim for backpay. Whether the defendant has satisfied this burden depends on an analysis of the record developed at the second trial. We accordingly turn to the evidence on the issue before the district court.
As we have said, the ground on which the defendant claimed it would have refused to employ the plaintiff as a flight officer if there had been no discrimination was the circumstances of the plaintiff’s discharge as a flight officer by ONA on February 13, 1976. The reasons for such discharge were summarized in ONA’s letter of discharge addressed to the plaintiff on that date:
“Upon a full evaluation of all of the information available to this Company, as well'as the information which you have provided, it has been determined that you have, in a most calculated manner, abused privileges which were extended to you both as an employee of this Company and as a flying officer. We have concluded, based on the available evidence, that you misused your ATP card in that you billed flights undertaken by your children to the Company.
Moreover, and of the utmost importance, you secured a purchase order for an amount in excess of $2,000 for a move which you knew, or should have known, was not actually to be accomplished.
“Overseas National Airways regards each incident to be of such a serious nature that either, standing alone, would constitute grounds for discharge. In view of all circumstances, this Company has no choice but to advise you that your services with ONA are hereby terminated.”
There was later a hearing on these reasons for discharge before a Board of Adjustment, convened on the demand of the plaintiff under the terms of the agreement between the plaintiff’s Union and the airline. At this hearing, which was held on February 1, 2, 3, and 8 and May 17, 1977, the plaintiff, assisted by a representative of his Union, and the employer were heard. Both parties stated their respective positions and offered evidence in support. The plaintiff does not contend that the hearing was unfairly conducted or that there was any denial to him of the right to present his evidence. The record is full and complete. All the hearings and the briefs of the parties to the proceedings preceded the filing of plaintiff’s application for employment with the defendant and were fully known to the plaintiff. Later the impartial Referee filed a lengthy report, which was concurred in by two other members of the Board. The members of the Board who did not concur in the result recommended by the impartial Referee did not, however, take any exception to the Referee’s review of the evidence, or to his findings on the basis of such evidence; their objections seemingly were directed at the severity of the penalty. Nor, for that matter, has the plaintiff offered any objections to the statements in the Referee’s report, summarizing the positions of the parties or the evidence offered, though he does argue that the penalty was too severe. That report and the record are a part of the trial record herein. It seems fair under these circumstances to look to this report for a statement of the circumstances of plaintiff’s discharge.
As the report of the impartial Referee makes clear, the first basis for plaintiff’s discharge by ONA was the procuring by the plaintiff of a purchase order from ONA in June, 1975, to cover moving expenses arising out of plaintiff’s change of base from California to New York City. Under the agreement between the Pilots’ Union and ONA, reimbursement was to be had for “[mjoving expenses ... only when a pilot moves from a previous base to his new base ... if the pilot locates within one hundred fifty (150) miles from the new base.” In securing the purchase order, the plaintiff represented he was moving to Cherry Hill, New Jersey, a location within 150 miles of plaintiff’s new base of New York City. The plaintiff, however, did not move, and there was no evidence he ever intended to move to Cherry Hill. He actually moved, as he apparently always intended, to Burke, Virginia. Burke was concededly not within 150 miles of New York. His household goods and furniture arrived in Burke from California on June 24,1975 and were placed in a home in Burke which the plaintiff had contracted for on June 25.
Under the explicit language of the agreement, as quoted above, the plaintiff was not entitled to reimbursement for moving expenses for his move to Burke and, had he not represented falsely that he was moving to Cherry Hill, he would not have had a right to the purchase order from ONA. The plaintiff would excuse his misrepresentation as due to a misunderstanding of the language of the agreement. The Adjustment Board was unable to accept that excuse. We are likewise unable to accept it. The language of the Agreement is clear. It is inconceivable that one with the educational background and business experience of the plaintiff could have misunderstood the simple language of the Agreement. The plaintiff was a graduate engineer and a graduate lawyer who had been both a University instructor in law and an active legal practitioner in several states. In addition, his conduct demonstrated he understood the Agreement’s limitation upon a right to moving expenses. ONA offered proof that before the plaintiff had procured his purchase order to cover moving expenses to Cherry Hill, he had requested a waiver of the 150-mile limitation on his right to moving expenses and his request had been denied. In the face of this conduct, the plaintiff was in no position to claim he did not understand the provision of the Agreement relative to moving expenses.
Moreover, a majority of the Adjustment Board, in their findings, concluded that the plaintiff had misled ONA into issuing a purchase order in his favor for moving expenses by intentionally misleading ONA to believe that he was moving his residence to a location within 150 miles of New York. The report points out in substantiation of this conclusion that the plaintiff ordered stationery with his address given as Cherry Hill, rented a post office box and arranged for a telephone listing (though the listing was of an answering service) in Cherry Hill, and, after he had moved to Burke, had written ONA “on New Jersey stationery, and called specific attention to his New Jersey telephone number (which was not at his ‘residence’).” The Adjustment Board majority found that at no time, either before or after his moving to Burke, had the plaintiff made any effort to secure, or had any intention of establishing a home in Cherry Hill, and that, in the Referee’s opinion, his actions in procuring stationery, showing his address as Cherry Hill, the obtaining of a post office box in Cherry Hill, and the use of an answering service’s number in Cherry Hill, “suggest deliberate deception” on the plaintiff’s part. This conduct of the plaintiff, in the Referee’s opinion, “was a most serious act, one which would normally call for the severest of penalties” (which it would be assumed meant discharge).
There was, also, a second delinquency charged against the plaintiff in the letter of termination, equally serious. It involved the use of his ATP card in purchasing transportation for his children from California east. The purpose of issuing an ATP credit card to flight officers was “to enable employees, such as captains” to secure transportation “from one place to another to pick up or leave scheduled Company flights” but specifically such card was “not to be used for the travel of dependents, whether for personal pleasure or pursuant to a move.” The use of the card by the plaintiff for a purpose known to him to be improper was an inadmissible charge to ONA.
ONA, however, had procrastinated in taking prompt action against the plaintiff after discovering this misconduct on his part. It offered what appears to have been plausible excuses for such delay but a majority of the Adjustment Board decided that, because of this delay, an eighteen (18) month suspension rather than outright termination was in order. But, in agreeing to such penalty, the impartial Referee chose to add this statement:
“A severe penalty certainly, was warranted, since the grievant’s misconduct was extremely serious....
“While rescinding the discharge, the undersigned wants to emphasize that he in no way condones the grievant’s handling of his financial relations with the Company. Since pilots are virtually unsupervised in their daily activities, they must be completely trustworthy, both in' large and small transactions.”
All of these facts, so carefully spelled out in the Report of the Referee were exposed both by ONA’s investigation and at the Board’s hearings, which occurred before plaintiff filed his application for employment with the defendant. The plaintiff sought to moderate this serious transgression by asserting that he admitted to the ONA in August, 1975, that he had actually moved to Burke and not to Cherry Hill, and that he had reimbursed ONA for his children’s transportation. His admission of his move to Burke, however, was quite some time after he had procured his purchase order on the representation he was then in the process of moving to Cherry Hill, according to the Referee’s Report; his reimbursement for his misuse of his ATP card occurred only after ONA had discovered the misuse and was threatening disciplinary action against plaintiff. He conceded at the hearing that his actions under investigation may have been “questionable” and that he may have been negligent in saying he was moving to Cherry Hill rather than Burke, but “he was under great [domestic] pressures” at the time and in any event “the penalty was grossly inappropriate.” The plaintiff even contended at one time that ONA had “deliberately entrapped” him into making admissions related to his transgressions as an employee of ONA. There can be under this record no reasonable basis for finding that the plaintiff had not engaged in misconduct reflecting on his trustworthiness, which misconduct led to his lengthy suspension by ONA as a flight officer.
The district judge, in his oral decision at the conclusion of the trial herein finding that the above evidence did not persuade him that the plaintiff would not have been hired anyway, made no specific findings of fact of his own nor did he indicate disagreement with any of the factual findings set forth in the Report filed by the impartial Referee of the Adjustment Board, filed as a part of the record herein. The only clue to the district judge’s rationale for his decision against the defendant’s defense appears in three comments made by him in his oral opinion and in his later clarification. No one of these comments relates to the actual facts and circumstances of the “alleged fraud” practiced by the plaintiff against his employer, ONA. The factual showing in the record of such misconduct by the plaintiff while in the employment of ONA seems to have been accepted by the district judge. The district judge’s primary objection to the defendant’s defense as based on these undisputed facts was that these facts and the conclusion they required represented an “after-the-fact rationale,” because the facts had not been “available” to the defendant at the time the latter refused to process plaintiff’s application for employment. He declared that he had great doubt whether such “after-the-fact” evidence should be admitted but if “admissible” it was the duty of the court to view it with skepticism. It seems, also, that the district judge felt that the defendant should have, before refusing to process the plaintiff’s application, offered the plaintiff an opportunity to give his side of his difficulty with ONA.
The idea that the defense, based as it was on undisputed facts, should be dismissed or burdened with a heavy cloak of skepticism because it was an “after-the-fact rationale” is a reason that is completely contrary to the bellwether case in this area of Mt. Healthy. In that case, the Court said:
“Initially, in this case, the burden was properly placed upon respondent to show that this conduct was a ‘substantial factor’ — or, to put it in other words, that it was a ‘motivating factor’ in the Board’s decision not to hire him. Respondent having carried that burden, however, the District Court should have gone on to determine whether the Board had shown by a preponderance of the evidence that it would have reached the same decision as to respondent’s reemployment even in the absence of the protected conduct.” 429 U.S. at 287, 97 S.Ct. at 576.
In short, the Supreme Court instructed district courts in cases where the issue is such as here that they “should” proceed to make the “after-the-fact rationale” which the district court in this case deprecates. Moreover, it nowhere countenanced the idea that the evidence on this issue was to be treated with skepticism; the clear inference is that such evidence was to be weighed by the same standards as other testimony.
This construction of Mt. Healthy has been followed in repeated decisions; in fact, we have found no authority which supports the district court’s condemnation of what it characterizes as the “after-the-fact rationale” in this context. Certainly, the Court did not follow this reasoning of the district court in Murnane, in which, as we have seen, the airline had, as the defendant here, first refused to process the plaintiff’s application under a policy of not processing applications for employment as a flight officer by one who was over 40 years of age. But the defendant was permitted to prove by other facts later developed it wouldn’t have hired the plaintiff anyway. We did the same in Patterson, 696 F.2d 293. Moreover, this procedure is, as the Court described it in Gibson v. Mohawk Rubber Co., 695 F.2d 1093, 1097 (8th Cir.1982), “[cjonsistent with the ADEA’s purpose of recreating the circumstances that would have existed but for the illegal discrimination” in determining whether a claimant is entitled to backpay. And, there is nothing unusual in a court resolving what a party to litigation would or should have done under certain circumstances. It is done repeatedly in tort cases. Courts have not bridled in these cases at making “after-the-fact rationale[s].” Neither may they in cases such as this.
Similarly, there is no support in the authorities for the doubt expressed by the district court in its oral opinion on the availability (“not available”) of the defense that the plaintiff “wouldn’t have been hired anyway” because that point was not raised at the time the plaintiff’s application was initially denied processing. Murnane is a perfect answer to such expression of doubt. The defendant there did not raise the plaintiff’s disqualification for employment when it refused to process plaintiff’s application and the evidence on which it rested its contention that the plaintiff would not have been hired “anyway” all involved incidents occurring months after the court had found the defendant had refused to process plaintiff’s application because of his age. Our own case of Patterson, 696 F.2d at 295-96, is likewise in point. There the district court found that the defendant, in filling a vacancy of assistant principal, had “improperly discriminated against [the plaintiff] in violation of Title VII.” The defendant did not on appeal except to this finding. Its defense was that “at least four of the five interviewers [who made the selection in question] would have selected another female applicant ahead of plaintiff for reasons other than prohibited discrimination,” and thus the plaintiff would not have been selected “anyway.” It supported this contention with the evidence of the interviewers. We ordered judgment in favor of the defendant on the issue of backpay because the evidence demonstrated that the plaintiff would not have received the promotion had there been no sex discrimination. Even in Rodriguez v. Taylor, 569 F.2d 1231, 1240-41 (3d Cir.), cert. denied, 436 U.S. 913, 98 S.Ct. 2254, 56 L.Ed.2d 414 (1978), the court said that if the defendant had offered proof at trial [there was no bifurcation of issues in this case] that the plaintiff at any time prior to trial had failed the civil service examination, he would have
Question: In what state or territory was the case first heard?
01. not
02. Alabama
03. Alaska
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. Florida
11. Georgia
12. Hawaii
13. Idaho
14. Illinois
15. Indiana
16. Iowa
17. Kansas
18. Kentucky
19. Louisiana
20. Maine
21. Maryland
22. Massachussets
23. Michigan
24. Minnesota
25. Mississippi
26. Missouri
27. Montana
28. Nebraska
29. Nevada
30. New
31. New
32. New
33. New
34. North
35. North
36. Ohio
37. Oklahoma
38. Oregon
39. Pennsylvania
40. Rhode
41. South
42. South
43. Tennessee
44. Texas
45. Utah
46. Vermont
47. Virginia
48. Washington
49. West
50. Wisconsin
51. Wyoming
52. Virgin
53. Puerto
54. District
55. Guam
56. not
57. Panama
Answer:
|
sc_lcdispositiondirection
|
B
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine whether the decision of the court whose decision the Supreme Court reviewed was itself liberal or conservative. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. The lower court's decision direction is unspecifiable if the manner in which the Supreme Court took jurisdiction is original or certification; or if the direction of the Supreme Court's decision is unspecifiable and the main issue pertains to private law or interstate relations
SNOW et ux. v. COMMISSIONER OF INTERNAL REVENUE
No. 73-641.
Argued April 16, 1974
Decided May 13, 1974
Douglas, J., delivered the opinioh of the Court, in which all Members joined except Stewart, J., who took no part in the consideration or decision of the case.
Burgess L. Doan argued the cause and filed briefs for petitioners.
Stuart A. Smith argued the cause for respondent. With him on the brief were Solicitor General Bork, ■Assistant Attorney General Crampton, Bennet N. Hollander, and Jane M. Edmisten.
Charles H. Phillips and Ronald L. Blanc, pro se, filed a brief as amici curiae.
Mr. Justice Douglas
delivered the opinion of the Court.
Section 174(a)(1) of the Internal Revenue Code of 1954, 26 U. S. C. § 174 (a)(1), allows a taxpayer to take as a deduction “experimental expenditures which are paid •or incurred by him during the taxable year in connection with his trade or business as expenses which are not chargeable to capital account.” Petitioner Edwin A. Snow (hereafter petitioner) was disallowed as a deduction his distributive share of the net operating loss of a partnership, Burns Investment Company, for the taxable year 1966. The United States Tax Court sustained the Commissioner, 58 T. C. 585. The Court of Appeals for the Sixth Circuit affirmed, 482 F. 2d 1029 (1973). The case is here on a writ of certiorari because of an apparent conflict between that court and the Fourth Circuit in Cleveland v. Commissioner, 297 F. 2d 169 (1961).
Petitioner was a limited partner in Burns, having contributed $10,000 for a four-percent interest in Burns. The general partner was one Trott who had previously formed two other limited partnerships, one called Echo, to develop a telephone answering device and the other Courier, to develop an electronic tape recorder. Petitioner had become a-limited partner in each of these other partnerships.
Burns .wa^ formed to develop “a special purpose incinerator for the consumer and industrial markets.” Trott was the inventor and had conceived of this idea in 1964 and between then and 1966 had made a number of prototypes. His patent counsel had told him in 1965 that several features of the burner were in his view patentable but in 1966 advised him that the incinerator as a whole had not been sufficiently “reduced to practice” in order to develop it into a marketable product. At that point Trott formed Burris, petitioner putting up part of the capital. Thereafter various models of the burner were built and tested.
During 1966 Burns reported no sales of the incinerator or any other product but expectations were high; and Trott was giving about one-third of his time to the project, an outside engineering firm doing the shopwork.
Trott obtained a patent on the incinerator in 1970, and it is currently being produced and marketed under the name Trash-Away.
Section 174 was enacted in 1954 to dilute some of the conception of “ordinary and necessary” business expenses under § 162 (a) (then § 23 (a)(1) of the Internal Revenue Code of 1939) adumbrated by Mr. Justice Frankfurter in a concurring opinion in Deputy v. Du Pont, 308 U. S. 488, 499 (1940), where he said that the section in question (old § 23 (a)) “involves holding one’s self out to others as engaged in the selling of goods or services.” The words “trade or business” appear, however, in about .60 different sections of the 1954 Act. Those other sections are not helpful here because Congress wrote into.§ 174 (a)(1) “in connection with,” and § 162 (a) is more narrowly written than is § 174, allowing “a deduction” of “ordinary and necessary expenses paid or incurred ... in carrying on any trade or business.” That and other sections are not helpful here.
The legislative history makes fairly clear the reasons. Established firms with ongoing business had continuous programs of research quite unlike small or pioneering business enterprises. Mr. Reed of New York, Chairman of the House Committee on Ways and Means, made the point even more explicit when he addressed the House on the bill:
“Present law contains no statutory provision dealing expressly with the deduction of these expenses. The result has been confusion and uncertainty. Very often, under present law'small businesses which are developing new products and do not have est¿blished research departments are not allowed to deduct these expenses' despite the fact that them large and well-established competitors can obtain the deduction. . . . This, provision will greatly stimulate the' search for new products' and new inventions, upon which the fiiture economic and military strength of our Nation depends.' It will be particularly valuable to small and growing businesses.” (Emphasis added.)
Congress may at times in its wisdom discriminate tax-wise between various kinds of business, between old and oncoming businéss and the like. But we would defeat the congressional purpose somewhat to equalize the tax benefits of the ongoing companies and those that are upcoming and about to reach the market by perpetuating the discrimination created below and urged upon us here.
We read § 174 as did the Court of Appeals for the Fourth Circuit in Cleveland “to encourage expenditure for research and experimentation.” 297 F. 2d, at 173. -That incentive is embedded in § 174 because of “in connection with,” making irrelevant whether petitioners-were rich or poor. -
We aré invited to explore the treatment of “hobby-losses” under §183. But that is far afield of the present inquiry for it is clear that in this case under § 174 the profit motive was the sole drive of the venture.
Reversed.
Mr. Justice Stewart took no part in the consideration or decision of this case.
Both Echo and Courier claimed research and development expenses in 1965 and 1966; and they were not. challenged by the Commissioner, apparently because their products were in a more advanced stage of development and were available for sale or licensing.
Treasury Regulation § 1.174-2 (a) (2) provides: “The provisions of this .section apply not only to costs paid or incurred by the taxpayer for research or- experimentation undertaken directly by him but also to expenditures paid or incurred for research or experimentation carried on in his behalf by another person or organization (such as . . . [an] engineering company, or similar contractor). . . .”
Prior to 1970 Burns was incorporated and it produces and markets Trasli-Away, petitioner being its Chairman of the Board.
Saunders, “Trade or Business,” Its Meaning Under the Internal Revenue Code, U. So. Cal. 12th Inst. on Fed. Tax. 693 (1960).
Hearings on H. R. 8300 before the Senate Committee on Finance, 83d Cong., 2d Sess., pt. 1, p. 105.
100 Cong. Rec. 3425 (1954).
Question: What is the ideological direction of the decision reviewed by the Supreme Court?
A. Conservative
B. Liberal
C. Unspecifiable
Answer:
|
sc_adminaction_is
|
B
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether administrative action occurred in the context of the case prior to the onset of litigation. The activity may involve an administrative official as well as that of an agency. To determine whether administration action occurred in the context of the case, consider the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
SICURELLA v. UNITED STATES.
No. 250.
Argued February 1, 1955.
Decided March 14, 1955.
Hayden C. Covington argued the cause and filed a brief for petitioner.
John F. Davis argued the cause for the United States. With him on the brief were Solicitor General Sobeloff, Assistant Attorney General Olney, Beatrice Rosenberg and J. F. Bishop.
Mr. Justice Clark
delivered the opinion of the Court.
Petitioner was born in 1927 and was brought up as a Jehovah’s Witness by his parents, both of whom were of that faith. He has been identified with the sect since he was 6 years old, “was immersed and became a consecrated servant of Jehovah” at 15, and was ordained when 17 years old. He registered with his local Board in 1948, and, although he worked 44 hours a week for the Railway Express Company, he was first classified as a minister. In 1950, however, petitioner was reclassified for general service and, shortly thereafter, he filed his conscientious objector claim.
In the special form, petitioner included this statement :
“The nature of my claim is that: I am already in the Army of Christ Jesus serving as a soldier of Jehovah’s appointed Commander Jesus Christ. (2 Tim. 2:3 & 4). Inasmuch as the war weapons of the soldier of Jesus Christ are not carnal, I am not authorized by his Commander to engage in carnal warfare of this world. (2 Corinthians 10:3 & 4, Ephesians 6:11-18) Furthermore being enlisted in the army of Jesus Christ, I cannot desert the forces of Jehovah to assume the obligations of a soldier in any army of this world without being guilty of desertion and suffering the punishment meted out to deserters by Almighty God. . . .”
In answer to the question, “Under what circumstances, if any, do you believe in the use of force,” he wrote:
“Only in the interests of defending Kingdom Interests, our preaching work, our meetings, our fellow brethren and sisters and our property against attack. I (as well as all Jehovah's Witnesses) defend those when they are attacked and are forced to protect such interests and scripturally so. Because in doing so we do not arm ourselves or carry carnal weapons in anticipation of or in preparation for trouble or to meet threats. In doing so I try to ward off blows and attacks only in defense. I do not use weapons of warfare in defense of myself or the Kingdom interests. I do not retreat when attacked in my home or at meeting places, but will retreat on public or other property and shake the dust off my feet; so not giving what is holy to dogs and not throwing my pearls before swine. (Matthew 10:14 & 7:6) So I retreat when I can do so and avoid a fight or trouble. Also following the admonition at Acts 24:16; which states ‘In this respect, indeed, I am exercising myself continually to have a consciousness of committing no offense against God and man.’ ”
Upon a denial of this claim by the local Board, petitioner appealed and his file was referred to the Department of Justice. It appears that the report of the Federal Bureau of Investigation contained nothing unfavorable to petitioner’s claim, and the hearing officer concluded that petitioner should be classified as a conscientious objector. In advising the Department of Justice, the hearing officer wrote that he “was convinced that [petitioner] has sincere objections to military service by reason of his religious training and beliefs.” The Department of Justice, although admitting that the investigation was favorable to petitioner, recommended to the Appeal Board that petitioner’s claim be denied on the ground that
“While the registrant may be sincere in the beliefs he has expressed, he has, however, failed to establish that he is opposed to war in any form. As indicated by the statements on his SSS Form No. 150, registrant will fight under some circumstances, namely in defense of his ministry, Kingdom Interests, and in defense of his fellow brethren. He is, therefore, not entitled to exemption within the meaning of the Act.”
The Appeal Board retained petitioner in his I-A classification, and thereafter, when duly ordered to report, he refused to submit to induction. This prosecution followed and the Seventh Circuit affirmed petitioner’s conviction. 213 F. 2d 911. We granted certiorari. 348 U. S. 812.
In this case, unlike Witmer, ante, p. 375, it is admitted that petitioner is sincere; we are therefore relieved of the task of searching the record for basis in fact to support a finding of insincerity. The only question presented in this case is one of law — do the beliefs which petitioner says he holds amount to the conscientious opposition to “participation in war in any form” demanded by Congress as a prerequisite to the conscientious objector deferment?
Stated in the light of the background, the question at issue is whether a registrant under the Universal Military Training and Service Act, who is admittedly a sincere Jehovah’s Witness and conscientious objector to participation in war, but who believes in the use of force in defending “his ministry, Kingdom interests and ... his fellow brethren,” is entitled to exemption under § 6 (j) of the Act from service in the armed forces. The Government insists that petitioner’s statements reveal qualified and varied objection to war — and that “petitioner’s willingness to fight in defense of ‘Kingdom Interests’, particularly when those words are considered in the light of the teachings of his sect, . . .” is clearly not opposition to war in any form.
The Government does not contend that the petitioner’s belief in the use of force in self-defense, as well as the defense of his home, family and associates, is so inconsistent with his claim of conscientious objection as to serve as a basis for a denial of his claim. The question here narrows to whether the willingness to use of force in defense of Kingdom interests and brethren is sufficiently inconsistent with petitioner’s claim as to justify the conclusion that he fell short of being a conscientious objector. Throughout his selective service form, petitioner emphasized that the weapons of his warfare were spiritual, not carnal. He asserted that he was a soldier in the Army of Jesus Christ and that “the war weapons of the soldier of Jesus Christ are not carnal.” With reference to the defense of his ministry, his brethren and Kingdom interests, he asserted that “we do not arm ourselves or carry carnal weapons .... I do not use weapons of warfare in defense ... of Kingdom interests . . . .” In letters to the local Board he reiterated these beliefs. On their face, these statements make it clear that petitioner’s defense of “Kingdom Interests” has neither the bark nor the bite of war as we unfortunately know it today. It is difficult for us to believe that the Congress had in mind this type of activity when it said the thrust of conscientious objection must go to “participation in war in any form.”
But the Government urges that these statements of petitioner must be taken in the light of the teachings of Jehovah’s Witnesses. While each case must of necessity be based on the particular beliefs of the individual registrant, it is true that the Congress, by relating the registrant’s conscientious objection to his religious training and belief, has made the belief of his sect relevant. Moreover, the petitioner does parenthetically say that his belief in the use of force was “as well . . . [the belief of] all Jehovah’s Witnesses.” On the other hand, though the Government has appended to its brief a copy of the Watchtower magazine of February 1, 1951, we do not find any such literature in the record. It is not at all clear that we may consider such material outside the record to support an Appeal Board decision, cf. Cox v. United States, 332 U. S. 442, 453-455 (1947), but we need not decide that here because in any event there is no substance to the Government’s contention. Granting that these articles picture Jehovah’s Witnesses as antipacifists, extolling the ancient wars of the Israelites and ready to engage in a “theocratic war” if Jehovah so commands them, and granting that the Jehovah’s Witnesses will fight at Armageddon, we do not feel this is enough. The test is not whether the registrant is opposed to all war, but whether he is opposed, on religious grounds, to participation in war. As to theocratic war, petitioner’s willingness to fight on the orders of Jehovah is tempered by the fact that, so far as we know, their history records no such command since Biblical times and their theology does not appear to contemplate one in the future. And although the Jehovah’s Witnesses may fight in the Armageddon, we are not able to stretch our imagination to the point of believing that the yardstick of the Congress includes within its measure such spiritual wars between the powers of good and evil where the Jehovah’s Witnesses, if they participate, will do so without carnal weapons.
We believe that Congress had in mind real shooting wars when it referred to participation in war in any form — actual military conflicts between nations of the earth in our time-r-wars with bombs and bullets, tanks, planes and rockets. We believe the reasoning of the Government in denying petitioner’s claim is so far removed from any possible congressional intent that it is erroneous as a matter of law.
The Court of Appeals also rested its decision on the conclusion that petitioner’s objection to participation in war was only a facet of his real objection to all governmental authority. We believe, however, that if the requisite objection to participation in war exists, it makes no difference that a registrant also claims, on religious grounds, other exemptions which are not covered by the Act. Once he comes within § 6 (j), he does not forfeit its coverage because of his other beliefs which may extend beyond the exemption granted by Congress.
The Government also contends, apparently for the first time, that petitioner objects to “participation in war in any form,” if in fact he does, not from a feeling that it is wrong to participate in war but because such participation will require time which petitioner feels should be devoted to his religious activities. In its memorandum indicating its lack of opposition to certiorari, the Government gave no hint that it considered such an issue in the case, and it is unnecessary for us to consider it here. The report of the Department of Justice to the Appeal Board clearly bases its recommendation on petitioner’s willingness to “fight under some circumstances, namely in defense of his ministry, Kingdom Interests, and in defense of his fellow brethren,” and we feel that this error of law by the Department, to which the Appeal Board might naturally look for guidance on such questions, must vitiate the entire proceedings at least where it is not clear that the Board relied on some legitimate ground. Here, where it is impossible to determine on exactly which grounds the Appeal Board decided, the integrity of the Selective Service System demands, at least, that the Government not recommend illegal grounds. There is an impressive body of lower court cases taking this position and we believe that they state the correct rule. Cf. United States ex rel. Levy v. Cain, 149 F. 2d 338, 342 (C. A. 2d Cir. 1945); United States v. Balogh, 157 F. 2d 939, 943-944 (C. A. 2d Cir. 1946), judgment vacated on other grounds, 329 U. S. 692; United States v. Everngam, 102 F. Supp. 128 (S. D. W. Va. 1951).
The decision below is therefore
Reversed.
In United States v. Taffs, in which we denied certiorari, 347 U. S. 928, the Government admitted as much in its petition. Its admission here does not extend to the category “brethren” which was not used in Taffs.
Question: Did administrative action occur in the context of the case?
A. No
B. Yes
Answer:
|
songer_injunct
|
D
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court's ruling on the validity of an injunction or the denial of an injunction or a stay of injunction favor the appellant?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
Gerald MASTRACCHIO, Petitioner, Appellant, v. Lieutenant Angelo RICCI and Providence Police Department, Respondents, Appellees.
No. 74-1045.
United States Court of Appeals, First Circuit.
Submitted May 9, 1974.
Decided June 24, 1974.
Gerald Mastracchio on brief pro se.
Before COFFIN, Chief Judge, Mc-ENTEE and CAMPBELL, Circuit Judges.
COFFIN, Chief Judge.
This is a civil rights suit under 42 U.S.C. § 1983 in which plaintiff seeks compensatory and punitive damages against the Providence, Rhode Island Police Department and against a then Sergeant Ricci, a member of that department, based upon the allegation that defendant Ricci committed perjury during the state court trial in which plaintiff was convicted of murder. Because plaintiff's appeal of his conviction to the Rhode Island Supreme Court “raised like issues as have been raised in the instant matter”, the federal suit was stayed by the district court by agreement of counsel pending the outcome of that appeal. After the Rhode Island Supreme Court affirmed plaintiff’s conviction the court below granted summary judgment for defendants sua sponte. The district court reasoned that the state judgment acted to bar the complaint by means of the operation of principles of collateral estoppel, relying upon our decision in Cardillo v. Zyla, 486 F.2d 473 (1st Cir. 1973). To the extent that plaintiff presented new evidence the court stated that, “if the plaintiff is now claiming that he has discovered new exculpatory evidence, it appears that his motion should be addressed to the State Courts by way of a motion for a new trial.”
Plaintiff, who brings this appeal pro se, has raised two issues for review. First, he urges that the court below erred in requiring him to present his new evidence to the state courts before he could use it as the basis for a federal civil rights suit. He argues that this amounted to a requirement of exhaustion of remedies, and that such a requirement cannot be applied to civil rights actions. The second issue raised is whether a state criminal conviction may be used to bar a civil rights suit for damages by operation of principles of collateral estoppel. Both of these issues raise points not previously considered by this court in this precise context.
In Guerro v. Mulhearn, 498 F.2d 1249 (1st Cir.) this court held that a civil rights damage action brought during the pendency of state criminal proceedings (including appellate proceedings) must be deferred until the end of those proceedings if the validity of the state conviction would be an issue in the federal action. Although sensitive to the well-established rule, and the strong policies which it protects, that exhaustion is not required in civil rights actions, we found that considerations of federalism, the orderly administration of criminal justice, and the integrity of the writ of habeas corpus dictated the creation of an exception.
This case presents a somewhat different situation. No state criminal proceedings are ongoing, the direct criminal appeal having run its course. Therefore, the impact of federal proceedings upon the state judicial system, upon the administration of justice and upon the province of the Great Writ are all attenuated. But plaintiff states in his brief that he is in the process of presenting his newly discovered evidence to the Rhode Island courts. Thus, while it is possible that cases may arise in a context like this one in which the policies which call for deferral of the federal action will not be sufficiently at stake to make such deferral necessary, that is not true here. Since the prospect of further state court action is very real, and since by its very nature the purpose of this state proceeding will be to call in question the validity of the criminal conviction, the district court properly decided that the matter in issue which had not already been presented to the state courts should not be heard in federal court until the state action was completed.
The second issue raised by plaintiff concerns the collateral estoppel effect to be given to his criminal conviction. The district court rested its finding against plaintiff on this point upon Cardillo v. Zyla, 486 F.2d 473 (1st Cir. 1973). But Cardillo involved a federal diversity action which followed a criminal conviction. The novel question here presented is whether our holding in Cardillo is applicable to the situation where the federal action is brought under the Civil Rights Act.
The Supreme Court has never ruled on the question of the applicability of principles of res judicata and collateral estoppel to actions under section 1983. In Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973) the majority noted that, “res judicata has been held to be fully applicable to a civil rights action brought under § 1983. Coogan v. Cincinnati Bar Assn., 431 F.2d 1209, 1211 (CA6 1970); Jenson v. Olson, 353 F.2d 825 (CA8 1965); Rhodes v. Meyer, 334 F.2d 709, 716 (CA8 1964); Goss v. Illinois, 312 F.2d 257 (CA7 1963).” 411 U.S. at 497, 93 S.Ct. at 1840. In dissent, Mr. Justice Brennan agreed that several lower federal courts had assumed res judicata was applicable to § 1983 actions but thought that, “in view of the purposes underlying enactment of the Act — in particular, the congressional misgivings about the ability and inclination of state courts to enforce federally protected rights . . . — that conclusion may well be in error.” 411 U.S. at 509 n. 14, 93 S.Ct. at 1846 (Brennan, J., dissenting). A few courts have also expressed misgivings, most notably the Ninth Circuit in Ney v. California, 439 F.2d 1285 (9th Cir. 1971), which noted that,
“if a successful state prosecution, based upon the use of information obtained by violating the defendant’s constitutional rights, could bar a civil rights action against the police for violating his rights, either by analogy to the law of malicious prosecution or on theories of res judicata or estoppel by judgment, the Civil Rights Act would, in many cases, be a dead letter.” 439 F.2d at 1288.
This concern was echoed in Ames v. Vavreck, 356 F.Supp. 931, 940-941 (D.Minn.1973) and in Moran v. Mitchell, 354 F.Supp. 86 (E.D.Va.1973). One district court has even held that state convictions do not have a collateral estoppel effect upon section 1983 actions, Wecht v. Marsteller, 363 F.Supp. 1183, 1190 (W.D.Pa.1973).
Nevertheless, it now appears well established that when a civil rights action is brought in federal court which presents the same issue as was decided in a prior state civil action, that prior state judgment may have a collateral estoppel (or res judicata) effect upon the federal suit. Bricker v. Crane, 468 F.2d 1228, 1231 (1st Cir. 1972), cert. denied, 410 U.S. 930, 93 S.Ct. 1368, 35 L.Ed.2d 592 (1973); P. I. Enterprises v. Cataldo, 457 F.2d 1012, 1014 (1st Cir. 1972); see also Garner v. Louisiana State Board of Education, 489 F.2d 91 (5th Cir. 1974); Parker v. McKeithen, 488 F.2d 553 (5th Cir. 1974); Lackawanna Police Benevolent Ass’n. v. Balen, 446 F.2d 52 (2d Cir. 1971); Taylor v. New York City Transit Authority, 433 F.2d 665 (2d Cir. 1970); Coogan v. Cincinnati Bar Ass’n., 431 F.2d 1209 (6th Cir. 1970); Scott v. California Supreme Court, 426 F.2d 300 (9th Cir. 1970); Frazier v. East Baton Rouge Parish School Board, 363 F.2d 861 (5th Cir. 1966); Jenson v. Olson, 353 F.2d 825 (8th Cir. 1965); Lavasek v. White, 339 F.2d 861 (10th Cir. 1965); Chance v. County Bd. of School Trustees, 332 F.2d 971 (7th Cir. 1964). The same is true if the prior civil action was in federal court, Rhodes v. Meyer, 334 F.2d 709 (8th Cir.), cert. denied, 379 U.S. 915, 85 S.Ct. 263, 13 L.Ed.2d 186 (1964). This result may be reached without regard to highly technical notions of mutuality, P. I. Enterprises v. Cataldo, supra, 457 F.2d at 1015.
The same principles have been applied by a number of courts to the situation where the prior judgment is a state criminal conviction, see Thistlethwaite v. City of New York, 497 F.2d 339 (2d Cir. 1974); Williams v. Liberty, 461 F.2d 325 (7th Cir. 1972); Metros v. United States District Court, 441 F.2d 313, 316 (10th Cir. 1971); Kauffman v. Moss, 420 F.2d 1270 (3d Cir.), cert. denied, 400 U.S. 846, 91 S.Ct. 93, 27 L.Ed.2d 84 (1970); Shank v. Spruill, 406 F.2d 756 (5th Cir. 1969); Goss v. Illinois, 312 F.2d 257 (7th Cir. 1963); Burchett v. Bower, 355 F.Supp. 1278 (D.Ariz.1973); Moran v. Mitchell, 354 F.Supp. 86 (E.D.Va.1973); Palma v. Powers, 295 F.Supp. 924, 937 (N.D.Ill.1969); see also Sullivan v. Murphy, 156 U.S.App.D.C. 28, 478 F.2d 938 (1973); Mulligan v. Schlachter, 389 F.2d 231 (6th Cir. 1968); cf. Willard v. United States, 422 F.2d 810 (5th Cir.), cert. denied, 398 U.S. 913, 90 S.Ct. 1714, 26 L.Ed.2d 76 (1970).
In this circuit a holding that a state criminal conviction can have a collateral estoppel effect upon a federal civil rights action can be reached simply by analytically combining our holdings in Bricker v. Crane, supra, and P. I. Enterprises v. Cataldo, supra (civil rights action preceded by state civil judgment), with our holding in Cardillo v. Zyla, supra (federal diversity action preceded by criminal conviction). As shown above, this result accords with the overwhelming weight of authority. As to the scope of this collateral estoppel, we think it proper to repeat what we have said on this topic before. “Collateral estoppel operates, of course, only as to matters actually litigated and decided at the prior trial. See Palma v. Powers, [supra], citing Cromwell v. County of Sac, 94 U.S. 351, 354, 24 L.Ed. 195 (1876).” Cardillo v. Zyla, 486 F.2d 473, 475 (1st Cir. 1973). Accord, P. I. Enterprises v. Cataldo, 457 F.2d 1012, 1015 (1st Cir. 1972). Other courts have adopted a similar position. Williams v. Liberty, 461 F.2d 325, 327 (7th Cir. 1972); Kauffman v. Moss, 420 F.2d 1270 (3d Cir.), cert. denied, 400 U.S. 846, 91 S.Ct. 93, 27 L.Ed.2d 84 (1970); Ames v. Vavreek, 356 F.Supp. 931, 941 (D.Minn.1973); Moran v. Mitchell, 354 F.Supp. 86 (E.D.Va.1973); see also Ney v. California, 439 F.2d 1285, 1288 (9th Cir. 1971); Mulligan v. Schlachter, 389 F.2d 231 (6th Cir. 1968); cf. Metros v. United States District Court, 441 F.2d 313, 317 (10th Cir. 1971). Indeed, Judge Stahl has written that “[reasonable doubt as to what was decided by a prior judgment should be resolved against using it as an estoppel.” Kauffman v. Moss, supra, 420 F.2d at 1274.
In the instant case, since the antecedent action was a criminal trial, and since such trials do not re suit, generally, in explicit findings as to anything but the ultimate issue of guilt or innocence, the proper course in determining whether collateral estoppel principles are to operate in the federal trial is set out in Cardillo v. Zyla, supra. There the court “examined the record of the antecedent criminal case to determine the issues decided by that judgment”. 486 F.2d at 475. Collateral estoppel was found operative because, “Cardillo’s present civil claims are based on issues whose earlier determination was essential to the criminal judgment . . . .’’Id.
The court below reasoned that, “If the alleged perjui'e [sic] testimony was indeed essential to a jury’s finding of guilt, then the issues have been resolved against plaintiff in State Courts. If the alleged perjure [sic] testimony was not essential to his conviction below, then even if the testimony was false, plaintiff has not suffered any damages as a result thereof.” We have examined the amended complaint, and can find nothing in it to indicate that infringement of any federally protected right is involved other than the right to a fair trial. Thus, while it is quite possible that cases may arise in which civil rights claims based upon actions before or at trial would not be “issues whose earlier determination was essential to the criminal judgment”, Cardillo v. Zyla, supra, 486 F.2d at 475, but would nevertheless be compensable, that is not true here. Under these circumstances the district court’s equation was correct.
Affirmed.
. The term res judicata is sometimes used generically to cover a number of related principles. More narrowly, res judicata refers to preclusion of a cause of action, while collateral estoppel refers to preclusion of an issue. See Palma v. Powers, 295 F.Supp. 924, 932 n. 1 (N.D.Ill.1969), IB Moore’s Federal Practice K 0.401 (1974).
. In Moran v. Mitchell, Judge Merhige suggested the possibility of an exception to the general applicability of collateral estoppel to section 1983 actions in the situation where, because of limitations placed upon the availability of federal habeas corpus, for example, the custody requirement, a plaintiff might otherwise have no federal forum available to him in which to seek vindication of his federally protected rights.
It may also be worthwhile to note another aspect of the relationship between habeas and res judicata/collateral estoppel. As pointed out by the Court in Fay v. Noia, 372 U.S. 391, 423, 83 S.Ct. 822, 840, 9 L.Ed.2d 837 (1963), “the familiar principle that res judicata is inapplicable in habeas proceedings ... is really but an instance of the larger principle that void judgments may be collaterally impeached.” Thus, once a state judgment has been found void in a federal habeas action, it should then also be void for res judicata/collateral estoppel purposes in a civil rights action.
. For example, it might be claimed that before or during trial rights of privacy, or free speech, or freedom from unlawful pretrial incarceration have been infringed, and these could constitute compensable wrongs wholly apart from the question of the constitutional validity of conviction.
Question: Did the court's ruling on the validity of an injunction or the denial of an injunction or a stay of injunction favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
sc_decisiontype
|
F
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the type of decision made by the court among the following: Consider "opinion of the court (orally argued)" if the court decided the case by a signed opinion and the case was orally argued. For the 1791-1945 terms, the case need not be orally argued, but a justice must be listed as delivering the opinion of the Court. Consider "per curiam (no oral argument)" if the court decided the case with an opinion but without hearing oral arguments. For the 1791-1945 terms, the Court (or reporter) need not use the term "per curiam" but rather "The Court [said],""By the Court," or "By direction of the Court." Consider "decrees" in the infrequent type of decisions where the justices will typically appoint a special master to take testimony and render a report, the bulk of which generally becomes the Court's decision. This type of decision usually arises under the Court's original jurisdiction and involves state boundary disputes. Consider "equally divided vote" for cases decided by an equally divided vote, for example when a justice fails to participate in a case or when the Court has a vacancy. Consider "per curiam (orally argued)" if no individual justice's name appears as author of the Court's opinion and the case was orally argued. Consider "judgment of the Court (orally argued)" for formally decided cases (decided the case by a signed opinion) where less than a majority of the participating justices agree with the opinion produced by the justice assigned to write the Court's opinion.
MITCHELL et al. v. HELMS et al.
No. 98-1648.
Argued December 1, 1999 —
Decided June 28, 2000
Thomas, J., announced the judgment of the Court and delivered an opinion, in which Rehnquist, C. J., and Scaula and Kennedy, JJ., joined. O’Connor, J., filed an opinion concurring in the judgment, in which Breyer, J., joined, post, p. 886. Souter, J., filed a dissenting opinion, in which Stevens and Ginsburg, JJ., joined, post, p. 867.
Michael W. McConnell argued the cause for petitioners. With him on the briefs were Patricia A. Dean, Andrew T Karron, John C. Massaro, and Steffen N. Johnson.
Deputy Solicitor General Underwood argued the cause for respondents. With her on the briefs were Solicitor General Waxman, Acting Assistant Attorney General Ogden, Paul R. Q. Wolf son, Michael Jay Singer, and Howard S. Scher.
Lee Boothhy argued the cause for respondents. With him on the brief was Nicholas P. Miller:
Briefs of amici curiae urging reversal were filed for the State of Ohio et al. by Betty D. Montgomery, Attorney General of Ohio, Edward B. Foley, State Solicitor, Robert C. Maier, Assistant Solicitor, and by the Attorneys General for their respective States as follows: Ken Salazar of Colorado, Robert A Butterworth of Florida, James E. Ryan of Illinois, Thomas J. Miller of Iowa, Carla J. Stovall of Kansas, Richard R leyoub of Louisiana, Jennifer M. Granholm of Michigan, Mike Moore of Mississippi, Don Stenberg of Nebraska, John J. Farmer, Jr., of New Jersey, Charles M. Condon of South Carolina, and Mark L. Earley of Virginia; for the City of New York et al. by Michael D. Hess, Leonard J. Koemer, and Edward F. X. Hart; for the American Center for Law and Justice by Jay Alan Sekulow, John P. Tuskey, Walter W. Weber, Colby M. May, and Vincent P. McCarthy; for the Arizona Council for Academic Private Education et al. by Edward McGlynn Gaffney, Jr., and David J. Hessler; for the AVI CHAI Foundation by Nathan Lewin, Julia E. Guttman, and Jody Manier Kris; for the Becket Fund for Religious Liberty by Kevin J. Hasson and Erie W. Treene; for the Catholic League for Religious and Civil Rights by Robert P. George; for the Knights of Columbus by Kevin T. Baine and Emmet T. Flood; for the United States Catholic Conference by Mark E. Chopko, John A Liekweg, and Jeffrey Hunter Moon; and for the Washington Legal Foundation by Daniel J. Popeo and R. Shawn Gunnarson.
Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union et al. by Drew S. Days III, Anthony M. Radice, Lev L. Dassin, and Laura R. Taichman; for the Baptist Joint Committee on Public Affairs by Melissa Rogers and J. Brent Walker; for the Interfaith Religious Liberty Foundation et al. by Derek Davis and Alan J. Reinach; for the National Committee for Public Education and Religious Liberty et al. by Marshall Beil and Philip Goldstein; for the National Education Association by Robert H. Chanin, Jeremiah A Collins, and Michael D. Simpson; for the National Jewish Commission on Law and Public Affairs by Dennis Rapps, David Zwiebel, Nathan Diament, and Nathan Lewin; and for the National School Boards Association et al. by Julie Underwood, Jay Worona, and Pilar Sokol.
Briefs of amici curiae were filed for the Christian Legal Society et al. by Steven T. McFarland, Samuel B. Casey, and Carl H. Esbeck; for the Institute for Justice et al. by William H. Mellor and Clint Bolick; for the Pacific Legal Foundation by Sharon L. Browne and Deborah J. La Fetra; and for the Rutherford Institute by John W. Whitehead and Steven H. Aden.
Justice Thomas
announced the judgment of the Court and delivered an opinion, in which The Chief Justice, Justice Scalia, and Justice Kennedy join.
As part of a longstanding school-aid program known as Chapter 2, the Federal Government distributes funds to state and local governmental agencies, which in turn lend educational materials and equipment to public and private schools, with the enrollment of each participating school determining the amount of aid that it receives. The question is whether Chapter 2, as applied in Jefferson Parish, Louisiana, is a law respecting an establishment of religion, because many of the private schools receiving Chapter 2 aid in that parish are religiously affiliated. We hold that Chapter 2 is not such a law.
I
A
Chapter 2 of the Education Consolidation and Improvement Act of 1981, Pub. L. 97-35, 95 Stat. 469, as amended, 20 TJ. S. C. §§ 7301-7373, has its origins in the Elementary and Secondary Education Act of 1965 (ESEA), Pub. L. 89-10, 79 Stat. 55, and is a close cousin of the provision of the ESEA that we recently considered in Agostini v. Felton, 521 U. S. 203 (1997). Like the provision at issue in Agostini, Chapter 2 channels federal funds to local educational agencies (LEA’s), which are usually public school districts, via state educational agencies (SEA’s), to implement programs to assist children in elementary and secondary schools. Among other things, Chapter 2 provides aid
“for the acquisition and use of instructional and educational materials, including library services and materials (including media materials), assessments, reference materials, computer software and hardware for instructional use, and other curricular materials.” 20 U. S. C. § 7351(b)(2).
LEA’s and SEA’s must offer assistance to both public and private schools (although any private school must be nonprofit). §§ 7312(a), 7372(a)(1). Participating private schools receive Chapter 2 aid based on the number of children enrolled in each school, see § 7372(a)(1), and allocations of Chapter 2 funds for those schools must generally be “equal (consistent with the number of children to be served) to expenditures for programs . . . for children enrolled in the public schools of the [LEA],” § 7372(b). LEA’s must in all cases “assure equitable participation” of the children of private schools “in the purposes and benefits” of Chapter 2. § 7372(a)(1); see § 7372(b). Further, Chapter 2 funds may only “supplement and, to the extent practical, increase the level of funds that would ... be made available from non-Federal sources.” § 7371(b). LEA’s and SEA’s may not operate their programs “so as to supplant funds from non-Federal sources.” Ibid.
Several restrictions apply to aid to private schools. Most significantly, the “services, materials, and equipment” provided to private schools must be “secular, neutral, and non-ideological.” § 7372(a)(1). In addition, private schools may not acquire control of Chapter 2 funds or title to Chapter 2 materials, equipment, or property. § 7372(c)(1). A private school receives the materials and equipment listed in § 7351(b)(2) by submitting to the LEA an application detailing which items the school seeks and how it will use them; the LEA, if it approves the application, purchases those items from the school’s allocation of funds, and then lends them to that school.
In Jefferson Parish (the Louisiana governmental unit at issue in this case), as in Louisiana as a whole, private schools have primarily used their allocations for nonrecurring expenses, usually materials and equipment. In the 1986-1987 fiscal year, for example, 44% of the money budgeted for private schools in Jefferson Parish was spent by LEA’s for acquiring library and media materials, and 48% for instructional equipment. Among the materials and equipment provided have been library books, computers, and computer software, and also slide and movie projectors, overhead projectors, television sets, tape recorders, VCR’s, projection screens, laboratory equipment, maps, globes, filmstrips, slides, and cassette recordings.
It appears that, in an average year, about 30% of Chapter 2 funds spent in Jefferson Parish are allocated for private schools. For the 1985-1986 fiscal year, 41 private schools participated in Chapter 2. For the following year, 46 participated, and the participation level has remained relatively constant since then. See App. 132a. Of these 46, 34 were Roman Catholic; 7 were otherwise religiously affiliated; and 5 were not religiously affiliated.
B
Respondents filed suit in December 1985, alleging, among other things, that Chapter 2, as applied in Jefferson Parish, violated the Establishment Clause of the First Amendment of the Federal Constitution. The ease’s tortuous history-over the next 15 years indicates well the degree to which our Establishment Clause jurisprudence has shifted in recent times, while nevertheless retaining anomalies with which the lower courts have had to struggle.
In 1990, after extended discovery, Chief Judge Heebe of the District Court for the Eastern District of Louisiana granted summary judgment in favor of respondents. Helms v. Cody, Civ. A. No. 85-5533, 1990 WL 36124 (Mar. 27), App. to Pet. for Cert. 137a. He held that Chapter 2 violated the Establishment Clause because, under the second part of our three-part test in Lemon v. Kurtzman, 403 U. S. 602, 612-613 (1971), the program had the primary effect of advancing religion. Chapter 2 had sueh effect, in his view, because the materials and equipment loaned to the Catholic schools were direct aid to those schools and because the Catholic schools were, he concluded after detailed inquiry into their doctrine and curriculum, “pervasively sectarian.” App. to Pet. for Cert. 151a. Chief Judge Heebe relied primarily on Meek v. Pittenger, 421 U. S. 349 (1975), and Wolman v. Walter, 433 U. S. 229 (1977), in which we held unconstitutional programs that provided many of the same sorts of materials and equipment as does Chapter 2. In 1994, after having resolved the numerous other issues in the ease, he issued an order permanently excluding pervasively sectarian schools in Jefferson Parish from receiving any Chapter 2 materials or equipment.
Two years later, Chief Judge Heebe having retired, Judge Livaudais received the ease. Ruling in early 1997 on post-judgment motions, he reversed the decision of former Chief Judge Heebe and upheld Chapter 2, pointing to several significant changes in the legal landscape over the previous seven years. Helms v. Cody, 1997 WL 35283 (Jan. 28), App. to Pet. for Cert. 79a. In particular, Judge Livaudais cited our 1993 decision in Zobrest v. Catalina Foothills School Dish, 509 U. S. 1, in which we held that a State could, as part of a federal program for the disabled, provide a sign-language interpreter to a deaf student at a Catholic high school.
Judge Livaudais also relied heavily on a 1995 decision of the Court of Appeals for the Ninth Circuit, Walker v. San Francisco Unified School Dist., 46 F. 3d 1449, upholding Chapter 2 on facts that he found “virtually indistinguishable.” The Ninth Circuit acknowledged in Walker, as Judge Heebe had in his 1990 summary judgment ruling, that Meek and Wolman appeared to erect a constitutional distinction between providing textbooks (permissible) and providing any other in-kind aid (impermissible). 46 F. 3d, at 1464-1465; see Board of Ed. of Central School Dist. No. 1 v. Allen, 392 U. S. 236 (1968) (upholding textbook program). The Court of Appeals viewed this distinction, however, as “thin” and “unmoored from any Establishment Clause principles,” and, more importantly, as “rendered untenable” by subsequent cases, particularly Zobrest. 46 F. 3d, at 1465-1466. These cases, in the Ninth Circuit’s view, revived the principle of Allen and of Everson v. Board of Ed. of Ewing; that “state benefits provided to all citizens without regard to religion are constitutional.” 46 F. 3d, at 1465. The Ninth Circuit also relied, id., at 1467, on our observation in Board of Ed. of Kiryas Joel Village School Dist. v. Grumet, 512 U. S. 687 (1994), that “we have frequently relied explicitly on the general availability of any benefit provided religious groups or individuals in turning aside Establishment Clause challenges,” id., at 704. The Ninth Circuit purported to distinguish Meek and Wolman based on the percentage of schools receiving aid that were parochial (a large percentage in those cases and a moderate percentage in Walker), 46 F. 3d, at 1468, but that court undermined this distinction when it observed that Meek also upheld “the massive provision of textbooks to parochial schools.” 46 F. 3d, at 1468, n. 16. Thus, although the Ninth Circuit did not explicitly hold that Meek and Wolman were no longer good law, its reasoning seemed to require that conclusion.
Finally, in addition to relying on our decision in Zobrest and the Ninth Circuit’s decision in Walker, Judge Livaudais invoked Rosenberger v. Rector and Visitors of Univ. of Va., 615 U. S. 819 (1995), in which, a few months after Walker, we held that the Establishment Clause does not require a public university to exclude a student-run religious publication from assistance available to numerous other student-run publications.
Following Judge Livaudais’ ruling, respondents appealed to the Court of Appeals for the Fifth Circuit. While that appeal was pending, we decided Agostini, in which we approved a program that, under Title I of the ESEA, provided public employees to teach remedial classes at private schools, including religious schools. In so holding, we overruled Aguilar v. Felton, 473 U. S. 402 (1985), and partially overruled School Dish of Grand Rapids v. Ball, 473 U. S. 373 (1985), both of which had involved such a program.
The Fifth Circuit thus faced a dilemma between, on the one hand, the Ninth Circuit’s holding and analysis in Walker and our subsequent decisions in Rosenberger and Agostini, and, on the other hand, our holdings in Meek and Wolman. To resolve the dilemma, the Fifth Circuit abandoned any effort to find coherence in our ease law or to divine the future course of our decisions and instead focused on our particular holdings. Helms v. Picard, 151 F. 3d 347, 371 (1998). It thought such an approach required not only by the lack of coherence but also by Agostini’s admonition to lower courts to abide by any applicable holding of this Court even though that holding might seem inconsistent with our subsequent decisions, see Agostini, 521 U. S., at 237. The Fifth Circuit acknowledged that Agostini, by recognizing our rejection of the rule that “all government aid that directly assists the educational function of religious schools is invalid,” id., at 225, had rejected a premise of Meek, hut that court nevertheless concluded that Agostini had neither directly overruled Meek and Wolman nor rejected their distinction between textbooks and other in-kind aid. The Fifth Circuit therefore concluded that Meek and Wolman controlled, and thus it held Chapter 2 unconstitutional. We granted certiorari. 527 U. S. 1002 (1999).
II
The Establishment Clause of the First Amendment dictates that “Congress shall make no law respecting an establishment of religion.” In the over 50 years since Everson v. Board of Ed. of Ewing, 330 U. S. 1 (1947), we have consistently struggled to apply these simple words in the context of governmental aid to religious schools. As we admitted in Tilton v. Richardson, 403 U. S. 672 (1971), “candor compels the acknowledgment that we can only dimly perceive the boundaries of permissible government activity in this sensitive area.” Id., at 678 (plurality opinion); see Lemon, 403 U. S., at 671 (White, J., concurring in judgment).
In Agostini, however, we brought some clarity to our ease law, by overruling two anomalous precedents (one in whole, the other in part) and by consolidating some of our previously disparate considerations under a revised test. Whereas in Lemon we had considered whether a statute (1) has a secular purpose, (2) has a primary effect of advancing or inhibiting religion, or (3) creates an excessive entanglement between government and religion, see 403 U. S., at 612-613, in Agostini we modified Lemon for purposes of evaluating aid to schools and examined only the first and second factors, see 521 U. S., at 222-223. We acknowledged that our cases discussing excessive entanglement had applied many of the same considerations as had our cases discussing primary effect, and we therefore recast Lemon’s entanglement inquiry as simply one criterion relevant to determining a statute’s effect. Agostini, supra, at 232-233. We also acknowledged that our eases had pared somewhat the factors that could justify a finding of excessive entanglement. 521 U. S., at 238-284. We then set out revised criteria for determining the effect of a statute:
“To summarize, New York City’s Title I program does not run afoul of any of three primary criteria we currently use to evaluate whether government aid has the effect of advancing religion: It does not result in governmental indoctrination; define its recipients by reference to religion; or create an excessive entanglement.” Id., at 234.
In this case, our inquiry under Agostini’s purpose and effect test is a narrow one. Because respondents do not challenge the District Court’s holding that Chapter 2 has a secular purpose, and because the Fifth Circuit also did not question that holding, ef. 151 F. 3d, at 369, n. 17, we will consider only Chapter 2’s effect. Further, in determining that effect, we will consider only the first two Agostini criteria, since neither respondents nor the Fifth Circuit has questioned the District Court’s holding, App. to Pet. for Cert. 108a, that Chapter 2 does not create an excessive entanglement. Considering Chapter 2 in light of our more recent ease law, we conclude that it neither results in religious indoctrination by the government nor defines its recipients by reference to religion. We therefore hold that Chapter 2 is not a “law respecting an establishment of religion.” In so holding, we acknowledge what both the Ninth and Fifth Circuits saw was inescapable — Meek and Wolman are anomalies in our case law. We therefore conclude that they are no longer good law.
A
As we indicated in Agostini, and have indicated elsewhere, the question whether governmental aid to religious schools results in governmental indoctrination is ultimately a question whether any religious indoctrination that occurs in those schools could reasonably be attributed to governmental action. See Agostini, supra, at 226 (presence of sign-language interpreter in Catholic school “ ‘cannot be attributed to state decisionmaking’ ” (quoting Zobrest, 509 U. S., at 10) (emphasis added in Agostini))', 521 U. S., at 230 (question is whether “any use of [governmental] aid to indoctrinate religion could be attributed to the State”); see also Rosenberger, 515 U. S., at 841-842; Witters v. Washington Dept., of Servs. for Blind, 474 U. S. 481, 488-489 (1986); Mueller v. Allen, 463 U. S. 388, 397 (1983); cf. Corporation of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U. S. 327, 337 (1987) (“For a law to have forbidden 'effects’ under Lemon, it must be fair to say that the government itself has advanced religion through its own activities and influence”). We have also indicated that the answer to the question of indoctrination will resolve the question whether a program of educational aid “subsidizes” religion, as our religion eases use that term. See Agostini, 521U. S., at 230-231; see also id., at 230.
In distinguishing between indoctrination that is attributable to the State and indoctrination that is not, we have consistently turned to the principle of neutrality, upholding aid that is offered to a broad range of groups or persons without regard to their religion. If the religious, irreligious, and areligious are all alike eligible for governmental aid, no one would conclude that any indoctrination that any particular recipient conducts has been done at the behest of the government. For attribution of indoctrination is a relative question. If the government is offering assistance to recipients who provide, so to speak, a broad range of indoctrination, the government itself is not thought responsible for any particular indoctrination. To put the point differently, if the government, seeking to further some legitimate secular purpose, offers aid on the same terms, without regard to religion, to all who adequately further that purpose, see Allen, 392 U. S., at 245-247 (discussing dual secular and religious purposes of religious schools), then it is fair to say that any aid going to a religious recipient only has the effect of furthering that secular purpose. The government, in crafting such an aid program, has had to conclude that a given level of aid is necessary to further that purpose among secular recipients and has provided no more than that same level to religious recipients.
As a way of assuring neutrality, we have repeatedly considered whether any governmental aid that goes to a religious institution does so “only as a result of the genuinely independent and private choices of individuals.” Agostini, supra, at 226 (internal quotation marks omitted). We have viewed as significant whether the “private choices of individual parents,” as opposed to the “unmediated” will of government, Ball, 473 U. S., at 395, n. 13 (internal quotation marks omitted), determine what schools ultimately benefit from the governmental aid, and how much. For if numerous private choices, rather than the single choice of a government, determine the distribution of aid pursuant to neutral eligibility criteria, then a government cannot, or at least cannot easily, grant special favors that might lead to a religious establishment. Private choice also helps guarantee neutrality by mitigating the preference for pre-existing recipients that is arguably inherent in any governmental aid program, see, e. g., Gilder, The Revitalization of Everything: The Law of the Macrocosm, Harv. Bus. Rev. 49 (Mar./Apr. 1988), and that could lead to a program inadvertently favoring one religion or favoring religious private schools in general over nonreligious ones.
The principles of neutrality and private choice, and their relationship to each other, were prominent not only in Agos- Uni, supra, at 225-226, 228, 280-282, but also in Zobrest, Witters, and Mueller. The heart of our reasoning in Zobrest, upholding governmental provision of a sign-language interpreter to a deaf student at his Catholic high school, was as follows:
“The service at issue in this ease is part of a general government program that distributes benefits neutrally to any child qualifying as ‘disabled’ under the [statute], without regard to the ‘sectarian-nonseetarian, or publie-nonpublic nature’ of the school the child attends. By according parents freedom to select a school of their choice, the statute ensures that a government-paid interpreter will be present in a sectarian school only as a result of the private decision of individual parents. In other words, because the [statute] creates no financial incentive for parents to choose a sectarian school, an interpreter’s presence there cannot be attributed to state decisionmaking.” 509 U. S., at 10.
As this passage indicates, the private choices helped to ensure neutrality, and neutrality and private choices together eliminated any possible attribution to the government even when the interpreter translated classes on Catholic doctrine.
Witters and Mueller employed similar reasoning. In Witters, we held that the Establishment Clause did not bar a State from including within a neutral program providing tuition payments for vocational rehabilitation a blind person studying at a Christian college to become a pastor, missionary, or youth director. We explained:
“Any aid . . . that ultimately flows to religious institutions does so only as a result of the genuinely independent and private choices of aid recipients. Washington’s program is made available generally without regard to the sectarian-nonsectarian, or public-nonpublic nature of the institution benefited and . .. creates no financial incentive for students to undertake sectarian education. . . . [T]he fact that aid goes to individuals means that the decision to support religious education is made by the individual, not by the State.
“[I]t does not seem appropriate to view any aid ultimately flowing to the Inland Empire School of the Bible as resulting from a state action sponsoring or subsidizing religion.” 474 U. S., at 487-488 (footnote, citations, and internal quotation marks omitted).
Further, five Members of this Court, in separate opinions, emphasized both the importance of neutrality and of private choices, and the relationship between the two. See id., at 490-491 (Powell, J., joined by Burger, C. J., and Rehnquist, J., concurring); id., at 493 (O’Connor, J., concurring in part and concurring in judgment); see also id., at 490 (White, J., concurring).
The tax deduction for educational expenses that we upheld in Mueller was, in these respects, the same as the tuition grant in Witters. We upheld it chiefly because it “neutrally provides state assistance to a broad spectrum of citizens,” 463 U. S., at 398-399, and because “numerous, private choices of individual parents of school-age children,” id., at 399, determined which schools would benefit from the deductions. We explained that “[w]here, as here, aid to parochial schools is available only as a result of decisions of individual parents no ‘imprimatur of state approval’ can be deemed to have been conferred on any particular religion, or on religion generally.” Ibid, (citation omitted); see id., at 397 (neutrality indicates lack of state imprimatur).
Agostini's second primary criterion for determining the effect of governmental aid is closely related to the first. The second criterion requires a court to consider whether an aid program “define[s] its recipients by reference to religion.” 521 U. S., at 234. As we briefly explained in Agostini, id., at 230-231, this second criterion looks to the same set of facts as does our focus, -under the first criterion, on neutrality, see id., at 225-226, but the second criterion uses those facts to answer a somewhat different question — whether the criteria for allocating the aid “ereat[e] a financial incentive to undertake religious indoctrination,” id., at 231. In Agos-tini we set out the following rule for answering this question:
“This incentive is not present, however, where the aid is allocated on the basis of neutral, secular criteria that neither favor nor disfavor religion, and is made available to both religious and secular beneficiaries on a nondiscriminatory basis. Under such circumstances, the aid is less likely to have the effect of advancing religion.” Ibid.
The cases on which Agostini relied for this rule, and Agos-tini itself, make clear the close relationship between this rule, incentives, and private choice. For to say that a program does not create an incentive to choose religious schools is to say that the private choice is truly “independent,” Witters, 474 U. S., at 487. See Agostini, supra, at 232 (holding that Title I did not create any impermissible incentive, because its services were “available to all children who meet the Act’s eligibility requirements, no matter what their religious beliefs or where they go to school”); Zobrest, 509 U. S., at 10 (discussing, in successive sentences, neutrality, private choice, and financial incentives, respectively); Witters, supra, at 488 (similar). When such an incentive does exist, there is a greater risk that one could attribute to the government any indoctrination by the religious schools. See Zobrest, supra, at 10.
We hasten to add, what should be obvious from the rule itself, that simply because an aid program offers private schools, and thus religious schools, a benefit that they did not previously receive does not mean that the program, by reducing the cost of securing a religious education, creates, under Agostini’s second criterion, an “incentive” for parents to choose such an education for their children. For any aid will have some such effect. See Allen, 392 U. S., at 244; Everson, 330 U. S., at 17; see also Mueller, 463 U. S., at 399.
B
Respondents inexplicably make no effort to address Chapter 2 under the Agostini test. Instead, dismissing Agostini as factually distinguishable, they offer two rules that they contend should govern our determination of whether Chapter 2 has the effect of advancing religion. They argue first, and chiefly, that “direct, nonineidental” aid to the primary educational mission of religious schools is always impermissible. Second, they argue that provision to religious schools of aid that is divertible to religious use is similarly impermissible. Respondents’ arguments are inconsistent with our more recent ease law, in particular Agostini and Zobrest, and we therefore reject them.
1
Although some of our earlier eases, particularly Ball, 473 U. S., at 393-394, did emphasize the distinction between direct and indirect aid, the purpose of this distinction was merely to prevent “subsidization” of religion, see id., at 394. As even the dissent all but admits, see post, at 889 (opinion of Souter, J.), our more recent cases address this purpose not through the direet/indireet distinction but rather through the principle of private choice, as incorporated in the first Agostini criterion (i. e., whether any indoctrination could be attributed to the government). If aid to schools, even “direct aid,” is neutrally available and, before reaching or benefiting any religious school, first passes through the hands (literally or figuratively) of numerous private citizens who are free to direct the aid elsewhere, the government has not provided any “support of religion,” Witters, supra, at 489. See supra, at 810. Although the presence of private choice is easier to see when aid literally passes through the hands of individuals — which is why we have mentioned directness in the same breath with private choice, see, e. g., Agostini, 521 U. S., at 226; Witters, supra, at 487; Mueller, supra, at 399 — there is no reason why the Establishment Clause requires such a form.
Indeed, Agostini expressly rejected the absolute line that respondents would have us draw. We there explained that “we have departed from the rule relied on in Ball that all government aid that directly assists the educational function of religious schools is invalid.” 521 U. S., at 225. Agostini relied primarily on Witters for this conclusion and made clear that private choice and neutrality would resolve the concerns formerly addressed by the rule in Ball. It was undeniable in Witters that the aid (tuition) would ultimately go to the Inland Empire School of the Bible and would support religious education. We viewed this arrangement, however, as no different from a government issuing a paycheck to one of its employees knowing that the employee would direct the funds to a religious institution. Both arrangements would be valid, for the same reason: “[A]ny money that ultimately went to religious institutions did so ‘only as a result of the genuinely independent and private choices of’ individuals.” Agostini, supra, at 226 (quoting Witters, 474 U. S., at 487). In addition, the program in Witters was neutral. 521 U. S., at 225 (quoting Witters, supra, at 487).
As Agostini explained, the same reasoning was at work in Zobrest, where we allowed the government-funded interpreter to provide assistance at a Catholic school, “even though she would he a mouthpiece for religious instruction,” because the interpreter was provided according to neutral eligibility criteria and private choice. 521 U. S., at 226. Therefore, the religious messages interpreted by the interpreter could not be attributed to the government, see ibid. (We saw no difference in Zobrest between the government hiring the interpreter direetly and the government providing funds to the parents who then would hire the interpreter. 509 U. S., at 13, n. 11.) We rejected the dissent’s objection that we had never before allowed “a public employee to participate directly in religious indoctrination.” See id., at 18 (opinion of Blaekmun, J.). Finally, in Agostini itself, we used the reasoning of Witters and Zobrest to conclude that remedial classes provided under Title I of the ESEA by public employees did not impermissibly finance religious indoctrination. 521 U. S., at 228; see id., at 230-232. We found it insignificant that students did not have to direetly apply for Title I services, that Title I instruction was provided to students in groups rather than individually, and that instruction was provided in the facilities of the private schools. Id., at 226-229.
To the extent that respondents intend their direct/indireet distinction to require that any aid be literally placed in the hands of schoolchildren rather than given directly to the school for teaching those same children, the very cases on which respondents most rely, Meek and Wol
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_appel1_1_2
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A
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "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".
SMITH v. JIM DANDY MARKETS, Inc. et al. CENTRAL MFRS. MUT. INS. CO. et al. v. JIM DANDY MARKETS, Inc.
No. 11982.
United States Court of Appeals Ninth Circuit.
Feb. 11, 1949.
Rehearing Denied March 10, 1949.
Clyde Thomas and Milan Medigovich, both of Los Angeles, Cal., for appellant Smith.
Thomas P. Menzies and Harold L. Watt, both of Los Angeles, Cal., for appellants Central Mfg. Mut. Ins. Co. and others.
Harry G. Sadicoff, of Los Angeles, Cal., for appellee Jim Dandy Markets.
E. Eugene Davis and W. W. Hindman, both of Los Angeles, Cal., for appellee, Fireman’s Fund Ins. Co.
Before STEPHENS, BONE and ORR, Circuit Judges.
ÓRR, Circuit Judge.
Appellants, Central Manufacturers’ Mutual Insurance Company, hereinafter called Central, and Indiana Lumbermen’s Mutual Insurance Company, hereinafter called Indiana, some time during the year 1946, issued insurance policies to appellee Jim Dandy Markets, Inc., on a building known as the Atlantic Market. Appellee Fireman’s Fund Insurance Company, a corporation, hereinafter referred to as Fireman’s, issued a policy to appellant Smith on the same building. The building was subsequently destroyed by fire. Uncertainty existing as to their liability, if any, Central and Indiana brought an action pursuant to the Declaratory Judgment Act, 28 U.S.C.A. § 400 [now §§ 2201, 2202],
The facts are: Smith leased two adjoining lots situate in Bell, California. The period of the lease was from August 1, 1942, to August 1, 1947, with an option to extend the period for an additional five years. One of the provisions of the lease was that existing improvements on the premises and those added during the term of the lease were the property of Smith and could be removed by him at the expiration of the lease.
In July 1945 the Atlantic Market, and seven others owned or leased by Smith, including fixtures, machinery and equipment, were by him leased or subleased to Jim Dandy Markets who operated them under that arrangement for approximately one year. Later Smith and Jim Dandy Markets entered into a supplementary agreement for the sale of Smith’s interest in the various properties and leases connected with the business. By the terms of the agreement Jim Dandy Markets agreed to buy “ * * * all of the fixtures, machinery and equipment located and contained in all of the markets * * * ”, and it was further agreed that the original leases under which some of the lots, including the Atlantic Market, were held by Smith, were to be assigned to Jim Dandy Markets. The total consideration for the transfer was $225,000. Under the earlier agreement Jim-Dandy Markets was given an option to buy-fixtures and equipment at the termination of the ten year lease for the sum of $192,-500.
The Atlantic Market building, which was severed from the realty by the original lease, was not specifically mentioned in the assignment which, in part, reads: “ * * * I, E. F. Smith * * * do hereby sell, assign and set over * * * a certain indenture and lease * * * subject to the rents, covenants and conditions contained in said lease * * * Subsequent to the 1945 sub-lease, but prior to the 1946 supplementary agreement, Smith insured the Atlantic Market with Fireman’s in the sum of $16,700 against loss by fire, and it was subsequent to the execution of the supplementary agreement that Jim Dandy. Markets secured fire insurance policies on the Atlantic Market from Central and Indiana, each policy being in the sum of $12,-500. Each of the above mentioned policies conform to § 2071, California Insurance Code. The Atlantic Market was destroyed by fire on January 14, 1947. At the time of the fire, insurance premiums on each of the1 above mentioned policies-were paid to date’. Jim Dandy Markets had made all payments due Smith under the terms of the supplementary agreement. These payments were completed on July 30, 1947, and all documents relating to the transaction, which had theretofore been placed in escrow, were delivered to Jim Dandy Markets.
Central and Indiana, in bringing the declaratory relief action, named as parties Jim Dandy Markets, Fireman’s and Smith. An answer was filed by Smith and he also filed a cross-complaint against, Jim Dandy Markets wherein he demanded reformation of the lease, should the court determine that the assignment transferred the title of the Atlantic Market to Jim Dandy Markets.
In approaching a determination of the liabilities of the insurance companies under the respective policies the question of whether or not the 1946 assignment of the lease which Smith executed to Jim Dandy Markets included the Atlantic Market building is of first importance. If it did not, and Smith remains the owner, then he had an insurable interest and suffered the loss incurred by the fire. The assignment did not expressly mention the building, nor would such mention be expected in the usual situation where the building is part of the realty. The original lease given Smith provided that improvements on the land should belong to the lessee (Smith) and he (Smith) was given the right to remove them at the termination of the lease.
An analogous factual situation is found in California Annual Conf. of Methodist, Episcopal Church v. Seitz, 74 Cal. 287, 15 P. 839. There, a lessee owned buildings on land held by him under a lease, and later assigned “ * * * all my right, title, and interest in and to the within lease * * * It was held that this instrument transferred title to the buildings to the assignee. The rationale of the court’s opinion was that in .light of the circumstances of that case the assignment manifested an intent by both parties that ownership of the buildings was to be transferred. It was not held that every such assignment carries with it interests in buildings which have been severed from the land. We must, therefore, look to the circumstances of this case- to determine the intent of Smith and Jim Dandy Markets in executing the written assignment.
The trial court found that the assignment was intended by both parties to convey Smith’s interest in the building as 'well as the land to Jim Dandy Markets. A series of agreements between the two parties culminated in the assignment. In the agreements executed by them we find no reference to rent for the Atlantic Market, which would reasonably be expected if Smith intended to- reserve ownership of the building while Jim Dandy Markets remained in occupancy. It is also significant 'that the land lease, fixtures, equipment and machinery had no usefulness apart from the building. The supplementary agreement between the parties evidences an understanding that Jim' Dandy Markets was to buy out Smith’s interest in the eight ■stores .in order, to gain complete control Over' the facilities .by. which it carried on its grocery business. This purpose could not be attained through the transfer of the land and equipment, but not the store building. A reservation by the assignor of the right to remove the building, which is an essential part of the entire business, would plunge the agreement into inconsistency and confusion. These factors give weight to a construction of the assignment that includes a transfer of all of Smith’s rights growing out of the assigned lease and support the trial court’s finding that at the time of the fire Smith had conveyed the building to Jim Dandy Markets, conditioned on payment of the sales price.
The finding of the trial court that the assignment manifested the intent of both parties that the building should be transferred being upheld, it follows that no reformation of the assignment may be had. Reformation requires clear and convincing evidence of a mutual mistake. Calif.Civ. Code, §§ 3399, 3400, 3401; Burt v. Los Angeles Olive Growers Ass’n, 175 Cal. 668, 675, 166 P. 993.
In California, Jim Dandy Markets, as conditional vendee in possession of personalty, had an insurable interest as the sole owner of the property within the meaning of the policies issued by Central and Indiana. Savage v. Norwich Union Fire Insurance Society, 125 Cal.App. 330, 13 P.2d 955; Votaw v. Farmers Automobile Inter-Insurance Exchange, Cal.Sup., 85 P.2d 872. The vendee bears the risk of loss and is entitled to recover on his policies with appellant insurance companies.
It is argued that even if the assignment transferred the building to Jim Dandy Markets, Smith had an insurable interest .in the building because of his lien thereon for the payment of the balance of the purchase price, and therefore should recover on his policy with Fireman’s Fund Insurance Co. This argument fails because, regardless of Smith’s interest in the building, he suffered no loss from its destruction. Under California law, which we are required to follow, a fire insurance poli■cy is a personal indemnity contract and a showing of pecuniary damage is prerequisite to recovery thereon. Davis v. Phœnix Insurance Co., 111 Cal. 409, 415, 43 P. 1115; Alexander v. Security-First Nat’l. Bank, 7 Cal.2d 718, 723, 62 P.2d 735; 14 Cal.Jur. 464, § 37.
Judgment affirmed.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business?
A. local
B. neither local nor national
C. national or multi-national
D. not ascertained
Answer:
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sc_partywinning
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B
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the petitioning party (i.e., the plaintiff or the appellant) emerged victorious. The victory the Supreme Court provided the petitioning party may not have been total and complete (e.g., by vacating and remanding the matter rather than an unequivocal reversal), but the disposition is nonetheless a favorable one. Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case.
CITY OF MILWAUKEE v. CEMENT DIVISION, NATIONAL GYPSUM CO., et al.
No. 94-788.
Argued April 24, 1995
Decided June 12, 1995
Stevens, J., delivered the opinion of the Court, in which all other Members joined, except Breyer, J., who took no part in the consideration or decision of the case.
David A. Strauss argued the cause for petitioner. With him on the briefs were Grant F. Langley, Rudolph M. Konrad, and Michael Sturley.
Harney B, Stover, Jr., argued the cause and filed a brief for respondents.
Justice Stevens
delivered the opinion of the Court.
This is an admiralty case in which the plaintiff’s loss was primarily attributable to its own negligence. The question presented is whether that fact, together with the existence of a genuine dispute over liability, justified the District Court’s departure from the general rule that prejudgment interest should be awarded in maritime collision cases.
f —
Respondents are the owner and the insurers of the E. M. Ford, a ship that sank in Milwaukee’s outer harbor on Christmas Eve 1979. At the time of this disaster, the Ford was berthed in a slip owned by the city of Milwaukee (City). In the course of a severe storm, she broke loose from her moorings, battered against the headwall of the slip, took on water, and sank. She was subsequently raised and repaired.
In 1980 the Ford’s owner, the Cement Division of National Gypsum Co. (National Gypsum), brought suit against the City, invoking the District Court’s admiralty and maritime jurisdiction. The complaint alleged that the City had breached its duty as a wharfinger by assigning the vessel to a berthing slip known to be unsafe in heavy winds and by failing to give adequate warning of hidden dangers in the slip. The plaintiff sought damages of $4.5 million, later increased to $6.5 million. The City denied fault and filed a $250,000 counterclaim for damage to its dock. The City alleged that National Gypsum was negligent in leaving the ship virtually unmanned in winter, with no means aboard for monitoring weather conditions or summoning help.
In 1986 the District Court conducted a 3-week trial on the issue of liability. Finding that both National Gypsum and the City had been negligent, the court determined that the owner bore 96% of the responsibility for the disaster, while the City bore 4% of the fault. Given the disparity in the parties’ damages, a final judgment giving effect to that allocation (and awarding the damages sought in the pleadings) would have essentially left each party to bear its own losses.
Respondents took an interlocutory appeal from the District Court’s ruling. The Court of Appeals for the Seventh Circuit agreed with the District Court’s conclusion that both parties were at fault, and that the owner’s negligence was “more egregious” than the City’s, but it rejected the allocation of 96% of the responsibility to the owner as clearly erroneous. Cement Div., National Gypsum Co. v. Milwaukee, 915 F. 2d 1154, 1159 (1990), cert. denied, 499 U. S. 960 (1991). After making its own analysis of the record, the Court of Appeals apportioned liability two-thirds to National Gypsum and one-third to the City. 915 F. 2d, at 1160.
Thereafter the parties entered into a partial settlement fixing respondents’ damages, excluding prejudgment interest, at $1,677,541.86. The parties agreed that any claim for interest would be submitted to the District Court for decision. A partial judgment for the stipulated amount was entered and satisfied.
Respondents then sought an award of over $5.3 million in prejudgment interest. The District Court denied respondents’ request. It noted that “an award of pre judgment interest calculated from the date of the loss is the rule rather than the exception in cases brought under a district court’s admiralty jurisdiction,” App. to Pet. for Cert. 21a, but held that special circumstances justified a departure from that rule in this case. The court explained:
“In the instant case the record shows that from the outset there has been a genuine dispute over [respondents’] good faith claim that the City of Milwaukee was negligent for failing to warn the agents of [National Gypsum] (who were planning to leave the FORD unmanned during the Christmas holidays) that a winter storm could create conditions in the outer harbor at Milwaukee which could damage the ship. The trial court and the court of appeals both found mutual fault for the damage which ensued to the ship and to the [City’s] dock. The court of appeals ascribed two-thirds of the negligence to [National Gypsum]. Thus, in this situation the court concludes that [National Gypsum’s] contributory negligence was of such magnitude that an award of prejudgment interest would be inequitable.” Id., at 22a.
The Court of Appeals reversed. 31 F. 3d 581 (1994). It noted that prior to this Court’s announcement of the comparative fault rule in United States v. Reliable Transfer Co., 421 U. S. 397 (1975), some courts had denied prejudgment interest in order to mitigate the harsh effects of the earlier rule commanding an equal division of damages whenever a collision resulted from the fault of both parties, even though one party was only slightly negligent. In the court’s view, however, after the divided damages rule was “thrown overboard” and replaced with comparative fault, mutual fault could no longer provide a basis for denying prejudgment interest. 31 F. 3d, at 584-585. The Court of Appeals also read our decision in West Virginia v. United States, 479 U. S. 305, 311, n. 3 (1987), as disapproving of a “balancing of the equities” as a method of deciding whether to allow prejudgment interest. 31 F. 3d, at 585.
The Court of Appeals’ decision deepened an existing Circuit split regarding the criteria for denying prejudgment interest, in maritime collision cases. Compare, e.g., Inland Oil & Transport Co. v. Ark-White Towing Co., 696 F. 2d 321 (CA5 1983) (genuine dispute over good-faith claim in mutual fault setting justifies denial of prejudgment interest), with Alkmeon Naviera, S. A. v. M/V Marina L, 633 F. 2d 789 (CA9 1980) (contrary rule). We granted certiorari, 513 U. S. 1072 (1995), and now affirm.
II
Although Congress has enacted a statute governing the award of postjudgment interest in federal court litigation, see 28 U. S. C. § 1961, there is no comparable legislation regarding prejudgment interest. Far from indicating a legislative determination that prejudgment interest should not be awarded, however, the absence of a statute merely indicates that the question is governed by traditional judge-made principles. Monessen Southwestern R. Co. v. Morgan, 486 U. S. 330, 336-337 (1988); Rodgers v. United States, 332 U. S. 371, 373 (1947). Those principles are well developed in admiralty, where “the Judiciary has traditionally taken the lead in formulating flexible and fair remedies.” Reliable Transfer, 421 U. S., at 409.
Throughout our history, admiralty decrees have included provisions for prejudgment interest. In Del Col v. Arnold, 3 Dall. 333, a prize case decided in 1796, we affirmed a decree awarding the libellant interest from “the day of capture.” Id., at 334. In The Amiable Nancy, 3 Wheat. 546 (1818), we considered a similar decree. In augmenting the damages awarded by the lower court, we directed that the additional funds should bear prejudgment interest, as had the damages already awarded by the lower court. Id., at 562-563. The Amiable Nancy arose out of the “gross and wanton” seizure of a Haitian vessel near the island of Antigua by the Scourge, an American privateer. Id., at 546-547, 558. In his opinion for the Court, Justice Story explained that even though the “loss of the supposed profits” of the Amiable Nancy’s voyage was not recoverable, “the prime cost, or value of the property lost, at the time of the loss, and in ease of injury, the diminution in value, by reason of the injury, with interest upon such valuation, afforded the true measure for assessing damages.” Id., at 560 (emphasis added). We applied the same rule in The Umbria, 166 U. S. 404, 421 (1897), explaining that “in cases of total loss by collision damages are limited to the value of the vessel, with interest thereon, and the net freight pending at the time of the collision.” (Emphasis added.)
The Courts of Appeals have consistently and correctly construed decisions such as these as establishing a general rule that prejudgment interest should be awarded in maritime collision cases, subject to a limited exception for “peculiar” or “exceptional” circumstances. See, e. g., Inland Oil & Transport Co., 696 F. 2d, at 327; Central Rivers Towing, Inc. v. Beardstown, 750 F. 2d 565, 574 (CA7 1984); Ohio River Co. v. Peavey Co., 731 F. 2d 547, 549 (CA8 1984); Alkmeon Naviera, 633 F. 2d, at 797; Parker Towing Co. v. Yazoo River Towing, Inc., 794 F. 2d 591, 594 (CA11 1986).
The essential rationale for awarding prejudgment interest is to ensure that an injured party is fully compensated for its loss. Full compensation has long been recognized as a basic principle of admiralty law, where “[rjestitutio in inte-grum is the leading maxim applied by admiralty courts to ascertain damages resulting from a collision.” Standard Oil Co. of N. J. v. Southern Pacific Co., 268 U. S. 146, 158 (1925) (citing The Baltimore, 8 Wall. 377, 885 (1869)). By compensating “for the loss of use of money due as damages from the time the claim accrues until judgment is entered,” West Virginia, 479 U. S., at 310-311, n. 2, an award of prejudgment interest helps achieve the goal of restoring a party to the condition it enjoyed before the injury occurred, The President Madison, 91 F. 2d 835, 845-846 (CA9 1937).
Despite admiralty’s traditional hospitality to prejudgment interest, however, such an award has never been automatic. In The Scotland, 118 U. S. 507, 518-519 (1886), we stated that the “allowance of interest on damages is not an absolute right. Whether it ought or ought not to be allowed depends upon the circumstances of each case, and rests very much in the discretion of the tribunal which has to pass upon the subject, whether it be a court or a jury.” See also The Maggie J. Smith, 123 U. S. 349, 356 (1887). Although we have never attempted to exhaustively catalog the circumstances that will justify the denial of interest, and do not do so today, the most obvious example is the plaintiff’s responsibility for “undue delay in prosecuting the lawsuit.” General Motors Corf. v. Devex Corp., 461 U. S. 648, 657 (1983). Other circumstances may appropriately be invoked as warranted by the facts of particular cases.
In this case, the City asks us to characterize two features of the instant litigation as sufficiently unusual to justify a departure from the general rule that prejudgment interest should be awarded to make the injured party whole. First, the City stresses the fact that there was a good-faith dispute over its liability for respondents’ loss. In our view, however, this fact carries little weight. If interest were awarded as a penalty for bad-faith conduct of the litigation, the City’s argument would be well taken. But prejudgment interest is not awarded as a penalty; it is merely an element of just compensation.
The City’s “good-faith” argument has some resonance with the venerable common-law rule that prejudgment interest is not awarded on unliquidated claims (those where the precise amount of damages at issue cannot be computed). If a party contests liability in good faith, it will usually be the case that the party’s ultimate exposure is uncertain. But the liquidated/unliquidated distinction has faced trenchant criticism for a number of years. Moreover, that distinction “has never become so firmly entrenched in admiralty as it has been at law.” Moore-McCormack Lines, Inc. v. Richardson, 295 F. 2d 583, 592 (CA2 1961). Any fixed rule allowing prejudgment interest only on liquidated claims would be difficult, if not impossible, to reconcile with admiralty’s traditional presumption. Yet unless we were willing to adopt such a rule — which we are not — uncertainty about the outcome of a case should not preclude an award of interest.
In sum, the existence of a legitimate difference of opinion on the issue of liability is merely a characteristic of most ordinary lawsuits. It is not an extraordinary circumstance that can justify denying prejudgment interest. See Alkmeon Naviera, 633 F. 2d, at 798.
The second purportedly “peculiar” feature of this case is the magnitude of the plaintiff’s fault. Leaving aside the empirical question whether such a division of fault is in fact an aberration, it is true in this case that the owner of the E. M. Ford was primarily responsible for the vessel’s loss. As a result, it might appear somewhat inequitable to award a large sum in prejudgment interest against a relatively innocent party. But any unfairness is illusory, because the relative fault of the parties has already been taken into consideration in calculating the amount of the loss for which the City is responsible.
In United States v. Reliable Transfer Co., 421 U. S. 397 (1975), we “replaced the divided damages rule, which required an equal division of property damage whatever the relative degree of fault may have been, with a rule requiring that damages be assessed on the basis of proportionate fault when such an allocation can reasonably be made.” McDermott, Inc. v. AmClyde, 511 U. S. 202, 207 (1994). Thus, in this case, before prejudgment interest even entered the picture, the total amount of respondents’ recovery had already been reduced by two-thirds because of National Gypsum’s own negligence. The City’s responsibility for the remaining one-third is no different than if it had performed the same negligent acts and the owner, instead of also being negligent, had engaged in heroic maneuvers that avoided two-thirds of the damages. The City is merely required to compensate the owner for the loss for which the City is responsible.
In light of Reliable Transfer, we are unmoved by the City’s contention that an award of prejudgment interest is inequitable in a mutual fault situation. Indeed, the converse is true: a denial of prejudgment interest would be unfair. As Justice Kennedy noted while he was sitting on the Ninth Circuit, “under any rule allowing apportionment of liability, denying prejudgment interest on the basis of mutual fault would seem to penalize a party twice for the same mistake.” Alkmeon Naviera, 633 F. 2d, at 798, n. 12. Such a double penalty is commended neither by logic nor by fairness; the rule giving rise to it is a relic of history that has ceased to serve any purpose in the wake of Reliable Transfer.
Accordingly, we hold that neither a good-faith dispute over liability nor the existence of mutual fault justifies the denial of pre judgment interest in an admiralty collision case. Questions related to the calculation of the prejudgment interest award, including the rate to be applied, have not been raised in this Court and remain open for consideration, in the first instance, by the District Court.
The judgment of the Court of Appeals is
Affirmed.
Justice Breyer took no part in the consideration or decision of this case.
“The district courts shall have original jurisdiction, exclusive of the courts of the States, of: (1) Any civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled.” 28 U. S. C. § 1333(1).
Such appeals are authorized by 28 U. S. C. § 1292(a)(3), which states:
“(a) Except as provided in subsections (c) and (d) of this section, the courts of appeals shall have jurisdiction of appeals from: ... (3) Interlocutory decrees of... district courts or the judges thereof determining the rights and liabilities of the parties to admiralty cases in which appeals from final decrees are allowed.”
In arriving at this sum, the parties agreed that respondents’ damages were slightly more than $5.4 million, while the City’s damages were just over $192,000. The parties multiplied respondents’ damages by one-third, resulting in a subtotal of $1,805,829.98 for which the City was responsible. From this subtotal, the parties subtracted two-thirds of the City’s damages, or $128,288.12, as an offset because that was the amount of National Gypsum’s responsibility. The difference was the City’s obligation to respondents. App. 40-45.
This figure was based on respondents’ assertion that pre judgment interest should be compounded continuously, from the time of the sinking of the Ford, at the commercial prime rate of interest averaged over the period of assessment. Plaintiff’s Brief on Issue of Prejudgment Interest in No. 80-C-1001 (ED Wis.), pp. 24-26. The District Court did not express any view on the correctness of this analysis, nor do we. We merely note in passing that the discrepancy between the damages award and the interest sought by National Gypsum is in some measure attributable to the delays that have plagued this litigation — a factor that does not appear to be traceable to the fault of any party.
The District Court also relied on the City’s status as a municipality as an alternative ground for denying prejudgment interest. App. to Pet. for Cert. 22a-23a. The Court of Appeals rejected this portion of the District Court’s analysis as inconsistent with Circuit precedent, and the City did not pursue the argument in this Court.
See also The Anna Maria, 2 Wheat. 327, 335 (1817) (Marshall, C. J.) (remanding with instructions to ascertain damages suffered by the libel-lants, “in doing which, the value of the vessel, and the prime cost of the cargo, with all charges, and the premium of insurance, where it has been paid, with interest, are to be allowed”) (emphasis added); The Manitoba, 122 U. S. 97, 101 (1887) (approving, in dicta, allowance of “interest on the damages from the date of the collision to the date of the decree”).
We have recognized the compensatory nature of prejudgment interest in a number of cases decided outside the admiralty context. E. g., West Virginia v. United States, 479 U. S. 305, 310-311, n. 2 (1987); Funkhouser v. J. B. Preston Co., 290 U. S. 163, 168 (1933); Miller v. Robertson, 266 U. S. 243, 257-258 (1924). But cf. Blau v. Lehman, 368 U. S. 403, 414 (1962) (“ ‘interest is not recovered according to a rigid theory of compensation for money withheld, but is given in response to considerations of fairness’ ”) (quoting Board of Comm’rs of Jackson Cty. v. United States, 308 U. S. 343, 352 (1939)).
We do note that, as is always the case when an issue is committed to judicial discretion, the judge’s decision must be supported by a circumstance that has relevance to the issue at hand. See generally Friendly, Indiscretion About Discretion, 31 Emory L. J. 747 (1982).
“It has been recognized that a distinction, in this respect, simply as between cases of liquidated and unliquidated damages, is not a sound one.” Funkhouser, 290 U. S., at 168 (citing Bernhard v. Rochester German Ins. Co., 79 Conn. 388, 398, 65 A. 134, 137-138 (1906); 1 T. Sedgwick, Measure of Damages § 315 (9th ed. 1912)). See also General Motors Corp. v. Devex Corp., 461 U. S. 648, 665-656, n. 10 (1983); D. Dobbs, Law of Remedies § 3.6(3) (2d ed. 1993); C. McCormick, Law of Damages §§ 51, 54-56 (1935); Rothschild, Prejudgment Interest: Survey and Suggestion, 77 Nw. U. L. Rev. 192 (1982).
A number of Circuits have rejected its applicability, at least as an absolute bar. E. g., Borges v. Our Lady of the Sea Corp., 935 F. 2d 436, 444 (CA1 1991); Hillier v. Southern Towing Co., 740 F. 2d 683, 586 (CA7 1984), cert. denied, 469 U. S. 1190 (1985); Norfolk Shipbuilding & Drydock Corp. v. M/Y La Belle Simone, 537 F. 2d 1201, 1204-1206, and n. 1 (CA4 1976); Moore-McCormack Lines, Inc. v. Richardson, 295 F 2d, at 594.
Indeed, although the amount is relatively small in this case, the City’s counterclaim was resolved under the same principle. Notwithstanding its contributory negligence, the City has been compensated for two-thirds of its cost of repairing the dock and headwall. See n. 3, supra.
Question: Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case. Did the petitioning win the case?
A. Yes
B. No
Answer:
|
songer_genapel2
|
I
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the second listed appellant. If there are more than two appellants and at least one of the additional appellants has a different general category from the first appellant, then consider the first appellant with a different general category to be the second appellant.
Joel T. McCLINTON, Plaintiff-Appellant, v. ALABAMA BY-PRODUCTS CORPORATION and Ralph Stuckey, Defendants-Appellees.
No. 83-7536.
United States Court of Appeals, Eleventh Circuit.
Oct. 11, 1984.
James C. King, Jasper, Ala., for plaintiff-appellant.
William F. Gardner, Birmingham, Ala., for defendants-appellees.
Before HILL and HENDERSON, Circuit Judges, and WISDOM , Senior Circuit Judge.
Honorable John Minor Wisdom, U.S. Circuit Judge for the Fifth Circuit, sitting by designation.
JAMES C. HILL, Circuit Judge:
Plaintiff-Appellant Joel McClinton appeals from an order dismissing his complaint under the Age Discrimination in Employment Act (ADEA) for failure to file his charge with the Equal Employment Opportunity Commission (EEOC) within 180 days of the alleged unlawful practice. We affirm the grant of summary judgment, finding that the 180-day limitation was not tolled under the facts of this case.
On January 31, 1981, McClinton, a 55-year old coal miner, was terminated from his job with defendant/appellee Alabama-By-Products Corporation. According to his affidavit, plaintiff believed that he had been unjustly terminated due to his age and health, particularly upon discovering that he had been replaced by a 27-year old male. Plaintiffs friends told him that he might have a “discrimination or labor relations suit.” Within thirty days of his termination, plaintiff thus visited the Labor Department office in Birmingham, Alabama, and was allegedly told that he needed to contact the Labor Relations Board (LRB). Upon telephoning the LRB, he was told that they could not help him because he did not belong to a union. Another attempt at contacting the Labor Department was also unsuccessful. Following that, plaintiff made no other efforts to file an age discrimination claim until he contacted an attorney nearly a year later, after an unsuccessful search for a new job.
On January 12, 1982, McClinton filed an age discrimination charge with the EEOC. On March 19, 1982, after the EEOC refused to act on the charge because he had failed to comply with the ADEA requirement that charges be filed within 180 days of the alleged discrimination, plaintiff commenced the present action under the ADEA. The district court held that the equities in the case did not justify a tolling of the 180-day notification requirement, and granted summary judgment to the defendants. McClinton v. Alabama By-Products Corp., 574 F.Supp. 43 (N.D.Ala.1983). Plaintiff appealed.
Section 7(d)(1) of the ADEA, 29 U.S.C. § 626(d)(1), limits the period in which an aggrieved employee may initiate an action under the ADEA. It provides, in part:
No civil action may be commenced by an individual under this section until 60 days after a charge alleging unlawful discrimination has been filed with the [EEOC]. Such a charge shall be filed
(1) within 180 days after the alleged unlawful practice occurred.
This 180-day notification requirement is a prerequisite to an action based on the ADEA, Templeton v. Western Union Telegraph Co., 607 F.2d 89, 91 (5th Cir.1979), and is intended to promote the speedy, informal, non-judicial resolution of discrimination claims, and to preserve evidence and records relating to the alleged discriminatory action. Edwards v. Kaiser Aluminum & Chemical Sales, Inc., 515 F.2d 1195, 1198-99 (5th Cir.1975).
It is now established that this notification requirement is not a jurisdictional prerequisite that deprives a court of subject matter jurisdiction, but a requirement more in the nature of a statute of limitations that is subject to equitable tolling. Coke v. General Adjustment Bureau, 640 F.2d 584, 595 (5th Cir.1981) (en banc). Whether to toll this statutory period is determined on a case-by-case basis, depending on the equities of the situation.
In this case, appellant asserts that equitable tolling is appropriate in light of Alabama-By-Products’ failure to post conspicuous notice of ADEA rights (as required by 29 U.S.C. § 627 ), which deprived him of the opportunity to discover his specific rights under the ADEA. The appellee replies that tolling is not necessary, in that appellant was well aware of his right not to be discriminated against but neglected to contact an attorney or otherwise act on those rights.
Templeton v. Western Union Telegraph Co., 607 F.2d 89 (5th Cir.1979), presented a set of facts very similar to our present situation. There, the plaintiff alleging age discrimination admitted
that he had seen the 1968 poster prepared by the Secretary of Labor notifying employees of the existence of the ADEA, that he was aware of his right not to be discriminated against in employment on the basis of his age, and that he believed that he was a victim of age discrimination when he retired.
Id. at 91. Plaintiff argued that he was unaware of the 180-day notification period, and that this period should be tolled because the employer had failed to exhibit the most current government-approved poster, which indicated that the period of time available for filing an ADEA claim was limited, and emphasized the necessity of prompt action. The court dismissed the action, stating that:
While an employer’s failure to notify its employees of their ADEA rights as required by 29 U.S.C. § 627 and 29 C.F.R. § 850.10 might justify the equitable tolling of the limitations period of section 626(d) until the employee acquires actual knowledge or the means of knowledge of his ADEA rights, an employee who is aware of his ADEA rights yet does not notify the Department of Labor of his intent to sue within the prescribed period of time is barred from asserting a cause of action under the ADEA.
Id. (emphasis added).
The present ease differs from Templeton in that Alabama-By-Products never posted any notice of ADEA rights. Thus, although McClinton had general knowledge of his rights not to be discriminated against on the basis of age, he may not have known of the existence of the ADEA and his specific rights under that statute. We are faced with the question of whether this slim factual distinction should lead to a different result.
We determine that it should not. Therefore, we hold that an employer’s failure to post the requisite notice will equitably toll the 180-day notification period, but only until the employee acquires general knowledge of his right not to be discriminated against on account of age, or the means of obtaining such knowledge. We do not think it necessary to toll the notification period up to the time that the employee obtains knowledge of his specific rights under the ADEA and/or the existence of the 180-day filing period. Once an employee suspects that he may have been discriminated against on account of age and is also generally aware of his legal right to obtain redress for that wrong, he possesses sufficient knowledge to enable him to vindicate his rights, if he so desires. When an employee is generally aware of his rights, ignorance of specific legal rights or failure to seek legal advice should not toll the 180-day notification period. Cf. Quina v. Owens Corning Fiberglas Corp., 575 F.2d 1115, 1118 (5th Cir.1978). (Ignorance of rights or failure to seek legal advice does not toll a statute of limitations.) A contrary result would permit an aggrieved employee aware of his general rights to sit on those rights until he leisurely decided to take action. This would be inconsistent with and undermine the underlying ADEA policy of encouraging speedy, non-judicial resolutions to age discrimination employment disputes.
However, we also stress the importance of the employer’s compliance with the § 627 posting requirement. If notice is properly posted and the employee does not see it or sees it but is still not aware of his rights, there will normally be no tolling of the filing period. See Bonham v. Dresser Industries, Inc., 569 F.2d 187, 193 n. 7 (3d Cir.), cert. denied, 439 U.S. 821, 99 S.Ct. 87, 58 L.Ed.2d 113 (1978). If the poster be not posted, the employer will bear the burden of proving that the employee was generally aware of his rights.
In the present ease, that burden has been met. McClinton’s own affidavit states that he believed that he had been the victim of age discrimination, and that he was aware of the possibility of a “discrimination or labor relations suit.” His unsuccessful contacts with two government agencies are further evidence that he was generally aware of his rights. Here, appellant’s knowledge was at least sufficient to send a reasonable person, once he was not satisfied with the agency responses, to an attorney. Instead, appellant sat on his rights and neglected to follow through with his claim. The equities do not favor tolling of the 180-day limitation period in this situation. Therefore, the judgment of the district court is
AFFIRMED.
. This section provides that:
Every employer, employment agency, and labor organization shall post and keep posted in conspicuous places upon its premises a notice to be prepared or approved by the [EEOC] setting forth information as the [EEOC] deems appropriate to effectuate the purposes of [the ADEA].
29 U.S.C. § 627. A copy of the poster currently prepared and approved by the EEOC is attached as an appendix to this case. This same poster was in use when McClinton was discharged.
. We note that the currently approved poster does not make any reference to the 180-day filing requirement, although it does state that an aggrieved employee should "immediately contact" the EEOC. See Appendix to this case.
. Appellant cites several cases from other circuits which hold that an employer's failure to post the requisite notice equitably tolls the 180-day notification period until the employee either retains an attorney or acquires actual knowledge of his rights. See Vance v. Whirlpool Corp., 716 F.2d 1010 (4th Cir.1983); Kephart v. Institute of Gas Technology, 581 F.2d 1287 (7th Cir.1978); Bonham v. Dresser Industries, Inc., 569 F.2d 187 (3d Cir.), cert, denied, 439 U.S. 821, 99 S.Ct. 87, 58 L.Ed.2d 113 (1978). However, none of these cases addressed the further question that we are faced with here: how specific must an employee’s knowledge of his rights be in order to prevent the tolling of the period?
. The normal "means of obtaining such knowledge” will probably be consultation with an attorney; but this could refer to other acts, such as the viewing of the ADEA poster somewhere outside of the place of employment.
. Although the failure of the employer to display the poster may toll the 180-day notification period, it will not normally toll the two-year statute of limitations for bringing the action in court, which continues to run from the date of the alleged wrongful act. Kazanzas v. Walt Disney World Co., 704 F.2d 1527 (11th Cir.), cert. denied, — U.S.-, 104 S.Ct. 425, 78 L.Ed.2d 360 (1983). Thus, even if the notification period is tolled, an employee will usually be absolutely barred from filing suit after two years.
. Given that the current EEOC-approved poster refers (in small print which is riddled with bureaucratic language) to several different types of discrimination within several types of employment relationships, there is some question whether the average employee would comprehend his rights even upon a viewing of the poster. However, it would be unfair to the employer to toll the filing period if he has performed his statutory legal duty by properly posting notice.
Question: What is the nature of the second listed appellant whose detailed code is not identical to the code for the first listed appellant?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_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.
ROCKY MOUNTAIN NATURAL GAS COMPANY, Inc., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
No. 7291.
United States Court of Appeals Tenth Circuit.
Jan. 28, 1964.
Russell P. Kramer of Calkins, Rod-den & Kramer, Denver, Colo., for petitioner.
Joseph C. Thackery, Washington, D. C. (Arnold Ordman, Dominick L. Manoli, Marcel Mallet-Prevost and Allison W. Brown, Jr., Washington, D. C., on the brief), for respondent.
Before PICKETT, LEWIS and BREITENSTEIN, Circuit Judges.
LEWIS, Circuit Judge.
This case reaches the court upon the petition of Rocky Mountain Natural Gas Company, Inc., to review and set aside in part an order of the National Labor Relations Board requiring Rocky Mountain to take remedial action for violation of section 8(a) (1) and (3) of the Labor Management Relations Act (29 U.S.C. § 158(a) (1), (3)). The Board cross-petitions for enforcement of its order. Rocky Mountain contends that the record as a whole does not support the Board’s order in those aspects where the Board refused to follow the recommendations of its trial examiner and particularly in regard to the Board finding, contrary to that of the trial examiner, that petitioner had discriminatorily discharged two employees, Welch and Dick, for protected union activity and in violation of section 8(a) (3) of the Act.
Rocky Mountain is a Colorado corporation engaged primarily in the distribution of natural gas to industrial and domestic consumers. Prior to 1958 its distribution area was restricted to a limited area on the Western Slope in Colorado. In 1959, Rocky Mountain bought the assets of Domestic Propane Company of Delta, Colorado, a company engaged in the sale of liquified petroleum to like consumers. Rocky Mountain retained the employees of Domestic, chiefly gas-fitters, and thereafter the company operated in divisions. One division, under the regulatory control of the Public Utilities Commission of Colorado, continued the distribution of natural gas; another division, free of state control, continued the sale of propane and also performed the labor necessary to complete conversions in the systems of those consumers who could be persuaded to change from other fuels to natural gas. Separate records were kept by management for each operational division of the company.
As was to be expected, more than half of Rocky Mountain’s potential customers converted to natural gas as soon as that fuel became available. Thereafter the number of conversions slackened and the need for labor crews became less for such work. Very few conversions were made during the heating season. In late 1960, the company had to begin transferring funds from other divisions to the propane division in order to meet payrolls and other costs. The propane division had a net operating loss of $14,-229.00 for the year 1961. A study of the over-all conditions led management to the decision to make a transfer of employees and a reduction in the number of employees working as gas-fitters for the propane division in the Delta area. The reduction was originally planned for November, 1961, but was later delayed and was actually effectuated after Christmas. From this broadly stated operational background and supplemented by much detail, the trial examiner found that economic justification existed for a cut in the number of employees working as gas-fitters at Delta; the decision of the Board criticizes but does not reject the finding and the Board decision is not based upon lack of economic need. We unqualifiedly accept the premise of the existence of economic justification for a reduction of force. The premise does not, ipso facto, negative a violation of the Act in the method of accomplishing a reduction in labor force.
During the period of operational adjustment and expansion of Rocky Mountain on the Western Slope the employees in the propane division were justifiably concerned about their own welfare and security. The employees were unorganized and were not enjoying some benefits available to employees in other divisions. After rather a prolonged period •of informal discussions among the employees, followed by a series of more formal meetings, a majority of the employees voted to, and did, organize a union in November, 1961.
Management, of course, became aware of the employee organizational efforts; and the employees were made aware of the company’s claim of economic distress. Each of the section 8(a) (1) violations premising the Board order is based upon a different incident occurring during this period when conflict of interest seems to be inevitably assumed.
The report of the trial examiner analyzes in commendable detail each such incident and concludes that in some instances the conduct of management constituted an unfair labor practice and that in other instances it did not. The Board adopted the report to the extent it determined the existence of violations but rejected the recommendation of the examiner in each instance where the acts of management were reported as not violations. From our examination of the record we note nothing novel or unusual regarding this aspect of the case which would require a detailed discussion of the facts or law. Such discussion is usually profitless. N. L. R. B. v. Twin Table & Furniture Co., Inc., 8 Cir., 308 F.2d 686. Sufficient it is to say that the record as a whole readily supports the order of the Board in those matters in which it follows the report; and, in those matters where it does not, with one rather minor exception, the Board has but drawn different inferences from the evidence. This the Board may do even though the finding of the examiner is not clearly erroneous. Universal Camera Corp. v. N. L. R. B., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456; N. L. R. B. v. Wichita Television Corp., 10 Cir., 277 F.2d 579. The single exception lies in the finding by the Board that an inquiry made by the company service manager Boyd from the employee Welch as to the names of the union officers was coercive. The trial examiner had found the inquiry to be but casual, without coercive effect in intent or fact, and that at such times Boyd did not have the inherent capacity to coerce Welch. The Board finds the question to be coercive because of the “various other violations by the Respondent.” “Carry-over” intent is an inadequate premise for the determination of a violation of the Act where the accused conduct is inherently innocent and harmless. The record does not support the Board in this particular.
The circumstances surrounding the discharge of employees Welch and Dick presents more than a routine controversy. The trial examiner found the discharges to be non-discriminatory and the Board again found otherwise and that a section 8(a) (3) violation was involved. Each finding considers the undisputable facts that both Welch and Dick were qualified workers from a technical view and both were very active in union activities. Dick was president of the Union and Welch was treasurer. And certain it is that the discharge of union officers during a period of union activity when the officers are qualified workers is a circumstance of suspicion which may rise to a justified inference of violative discrimination. But it is equally certain that active union participation by the most qualified employee is not an impenetrable shield against discharge. Union activity cannot be the basis of discharge but active unionists may be discharged for other reasons. E. g., N. L. R. B. v. South Rambler Co., 8 Cir., 324 F.2d 447; N. L. R. B. v. United Parcel Service, Inc., 1 Cir., 317 F.2d 912; N. L. R. B. v. Local 294, International Bhd. of Teamsters, 2 Cir., 317 F.2d 746. And in the case at bar the issue must thus be determined by the degree of significance to be given to Rocky Mountain’s explanation of the reason for the discharge of Welch and Dick.
As earlier stated, economic conditions justified a reduction in force of the gas-fitters employed by Rocky Mountain. Witnesses for the company, expressly credited by the trial examiner, explained the plan formulated by management to accomplish the reduction. Each company district in the propane division was assigned a quota of the number of men that could be retained. Each district manager was allowed to select the men he wanted to retain or be transferred to his district. The last district to act under the plan was the district at Delta. The quota for the district was three pipe-fitters. Five were then employed at Delta: Lewis, Chappell, Morris, Welch and Dick. Each was a member of the Union and four were officers. Dick was president, Chappell was vice president, Lewis was secretary and Welch was treasurer. Each of the five was an experienced technical worker. Lewis, Chappell and Morris were retained and Welch and Dick discharged. The witness Sieverson, Delta district manager, testified that he made his selections based upon his opinion of ability, versatility and public relations capacity. He though Welch had some weakness in customer relations and he told of an instance of personal disagreement with Dick regarding a pipe installation where Dick had challenged his judgment. The witness stated unequivocally that union matters had not affected his judgment.
The probative force that should be given an examiner’s report reaches its highest significance when an issue turns upon credibility. Universal Camera Corp. v. N. L. R. B., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456. The examiner here credited the testimony of witnesses who completely negatived the claim of discrimination in the discharge of Welch and Dick. Although the operation of the plan resulted in the discharge of two qualified men who were active in union affairs, and thus accomplished a suspect result, it is apparent that the discharge of any two of the five employees would be equally suspect when examined by circumstance alone. The acceptance by the Board of circumstance in view of the trial examiner’s determination of credibility does not find substantial support in the record.
The order of the Board is set aside to the extent it finds the Boyd-Welch inquiry to be violative of the Act and the discharge of Welch and Dick to be violative of the Act; in all other regards the petition of the Board for enforcement of its order is granted.
. 140 NLRB No. 113.
. Rocky Mountain Gas Workers Union, an independent labor organization. At a later time, the members voted to disband their organization.
. The Board also added some specific violations which were fully developed as issues at the hearing but which the examiner treated as not within the charges. We find no error in this regard
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_indict
|
A
|
What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court rule that the indictment was defective?" 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".
HASTINGS v. HUDSPETH.
No. 2400.
Circuit Court of Appeals, Tenth Circuit.
Feb. 26, 1942.
Andrew R. Hastings, pro se.
Summerfield S. Alexander, U. S. Atty., and Homer Davis, Asst. U. S. Atty., both of Topeka, Kan., for appellee.
Before PHILLIPS, BRATTON, and HUXMAN, Circuit Judges.
PHILLIPS, Circuit Judge.
This is an appeal from a judgment denying a petition for a writ of habeas corpus.
Hastings, hereinafter referred to as the petitioner, was charged by an indictment returned December 12, 1939, in the District Court of the United States for the District of Nebraska, with a violation of 18 U.S.C. A. § 338. On June 4, 1940, at petitioner’s request, the court appointed John Berger, Esq., attorney for petitioner. Thereafter, on the same day, petitioner was arraigned and entered a plea of not guilty. On July 3, 1940, petitioner appeared in person and by his counsel and withdrew his plea of not guilty and entered a plea of guilty. On July 11, 1940, he was sentenced to a term of imprisonment of four years in an institution of the penitentiary type to be designated by the Attorney General. Commitment duly issued and petitioner was delivered into the custody of Hudspeth, Warden.
The indictment charged that petitioner devised a scheme to defraud by obtaining money from one Joseph O’Rourke, of Omaha, Nebraska, South Omaha Savings Bank, Stock Yards National Bank of Omaha, and the Hibernia National Bank of New Orleans, Louisiana, and other persons and corporations to the grand jurors unknown, by inducing them to accept and pay money on forged checks by means of false and fraudulent pretenses and representations ; that petitioner planned and schemed that he would travel from place to place and defraud such persons and corporations as he could induce to cash or endorse false and forged checks drawn on banks situated in distant places; that he would represent to such persons and corporations to be defrauded that such checks were genuine, and upon receiving money thereon, in order to avoid apprehension and in order that he might continue the promotion of his scheme, would move on to another city before it could be ascertained that such checks were forged and false; that as a part of such scheme, petitioner planned and schemed that he would write a false and forged check drawn on the Hibernia National Bank of New Orleans, Louisiana; that he would, without authority, sign on the check a forged name as drawer; that he would represent to O’Rourke that the check was genuine and that he was the payee thereof, and induce O’Rourke to endorse the check and identify him as the payee thereof at some hank, and thereby cause the bank to advance money thereon; that in truth and in fact, there was no such drawer nor deposit; that on June 12, 1939, petitioner, for the purpose of executing such scheme, caused the Federal Reserve Bank of Kansas City, through its Omaha branch, to place and cause to be placed in the Post Office at Omaha, to be sent and delivered by the Post Office establishment to the addressee thereof, the above-mentioned check enclosed in an envelope with prepaid postage thereon, addressed to the Federal Reserve Bank, New Orleans, Louisiana.
Petitioner contends that the indictment did not charge a federal offense, that the Federal Court for the Nebraska District did not have jurisdiction of the offense, and that the sentence was void.
It is well settled that defects in an indictment, not going to the jurisdiction of the court which pronounced sentence, may not be raised on habeas corpus. Hence, on habeas corpus the question is not whether the indictment is vulnerable to direct attack by motion or demurrer, but whether it is so fatally defective as to deprive the court of jurisdiction.
If there is a federal offense which the indictment apparently attempts to charge, and the court has jurisdiction over such offense and over the person of the accused, the sufficiency of the indictment is not open to challenge on habeas corpus.
Here, the offense which the indictment attempted to charge is neither colorless nor an impossible one under the law. The trial court had jurisdiction over such offense and over the person of the petitioner. It was for it to determine the elements of the offense sought to be charged, the construction to be placed on the indictment, and its sufficiency. If it erred in determining those matters, its judgment was not for that reason void.
We do not think the allegations of the indictment affirmatively show the continuing scheme was fully consummated when the money was paid over by the bank in Omaha or refute the specific allegations of the indictment that the mails were used to execute the scheme. Moreover, the scheme was a continuing one and contemplated the defrauding of a number of persons. The forwarding of the check for collection by mail from Nebraska to Louisiana effected a lapse of time during which the Omaha bank and O’Rourke were kept free from suspicion. This gave petitioner an opportunity to avoid detection and arrest and to perpetrate the scheme on others. The use of the mails, therefore, contributed to the execution of the scheme as against O’Rourke and the Omaha bank and aided in its subsequent execution against others.
The allegation in the application for the writ that petitioner did not cause the check to be sent through the mails cannot stand against the affirmative allegation of the indictment to the contrary, which the petitioner admitted by his plea of guilty thereto.
The judgment is affirmed.
Creech v. Hudspeth, 10 Cir., 112 F. 2d 603, 605; Knight v. Hudspeth, 10 Cir., 112 F.2d 137, 139.
Knight v. Hudspeth, 10 Cir., 112 F. 2d 137, 139; Creech v. Hudspeth, 10 Cir., 112 F.2d 603, 606.
Creech v. Hudspeth, 10 Cir., 112 F. 2d 603, 606; Aderhold v. Hugart, 5 Cir., 67 F.2d 247; Goto v. Lane, 265 U. S. 393, 402, 44 S.Ct. 525, 68 L.Ed. 1070; Knewel v. Egan, 268 U.S. 442, 445, 446, 45 S.Ct. 522, 69 L.Ed. 1036.
Creech v. Hudspeth, 10 Cir., 112 F. 2d 603, 606; Brady v. United States, 9 Cir., 26 F.2d 400, 401.
Question: Did the court rule that the indictment was defective?
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
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.
Ernest GUERRERO, Appellant, v. C. J. FITZHARRIS, Superintendent, Department of Corrections, California, Appellee.
No. 21036.
United States Court of Appeals Ninth Circuit.
April 22, 1968.
As Corrected on Denial of Rehearing June 3, 1968.
Ernest Guerrero, in pro. per.
Thomas C. Lynch, Atty. Gen., of the State of California, Robert R. Granucci, James A. Aiello, Deputy Attys. Gen., San Francisco, Cal., for appellee.
Before CHAMBERS, Circuit Judge, MADDEN, Judge of the Court of Claims, and BROWNING, Circuit Judge.
PER CURIAM:
Appellant is presently in California penal custody serving an indeterminate sentence of two-to-ten years on a narcotics conviction. In addition, he faces a future consecutive sentence of one-year-to-life on a conviction for escape without force. Appellant’s petition for a writ of habeas corpus showed on its face that the escape conviction was valid. Appellant attacked only the validity of the narcotics conviction. The district court summarily denied the petition, reasoning that even if appellant’s narcotics conviction were invalid, appellant would have to serve the sentence on the escape charge and thus appellant was not eligible for the writ because he was not entitled to “immediate release” within the meaning of McNally v. Hill, 293 U.S. 131, 138, 55 S.Ct. 24, 79 L.Ed. 238 (1934), as interpreted by this court in Hoffman v. United States, 9 Cir., 244 F.2d 378, 381-382 (1957).
In its recent decision in Walker v. Wainwright, 390 U.S. 335, 88 S.Ct. 962, 19 L.Ed.2d 1215 (March 11, 1968), the Supreme Court held that McNally was not a bar to habeas corpus attack on the first of two consecutive sentences. Thus, the ground upon which the district court relied in not reaching the merits of appellant’s petition is no longer tenable.
Reversed and remanded.
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.
Robert L. TURCOTTE, Administrator of the Estate of Gerard P. Turcotte, Plaintiff-Appellee, v. FORD MOTOR COMPANY, Defendant-Appellant.
No. 73-1251.
United States Court of Appeals, First Circuit.
Argued Oct. 3, 1973.
Decided Feb. 13, 1974.
On Rehearing April 8, 1974.
Moore, Circuit Judge, concurred and dissented in part, with opinion.
Paul V. Reynolds, Providence, R. I., for defendant-appellant.
John P. Dolan, Providence, R. I., for plaintiff-appellee.
Before COFFIN, Chief Judge, McENTEE, Circuit Judge, and MOORE, Senior Circuit Judge.
Of tlie Second Circuit, sitting by designation.
MeENTEE, Circuit Judge.
Plaintiff, a Rhode Island citizen, filed this diversity suit in the United States District Court for Rhode Island, seeking to recover for the alleged wrongful death of his son. The decedent was a passenger in a 1970 Maverick, manufactured by defendant Ford Motor Company, when the car was struck by another car on the Massachusetts Turnpike near Millbury, Massachusetts and burst into flames. Decedent died in the fire. The owner of the Maverick was William J. Sullivan of Woonsocket, Rhode Island, who purchased it from Menard Ford Sales, Inc., of South Bellingham, Massachusetts. The driver was Sullivan’s son Michael. The operator of the other vehicle was a Massachusetts citizen.
At trial, plaintiff contended that Ford’s positioning of the gas tank in the 1970 Maverick in such manner that the tank’s top also served as the floor of the trunk constituted a defect in design which caused his son’s death by fire. Plaintiff did not argue that the alleged defect caused the collision. Instead, he contended that, upon collision, a properly-designed Maverick would not have burst into flames and that his son would otherwise have survived the initial impact. The case went to the jury on the theory of strict liability, and a verdict was returned for plaintiff in the amount of $500,000. The trial court entered judgment for that amount plus $61,315.-08 in interest. Ford’s motions for new trial and for alteration or amendment of the judgment were both denied. This appeal is based on a variety of issues.
I. Conflict of Laws
The threshold issue is whether the trial court correctly decided that Rhode Island’s wrongful death statute and its law on strict liability govern the instant case. Ford, a Delaware corporation, contends that Massachusetts law should have controlled. Applying the conflict of laws rules of Rhode Island, the forum state, see Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941), we hold that Rhode Island law was properly invoked on both questions.
Rhode Island has abandoned the old lex loci delicti theory of conflict of laws, in which the law of the place of the tort governed, in favor of a modern “interest-weighing” approach. Woodward v. Stewart, 104 R.I. 290, 299, 243 A.2d 917, 923, petition for cert, dismissed, 393 U.S. 957, 89 S.Ct. 387, 21 L.Ed.2d 371 (1968). The Supreme Court of Rhode Island has summarized the interests it will consider under this new approach in a five-point guideline:
(1) Predictability of results.
(2) Maintenance of interstate order.
(3) Simplification of the judicial task.
(4) Advancement of the forum’s governmental interests.
(5) Application of the better rule of law.
Woodward v. Stewart, supra at 299-300, 243 A.2d at 923; see Leflar, Choice-Influencing Considerations in Conflicts Law, 41 N.Y.U.L.Rev. 267 (1966). We will consider these interests separately with respect to, first, the appropriate wrongful death statute and, second, the appropriate tort law.
Plaintiff brought this suit under the Rhode Island wrongful death statute, Gen.Laws of R.I. § 10-7-1 (1956) as amended, which measures damages by a quasi-compensatory standard with no ceiling on recovery. See D’Ambra v. United States, 481 F.2d 14, 19 (1st Cir. 1973), cert, denied, 414 U.S. 1075, 94 S.Ct. 592, 38 L.Ed.2d 482 (1973) (finding Rhode Island statute “partly punitive”). In contrast, the Massachusetts wrongful death statute, Mass.Gen. Laws Ann. ch. 229, § 2 (Supp.1973), measures damages by a purely punitive standard, i. e., solely by the degree of defendant’s culpability rather than plaintiff’s actual loss. Also, at the time of this collision recovery was limited to $50,000. See Tiernan v. Westext Transp., Inc., 295 F.Supp. 1256, 1263 (D.R.I.1969). Application of the Massachusetts statute would thus preclude the $500,000 judgment entered for the plaintiff.
Applying the Rhode Island interest-weighing approach to this conflict of laws, we find that the fourth factor listed above, advancement of the forum’s governmental interests, strongly points towards the Rhode Island wrongful death statute as more appropriate in the instant case. Rhode Island’s interest here is in seeing that plaintiff, its citizen, is adequately compensated for a wrongful death. While of course the forum has some interest in protecting its citizens in any situation, such interest is particularly compelling in a tort case involving substantial personal injury or death because failure there to provide adequate compensation could mean that the plaintiffs will later become burdens on the state. See Tiernan v. Westext Transp., Inc., supra at 1264. In the instant case, this Rhode Island interest would plainly be defeated if recovery were limited to $50,000 under the Massachusetts statute. The jury found actual loss of $500,000.
Moreover, consideration of Rhode Island’s interest in maintaining interstate order does not indicate contrary application of the Massachusetts statute. Under this heading, Rhode Island courts inquire whether another state’s law and policy would be “offended” by application of Rhode Island law. See Brown v. Church of the Holy Name of Jesus, supra, 105 R.I. at 329, 252 A. 2d at 180. Ford is not a Massachusetts corporation. Therefore, Massachusetts does not have as immediate an interest in making available the $50,000 recovery limitation in its statute as it would if defendant were a Massachusetts citizen. Similarly, in view of the fact that the conduct allegedly causing the injury, the design of the Maverick, occurred outside of Massachusetts, the punitive aspect of the Massachusetts wrongful death statute is of marginal relevance here. On the other hand, Massachusetts may have an interest in protecting noncitizen businesses, such as Ford, from unlimited wrongful death liability as a means of encouraging these businesses to continue operating in the state, providing local jobs and tax revenues. We first note in response to this interest that the existence of unlimited wrongful death liability in Rhode Island has not deterred Ford from continuing to supply automobile dealerships in that state. But in any event, we find that the Massachusetts interest in encouraging noncitizen business enterprises is weak in the instant case when compared to the Rhode Island interest in protecting its citizens from uncompensated harm.
The remaining three interests considered under the Rhode Island conflicts approach are either inconclusive or point to Rhode Island’s statute. Therefore, we hold that Rhode Island’s wrongful death statute properly governed the measure of damages in the instant case.
With regard to choice of appropriate strict liability law, we note first that it is somewhat unclear whether a conflict of laws in fact exists between Massachusetts and Rhode Island. Massachusetts courts apparently have never expressly adopted, or rejected, the doctrine of strict products liability. In the absence of relevant case lay, the trial court and the parties proceeded on the arguendo assumption that strict liability would not be a permissible basis for recovery in Massachusetts. In contrast, Rhode Island has expressly adopted this doctrine. Ritter v. Narragansett Elec. Co., 109 R.I. 176, 187, 283 A.2d 255, 261 (1971). Moreover, the trial court in the instant case held that, if presented with the issue, the Supreme Court of Rhode Island would interpret that doctrine as authorizing liability where defects in the design of an automobile do not cause a collision but rather exacerbate the injuries resulting therefrom. The court thus found a true conflict of laws between Massachusetts and Rhode Island on strict liability which the court resolved in favor of Rhode Island law. Reviewing this second conflicts decision, we, too, will assume arguendo that Massachusetts would not recognize strict products liability in any form. To resolve the conflict, we again apply Rhode Island’s interest-weighing approach.
Clearly Rhode Island has a significant governmental interest to advance by applying its own law on strict liability rather than the law of Massachusetts which denies recovery on that theory. Rhode Island’s interest is the protection of its citizens from defective products. Such citizens include plaintiff, his son, and Sullivan, the purchaser of the Maverick. Application of Massachusetts law would plainly defeat this Rhode Island interest.
At the same time, application of Rhode Island law would not appear to offend Massachusetts law and policy. We again note that Ford is not a Massachusetts corporation. Thus, even if we assume that Massachusetts’ failure to adopt strict products liability represents an intention to protect that state’s manufacturers from excessive liability, Ford is outside of the protected class. Even if we assume a Massachusetts interest in encouraging noncitizen manufacturers to sell their products in the state, such interest is insubstantial when the product here was sold to a Rhode Island citizen and another Rhode Island citizen allegedly died as a result of a defect in it. Massachusetts’ undeniable interest in controlling driving behavior on its highways — a factor which caused the Supreme Court of Rhode Island to apply Massachusetts negligence law to a Massachusetts collision in the Woodward case, supra, 104 R.I. at 300-301, 243 A. 2d at 923-924 — -is also not a significant consideration here. Where plaintiff complains of defective design which occurred in Michigan on a car sold to a Rhode Island resident, the fact that the alleged defect had tragic results on a Massachusetts highway is something of a fortuity. The causes of the collision in Massachusetts are not at issue. Instead plaintiff alleges that once the. collision occurred, from whatever cause, the defect which existed in Sullivan’s car caused the death of his son. Massachusetts has no significant interest in adjudicating a claim of that nature.
The remaining three interests considered under the Rhode Island conflicts approach also indicate application of this state’s strict liability law. We therefore hold that the trial court correctly chose to apply Rhode Island law on strict liability.
II. Strict Liability
We now review the trial court’s holding that under Rhode Island law automobile manufacturers can be held strictly liable for defects in design which do not cause highway collisions but instead exacerbate injuries therefrom. This precise question has never been considered by the Rhode Island courts.
We begin our analysis with the leading Rhode Island case of Ritter v. Narragansett Elec. Co., supra. The Supreme Court of Rhode Island there incorporated into state law the doctrine of strict products liability as expressed in Restatement (Second) of Torts § 402A (1965). Id., 109 R.I. at 188, 283 A.2d at 261. See generally Merlino, Products Liability — Revolution in the Law, 22 R. I. B.J. 9 (1973).
The Ritter court construed this rule as contemplating, “first, that there must be a defect in design or manufacture which makes the product unsafe for its intended use, and second, that liability does not attach unless the plaintiff was using the product in a way in which it was intended to be used when he was injured by it.” 109 R.I. at 190, 283 A.2d at 262 (emphasis added); see Greenman v. Yuba Power Prods., Inc., 59 Cal.2d 57, 64, 27 Cal.Rptr. 697, 701, 377 P.2d 897, 901 (1963).
Ford argues that since no automobile manufacturer or consumer would rationally intend his car to be involved in a highway collision, the defect in design alleged in the instant case falls outside the scope of the strict liability doctrine as construed in Ritter. This pinpoints the crucial issue before us, namely, whether under Rhode Island law the tort concept of “intended use” encompasses foreseeable consequences of normal automobile use, such as collisions, even though such consequences are not literally intended or desired.
Among other jurisdictions there has developed a split in authority on this question, symbolized by the conflicting cases of Evans v. General Motors Corp., 359 F.2d 822 (7th Cir. 1966), cert, denied, 385 U.S. 836, 87 S.Ct. 83, 17 L.Ed. 2d 70 (1967), and Larsen v. General Motors Corp., 391 F.2d 495 (8th Cir. 1968). In Evans, the Seventh Circuit held that under Indiana law “[t]he intended purpose of an automobile does not include its participation in collisions with other objects, despite the manufacturer’s ability to foresee the possibility that such collisions may occur.” 359 F.2d at 825. The court therefore affirmed dismissal of a complaint alleging negligence, breach of implied warranty and strict liability in a fact situation analogous to the case at bar. Accord, Shumard v. General Motors Corp., 270 F.Supp. 311 (S.D.Ohio 1967) (construing Ohio law); Willis v. Chrysler Corp., 264 F.Supp. 1010 (S.D.Tex.1967) (construing Texas law); Walton v. Chrysler Corp., 229 So. 2d 568 (Miss.1969).
However, the Eighth Circuit in Larsen, construing Michigan law, rejected the Evans position as “much too narrow and unrealistic.” 391 F.2d at 502.
“While automobiles are not made for the purpose of colliding with each other, a frequent and inevitable contingency of normal automobile use will result in collisions and injury-producing impacts. No rational basis exists for limiting recovery to situations where the defect in design or manufacture was the causative factor of the accident, as the accident and the resulting injury, usually caused by the so-called ‘second collision’ of the passenger with the interior part of the automobile, all are foreseeable.”
Id.; see 80 Harv.L.Rev. 688, 689 (1967). Although Larsen was a negligence ease, other courts have carried over its rejection of the narrow Evans view of “intended use” to the strict liability area. See, e. g., Bremier v. Volkswagen of America, Inc., 340 F.Supp. 949 (D.D.C.1972) (construing Maryland law); Dyson v. General Motors Corp., 298 F.Supp. 1064 (E.D.Pa.1969) (construing Pennsylvania law).
We agree with the trial court that Rhode Island would adopt the Larsen interpretation of “intended use” in construing the doctrine of strict products liability. A literal Evans-type interpretation of “intended use” fails to recognize that the phrase was first employed in early products-liability cases such as Greenman, supra, merely to illustrate the broader central doctrine of foreseeability. The phrase was not meant to preclude manufacturer responsibility for the probable ancillary consequences of normal use. See Hall v. E. I. Du Pont De Nemours & Co., 345 F. Supp. 353, 363 (E.D.N.Y.1972). Instead, a manufacturer “must also be expected to anticipate the environment which is normal for the use of his product and ... he must anticipate the reasonably foreseeable risks of the use of his product in such an environment.” Spruill v. Boyle-Midway, Inc., 308 F.2d 79, 83-84 (4th Cir. 1962); cf. Raymond v. Riegel Textile Corp., 484 F. 2d 1025 (1st Cir. 1973) (manufacturer held strictly liable where nightgown burst into flames within two seconds of contact with hot grill of electric range). Larsen and its progeny have recognized that the “environment” in which cars are used, our nation's crowded, high-speed highways, makes involvement in collisions foreseeable to manufacturers as an inevitable consequence of normal use and thus imposes upon them a duty to guard against needlessly aggravated injuries.
Indeed, the Ritter case itself contains a similar construction of the “intended use” concept, although not in an automobile context. In that case, a four-year-old girl opened the drop-type oven door of an electric range and stood upon it so that she could see into a pot on the top of the range. Her weight upon the opened oven door caused the range to topple over upon her and her sister. The action against the manufacturer and the distributor of the range alleged that the range’s capacity to tip over when weights equal to that of the child were placed on the oven door constituted a defect in design for which defendants were liable on theories of negligence and strict liability. Obviously, an oven door is not intended to serve as a stepping-stool for children. Yet in its opinion remanding the case for trial on both theories, the Supreme Court of Rhode Island rejected defendants’ contention that the child’s use of the oven door constituted an “abnormal” or “unintended” use as to which there could be no liability. “[The trial judge] concluded that the jury could find from [the] evidence that [the manufacturer] knew that as a result of the design of the range the danger in the use of the oven door as a shelf was foreseeable and that the jury could have found that it had been negligent in failing to give notice or warning that such a condition would result from such a use of the oven door. We agree.” 109 R.I. at 185, 283 A.2d at 260.
In view of the Ritter holding on “intended use,” it is difficult to see how the Rhode Island courts could reject the similar Larsen approach to “intended use” in the automobile context. We are also mindful of the following language from a Vermont decision, Rothberg v. Olenik, 128 Vt. 295, 305, 262 A.2d 461, 467 (1970), which was adopted by the Supreme Court of Rhode Island in Padu-la v. J. J. Deb-Cin Homes, Inc., 298 A.2d 529, 531 (R.I.1973):
“The law should be based upon current concepts of what is right and just and the judiciary should be alert to the never-ending need for keeping its common law principles abreast with the times. Ancient distinctions which make no sense in today’s society and tend to discredit the law should be readily rejected. . . .”
Ford has suggested that adoption of the Larsen concept of “intended use” in automobile cases will result in its having to produce expensive armored tanks so as to avoid liability for defective design. But this need not be the result. First, plaintiff must still prove that the particular car’s design constituted a “defective condition unreasonably dangerous” to the user, and that such defect was the actual and proximate cause of injuries beyond those caused by the collision itself. Ford claims that sympathetic juries will shirk their responsibilities in cases of serious injury and impose liability on the manufacturer no matter what the state of the design or the ferocity of the particular collision. But our review of cases to date shows that juries continue to confound the cynical. For example, both Marshall v. Ford Motor Co., 446 F.2d 712 (10th Cir. 1971) (Oklahoma law), and Gray v. General Motors Corp., 434 F.2d 110 (8th Cir. 1970) (Minnesota law), are cases where juries given Larsew-type instructions on “intended use” nevertheless returned verdicts for defendant car manufacturers because they found the particular cars were not defectively designed. Moreover, an arbitrary jury verdict on the defect or causation issues can be rejected by trial or appellate courts as not supported by the evidence.
Second, the defense of assumption of risk remains viable in products liability cases. See Restatement (Second) of Torts § 402A, Comment n (1965). Thus, where a design defect is apparent or made known to the automobile purchaser, an action alleging such defect as the cause of injury cannot lie. Cf. Burkard v. Short, 28 Ohio App.2d 141, 148, 275 N.E.2d 632, 636-637 (1971) (rejecting liability for obviously unpadded dashboard). Automobile manufacturers might often relieve themselves of design liability, at least when the purchaser is plaintiff, if they fully informed such purchaser in advance of the relative safety merits and demerits of their cars as compared to other models.
III. Damages
Our holdings in the first two sections of this opinion affirm the jury verdict of liability on the part of Ford. We now consider issues concerning the jury’s award of $500,000 in damages. Ford contends that the compensation provision of the Rhode Island wrongful death statute, Gen.Laws of R.I. § 10-7-1.1 (Supp.1972), was improperly applied by the plaintiff’s expert witness on the question of damages. We agree, and remand the case for a new trial on the damages issue only.
The Rhode Island wrongful death statute is not a true survivor’s statute on the order of Lord Campbell’s Act, 9 & 10 Viet., ch. 93 (1846), or the Federal Employers’ Liability Act, 45 U.S.C. § 51 et seq. (1970). In other words, the Rhode Island statute does not measure damages by the amount the surviving plaintiff could expect to have received from decedent had he lived. Instead, the Rhode Island statute is an estate-type statute, which thinks of the death in terms of economic loss to the decedent rather than to his survivors. Under this type of statute, the lifetime earnings of the decedent are projected, lifetime expenses are estimated and deducted, and the present value of the resulting sum is awarded to the plaintiff. See D’Ambra v. United States, supra at 16 of 481 F. 2d. The estate-type method of computing damages was initially established in Rhode Island in McCabe v. Narragansett Elec. Lighting Co., 26 R.I. 427, 59 A. 112 (1904). In 1971, in apparent response to a decision by this court, Williams v. United States, 435 F.2d 804 (1st Cir. 1970), the Rhode Island legislature codified the estate-type computation method by enacting § 10-7-1.1.
In challenging the size of the verdict, Ford raises three issues concerning § 10-7-1.1: (1) was a projection of decedent’s lifetime income properly based on a government publication which encompassed all college graduates, including those who also attend graduate or professional schools? (2) was consideration of income taxes properly omitted in determining decedent’s lifetime expenses? (3) were future inflation and increases in productivity properly accounted for?
The first issue has little merit. At trial Mark Schupack, an economics professor at Brown University, testified as an expert witness for plaintiff with respect to the probable lifetime earnings and expenses of decedent. Schupack presented the jury with a series of calculations based on varying factual assumptions, first, as to decedent’s future education and career, and second, as to future prevailing interest rates. Ford contends it was error for Schupack, when making the factual assumption that decedent would have been a college graduate, to project future earnings based on a Bureau of Census publication which covered all college graduates, including those with postgraduate education. It is clear that decedent stood a good chance of attending and graduating from a four-year college. He had good grades and an outstanding athletic record. Indeed, the most poignant aspect of the case is that decedent was en route with three friends to look over the University of Massachusetts campus at Amherst when the crash and fire which took his life occurred.
Although we have no way of knowing for sure, it is possible that decedent would have gone on beyond college to some form of postgraduate education. But more important, the fact that the census publication relied upon by Schu-pack included college graduates with postgraduate education does not mean that the resulting income figures were much higher than they would have otherwise been. As Schupack noted at trial, great numbers of persons with graduate degrees, such as teachers, earn less than the average person with only a bachelor’s degree. The Rhode Island statute obviously requires a great deal of speculation. It requires the judge and jury to take on “the joint role of soothsayer and mathematical analyst in order to foretell what the future held for the deceased.” Romano v. Duke, 304 A.2d 47, 51 (R.I.1973). In this context, we cannot find that Schupack’s reliance on the census averages for all college graduates was so inconsistent with decedent’s reasonable prospects that their admission into evidence constituted an abuse of discretion by the trial court. See Krall v. Crouch Bros., 473 F.2d 717, 719 (8th Cir. 1973) (per curiam).
However, on the issue of income taxes we feel there was error. To compute decedent’s lifetime expenses, as required by the Rhode Island statute, Schupack reduced each annual income figure he projected by one-fourth. This 25% reduction was intended to encompass the costs of housing, food, clothing, personal and medical care, tobacco and alcoholic beverages attributable to the husband in a five-person family. Schupack made no further reduction in projected earnings for federal and state income taxes, and Ford contends that this was error. We agree. Indeed, the trial court indicated that it too would agree, if it were not for a decision by this court, Boston & Me. R.R. v. Talbert, 360 F.2d 286, 291 (1st Cir. 1966), which the trial court felt precluded deduction of income taxes.
However, our decision in Talbert, a federal case, did not control the trial court’s holding on the admissibility of income tax evidence under Rhode Island law. The “twin aims” of the doctrine of Erie R.R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), are the “discouragement of forum shopping and avoidance of inequitable administration of the laws.” Hanna v. Plumer, 380 U.S. 460, 468, 85 S.Ct. 1136, 1142, 14 L.Ed.2d 8 (1965). Under Erie, a state rule should be applied in a diversity case if it “would have so important an effect upon the fortunes of one or both litigants that failure to enforce it would be likely to cause a plaintiff to choose the federal court.” Id. at 468 n. 9, 85 S.Ct. at 1142. In the instant case, if Rhode Island law required evidence of income taxes in computing wrongful death damages, yet the federal district court in Rhode Island barred such evidence in diversity cases, no rational plaintiff who had the choice would ever bring a wrongful death action in the state courts. The difference in wrongful death recoveries between the two forums would be staggering. Therefore, under Erie, state law must control. Cf. Bin-ney v. United States, 460 F.2d 263, 264 (9th Cir. 1972) (per curiam).
Considering the matter of income taxes solely in the context of Rhode Island law, we hold that the failure of plaintiff to present evidence on the subject constituted error. The trial court itself noted that the express authorization in § 10-7-1.1 of evidence of inflation and other “economic trends” resulted in an unjustifiably large verdict because income tax evidence was excluded. The admittedly speculative nature of income tax evidence cannot be deemed a barrier to its admissibility under Rhode Island law. Surely the forecasting of future inflation rates is, if anything, more speculative than the forecasting of future tax rates.
Moreover, the recent decision by the Supreme Court of Rhode Island in Romano v. Duke, supra, would seem to insist upon consideration of future income taxes in computing damages under § 10-7-1.1. There the court held that prospective business expenses of a self-employed decedent were properly deducted from his prospective earnings. It discussed the new statute as follows:
“Section 1 of the 1971 amendment is the General Assembly’s answer to the Williams case. There, the legislators made it clear that any probable expenditures made for the support of the decedent’s dependents are to be disregarded and that, in finalizing an award, evidence concerning the future trend of the earnings, be it inflationary or deflationary, may be considered. Before any such award can be finalized, evidence must be produced as to all of' the expenses the deceased would have had to incur to produce that estimated amount of his future earnings.”
304 A.2d at 50 (emphasis in the original). It almost goes without saying that income taxes are substantial and inevitable expenses which the decedent would have had to incur to produce the amounts of future earnings estimated by Schupack at trial. In the calculations based on the assumption that the decedent would have been a college graduate, deduction of future taxes would have reduced the final net earnings by a substantial amount, even assuming the use of joint-return rates. In ordering a new trial as to damages, we expect that witnesses will discuss the past trends in federal and state income tax rates as a means of forecasting the future, in the same manner that Schupack forecast future inflation and productivity rates at the initial trial!
We next turn to Ford’s contentions concerning the accounting at trial for future inflation and productivity increases. Ford argues that Schupack, after reducing decedent’s projected lifetime net earnings to their present value, then simply compounded that figure by an annual rate of 5%% to reflect his forecast of future annual inflation (2%'%) and productivity increase (3%). If Schupack in fact did so, he committed a mathematical error which significantly increased his final damages calculations beyond what they should have been. An example using highly-simplified sums demonstrates this. However, the record is unclear as to precisely how Schupack made his final adjustments for inflation and productivity. We cannot tell whether in fact he made the error which Ford suggests.
It does seem clear, however, that the Rhode Island damages statute does not require adjustments for inflation and productivity to be made only after projected earnings are reduced to present value. The sentence in paragraph 3 of § 10-7-1.1 which authorizes consideration of “economic trends,” see n. 14, is best interpreted as a general observation on the overall computation process. Therefore, to avoid the possibility of error suggested above, we think it advisable, upon remand, that decedent’s projected lifetime earnings and expenses be adjusted to reflect future inflation and increases in productivity before the final net earnings figure is reduced to present value.
IV. Joint Tortfeasor Release
The final issue in this appeal concerns the effect of a joint tortfeasor release on the extent of Ford’s liability.
Prior to trial, Ford commenced a third party action against William and Michael Sullivan, the owner and driver of the Maverick, seeking contribution pursuant to Rhode Island’s Uniform Contribution Among Joint Tortfeasors Act. Gen.Laws of R.I. § 10-6-1 et seq. (1956), as amended. Subsequently, the plaintiff, under Fed.R.Civ.P. 14, brought a direct claim against the Sullivans for negligence. However, before any evidence was heard, plaintiff executed a joint tortfeasor release in favor of the Sullivans for a consideration of $10,-000. As a consequence, both the direct claim and Ford’s third party complaint against the Sullivans were, with the acquiescence of all parties dismissed with prejudice.
Ford contends that the release thus executed by plaintiff should operate to reduce the judgment against it by the “statutory pro rata share” of the Sullivans’ liability, asserted to be one-half of the awarded damages. Precisely how Ford arrived at a one-half reduction is■ not clear, since the evidence at trial contained no reference whatsoever to the relative proportionate shares of liability attaching to Ford and the Sullivans. As the trial court correctly determined below, before the release may operate in defendant’s favor, an apportionment of legal liability must be made. The release, far from establishing any percentage of liability on the part of the Sullivans, expressly indicates that it “is not to be construed as an admission of liability, but is a compromise of a disputed claim.” Thus, Ford’s attempt to reduce the judgment by one-half on the basis of the executed release has no merit.
The finding of liability is hereby affirmed. The award of damages is vacated and the case is remanded to the district court for a new trial on that issue only.
. Initially, plaintiff’s complaint also advanced theories of negligence and breach of warranty. However, these counts were dropped at the outset of trial. Plaintiff also brought an action against William and Michael Sullivan, alleging negligence. This claim was settled prior to trial, and a joint tortfeasor release was executed by plaintiff in favor of the Sullivans for a consideration of $10,000. The release is further discussed infra.
. In a later case, Brown v. Church of the Holy Name of Jesus, 105 R.I. 322, 326-327, 252 A.2d 176, 179 (1969), the Rhode Island court listed four “factors,” drawn from the Restatement (Second) of Conflicts, which it would also consider in weighing the five interests set forth in Woodward:
(a) the place where the injury occurred,
(b) the place where the conduct causing the injury occurred,
(c) the domicile, residence, nationality, place of incorporation and place of business of the parties, and
(d) the place where the relationship, if any, between the parties is centered.
See Restatement (Second) of Conflict of Laws § 145(2) (1971). We too will refer to these factors where relevant, in considering the five general interests of the Rhode Island approach.
. In Woodward, the Supreme Court of Rhode Island made
Question: What is the nature of the first listed appellant?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
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sc_decisiontype
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A
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the type of decision made by the court among the following: Consider "opinion of the court (orally argued)" if the court decided the case by a signed opinion and the case was orally argued. For the 1791-1945 terms, the case need not be orally argued, but a justice must be listed as delivering the opinion of the Court. Consider "per curiam (no oral argument)" if the court decided the case with an opinion but without hearing oral arguments. For the 1791-1945 terms, the Court (or reporter) need not use the term "per curiam" but rather "The Court [said],""By the Court," or "By direction of the Court." Consider "decrees" in the infrequent type of decisions where the justices will typically appoint a special master to take testimony and render a report, the bulk of which generally becomes the Court's decision. This type of decision usually arises under the Court's original jurisdiction and involves state boundary disputes. Consider "equally divided vote" for cases decided by an equally divided vote, for example when a justice fails to participate in a case or when the Court has a vacancy. Consider "per curiam (orally argued)" if no individual justice's name appears as author of the Court's opinion and the case was orally argued. Consider "judgment of the Court (orally argued)" for formally decided cases (decided the case by a signed opinion) where less than a majority of the participating justices agree with the opinion produced by the justice assigned to write the Court's opinion.
ANDERSON, RECEIVER, v. YUNGKAU, EXECUTOR, et al.
No. 87.
Argued December 19, 20, 1946.
Decided January 13, 1947.
Robert S. Marx argued the cause for petitioner. With him on the brief were Frank E. Wood, Harry Kasfir and Edward M. Brown.
LeWright Browning argued the cause and filed a brief for respondents. William J. Price, Henry G. Sandifer and George W. Luedeke filed a brief for Henry G. Sandifer, and H. R. Dysard filed a brief for Yungkau et al., respondents.
Mr. Justice Douglas
delivered the opinion of the Court.
These are seven cases in which petitioner sued to recover stock assessments from shareholders of the Banco Kentucky Co. They were started in 1936 in the Eastern District of Kentucky and were stayed by agreement while the principal case upon which these depended, Anderson v. Abbott, 321 U. S. 349, wended its way through the courts. In the latter case we sustained the liability of the shareholders of Banco for the stock assessment. That was in 1944. During the time Anderson v. Abbott was being litigated, the shareholders involved in the present litigation died and respondents became executors of their estates. Through no lack of diligence, petitioner failed to learn of these facts until more than two years later. Upon learning of them he promptly moved to revive the actions against the representatives of the decedents. The District Court, following Anderson v. Brady, 1 F. R. D. 589, denied the motions for revivor and granted motions of the executors to dismiss. The Circuit Court of Appeals affirmed by a divided vote. 153 F. 2d 685. The case is here on a petition for a writ of certiorari which we granted because the case presented an important problem in the construction of the Rules of Civil Procedure.
The case involves a reconciliation of Rule 25 (a) and Rule 6 (b). So far as material here, Rule 25 (a) provides:
“If a party dies and the claim is not thereby extinguished, the court within 2 years after the death may order substitution of the proper parties. If substitution is not so made, the action shall be dismissed as to the deceased party.”
And the relevant part of Rule 6(b) reads:
“When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may, at any time in its discretion . . . (2) upon motion permit the act to be done after the expiration of the specified period where the failure to act was the result of excusable neglect; but it may not enlarge the period for taking any action under Rule 59, except as stated in subdivision (c) thereof, or the period for taking an appeal as provided by law.”
It is said that since by Rule 25 (a) substitution may be made within two years after the death of a party, substitution is, within the meaning of Rule 6 (b), an act “allowed” to be done “within a specified time” which the court may on a showing of “excusable neglect” permit to be done after the two-year period. That argument is reinforced by reliance on the provision in Rule 6 (b) which grants but two exceptions to the power of enlargement of time. Since Rule 25 (a) is not included in the exceptions, it is argued that the time allowed by that rule may be enlarged under Rule 6(b). And it is pointed out that the facts of the present cases establish that the failure of the receiver to act within the two-year period was the result of “excusable neglect,” thus giving the District Court discretion to allow the substitution under Rule 6 (b).
We agree, however, with the Circuit Court of Appeals. Rule 25 (a) is based in part on 28 U. S. C. § 778, 42 Stat. 352, which limited the power of substitution to two years from the death of a party. And even within that two-year period substitution could not be made unless the executor or administrator was served “before final settlement and distribution of the estate.” That statute, like other statutes of limitations, was a statute of repose. It was designed to keep short the time within which actions might be revived so that the closing and distribution of estates might not be interminably delayed. That policy is reflected in Rule 25 (a). Even within the two-year period substitution is not a matter of right; the court “may” order substitution but it is under no duty to do so. Under the Rule, as under the statute, the settlement and distribution of the estate might be so far advanced as to warrant a denial of the motion for substitution within the two-year period. In contrast to the discretion of the court to order substitution within the two-year period is the provision of Rule 25 (a) that if substitution is not made within that time the action “shall be dismissed” as to the deceased. The word “shall” is ordinarily “the language of command.” Escoe v. Zerbst, 295 U. S. 490, 493. And when the same Rule uses both “may” and “shall,” the normal inference is that each is used in its usual sense — the one act being permissive, the other mandatory. See United States v. Thoman, 156 U.S. 353, 360.
Thus, as stated by the Circuit Court of Appeals, Rule 25 (a) operates both as a statute of limitations upon re-vivor and as a mandate to the court to dismiss an action not revived within the two-year period. Rule 6 (b) relates to acts required or allowed to be done by parties to an action and permits the court to afford relief to a party for his failure to act within the prescribed time limits. There would be more force in petitioner’s argument if Rule 25 (a) had, without more, set a two-year period within which substitution might be made. But Rule 25 (a) does not stop there. It directs the court to dismiss the action if substitution has not been made within that time. That is action required of the court, not of a party. And Rule 6 (b) should not be construed to override an express direction of action to be taken by the court. See Wallace v. United States, 142 F. 2d 240, 244.
Reasons of policy support this construction. It is, to be sure, stipulated that in five of the present cases the estate is “still open and undistributed”; in one it is “still open”; in another it has been distributed. At least where an estate is ready to be closed or where there has already been a distribution, revivor may work unfairness and be disruptive of orderly and expeditious administration of estates. But it is not enough to say that if Rule 6 (b) and Rule 25 (a) are construed to permit substitution after the two-year period, the court need not allow it where unfairness or prejudice would result. For the normal policy of a statute of limitations is to close the door — finally, not qualifiedly or conditionally. The federal law embodied in Rule 25 (a) has a direct impact on the probate of estates in the state courts. It should not be construed to be more disruptive of prompt and orderly probate administration in those courts than its language makes necessary.
Affirmed.
The Chief Justice and Mr. Justice Reed took no part in the consideration or decision of this case.
Petitioner brought actions against approximately 5,000 shareholders scattered throughout the United States and some in foreign countries. During the progress of the litigation some changed their residences. And it was stipulated that petitioner, with a limited staff, could not during this time keep up with the changes of residence or deaths of defendants.
Cf. Ainsworth v. Gill Glass & Fixture Co., 104 F. 2d 83, with Burke v. Canfield, 72 App. D. C. 127, 111 F. 2d 526, and Mutual Benefit Health & Accident Assn. v. Snyder, 109 F. 2d 469.
See note 1, supra.
But see Baltimore & Ohio R. Co. v. Joy, 173 U. S. 226; Winslow v. Domestic Engineering Co., 20 F. Supp. 578.
And see H. Rep. No. 429, 67th Cong., 1st Sess., p. 2.
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_initiate
|
B
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What follows is an opinion from a United States Court of Appeals. Your task is to identify what party initiated the appeal. For cases with cross appeals or multiple docket numbers, if the opinion does not explicitly indicate which appeal was filed first, assumes that the first litigant listed as the "appellant" or "petitioner" was the first to file the appeal. In federal habeas corpus petitions, consider the prisoner to be the plaintiff.
UNITED STATES of America, Plaintiff-Appellee, v. Carlos Alberto MONCADA-PELAEZ, Defendant-Appellant.
No. 87-5020.
United States Court of Appeals, Eleventh Circuit.
Jan. 29, 1987.
Irwin Lichter, Miami, Fla., for defendant-appellant.
Leon B. Kellner, U.S. Atty., Stephen Schlessinger, Asst. U.S. Atty., Miami, Fla., for plaintiff-appellee.
Before FAY, ANDERSON and EDMONDSON, Circuit Judges.
BY THE COURT:
Pending before this court is appellant Moncada-Pelaez’ (“Moneada”) emergency motion for bail pending completion of his trial. Because the district court correctly determined that Moneada should be detained pursuant to 18 U.S.C. sec. 3142(e), we deny the instant motion.
The relevant facts may be summarized as follows: Moneada was arrested on November 4, 1986 and charged with trafficking in cocaine and possession of a firearm by an illegal alien. That same day Magistrate Palermo ordered that Moneada be held in temporary pretrial detention pursuant to 18 U.S.C. sec. 3142(d)(1)(B). This section permits a Magistrate to order the detention of an illegal alien for a period of ten days. Moneada conceded that he was an illegal alien and thus subject to temporary detention.
Thereafter, ten days later at a hearing on November 14, 1986, Magistrate Sorenti-no ordered that Moneada be held in detention prior to trial pursuant to 18 U.S.C. sec. 3142(f). On January 6, 1987, following various proceedings not relevant to the instant appeal, the original pretrial detention order was affirmed by the district court. This emergency appeal ensued.
On appeal, appellant contends that the court’s November 14 hearing was untimely. Section 3142(f) ordinarily requires that a detention hearing be held immediately upon the defendant’s first appearance before a judicial officer, although certain continuances of up to five days are expressly allowed by the section. See United States v. Malekzadeh, 789 F.2d 850, 851 (llth Cir.1986); United States v. Hurtado, 779 F.2d 1467 (llth Cir.1985). Therefore, considered by itself, the ten-day delay between Moncada’s arrest and the November 14 hearing might seem to violate the statutory provision. However, during that ten-day period Moneada was lawfully detained pursuant to the temporary detention provisions of 18 U.S.C. sec. 3142(d). The statute permits this temporary detention in order to permit the court to notify other legal authorities who might have a reasonable interest in the custody of the detainee. Thus, because of Moncada’s illegal status, he was properly detained in order to permit the court to notify the appropriate officials of the Immigration and Naturalization Service.
The issue presented is whether the ten-day delay, which is permitted under sec. 3142(d)(1)(B), violates sec. 3142(f). The plain language of the statute leads us to conclude that it does not. Section 3142(d) provides that “if the official fails or declines to take the person [detained] into custody during [the ten-day] period, the person shall be treated in accordance with the other provisions of this section.” This language makes clear that an order of temporary detention does not preclude separate consideration of detention pending trial under subsection (f). When the government is entitled to obtain a temporary ten-day detention and a hearing is then held to determine whether a further detention is necessary pending trial, the defendant has not suffered any additional loss of liberty. He has been validly detained pursuant to subsection (d) and the delay in affording him a subsection (f) hearing in no way aggravates that detention.
The interpretation we adopt today has been uniformly followed by the other circuit courts of appeal which have considered the issue. See e.g., United States v. Vargas, 804 F.2d 157 (1st Cir.1986); United States v. Bercerra-Cobo, 790 F.2d 427 (5th Cir.1986); United States v. Lee, 783 F.2d 92 (7th Cir.1986); United States v. Alat-ishe, 768 F.2d 364 (D.C.Cir.1985). Consequently, we hold that detention without bail until trial need not be demanded at the first appearance of an alien at a temporary detention hearing, but may be sought by the government at a subsequent hearing held within the ten-day temporary detention. Accordingly, in the instant case, the hearing was timely.
For the foregoing reasons, we affirm the district court judgment refusing to release Moneada on bail pending trial.
AFFIRMED.
. This section provides that:
(d) Temporary detention to permit revocation of conditional release, deportation, or exclusion — If the judicial officer determines that—
(1) the person—
(A) is, and was at the time the offense was committed, on—
(i) release pending trial for a felony under Federal, State, or local law
(ii) release pending imposition or execution of sentence, appeal of sentence or conviction, or completion of sentence, for any offense under Federal, State, or local law; or
(iii) probation or parole for any offense under Federal, State, or local law; or
(B) is not a citizen of the United States or lawfully admitted for permanent residence, as defined in section 101(a)(20) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(20)); and
(2) the person may flee or pose a danger to any other person or the community;
he shall order the detention of the person, for a period of not more than ten days, excluding Saturdays, Sundays, and holidays, and direct the attorney for the Government to notify the appropriate court, probation or parole official, or State or local law enforcement official, or the appropriate official of the Immigration and Naturalization Service. If the official fails or declines to take the person into custody during that period, the person shall be treated in accordance with the other provisions of this section, notwithstanding the applicability of other provisions of law governing release pending trial or deportation or exclusion proceedings. If temporary detention is sought under paragraph (1)(B), the person has the burden of proving to the court that he is a citizen of the United States or is lawfully admitted for permanent residence.
18 U.S.C. sec. 3142(d).
. This section provides that:
(f) Detention hearing. — The judicial officer shall hold a hearing to determine whether any condition or combination of conditions set forth in subsection (c) will reasonably assure the appearance of the person as required and the safety of any other person and the community in a case—
(1) upon motion of the attorney for the Government, that involves—
(A) a crime of violence;
(B) an offense for which the maximum sentence is life imprisonment or death;
(C) an offense for which a maximum term of imprisonment of ten years or more is prescribed in the Controlled Substances Act (21 U.S.C. 801 et seq.), the Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.), or section 1 of the Act of September 15, 1980 (21 U.S.C. 955a); or
(D) any felony committed after the person had been convicted of two or more prior offenses described in subparagraphs (A) through (C), or two or more State or local offenses that would have been offenses described in subparagraphs (A) through (C) if a circumstance giving rise to Federal jurisdiction had existed; or
(2) Upon motion of the attorney for the Government or upon the judicial officer’s own motion, that involves—
(A) a serious risk that the person will flee;
(B) a serious risk that the person will obstruct or attempt to obstruct justice, or threaten, injure, or intimidate, or attempt to threaten, injure, or intimidate, a prospective witness or juror.
The hearing shall be held immediately upon the person’s first appearance before the judicial officer unless that person, or the attorney for the Government, seeks a continuance. Except for good cause, a continuance on motion of the person may not exceed five days, and a continuance on motion of the attorney for the Government may not exceed three days. During a continuance, the person shall be detained, and the judicial officer, on motion of the attorney for the Government or on his own motion, may order that, while in custody, a person who appears to be a narcotics addict receive a medical examination to determine whether he is an addict. At the hearing, the person has the right to be represented by counsel, and if he is financially unable to obtain adequate representation, to have counsel appointed for him. The person shall be afforded an opportunity to testify, to present witnesses on his own behalf, to cross-examine witnesses who appear at the hearing, and to present information by proffer or otherwise. The rules concerning admissibility of evidence in criminal trials do not apply to the presentation and consideration of information at the hearing. The facts the judicial officer uses to support a finding pursuant to subsection (c) that no condition or combination of conditions will reasonably assure the safety of any other person and the community shall be supported by clear and convincing evidence. The person may be detained pending completion of the hearing. 18 U.S.C. sec. 3142(f).
. Moneada also contends that he was denied his right to cross-examine witnesses and to present evidence at the November 14 hearing. Our review of the transcript of that proceeding convinces us that this argument is without merit.
. We note that the circuits are in disagreement as to the operative effect of the ten-day temporary detention. The First, Fifth and District of Columbia Circuits have determined that the subsequent pretrial detention hearing must be held within the ten-day temporary detention period. The Seventh Circuit, however, has concluded that the ten-day period of sec. 3142(d) tolls the running of the limited continuance provided under subsection (f). Consequently, the Seventh Circuit would permit a pretrial detention hearing to occur any time within three days or five days after the termination of the temporary detention depending upon which party requested the continuance. We need not resolve this issue in the instant case because Moncada’s subsequent pretrial detention hearing was within the ten-day detention period and therefore proper under either interpretation of the statute.
Question: What party initiated the appeal?
A. Original plaintiff
B. Original defendant
C. Federal agency representing plaintiff
D. Federal agency representing defendant
E. Intervenor
F. Not applicable
G. Not ascertained
Answer:
|
songer_two_issues
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine whether there are two issues in the case. By issue we mean the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
WIDENER v. HARRIS, Superintendent of Federal Industrial Institution for Women.
No. 3294.
Circuit Court of Appeals, Fourth Circuit.
Aug. 1, 1932.
Stuart M. Wood, of Charleston, W. Va., for appellant.
Okey P. Keadle, Asst. U. S. Atty., of Huntington, W. Va. (James Damron, U. S. Atty., and Philip Angel, Asst. U. S. Atty., both of Huntington, W. Va., on the brief), fpr appellee.
Before PARKER, NORTH CO TT, and SOPER, Circuit Judges.
PARKIER, Circuit Judge.
This is an appeal in a habeas corpus proceeding. Petitioner was indicted with her husband for violation of section 329*6 of the Revised Statutes (26 USCA § 404). The indictment contained two counts, one charging removal of distilled spirits on which the tax had not been paid, the pther charging concealment after removal. Petitioner pleaded guilty to the charges contained in the indictment and on May 16, 1931, was sentenced to five years’ imprisonment in the Federal Industrial Institution for Women at Alderson, W. Va). She entered upon the service of the sentence, but later filed with the judge below a petition for a writ of habeas corpus in which she alleged that she had been misled into entering the plea of guilty, that the judge in sentencing her had taken into consideration a charge of crime of which she had been acquitted and that the sentence imposed upon her was not authorized by statute and constituted cruel and unusual punishment forbidden by the Constitution (Const. Amend. 8). After a hearing had upon the return to the writ, the judge denied the prayer of the petitioner to be released from custody; and from the order discharging the writ she prosecutes this appeal.
It is clear that in habeas corpus proceedings the court cannot consider such matters as tho fact that petitioner was misled into entering a plea of guilty, that the judge in imposing punishment improperly considered a charge of crime of which petitioner had been acquitted, or that tho punishment was excessive in view of the facts of the ease. These are matters which must ho availed of in tho original cause. “Upon habeas corpus the court examines only the power and authority of the court to act, not the correctness of its conclusions.” Matter of Gregory, 219 U. S. 210, 31 S. Ct. 143, 144, 55 L. Ed. 184; Glasgow v. Moyer, 225 U. S. 420, 428, 32 S. Ct. 753, 56 L. Ed. 1147. It is well settled that the writ may not be used to correct errors or abuses of discretion in a proceeding in which petitioner has been sentenced; and that nothing in the habeas corpus proceeding can be used to add to or amplify the record in the cause in which sentence was imposed. Johnson v. Hoy, 227 U. S. 245, 33 S. Ct. 240, 57 L. Ed. 497; Harlan v. McGourin, 218 U. S. 442, 31 S. Ct. 44, 54 L. Ed. 1101, 21 Ann. Cas. 849; In re Lincoln, 202 U. S. 178, 26 S. Ct. 602, 50 L. Ed. 984; Riggins v. U. S., 199 U. S. 547, 26 S. Ct. 147, 50 L. Ed. 303; Moyer v. Anderson (C. C. A. 5th) 203 F. 881; Clayman v. Smithers (C. C. A. 4th) 18 F.(2d) 955; Riggs v. Workman (C. C. A. 4th) 14 F.(2d) 5, 10.
The only question which we may consider upon this appeal, therefore, is whether the sentence imposed upon petitioner is justified by the record in the original cause; and this question can be disposed of in a few words. The indictment in that case contained two counts charging distinct offenses under the law. Mickle v. U. S. (C. C. A. 8th) 33 F.(2d) 684. And cf. Albrecht v. U. S., 273 U. S. 1, 47 S. Ct. 250, 71 L. Ed. 505; Clayman v. Smithers, supra. As a sentence of three years was authorized under each count, the term of five years imposed was within the discretion as to punishment vested by the statute in the District Judge. The fact that a penalty in double the amount of tho tax was not imposed did not render the judgment void, nor was it a matter of which petitioner could complain. Jordan v. U. S. (C. C. A. 4th) 60 F.(2d) 4, decided June 30, 1932,
The principal contentions of petitioner are that the punishment imposed was out of proportion to the offense charged, that her plea of guilty was entered under a misapprehension, and that the trial judge improperly considered, in fixing punishment, a charge of crime of which she had been acquitted. But, as stated, these are matters which the court cannot consider on habeas corpus. "When not properly presented in the original cause, they are matters which can be considered only by the executive on an appeal for clemency.
The order denying the discharge on ha-beas corpus will be affirmed.
Affirmed.
Question: Are there two issues in the case?
A. no
B. yes
Answer:
|
songer_genstand
|
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 agency articulate the appropriate general standard?" This question includes whether the agency interpreted the statute "correctly". The courts often refer here to the rational basis test, plain meaning, reasonable construction of the statute, congressional intent, etc. This issue also includes question of which law applies or whether amended law vs law before amendment applies. 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".
NATIONAL FARMERS UNION PROPERTY & CASUALTY COMPANY, Appellant, v. Leonard TUCKER; Cecil Wright; Wayne Wright; and Ed Erwin, Administrator of the Estate of Sylvia Wright, deceased, Appellees.
No. 5545.
United States Court of Appeals Tenth Circuit.
Aug. 23, 1957.
Gus Rinehart (of Butler, Rinehart & Morrison), Oklahoma City, Okl., for appellant.
Jack I. Gaither, Tulsa, Old., John Q. McCabe, Cleveland, Okl., Trower, Ferguson & Gaither, and C. A. Back, Jr., Tulsa, Okl., for appellees.
Before BRATTON, Chief Judge, and HUXMAN and MURRAH, Circuit Judges.
HUXMAN, Circuit Judge.
This is an appeal by National Farmers Union Property and Casualty Company, herein called National, from an adverse judgment in a declaratory judgment action, in which it sought a judgment declaring that it was not liable to defend any actions under the terms of an automobile insurance policy, issued to one Leonard Tucker, and that there was no liability against it because of such actions.
The facts out of which this controversy arose are these. National issued to Leonard Tucker an automobile insurance policy covering a 1953 pick-up truck, owned by him, which contained the usual provisions found in such a policy and a provision imposing the duty to defend actions brought against the insured. It also contained the usual provision of such policies extending coverage to those using the automobile with the consent of the insured. It also contained a clause requiring the insured to cooperate with the company in case actions were filed or asserted against the insured for which there might be liability under the policy.
While the policy was in force, Sylvia Wright, Tucker’s daughter, was driving the truck with his consent. The truck was involved in an accident in which she was killed. Riding with her at the time were her husband, Wayne Wright, and her father-in-law, Cecil Wright, both of whom were injured.
Sylvia Wright, at the time of her death, was a resident of Pawnee County, Oklahoma. Wayne Wright, the surviving husband, waived his prior right of appointment as administrator of her estate under Oklahoma law and nominated Wayne Lawrence of Cleveland, Oklahoma, to whom letters of administration were issued by the County Court of Pawnee County, Oklahoma. Thereafter, the decedent’s father, Leonard Tucker, replaced Wayne Lawrence as administrator by order of the Pawnee County Court, and he subsequently was replaced by H. Gene Seigel. Again, thereafter, on March 14, 1956, on Wayne Wright’s petition, Seigel was replaced as administrator by Ed L. Erwin of Tulsa County, Oklahoma.
After the appointment of Erwin as administrator, both Cecil Wright and Wayne Wright filed suit against the administrator in Tulsa County, Oklahoma, seeking recovery for personal injuries allegedly sustained as a result of the accident. It was alleged in each action that Sylvia Wright was guilty of negligence, causing plaintiffs’ injuries. Erwin, the administrator of the estate, demanded that National defend the actions. This action was then instituted for a declaratory judgment, declaring there was no liability under the policy and no duty to defend because of a failure to cooperate under the terms of the policy.
The court concluded that there was no duty on Wayne Wright to cooperate with the company and that his action in securing the appointment of an administrator for Sylvia Wright’s estate in Tulsa County rather than in Pawnee' County, the County of her residence, did not constitute a lack of cooperation or a violation of the terms of the policy. Based upon these conclusions, the court denied National the judgment it sought.
We think the court correctly concluded that the policy imposed no duty on Wayne Wright as the next of kin of Sylvia Wright, deceased, or as legal representative, to cooperate. But the decision need not be predicated on this ground because we feel that the court correctly concluded there was in any event no failure to cooperate.
The basis for the assertion that Wayne Wright failed to cooperate was that he procured the appointment of the administrator in Tulsa County rather than in Pawnee County of which she was a resident at the time of her death. There is no claim that the administrator must be appointed from the county in which the deceased lived and, as far as we know, there is no authority to that effect. A resident of any county in Oklahoma may be appointed administrator of the estate. There is no Oklahoma statute limiting the appointment to persons residing in the county of the court having jurisdiction of the estate. No failure to cooperate on the part of Wayne Wright can be inferred because he did what he had a right to do with respect to securing the appointment of administrator for his wife’s estate.
Appellant apparently concedes that Wayne Wright had a right to step aside and secure the appointment of someone else as administrator, but it seeks to imply some improper motives amounting to failure to cooperate in having a resident of Tulsa County appointed by the County Court of Pawnee County because, as is suggested, that would permit suits to be filed in the Tulsa County Court rather than in the Pawnee County Court, a court of competent jurisdiction. In response to a question by the trial court whether it should “take judicial notice that your position is not as good in the District Court of Tulsa County as it would be in the District Court of Pawnee County?” appellant’s attorney replied, “I think, if the Court please, you can take judicial notice that there must be some underlying reason for them bringing it over here * * * This makes clear appellant’s position, but a mere suspicion of an ulterior motive is not sufficient upon which to predicate a finding of failure to. cooperate, assuming there was a duty to cooperate.
Finally, it is urged that the filing of the two damage suits in Tulsa County prejudiced National in the defense of the actions because all of the witnesses are residents of Pawnee County. From this National implies that there was a failure to cooperate. It is not conceded nor does the record reveal that all the witnesses are from Pawnee County. There does seem to be substantial agreement that the only witnesses to the accident are Cecil and Wayne Wright. They reside in Pawnee County. The record does not indicate that a large number of witnesses will be called. It may be that trying the two suits in Tulsa County rather than in Pawnee County may cause some inconvenience to National but even that is not clear from the record. In any event, it is not made to appear that the defense of the two actions in Tulsa County will be greatly burdensome, vexatious or unduly expensive.
Under the facts as they appear in the record, we are of the view that the court correctly concluded that in any event there was no failure to cooperate by securing the appointment of a resident of Tulsa County as administrator of Sylvia Wright’s estate.
Affirmed.
. Title 58 O.S.A. § 1 provides for probate jurisdiction of the county court to grant letters of administration.
Title 58 O.S.A. § 5 provides that letters of administration may be granted in the county in -which the decedent was a resident at the time of his death, in whatever place he may have resided.
Title 58 O.S.A. § 122 provides for priority of persons entitled to letters of administration.
Title 58 O.S.A. § 134 provides that “Administration may be granted to one or more competent persons, although not entitled to the same, at the written request of the person entitled, filed in the court. * * * ”
Question: Did the agency articulate the appropriate general standard? This question includes whether the agency interpreted the statute "correctly". The courts often refer here to the rational basis test, plain meaning, reasonable construction of the statute, congressional intent, etc. This issue also includes question of which law applies or whether amended law vs law before amendment applies.
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_circuit
|
E
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case.
UNITED STATES of America, Plaintiff-Appellee, v. Hiram Lee BAUMAN, Pedro Talamas, and John Cary, Defendants-Appellants.
No. 89-2176.
United States Court of Appeals, Fifth Circuit.
Oct. 20, 1989.
Beth McGregor (court-appointed), Bailey & McGregor, Houston, Tex., for Bauman.
Frank A. Rubino, Coconut Grove, Fla., for Talamas.
Kent A. Schaffer, Houston, Tex., for Cary.
Scott Bankie, Paula C. Offenhauser, Asst. U.S. Attys., Henry K. Oncken, U.S. Atty., Houston, Tex., for plaintiff-appellee.
Before DAVIS and SMITH, Circuit Judges, and LITTLE, District Judge.
. District Judge of the Western District of Louisiana, sitting by designation.
JERRY E. SMITH, Circuit Judge:
Three defendants seek dismissal of an indictment pending against them after the trial court declared a mistrial. Since all defendants were once put in jeopardy, we must decide whether the fifth amendment to the Constitution bars reprosecution under the facts of this case.
Upon review of the entire record, we conclude that the trial court did not exceed its discretion in finding “manifest necessity” for a mistrial. Accordingly, the double jeopardy clause does not constitutionally bar reprosecution over the defendants’ objection, and hence we affirm. A retrial may commence with respect to all defendants.
I.
The appellants and several confederates were indicted on April 15, 1987, for a variety of drug-related conspiracy, distribution, and importation offenses. The events surrounding the trial were well publicized, described by the Houston media as the largest drug trial in the city’s history. The district judge decided to try all defendants together and set a trial date well in ad-vanee to avoid scheduling conflicts commonly associated with trying numerous co-defendants.
Defendant Hiram Lee Bauman, himself an attorney, was provided court-appointed counsel. Problems developed between Bauman and his attorney, however, leading to substitution of appointed counsel on two separate occasions. The district court permitted Bauman to retain attorney Randy Holzapple, his third appointed counsel, several weeks before trial, with the understanding that the trial date of January 9, 1989, would not be continued. Bauman accepted this condition for substitution of counsel.
All defendants appeared in court on the trial date. Because of a so-called “scheduling conflict,” however, Holzapple failed to appear. The district court believed, based upon these events, that Bauman had retained Holzapple with full knowledge of the attorney’s scheduling problem in order to stall the commencement of the trial. The district court offered Bauman the immediate services of his second court-appointed attorney, who was present in court for unrelated reasons, so that the trial could proceed. Bauman rejected the court’s invitation and moved that either the case be continued or he be severed.
Sensing bad faith, the district court interpreted Bauman’s actions as a calculated attempt to disrupt the trial. Accordingly, the court rejected Bauman’s motion for a continuance or a severance and proceeded with the trial in the absence of Bauman’s defense counsel, citing this court’s decision in United States v. Mitchell. Bauman vehemently objected to the proceedings, believing himself unrepresented in violation of the sixth amendment. He raised the objection at every available opportunity, even though the court noted his objection for purposes of appeal and requested Bau-man’s cooperation.
A jury was empaneled and sworn, and the government began to present witnesses. Bauman, however, proved to be a disruptive defendant. Against the instructions of the court, he repeatedly objected to the lack of counsel before the jury and saw fit to interrupt the examination of government witnesses by seeking the court’s permission to leave the courtroom.
Two days after trial began, Bauman moved for a mistrial, continuance, or severance based upon a newly-submitted affidavit from Holzapple stating that Bauman was unaware of his scheduling conflict. That same morning, the court received information that attorney Campbell, counsel for two other co-defendants, had been arrested in an unrelated case on charges of conspiring to bribe a justice of the peace and aggravated perjury.
The judge decided to meet with the defendants’ attorneys to address the separate problems associated with Bauman’s lack of counsel and Campbell’s arrest. The defendants offered the court no uniform curative measure for any prejudice which they may have suffered: Campbell moved for a mistrial with respect to his two clients; several other co-defendants sought a mistrial; Bau-man desired either a continuance, severance, or “as a last resort,” a mistrial; defendants Talamas and Cary lobbied for a severance but opposed a mistrial. The government, not surprisingly, wanted to try all defendants together and thus sought a mistrial to correct any sixth-amendment error or incurable prejudice visited upon the jury.
Before deciding upon a course of action, the district court then interviewed the jurors to assess any possible prejudicial exposure to news coverage. Prudently, the court made no direct reference to Campbell’s arrest so as not to exacerbate any problem with jury bias. At this point in the proceedings, three jurors admitted to hearing media references to the trial, but they apparently had not paid attention to any details.
After interviewing the attorneys and jurors, and over the objection of Talamas and Cary, the judge declared a mistrial sua sponte as to all defendants. An order, coupled with more comprehensive written findings, was subsequently entered on January 26,1989. The court found, inter alia, that Holzapple had known he had a scheduling conflict when he accepted representation of Bauman and had failed, in bad faith, to notify the court and to attend the trial on behalf of Bauman. The court was also concerned that past publicity, coupled with expected future media coverage of Campbell’s arrest, would incurably prejudice all defendants.
After declaration of the mistrial, defendants Bauman, Talamas, and Cary unsuccessfully moved to dismiss the indictment on the theory that reprosecution is constitutionally barred. A retrial of all defendants has been stayed pending disposition of this interlocutory appeal.
II.
A.
The double jeopardy clause protects a defendant’s “valued right to have his trial completed by a particular tribunal.” Crist v. Bretz, 437 U.S. 28, 36, 98 S.Ct. 2156, 2161, 57 L.Ed.2d 24 (1978). It also bars abusive governmental conduct designed to harass a defendant through repetitive prosecution or undertaken for the purpose of increasing the likelihood of conviction.
However, the double jeopardy clause is not an absolute bar to reprosecution once the jury has been empaneled and sworn. A defendant may, for example, waive double jeopardy protection by consenting to a mistrial before a verdict is rendered. As noted in United States v. Dinitz, 424 U.S. 600, 607, 96 S.Ct. 1075, 1079-1080, 47 L.Ed.2d 267 (1976), “a motion by the defendant for mistrial is ordinarily assumed to remove any barrier to reprosecution, even if the defendant’s motion is necessitated by prosecutorial or judicial error” (citing United States v. Jorn, 400 U.S. 470, 485, 91 S.Ct. 547, 557, 27 L.Ed.2d 543 (1971)).
Without the defendant’s consent to a mistrial, reprosecution becomes more difficult. Nevertheless, a retrial following a sua sponte declaration of mistrial over a defendant’s objection is not prohibited under the fifth amendment where there exists “manifest necessity” for a mistrial. Id. 424 U.S. at 606-07, 96 S.Ct. at 1079. The “manifest necessity” exception, although narrow, frees the trial judge from the “Hobson’s choice” of either continuing with a trial that in fairness should be terminated, or declaring a mistrial after jeopardy attaches and reprosecution is barred. See, e.g., Cherry v. Director, State Bd. of Corrections, 635 F.2d 414, 419 (5th Cir. Jan. 1981) (en banc) (manifest necessity for mistrial exists where, for example, judge or juror cannot attend because of illness or death), cert. denied, 454 U.S. 840, 102 S.Ct. 150, 70 L.Ed.2d 124 (1981).
B.
For purposes of appellate review, the trial court’s finding of “manifest necessity” for a sua sponte declaration of mistrial is to be upheld if the court exercised “sound discretion” in making that determination. See Arizona v. Washington, 434 U.S. at 514, 98 S.Ct. at 835; Grandberry v. Bonner, 653 F.2d 1010, 1014 (5th Cir. Unit A Aug. 1981). Application of this standard requires appellate courts to give the judge’s mistrial order the “highest degree of respect,” as he is most familiar with the events that compromised the trial. The availability of alternatives less draconian than a mistrial does not necessarily preclude reprosecution, as reasonable judges may differ concerning proper curative measures. Grandberry, 653 F.2d at 1014; Cherry, 635 F.2d at 418-19.
Additionally, we are free to scrutinize the entire record and are not limited to only those findings made contemporaneously with the mistrial order. See Abdi, 744 F.2d at 1503. This plenary review of the record assists us in determining, as required by our prior decisions, whether the trial judge “carefully considered the alternatives and did not act in an abrupt, erratic or precipitate manner.” Grandberry, 653 F.2d at 1014.
III.
A.
The Supreme Court has said that the valued right to be tried before a particular tribunal “is sometimes subordinate to the public interest in affording the prosecutor one full and fair opportunity to present his evidence to an impartial jury.” Arizona v. Washington, 434 U.S. at 505, 98 S.Ct. at 830. However, because the valued right is so important, the government must show “manifest necessity” for any mistrial declared over a defendant’s objection. Id.; Baker v. Estelle, 711 F.2d 44, 47 (5th Cir.1983), cert. denied, 464 U.S. 1048, 104 S.Ct. 724, 79 L.Ed.2d 185 (1984).
In Arizona v. Washington, the Supreme Court declined to define manifest necessity precisely or to enunciate rules of mechanical application. It offered limited guidance, saying only that the “high degree of necessity” mandated by the phrase can be found in a variety of circumstances. See 434 U.S. at 506-09, 98 S.Ct. at 830-32. Thus, the Court left the definition of the phrase deliberately ambiguous, affording the trial judge considerable discretion to declare a mistrial without immunizing a defendant from reprosecution.
The phrase “manifest necessity,” first used in double jeopardy jurisprudence in United States v. Perez, 22 U.S. (9 Wheat.) 579, 580, 6 L.Ed. 165 (1824), has been judicially refined" to such an extent that it is today somewhat misleading: It implies a greater burden on the government than is actually demanded to achieve a re-prosecution after a mistrial. As the Washington Court noted, “Indeed, it is manifest that the key word ‘necessity’ cannot be interpreted literally; instead, contrary to the teaching of Webster, we assume that there are degrees of necessity and we require a ‘high degree’ before concluding that a mistrial is appropriate.” 434 U.S. at 506, 98 S.Ct. at 831. Thus, manifest necessity, in modern legal jargon, is equivalent to “a high degree of necessity.”
B.
In the instant case, the court and defendants expressed considerable concern over “spillover prejudice” if the defendants were forced to associate with Campbell, recently arrested, and his clients. In addition, all parties agree that Bauman conducted himself in open court in a fashion that frustrated both the judge and the defendants in maintaining order at trial. The defendants feared that Bauman’s poor decorum before the jury would have a negative impact upon all of them.
It is apparent from the record that the trial court was concerned about the possibility of a sixth amendment error if the trial had proceeded in the absence of defense counsel for Bauman. The court at first believed that Bauman had sought deliberately to interrupt the progress of the trial by soliciting the absence of Holzapple when the trial date had been agreed to by all parties. However, Holzapple’s affidavit, if true, indicated that Bauman had not retained his services in bad faith in order to disrupt the trial.
Aside from problems with representation, the judge and the remaining defendants found Bauman’s interruptions and repetitious objections to be potentially prejudicial as to all defendants. This spillover prejudice was exacerbated by widespread news reports of Campbell’s arrest. The judge found that the risk of both past and future exposure — through news reports and jurors’ conversations with friends — was sufficient to merit a mistrial.
With little difficulty, we conclude that Bauman’s double jeopardy appeal is without merit in this case for the simple reason that he requested the mistrial. As noted previously, a motion by a defendant for a mistrial usually removes any barrier standing in the way of reprosecution under Dinitz. His argument that his motion for a mistrial was “a last resort” and that he really wanted a severance or a continuance is unpersuasive.
The double jeopardy defense asserted by Talamas and Cary, however, is not meritless, as they consistently objected to a mistrial. They remind us that they even agreed to stipulate to certain government evidence in order to avoid a mistrial as to them. Moreover, Talamas and Cary argue that United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971), requires that the district court consider less drastic alternatives and, if possible, to choose a remedy of severance instead. They allege that the judge declared a complete mistrial because of selfish concerns for “judicial economy” in conducting a single trial, and that such considerations have no place in double jeopardy jurisprudence.
We agree with Talamas and Cary to the extent that they understand Jom to require the trial court methodically to consider alternatives to a mistrial. However, we reject their argument that the trial court must always agree to sever certain defendants if possible. As noted before, reasonable judges may differ on the proper curative measure, and appellate courts are not meant to second-guess the sound discretion of the trial judge in declaring a mistrial for juror prejudice when that judge is closest to the compromising events.
Moreover, we disagree with defendants’ suggestion that the trial judge was concerned solely with judicial efficiency when he terminated the trial. The record reflects that much more was involved. The trial judge expressed concern that bifurcated trials could prejudice subsequent proceedings because of the publicity surrounding this large-scale drug trial. He also feared incurable juror bias resulting from Bauman’s disruptions in front of the current panel. The future impact of Campbell’s arrest, about which the jurors were asked only indirectly, was also speculative and thus entitled to great deference.
It is evident to us that the trial court here did not act in an abrupt, erratic, or precipitate manner. He consulted with the counsel of all defendants: Most wanted a mistrial for their clients; all wanted a mistrial with respect to Bauman; no one wanted to be seen with Campbell; and Talamas and Cary wanted a severance only. The court also interviewed all the jurors to assess the extent of juror bias.
The court proceeded to consider the options of a continuance and severance. Contrary to the suggestion of the defendants, his findings concerning alternatives other than a mistrial need not be limited to those contemporaneously made with his mistrial order. In fact, such findings need not even be made expressly. See Abdi, 744 F.2d at 1503 (record need only reflect that alternatives were considered). Nevertheless, in this case the trial court did in fact enter additional findings, along with his written order, two weeks later. He concluded that a continuance would only expose the empaneled jurors, over the course of a month’s delay, to more prejudicial media influence. A severance was similarly rejected because of the fear of incurable prejudice on the part of the current panel, concerns for judicial economy and preservation of evidence, and the express consent of all but two of the defendants for a mistrial.
The fact that the judge’s subsequent written findings may have been inconsistent, in whole or in part, with earlier oral findings, as the defendants suggest, is a matter to be considered upon review. We recognize, however, that such changes may be attributable to the judge’s access to more information over time or his quiet reflection upon the unusual events that transpired before him here.
Contrary to what the defendants suggest, double jeopardy jurisprudence does not bar a judge’s reassessment of the impact of certain events. Unless we are convinced from our review of the record that the trial judge is belatedly searching for manifest necessity where none existed at the trial’s termination, we find no interest to be served by shielding criminal defendants from reprosecution because of a judge’s fortuitous choice of words. Thus, the proper analysis focuses upon the complete record and not upon isolated statements of the presiding judge.
IV.
We recognize that other judges may have dispensed differently with the problems presented at trial in the instant case. Nevertheless, we conclude that the trial judge did not abuse his discretion in declaring a mistrial over the objection of two defendants here. Bauman’s lack of counsel and his bizarre behavior before the jury, coupled with Campbell’s arrest, were sufficiently prejudicial as to all defendants. The decision to terminate the trial could have been reached similarly by any reasonable judge.
We are satisfied from our review of the record that a high degree of necessity existed for a complete mistrial. We find that the court evaluated, with due deliberation, whether a mistrial or some other curative measure was appropriate. Accordingly, we AFFIRM. A retrial may proceed with respect to all defendants.
. In his December 19, 1988, motion to substitute counsel, Bauman stated, “This motion is not made for the purpose of delay and there is sufficient time before trial for substitution of counsel and no injustice, prejudice, or obstruction of court procedure will be caused by the substitution.” The court granted the substitution, subject to the limitation that "[tjhis order shall not become a basis for a continuance in this case.”
. 777 F.2d 248, 257-58 (5th Cir.1985), cert. denied, 476 U.S. 1184, 106 S.Ct. 2921, 91 L.Ed.2d 549 (1986), holding that a trial may proceed without defense counsel if the defendant, in bad faith, retains counsel with a scheduling conflict. The Mitchell court concluded that the right to counsel may be waived if it is purposefully used as an instrument for delay.
. See Arizona v. Washington, 434 U.S. 497, 503-04, 98 S.Ct. 824, 829-30, 54 L.Ed.2d 717 (1978) (retrial increases the financial and emotional burden on the accused, prolongs the stigma associated with unresolved charges, and increases the risk that an innocent person may be convicted).
. Grooms v. Wainwright, 610 F.2d 344, 346 (5th Cir.), cert. denied, 445 U.S. 953, 100 S.Ct. 1605, 63 L.Ed.2d 789 (1980); see also Abdi v. Georgia, 744 F.2d 1500, 1503 (11th Cir.1984) (where grounds for mistrial involve jury prejudice, decision of trial judge deserves "great deference”), cert. denied, 471 U.S. 1006, 105 S.Ct. 1871, 85 L.Ed.2d 164 (1985).
. We also have explained the matter as follows:
The bar of the double jeopardy clause operates to protect an accused against multiple prosecutions or multiple punishments for the same offense. Jeopardy attaches at the empaneling and swearing in of the jury, and from then on, consideration must be given to the defendant’s 'valued right ... to have his trial completed by the particular tribunal summoned to sit in judgment on him.’ When that right is denied by declaration of a mistrial at the behest of the prosecution or on the court's own motion, reprosecution is prohibited unless there is a 'manifest necessity for the [mistrial] or the ends of public justice would otherwise be defeated.’
United States v. Bobo, 586 F.2d 355, 362 (5th Cir.1978) (citations omitted), cert. denied, 440 U.S. 976, 99 S.Ct. 1546, 59 L.Ed.2d 795 (1979).
. "[It is] readily apparent that a mechanical rule prohibiting retrial whenever circumstances compel the discharge of a jury without the defendant’s consent would be too high a price to pay for the added assurance of personal security and freedom from governmental harassment which such a mechanical rule would provide.” Arizona v. Washington, 434 U.S. at 505 n. 16, 98 S.Ct. at 830 n. 16 (citing Jorn, 400 U.S. at 480, 91 S.Ct. at 554).
. We note that the trial judge need not make an express finding of "manifest necessity,” nor must he expressly state that he considered alternatives and found none to be superior. See Washington, 434 U.S. at 501, 98 S.Ct. at 828; Abdi, 744 F.2d at 1503. We need only to be satisfied from the complete record that the trial judge exercised sound discretion in declaring a mistrial, sua sponte, in a factual setting that demonstrates a high degree of necessity for terminating the trial before the jury completes its solemn task of rendering a verdict.
. Defendants Talamas and Cary remind us that the judge found no prejudicial bias when he interviewed the jurors but that he did find such bias, or the threat thereof, in subsequent written findings.
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_appnatpr
|
99
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of 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.
Edward HUGHES et al., Appellants, v. RANGER FUEL CORPORATION, DIVISION OF PITTSTON COMPANY, a Delaware corporation, et al., Appellees.
No. 72-1022.
United States Court of Appeals, Fourth Circuit.
Argued May 8, 1972.
Decided Sept. 26, 1972.
John L. Boettner, Jr., Charleston, W. Va., for appellants.
W. T. O’Farrell, Charleston, W. Ya. (Jackson, Kelly, Holt & O’Farrell, Charleston, W. Ya., and Robert B. Sayre, Sayre & Sayre, Beckley, W. Va., on brief), for appellees.
Before HAYNSWORTH, Chief Judge, RUSSELL, Circuit Judge, and BLATT, District Judge.
DONALD RUSSELL, Circuit Judge.
This action for both injunctive relief and for damages, arises out of an alleged assault and battery committed by the defendants against the plaintiffs because of the latter’s efforts “in turning in violators of the 1899 Refuse Act”. This “1899 Refuse Act” in support of which the plaintiffs contend they were engaged at the time of the assault in question, prohibits discharge or depositing of refuse in a navigable stream, and provides for a fine “not exceeding $2,500 nor less than $500, or by imprisonment (in the case of a natural person) for not less than thirty days nor more than one year, or by both such fine and imprisonment, in the discretion of the court, one-half of said fine to be paid to the person or persons giving information which shall lead to conviction.” In connection with their possible prosecution under the Act and of “turning in violators of the 1899 Refuse Act”, the plaintiffs, according to their complaint, informed the United States Army Corps of Engineers on June 21, 1971, of a landslide which “completely covered and blocked a public highway” nearby the Coal River in the vicinity of Bald Knob, West Virginia, and which the defendant Coal Company, in the person of its employees-defendants, was attempting to remove from the road by bulldozing it into Coal River. They then allege that, while endeavoring to photograph the pollution of the river by the defendants in these circumstances, the latter pelted them with rocks and otherwise assaulted them, driving them from the scene of the pollution for the purpose of preventing them from securing photographic evidence that might be used in “a matter prospectively pending before the United States Court”. They sought relief against any deprivation of their civil rights or any action that would “deter them from preparing evidence and testimony relating to matters to be brought before the United States Court”, and demanding actual and punitive damages on account of such deprivation. Along with their complaint, the plaintiffs filed their affidavits in support of an application for temporary injunctive relief, averring that they were in great fear on account of the single assault that occurred in June 21, 1971, and asserting that, “We feel that citizens of the United States should be protected when they are helping to enforce the law with regard to pollution and strip mining. I also feel that our civil rights were violated since we were on the public highway and at no time did we get on anyone’s private property”. The defendants replied with a motion for summary judgment on the ground that the complaint itself showed the District Court lacked jurisdiction. Thq District Court, without opinion, granted the motion and dismissed the action. This appeal challenges that dismissal.
Plaintiffs make no claim of federal jurisdiction on the basis of diversity. Citing Griffin v. Breckenridge (1971) 403 U.S. 88, 91 S.Ct. 1790, 29 L.Ed.2d 338, in which the Court held Section 1985(3) applicable to private conspiracies as well as those under color of state law, they predicate jurisdiction on that Section and Section 1342, 28 U.S.C. The defendants disputed such jurisdictional claim, asserting at the outset that Section 1985(3) is restricted in its application to actions for conspiracy for deprivation of civil rights solely when motivated by racial bias; and they emphasize there is no contention that the acts of the defendants, of which the plaintiffs complain, were racially oriented. It must be conceded that Griffin left open whether Section 1985(3) was confined to situations involving racial bias. However, most commentators would give a wider application to Griffin and would not confine it to cases involving strictly racial bias. It is, however, unnecessary for the decision in this case to resolve this issue.
Assuming, without deciding, that Section 1985(3) is not restricted to conspiracies motivated solely by racial bias, still Griffin is clear to the point that such section was not “intended to apply to all tortious, conspiratorial interferences with the rights of others” nor was it to be interpreted as establishing “a general federal tort law”. Specifically, the statute did not purport to establish “ ‘that Congress has a right to punish an assault and battery when committed by two or more persons within a State.’ ” Accordingly, it is an essential element of any action under the statute as construed in Griffin, that there be in the case “the kind of invidiously discriminatory motivation stressed by the sponsors of the limiting amendment.” This requires that, “there must be some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators’ action.” It is clear, then, that “a complaint alleging purposeful discrimination towards an individual with no allegation of racial or otherwise class-based motivation” is insufficient under Section 1985(3).
In their complaint, the plaintiffs make no allegations of any class-based motivation on the part of the defendants. What they set forth is an aggravated assault on their person on a single occasion, the very kind of case the supporters of the statute, according to Griffin, did not intend to bring under the statute. The action of the defendants was directed at the plaintiffs as individuals because they were engaged in attempting to photograph them (the defendants) and their activities on that particular occasion, not because of any animus against them as members of some class or race. There is no averment in the complaint that the defendants attacked the plaintiffs because the latter were environmentalists, as has been suggested in this Court; the allegations of the complaint are specific that the assault was sparked solely by the instant reaction of the defendants to the fact that the plaintiffs were seeking to photograph the defendants, clearly for the purpose of prosecuting them under the Refuse Act. Theirs was a purely spontaneous act, not alleged to be a part of any general pattern of discriminatory action directed to any class, as was the situation in Action v. Gannon (8th Cir. 1971) 450 F.2d 1227.
The argument that the defendants were attempting to interfere with the plaintiffs’ constitutional right of travel is manifestly spurious. The complaint merely sets forth that, while they were attempting to photograph, the plaintiffs were on the public road and not on private property; it does not aver that the defendants were attempting to impede the right of the defendants to travel over the public road. That the plaintiffs were standing in the public highway at the time was purely coincidental. Nowhere in their complaint do the plaintiffs base their constitutional claim on a conspiracy generated by a class-motivated animus to deprive them of either “equal protection of the law” or “equal privileges and immunities” under the laws or the exercise of any constitutional freedom to travel but rather plant their constitutional deprivations on their contention that, as private law investigators, and self-appointed enforcers of the law, they could not be restricted or interfered with in their quest for evidence of federal criminal violation. It would be a mischievous doctrine, indeed, fraught with great threat to constitutional rights to invest self-anointed “informers”, however commendable their purposes, with any such powers and rights as asserted by the plaintiffs, and certainly Section 1985(3) does not purport to do so.
The action of the District Court in dismissing the case is affirmed.
Affirmed.
. 33 U.S.C., Section 407.
An informer, such as apparently the plaintiffs were, while entitled to share in the fine if there is a prosecution under Section 411, has no standing otherwise; the right ■ of. enforcement and prosecution under the Act is vested exclusively in the discretion of the Attorney-General (33 U.S.C., Section 412). Durning v. ITT Rayonier Incorporated (D.C.Wash.1970 ) 325 F.Supp. 446, 447; Bass Anglers Sportsman’s Soc. v. Scholze Tannery, Inc. (D.C.Tenn.1971) 329 F.Supp. 339, 345-6, aff. 5 Cir., 447 F.2d 1304; Enquist v. Quaker Oats Company (D.O.Neb.1971) 327 F.Supp. 347, 348; United States v. Florida-Vanderbilt Develop. Corp. (D.C.Fla.1971) 326 F.Supp. 289, 290-1. In short, the right of an informer to participate in the fruits of a prosecution under the Act is dependent entirely on his ability to induce the Government to prosecute. Reuss v. Moss-American, Inc. (D.C.Wis.1971) 323 F.Supp. 848, 850. These decisions, which would deny any private right of enforcement or remedy under the Refuse Act of 1899, have been questioned in Note, Citizen Enforcement of the Refuse Act, 12 Natural Resources Journal, 298 (1972); Note, The Refuse Act and the Qui Tam Action, 46 Tulane L.Rev. 1023 (1972); and Note, Private Remedies for Pollution of Navigable Waters, 50 N.C.L. Rev. 153 (1971).
. 33 Ü.S.C., Section 411.
. The heart of the Griffin decision is correctly summarized in Note, 47 Wash.L.Rev. 353, 357:
In applying 1985(3), “The Griffin Court abandoned the Collins v. Hardyman principle (341 U.S. 651, 71 S.Ct. 937, 95 L.Ed. 1253) that there can be no deprivation of equal protection of the laws without some degree of state envolvement and concluded that ‘there is nothing inherent in the phrase that requires the action working the deprivation to come from the state.’ ”
For a possible rationale for reconciling Collins and Griffin, however, see 25 U. of Miami L.Rev. 780, at pp. 783-4 (1971).
. Some commentators have discussed Griffin as merely authorizing a remedy for unlawful private racial discrimination and do not discuss it as authority for a wider application of Section 1985(3). See, for instance, Note, Federal Civil Remedy Encompassing Private Conduct in Civil Rights Violence, 46 Tulane L. Rev. 822 (1971).
. Cf., Griffin v. Breckenridge, supra, 403 U.S. at p. 102, n. 9, 91 S.Ct. at p. 1798:
“AVe need not decide, given the facts of this case, whether a conspiracy motivated by invidiously discriminatory intent other than racial bias would be actionable under the portion of § 1985(3) before us.”
Moreover, an extension of Section 1985 (3) beyond racially oriented conspiracies could present, it is stated by some authorities, constitutional problems, but it is not necessary to examine these, since we feel this action must fail on other grounds. See, Note, U. of Miami L.Rev. 780, 783-4, and Note, 47 Wash.L.Rev. at p. 365 (1971). In the last Note, the editors state:
“However, relief under section 1985 (3) is limited by the scope of congressional power under the Constitution.”
. See, Note, 40 Fordham Law Rev. 635, at pp. 641-2:
“It now appears that, in the light of Griffin, there is a new weapon to counter private racial discrimination. * * * Griffin will provide relief in those cases where the state courts are not receptive to civil actions, brought by a member of a racial minority. * * * The Court’s reliance on the federally protected right to travel may mark a new direction in the Court’s view of the extent of civil rights legislation. This decision may well open the way for action by other minorities — not necessarily racial — to remedy by civil action acts of discrimination against them as a group.”
. At p. 102, 403 U.S. See, also, Note, 25 U. of Miami L.Rev. 780, at p. 784 (1971):
“Thus, the Griffin decision in no manner transforms section 1985(3) into a general federal tort law. Since the Court specifically limits its decision to the factual situation at hand, the only constitutional considerations involved are those dealing with the question of whether Congress had the power to enact a statute that imposes liability under federal law ‘for the conduct alleged in this complaint.’ The Court states that ‘we need not find the language of § 1985(3) now before us constitutional in all its possible applications in order to uphold, its facial constitutionality and its application to the complaint in this case.’ ” (Italics in Note)
. At pp. 101-102, 403 U.S., 91 S.Ct. at p. 1798.
. At p. 102, 403 U.S., 91 S.Ct. at p. 1798.
. At p. 102, 403 U.S., 91 S.Ct. at p. 1798.
. See, Note, 47 Wash.L.Rev. 353, 359, and at p. 365:
“In cases arising under section 1985 (3), as in other cases where federal jurisdiction exists under a particular statute, the plaintiff must plead facts showing the basis for that jurisdiction, and it cannot be shown by mere conclusory allegations.”
To the same effect is, Place v. Shepherd (6th Cir. 1971) 446 F.2d 1239, 1244. Cf., also, Lusk v. Eastern Products Corporation (4th Cir. 1970) 427 F.2d 705, 708.
. See, Kletschka v. Driver (2d Cir. 1969) 411 F.2d 436, 447:
“The actions taken by defendants were directed only against plaintiff as an individual and not because he was a veteran, or a member of some class or race. A violation of equal protection would be shown if the actions against plaintiff were part of a general pattern of discrimination, or were based on impermissible considerations of race or class, but plaintiff has not raised a genuine issue of fact concerning such discrimination.”
. The conduct complained of in this case was found by the Court to be “stimulated * * * by racial and economic motives.” (Italics added). 450 F.2d at p. 1232.
. Cf., Collins v. Hardyman (1951) 341 U.S. 651, 661, 71 S.Ct. 937, 941, 95 L.Ed. 1253:
“ * * * it is clear that this statute does not attempt to reach a conspiracy to deprive one oí rights, unless it is a deprivation of equality, of ‘equal protection of the law’, or of ‘equal privileges and immunities under the law.’ ”
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer:
|
songer_typeiss
|
A
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups.
UNITED STATES of America, Plaintiff-Appellee, v. Victor ARDITTI, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Guillermo AVILA, Defendant-Appellant.
Nos. 90-8646, 90-8721.
United States Court of Appeals, Fifth Circuit.
Feb. 27, 1992.
Bernard J. Panetta, II, Mary Stillinger, Gabellero, Panetta & Ortega, El Paso, Tex., for defendant-appellant in No. 90-8646.
LeRoy M. Jahn, Richard L. Durbin, Jr., W. Ray Jahn, Asst. U.S. Attys., Ronald F. Ederer, U.S. Atty., San Antonio, Tex., for plaintiff-appellee in No. 8646.
Sidney Powell, Strusburger & Price, Dallas, Tex., for defendant-appellant in No. 90-8721.
LeRoy Morgan Jahn, Richard L. Durbin, Jr., Asst. U.S. Attys., Ronald F. Ederer, U.S. Atty., San Antonio, Tex., for plaintiff-appellee in No. 90-8721.
Before GOLDBERG, SMITH, and DUHÉ, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Guillermo Avila and Victor Arditti were convicted of conspiracy to launder monetary instruments and of the substantive offense. Avila argues that his conduct did not violate the federal monetary instrument laundering statute, that the jury instructions at his trial were inadequate, and that the government entrapped him and engaged in outrageous conduct in the course of its undercover operation. Arditti also challenges the jury instructions and charges entrapment and outrageous conduct, and he claims that in quashing a trial subpoena the district court deprived him of due process. We affirm.
I.
These appeals arise from an Internal Revenue Service (“IRS”) undercover investigation of money-laundering. The defendants were tried separately, but their cases were consolidated on appeal. Because each defendant challenges the conduct of the IRS investigation, we present the facts of the two cases together. We then discuss Avila’s argument that his conduct did not violate the statute, each defendant’s challenges to the jury instructions, the issues of entrapment and outrageous government conduct as they apply to each, and the quashing of Arditti’s subpoena.
II.
In 1988, IRS Special Agent Gary Gall-man began investigating money laundering in El Paso, Texas, using the assumed name of “Gary W. Adams” and portraying himself as a cocaine dealer. Gallman started with information that Gabriel Yanez, who owned a money exchange business, laundered money by handling it to disguise its source. Gallman’s goal was to discover Yanez’s methods and cohorts.
Gallman first contacted Yanez in May 1988, explaining that he wanted Yanez to help him move large amounts of cash offshore, then bring the money back into the United States in usable form, intimating that he and his associates were involved in illegal activity. Gallman and Yanez invented the name “Ricardo Guerra-Battle” and established a Mexican bank account in that name. Yanez twice funneled $100,000 cash through Mexico, arranged for the money to be wire-transferred to Gallman’s bank in Dallas, then collected a fee from Gallman.
Yanez next arranged for Gallman to open a Cayman Islands account in the “Adams” and “Guerra” names, using a letter of introduction from an El Paso attorney to a Cayman Islands attorney. Gall-man later asked Yanez to put him in touch with someone who could help him with business in El Paso. In September, Yanez introduced Gallman to Arditti, an El Paso criminal defense lawyer.
During the introductory meeting in September 1988, Gallman told Arditti that he must trust Arditti before he could reveal the nature of his business and explained that Yanez was helping him “get [his money] out and get it back” so that he could use it. Arditti reassured Gallman by mentioning the - attorney-client privilege, his previous work with clients involved in drugs, and his distrustful nature.
Arditti told Gallman that since he was “into that kind of business,” he should fund a war chest in preparation for the day he would need money to get out of jail on bond and hire a lawyer. Gallman explained that he couldn’t spend any of the money “the way it is right now and that he had “to get it out and get it back.” Although Arditti told Gallman that he could not advise him on how to launder any illegal funds, Arditti advised Gallman on structuring transactions to purchase real estate in El Paso without arousing suspicion and assured Gallman that the government would not discover any payments made by Gallman to Arditti.
In October, Yanez channeled another $100,000 of Gallman’s cash to Gallman’s Dallas account after tinkering with the Cayman Islands arrangements. In the meeting discussing the transfer, Gallman told Yanez directly that “he and his group were in the ‘coke business’ and his part was to handle the money they derived from the sales.” Yanez and Gallman seemed to agree that they should follow Arditti’s advice in investing in real estate and stocks by using Mexican cashier’s checks, using the “Guerra” false name, and making purchases in the name of the British Virgin Islands corporation they had opened to facilitate the offshore Cayman Islands account. Gallman asked Yanez to recommend stock or brokerage houses that the corporation could use to invest in the stock market.
In November, Yanez told Gallman about his friend Avila, a securities broker in San Antonio for the firm of Prudential-Bache Securities (“Pru-Bache”) who wouldn’t insist on meeting Gallman “or anything like that.” Yanez explained that he frequently referred business to Avila and that the two had a fee-sharing arrangement. When Gallman asked what Yanez had told Avila about him, Yanez said that he portrayed Gallman as a Mexican mining client seeking investments. When Gallman further questioned Yanez about Avila, Yanez said that “he has a lot of clients from Mexico in the same business you are, and he never asks questions.” During this discussion, Gallman signed the brokerage forms provided by Yanez as “Guerra.”
Yanez introduced Gallman and Avila in January 1989 at a hotel in San Antonio. Although Gallman used his undercover name, “Adams,” he signed the client agreement and certificate of foreign status (W-8) as “Guerra.” The W-8 eliminates brokerage house reporting requirements as to the accounts of foreign nationals and, thus, effectively would have prevented the government from knowing that Ricardo Guerra or Gary Adams was transacting business with Pru-Bache. Gallman told Avila that Gallman was both “Adams” and “Guerra” and that this was “untaxed money” from the Mexican mining operation. Additionally, according to the government, Avila knew that Gallman was not a Mexican citizen, yet told Gallman that he would “take whatever you tell me” when asked whether he felt comfortable about the Mexican mining investor story. Further, Avila told Gallman that because client “confidentiality is a must,” he staggered client appointments and entertained at home.
The three arranged for investment funds to come from Gallman through Yanez to Avila. Avila repeated that under law and Pru-Bache policy he could not take cash and that investments of under $10,000 did not need to be reported to the government. In February, Gallman executed new, backdated documents to change the brokerage account to the name of the British Virgin Islands corporation at Avila’s request. As with the first forms, Gallman signed the forms in blank, and Avila completed them.
A few days later in February, Gallman and Avila met again. Gallman plainly told Avila, “I am in the coke business. That’s what I do. Now, you will not ever be involved in that part of it.” Although Gall-man offered Avila the opportunity to back away from the deals because of the source of the funds, Avila responded that Yanez had told him that, as long as Gallman provided the investment funds in check form, there was “[n]o problem as to where that money comes f[rom] or how it was made,” because the corporation, not “Adams,” was Avila’s client. Avila asked Gallman whether he was a law enforcement officer, which Gallman denied.
Gallman purported to have recently collected $15,000, which, the government asserts, Avila admittedly understood were the proceeds from a cocaine deal. Avila, however, maintains that Gallman did not tell Avila that he wanted to violate the law or that he did not want to report the cash. Avila stresses that he told Gallman that he did not want to do anything illegal and that Gallman confirmed that the corporation was “legal” and that Gallman was going to deposit “clean money.”
After Avila repeated that he could not handle cash, he directed Gallman to obtain cashier’s checks in the name of the corporation and told him how to do so. After Gallman obtained the checks, he met Avila outside Avila’s office and gave him two cashier’s checks totaling $15,000, payable to Pru-Bache in care of Avila. Avila deposited the funds in the corporation’s account. In March, Gallman delivered to Avila a $40,000 cashier’s check, which Avila also deposited.
At Gallman’s request; Yanez invited Ar-ditti to meet them for lunch in March 1989. Arditti discussed methods to avoid suspicion and the tracing of money, including not using cash. Gallman offered Arditti the chance to “walk away from the deal” if Arditti had a “problem with the money or what I do.” According to Gallman’s testimony, when Arditti responded that he had not asked what kind of business Gallman did, Gallman then clarified, “You understand this is coke money,” to which Arditti replied, “Yoú don’t see me going anywhere, do you?” Arditti disputes Gallman’s testimony as to this portion of their conversation and notes that the government failed to tape-record this exchange, nor did Gall-man record it in his memorandum concerning the meeting.
In May, Gallman met with Yanez and Arditti. Gallman put aside the idea of real estate investments- in El Paso and told Ya-nez and Arditti about an opportunity to invest $200,000 in an Oklahoma oil deal. Gallman revealed that “this money- we’re doing right now is part of a ten-kilo deal that ... I’m getting paid off for ... now,” and stressed protecting his identity in the oil deal. Arditti outlined a complex arrangement for preventing governmental access to Gallman’s name through the royalty payment.mechanism, perhaps setting up a foreign corporation or, as Gallman suggested, a trust in a foreign bank to receive and invest Gallman’s money. Gall-man repeated that “this is coke money” and wanted to know whether he could count on Arditti not to talk if “I end up ... getting busted.”
Arditti assured Gallman that he would not divulge anything but again warned Gallman against spending large lumps of cash. Arditti agreed to draft documents memorializing the “loan” of money from the corporation to Gallman, which would explain the source of Gallman’s money, and to check on establishing an escrow account to receive Gallman’s money and invest it in the Oklahoma deal.
The next week, Yanez told Gallman that the fake loan documents and the escrow account would be delayed because Arditti was being audited by the IRS. Arditti told Yanez he was worried about “being framed” by Gallman. When Yanez passed this information to Gallman and offered to contact another lawyer, Gallman insisted on using Arditti.
At the end of May, Gallman delivered $50,000, which Yanez funneled to Gall-man’s Dallas account. At this time, Yanez attributed Arditti’s delay to procrastination but noted that Arditti was “convinced” about how to proceed with the bank in setting up the escrow account. Gallman repeatedly telephoned Yanez over the next few weeks because Gallman wanted Arditti to complete the deal. Yanez continued to insist that Arditti would participate but wanted to take care in structuring the deal.
The first infusion of funds to Oklahoma occurred through Yanez’s own bank account at the end of June, not through the escrow account as envisioned by Gallman. Gallman asked for Yanez’s help in getting the money to Oklahoma using the escrow account procedure. In mid-July, Gallman met in El Paso with Yanez and Arditti, who explained that they had agreed to the method used in the first transfer because the bank had set up some hurdles in establishing the escrow account. Departing from the escrow account idea, Arditti offered to set up. a trust whose funds Arditti would manage, which would also conceal Gall-man’s identity. The three formulated an elaborate plan to invest money from the corporate brokerage account into the Oklahoma oil deal and completed the arrangements for the fraudulent loan.
With Yanez’s participation, Arditti opened a bank account in the name “V.R. Arditti Trust Account Number 3” several days later. No trust documents were prepared for the account, and Arditti alone had signature authority and the code to validate wire transfers. When Arditti received a check from the corporate brokerage account for $50,000 on August 2, he deposited it in the trust account and told the bank to wire $49,000 to the oil deal bank account in Oklahoma.
In mid-August, Arditti gave Gallman a bill for his services. Gallman found the amount “pretty stout,” so Arditti adjusted it downward but asked Gallman not to pay him in cash because that would appear suspicious. The three then devised a more efficient plan for future transactions, focusing on the need to shield Gallman by using the “Guerra” name and procuring the funds for deposit in the trust account at a Mexican bank in the form of a cashier’s check.
As planned, Arditti received a $50,000 check the next day from a Mexican money exchanger and transferred the money to the oil deal account. On August 29, Ardit-ti, following the same procedure, deposited another $50,000 in the trust account and wired it to Oklahoma.
III.
A grand jury charged Arditti with conspiring with Yanez and Avila in violation of 18 U.S.C. § 371 to (1) avoid filing currency transaction reports in violation of 31 U.S.C. § 5313(a); (2) avoid filing currency or monetary instrument reports in violation of id. § 5316; and (3) launder a monetary instrument in violation of 18 U.S.C. § 1956 (count one). Additionally, the indictment charged Arditti with violating section 1956(a)(3) (counts twelve, fifteen, and eighteen) and violating id. § 2 by aiding and abetting Yanez in violating section 1956(a)(3) (counts fourteen and sixteen). The jury convicted Arditti on all counts.
The indictment charged Avila with conspiring with Arditti and Yanez in violation of section 371 to commit the three offenses outlined above (count one). Additionally, the indictment charged Avila with violating section 1956(a)(3) (counts seven and eight). The district court granted Avila’s motion to sever his case for trial.
The court granted Avila’s motion for judgment of acquittal on the allegations in count one that Avila conspired to violate sections 5313(a) and 5316. The jury, however, convicted Avila on the remaining allegation in count one and on counts seven and eight.
IV.
Avila challenges his substantive and conspiracy convictions on the ground that his conduct did not violate a criminal statute. Section 1956(a)(3), entitled “Laundering of Monetary Instruments,” makes it unlawful for a person, with the intent
(A) to promote the carrying on of specified unlawful activity;
(B) to conceal or disguise the nature, location, source, ownership, or control of property believed to be the proceeds of specified unlawful activity; or
(C) to avoid a transaction reporting requirement under State or Federal law,
[to] conduct[ ] or attempt[ ] to conduct a financial transaction involving property represented by a law enforcement officer to be the proceeds of specified unlawful activity, or property used to conduct or facilitate specified unlawful activity....
18 U.S.C. § 1956(a)(3) (West Supp.1988). Section 1956(c)(4) defines “financial transaction” as
(A) a transaction (i) involving the movement of funds by wire or other means or. (ii) - involving one or more monetary instruments, which in any way or degree affects interstate or foreign commerce, or (B) a transaction involving the use of a financial institution which is engaged in, or the activities of which affect, interstate or foreign commerce in any way or degree.
Section 1956(c)(5) defines “monetary instruments” as follows:
The term ‘‘monetary instruments” means (i) coin or currency ..., travelers’ checks, personal checks, bank checks, and money orders, or (ii) investment securities or negotiable instruments, in bearer form or otherwise in such form that title thereto passes upon delivery.
Avila urges reversal of his conviction under section 1956(a)(3) because the plain terms of the statute do not criminalize accepting cashier’s checks in non-bearer form. Avila argues, as he did in a motion for acquittal, that a cashier’s check is not a “bank check” under the relevant definition of “monetary instrument.” Avila asserts that Congress did not intend to cover cashier’s checks not in bearer form, as evidenced by a federal statute and multiple federal regulations that plainly acknowledge the distinction between a “bank check,” i.e., a check drawn by a bank on its account in another bank, and a “cashier’s check,” i.e., a check drawn by a bank on itself and accepted upon issuance. See, e.g., Bruno v. Collective Fed. Sav. & Loan Ass’n, 147 N.J.Super. 115, 370 A.2d 874, 877 n. 2 (1977).
The government agrees with Avila’s characterization of the cashier’s checks as non-bearer instruments and accepts Avila’s distinctions between' cashier’s checks and bank checks. Pointing to the legislative history of section 1956, however, the government argues that Congress indeed intended the definition of the term “monetary instruments” to include cashier’s checks. “Monetary instruments are a subset of the term ‘property’ as used in section (a), a term that is intended to be construed liberally to encompass any form of tangible or intangible assets.” S.Rep. No. 433, 99th Cong., 2d Sess. 13 (1986).
Avila responds that the legislative history contextually refers to cashier’s checks “in such form that title thereto passes upon delivery,” not to all cashier’s checks. Id. Moreover, Avila asserts that Congress’s intent is irrelevant when a statute, like this one, is not capable of two rational readings. Cf. McNally v. United States, 483 U.S. 350, 360, 107 S.Ct. 2875, 2881, 97 L.Ed.2d 292 (1987) (“before one can be punished, it must be shown that his case is plainly within the statute”) (citation omitted).
Despite the facts that Congress did not include cashier’s checks in the statutory definition of monetary instruments and that we must construe criminal statutes strictly, see United States v. Daniel, 813 F.2d 661, 663 (5th Cir.1987), Avila’s challenge to his substantive convictions must fail. Simply, the plain language of section 1956 does not require that the suspect have used a “monetary instrument” in his offense. A financial transaction for the purposes of the statute is “[1] a transaction involving the movement of funds by wire or other means or [2] involving ... monetary instruments ... or [3] involving the use of a financial institution which is engaged in, or the activities of which affect, interstate or foreign commerce in any way or degree” (emphasis added). The substantive charges of his indictment, counts seven and eight, do not accuse Avila of laundering a “monetary instrument” as defined in section 1956(c)(5). Rather, count seven states that he conducted “a financial transaction involving property to wit: $15,000 in cashier’s checks, represented by a law enforcement officer to be the proceeds of [specified] ... unlawful activity, in violation of Title 18, United States Code, Section 1956(a)(3).” Count eight is similar, except that it specifies $40,000 as the sum in question and does not mention cashier’s checks.
The acts alleged in these counts plainly fall within the language of section 1956(c)(4)(A)(i): They were transactions “involving the movement of funds by wire or other means.” The issue of whether cashier’s checks are monetary instruments thus is irrelevant to the substantive counts; the checks unquestionably were “property” and “funds [moved] by wire or other means” under the statute.
Although we have not previously interpreted the money laundering statute in this way, the plain language dictates such a holding, and this court has found that the statute encompasses a wide range of conduct. See, e.g., United States v. Gallo, 927 F.2d 815, 822 (5th Cir.1991) (transporting money in the trunk of a car was a financial transaction in that it was a “movement of funds by wire or other means ... which in any way or degree affects interstate of [sic] foreign commerce” (ellipses in original)).
We similarly uphold Avila’s conspiracy conviction. The first count of the indictment charged that Yanez, Arditti, and Avila “willfully, knowingly and unlawfully conspired, combined, confederated and agreed together, and with each other, and with others to the Grand Jury unknown, ... to launder a monetary instrument, in violation of Title 18, U.S.C. § 1956. Arditti does not raise the issue on appeal, but Avila appears to argue that this count of the indictment charges a crime that the government did not prove. Simply, Avila asserts that he did not conspire to launder a “monetary instrument” under the language of the statute. If there was conspiracy, Avila argues, it was to launder cashier’s checks, which are not monetary instruments as statutorily defined.
As with the substantive counts, this court need not consider whether cashier’s checks qualify as monetary instruments. Although cashier’s checks were the means through which the conspirators were to launder the funds, the objective of the conspiracy was to launder the cash that “Adams” claimed to have obtained through his drug wholesaling activities. Cash, of course, is “coin or currency of the United States” and thus is a monetary instrument. Because Gallman represented to Avila that he wanted to launder cash, and Avila advised him how to convert the cash into cashier’s checks without having to present his identification, so that Pru-Bache could accept the money, we reject Avila’s argument that no monetary instruments were involved.
V.
Avila further argues that his behavior was not illegal because the government agent did not represent to him that the funds he participated in laundering were the proceeds of criminal activity. Section 1956(a)(3), in establishing the basis for money laundering “sting” operations, requires that the government agent represent that the property involved in the transaction is the “proceeds of specified unlawful activity, or property used to conduct or facilitate specified unlawful activity.” The statute further defines the term- “represented” as “any representation made by a law enforcement officer or by another person at the direction of, or with the approval of, a Federal official authorized to investigate or prosecute violations of this section.” 18 U.S.C. § 1956(a)(3).
Avila argues that “[s]trict construction ... requires that the officer make an affirmative representation to the defendant,” not merely a suggestion, or just enough information to create an inference. Nor can the government agent’s perception of the “representation” substitute for satisfaction of the element. Because Gallman did not plainly tell Avila that the $15,000 and $40,000 cashier’s checks were proceeds from cocaine sales, Avila urges reversal of the convictions.
We find Avila’s arguments unconvincing. The record shows that “Adams” told Avila that he was in the cocaine business and that the initial $15,000 was the proceeds of a collection. Because “Adams” represented his business as drug wholesaling, then never represented his relationship with Avila as one involving funds not derived from that illicit industry, the jury could have viewed the later $40,000 as ostensible drug-related funds, believe that Gallman portrays and Avila viewed them as such, and thus convict Avila of money laundering.
To hold that a government agent must recite the alleged illegal source of each set of property at the time he attempts to transfer it in a “sting” operation would make enforcement of the statute extremely and unnecessarily difficult; “legitimate criminals,” whom undercover agents must imitate, undoubtedly would not make such recitations before each transaction. In this case, it is enough that sufficient evidence was presented that the jury could have found beyond a reasonable doubt that “Adams” represented, and Avila understood, that the funds they were laundering were the proceeds of the specified illegal activities.
VI.
Avila and Arditti challenge the district court’s jury instructions at their respective trials. We find their argument to be without merit.
A district court possesses broad discretion in framing the instructions to the jury; we will not reverse unless the instructions taken as a whole do not “correctly reflect the issues and law.” United States v. Casto, 889 F.2d 562, 566 (5th Cir.1989), cert. denied, 493 U.S. 1092, 110 S.Ct. 1164, 107 L.Ed.2d 1067 (1990) (citation omitted). This court will reverse for abuse of discretion a district court’s refusal to issue a jury instruction only if the requested instruction “(1) is substantively correct; (2) was not substantially covered in the charge actually delivered to the jury; and (3) concerns an important point in the trial so that failure to give it seriously impairs the defendant’s ability to effectively present a given defense.” United States v. Chambers, 922 F.2d 228, 241 (5th Cir.1991) (citation omitted).
The district court defined the offense of conspiracy (count one) in relevant part as follows, essentially tracking the Fifth Circuit Pattern Jury Instructions § 2.21 at 89 (West 1990):
You must be convinced that the government has proved each of the following beyond a reasonable doubt ... Second: That the defendant knew the purpose of the agreement and joined in it with the intent to further the illegal purpose So, if the defendant ... knowingly and willfully joins in that unlawful plan on one occasion, that is sufficient to convict him for conspiracy.
The court defined the substantive offense under section 1956, charged in counts seven and eight, in relevant part as follows, tracking the language of the statute: “You must be convinced that the government has proved each of the following beyond a reasonable doubt ... Second: That the defendant acted with the intent to promote ... or conceal and disguise....”
Avila requested that the jury be instructed that “willfully” “means that the act was committed voluntarily and purposely, with the specific intent to do something the law forbids; that is to say, with bad purpose either to disobey or disregard the law”; and that “[t]o establish specific intent the government must prove that the defendant knowingly did an act which the law forbids, purposely intending to violate the law.” On appeal Avila argues that the district court’s refusal to issue the instructions he requested constituted reversible error, arguing that “willfulness” is a substantive element of a section 371 conspiracy and that “specific intent” is a substantive element of section 1956(a)(3) money laundering.
First, we find that the conspiracy instruction, as a whole, adequately addressed the burden the government had to bear. The requested instruction as to “willfully” was not necessary. The meaning of “willfully” varies depending upon the context. See United States v. Bishop, 412 U.S. 346, 356-61, 93 S.Ct. 2008, 2015-18, 36 L.Ed.2d 941 (1973). The Supreme Court has recognized that in common usage the word “willful” is considered synonymous with such words as “voluntary,” “deliberate,” and “intentional” and that in law the word generally refers to conduct that is not merely negligent. McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133, 108 S.Ct. 1677, 1681, 100 L.Ed.2d 115 (1988).
“Willfulness” appears in neither the section 371 definition of conspiracy nor the section 1956 monetary-instrument laundering statute, and, as defined in Avila’s requested instruction, it is not an element of the conspiracy offense, which requires the state of mind necessary for the substantive crime. See, e.g., United States v. Harrelsow, 754 F.2d 1153, 1172 (5th Cir.), cert. denied, 474 U.S. 908, 106 S.Ct. 277, 88 L.Ed.2d 241 (1985). The definition of willfulness Avila requested is an exception to the traditional rule and is a statutory element of special treatment of criminal tax offenses. United States v. Cheek, — U.S. -,-, 111 S.Ct. 604, 607, 112 L.Ed.2d 617 (1991).
The district court’s conspiracy instruction required the jury to find (1) that there was an agreement between two or more persons; (2) that Avila joined the agreement knowing its purpose and with the intent to further the illegal purpose; and (3) that an overt act was committed. Further, the court instructed, “If the defendant knows about a plan, knows that it is an unlawful plan, and knowingly and willfully joins in the unlawful plan ... that is sufficient to convict him for conspiracy.” These instructions cover the necessary elements of the conspiracy offense, including the requisite mental state. They thus differ from the charges we rejected in United States v. Burroughs, 876 F.2d 366, 369 (5th Cir.1989), which did not require that the defendant have joined the agreement “knowing its purpose and with the intent to further the illegal purpose,” and United States v. Kerley, 643 F.2d 299, 302 (5th Cir. Unit B Apr. 1981), in which we reversed a criminal conviction for failing to instruct on the element of willfulness where such willfulness was actually a “critical element” of the offense. We thus conclude that the requested instruction on willfulness was not substantially correct, and to the extent that it did accurately reflect the law, it was included in the adequate instruction that the district court gave.
Second, we find that to the extent Avila’s requested instruction of specific intent was correct, it too was included in the district court’s instructions. The court told the members of the jury that they could not find Avila guilty unless they found that he conducted or attempted to conduct a financial transaction involving property represented by a law enforcement officer to be proceeds of the sale of illegal drugs and that he acted with the intent to promote the carrying on of the specified unlawful activity (meaning the drug dealing) or “to conceal and disguise the nature, location, source, ownership and control” of such property. The instruction parallels the wording of section 1956(a)(3) and includes all the elements of intent that Congress deemed necessary for the offense, as is apparent in the language of the statute. If Congress wanted to require any higher mens rea requirement, it would have enacted one. See United States v. Baker, 807 F.2d 427, 428 (5th Cir.1986).
VII.
Avila next argues that the district court erred in not instructing the jury as to his ignorance of the law. In United States v. Davis, 583 F.2d 190, 194 (5th Cir.1978), we held that “the trial court, when instructing that specific intent is required, may not instruct that ignorance of the law is no excuse, because ignorance of the law goes to the heart of the defendant’s denial of specific intent.”
In 1989 this court ordered a new trial for defendants who had been convicted of conspiring to commit tax fraud under section 371 and of willfully aiding or assisting fraud in violation of 26 U.S.C. § 7206(2) because “the district court did not instruct the jury that they should, or could, consider the defendants’ ignorance of the law.” United States v. Buford, 889 F.2d 1406, 1409 (5th Cir.1989). Rather, the district court had instructed the jury that “the presumption is that every person knows what the law forbids.” Id. The Buford court, however, interpreted the term “willfully” for purposes of the statute criminalizing preparation of fraudulent tax returns to mean a “voluntary intentional violation of a known legal duty” and viewed the absence of a corresponding “ignorance of the law” instruction as “inconsistent with the element of specific intent.” Id. (citation omitted; emphasis added).
Avila asks us to apply Buford to the case at hand, but the reasoning in that case and the others Avila cites does not support such an extension. Avila urges us to hold that the district court erred because it failed to instruct the jury that it could consider Avila’s ignorance of the law, despite the critical distinction that its instructions, and the applicable statute, did not require the government to prove that Avila intentionally violated a known legal duty, nor, for that matter, did the court issue an instruction that the jury should presume that Avila knew what the law was.
As we discussed above, such a concept of “willfulness” is not an element of the offenses with which Avila was charged. Because the instruction Avila requested is not a “substantially correct” statement of the law in this context, we affirm the refusal to include it.
Additionally, to the extent the requested instruction might accurately reflect the law, it was included in the instructions the district court issued. The conspiracy instruction told the jury that it could convict Avila only if it found that he joined the plan knowing that it was unlawful,
Question: What is the general category of issues discussed in the opinion of the court?
A. criminal and prisoner petitions
B. civil - government
C. diversity of citizenship
D. civil - private
E. other, not applicable
F. not ascertained
Answer:
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songer_usc1
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0
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if no U.S. Code titles are cited. If one or more provisions are cited, code the number of the most frequently cited title.
SOUTHWESTERN PORTLAND CEMENT CO. et al. v. SIMPSON.
No. 2654.
Circuit Court of Appeals, Tenth Circuit.
April 30, 1943.
Rehearing Denied and Opinion Modified June 19, 1943.
Pierce Rodey, of Albuquerque, N. M. (Rodey, Dickason & Sloan, of Albuquerque, N. M., on the brief), for appellants.
Edwin L. Swope, of Albuquerque, N. M. (W. A. Keleher and Theo. E. Jones, both of Albuquerque, N. M., on the brief), for appellee.
Before PHILLIPS, BRATTON, and MURRAH, Circuit Judges.
PHILLIPS, Circuit Judge.
Alice E. Simpson commenced this action against the Southwestern Portland Cement Company in a district court of the state of New Mexico to recover benefits under the New Mexico Workmen’s Compensation Act for the death of her husband, John E. Simpson. The action was removed to the United States District Court. From a judgment in favor of the claimant, the Cement Company has appealed.
In its answer the Cement Company set up two defenses (1) that Simpson’s injuries were not caused by an accident arising out of and in the course of his employment, and (2) that Simpson’s injuries were occasioned by intoxication and were, therefore, not compensable under the Act.
The issue raised by the first defense was submitted to the jury by special interrogatory No. 1, reading: “At the time of the accident in which the decedent, John Ernest Simpson, met his death, was he performing services arising out of and in the course of his employment?” The jury answered in the affirmative.
The evidence with respect to the issue raised by the first defense is free from substantial conflict and it established these facts:
John E. Simpson was employed by the Cement Company as a cement salesman from February, 1936, until his death on September 5, 1941. He resided at Albuquerque, New Mexico. His sales territory was a section of the state of New Mexico. In performing his duties as salesman, he traveled in a Chevrolet automobile furnished by the Cement Company. His duties consisted mainly of soliciting cement purchases from dealers and contractors. He was not required to observe fixed hours of employment or a fixed schedule of travel. He was free to exercise his own judgment and discretion in covering his territory. He was a competent and successful salesman. He received a salary of $260 per month. The Cement Company reimbursed him for traveling expenses, for maintenance while away from home, and for expenditures incurred for meals, liquors and other entertainment furnished prospective customers at hotels and night clubs.
As a part of his duties, Simpson was required to attend “highway lettings,” which occurred from time to time in Santa Fe, New Mexico, where the New Mexico State Highway Department received competitive bids from contractors for highway construction jobs and awarded contracts. The contractors and salesmen of products used in highway construction work usually assembled the day before the actual award of the contract at the La Fonda and De Vargas Hotels in Santa Fe. The contractors, with the assistance of the salesmen, prepared their bids and both contractors and salesmen attended the actual “letting” on the following day. Most of the salesmen .and contractors congregated at the La Fonda. The salesmen gave the contractors prices on products, freight rates, and other data, and otherwise assisted the contractors in preparing their bids. During the afternoon and night preceding a “letting” there was much social intercourse and drinking of intoxicating liquor. From about noon of the day preceding the “letting” until the bids were received and the contract awarded, the salesmen were constantly on duty. Competition between salesmen was keen and it was a general practice for salesmen to withhold their final price quotations as long as possible. It was not unusual when the bar closed at the La Fonda at midnight for the contractors and salesmen to go to night clubs in and near Santa Fe and there continue their negotiations and their social intercourse. One of these night clubs was known as the Trianon.
Simpson was required to be on duty at Santa Fe from about noon of the day before a “letting” until the contract was awarded on the following day. He was also expected to attend the Highway Department session at which the contracts were let. Simpson’s primary object in attending the “lettings” was to sell cement to the successful bidder. But it was also part of his duties to promote future sales to other contractors, by assisting them in preparing their bids, furnishing them with cement prices, freight rates, and other data, and by generally creating and fostering their good will toward the Cement Company.
On September 5, 1941, a highway “letting” was to be held in Santa Fe. Salesmen, contractors, and others arrived the day before. Most of them gathered at the La Fonda. On September 4, Simpson left his home in Albuquerque, after telling his wife he was going to Santa Fe to attend a “letting.” He took his typewriter, suitcase, and a brief case containing data respecting cement and freight rates and also blank contracts. He arrived at the La Fonda in Santa Fe about 1 P. M., September 4, and engaged a room. Thereafter, he appeared in the lobby of the hotel and began talking business with prospective customers. He spent the entire day and evening in the hotel fraternizing with the contractors and other salesmen, talking, drinking, and eating with them. Between S P. M. and IIP. M., he had dinner in the New Mexican Room of the La Fonda. A contractor and another salesman were seated with him at the same table. Other tables were occupied by other contractors and salesmen. The salesmen and contractors moved from one table to another and carried on business negotiations. Simpson spent his evening eating his meal and mingling with the other parties present.
Between 10:30 P. M. and 11 P. M., Simpson joined Henry Thygesen, an important contractor, who had been awarded several highway contracts, James Ryan, another contractor, Roy Doty, a salesman and several others in the cocktail room. This group broke up a short time later and Simpson went to the hotel lobby. At 12:20 A. M., September 5, Doty saw Simpson in the lobby talking to three Indians who were apparently attempting to sell him some jewelry. Simpson asked Doty if he wanted to go to the Trianon with him, and Doty replied that he was going to bed. Simpson stated that he intended to remain in the lobby until some one came along who desired to go to the Trianon.
It had been Simpson’s practice theretofore to contact and entertain contractors at the Trianon and there continue his efforts to promote cement sales.
At about 6:30 on the morning of September 5, 1941, Simpson was found dead in his automobile which was impacted against a comer of a building near U. S. Highway 85. His death was caused by a fractured skull and a broken leg. The automobile tracks indicated that the automobile was traveling in a southerly direction when it left the highway on the left hand side. The right front tire on the automobile was partially flat. The building where the accident occurred is located about one and a half miles south of Santa Fe and about a block and a half south of the Trianon. There was another night club south of the point where the accident occurred. Simpson’s brief case, containing cement data, was found in the automobile. A typewriter, a brief case, and an unpacked Gladstone hag were found in his hotel room. His bed had not been slept in. There was no direct evidence as to what Simpson did between 12:20 A. M. and the time of the accident on the morning of September 5.
At the close of all the evidence, the Cement Company interposed a motion for a directed verdict in its behalf. The motion was denied. The trial court, in part, instructed the jury as follows: “If you find in this case that at the time of the accident, Ernest Simpson, was on his way home from a trip made for and in the interests of his employer, then you will conclude that Ernest Simpson’s death arose out of and in the course of his employment. * * * ”
Counsel for the Cement Company excepted thereto on the ground that there was no evidence warranting the jury in finding that Simpson was on his way to his home in Albuquerque at the time of the accident.
The Cement Company also excepted to the refusal of the court to give its requested special interrogatory No. 2, reading: “Were the injuries resulting in the death of John Ernest Simpson caused by an accident arising out of and in the course of his employment?”
Section 57-906, N.M.S.A.1941, provides as prerequisites to the right to compensation that (1) the injury to or death of the employee shall be proximately caused by an accident arising out of and in the course of his employment, and (2) that at the time of the accident the employee shall be performing services arising out of and in the course of his employment.
It is well settled that where a salesman suffers a highway accident while traveling by automobile to or from a place where his duties require him to go, the accident arises out of and in the course of his employment.
The burden was upon the claimant to establish by evidence that Simpson’s death was proximately caused by an accident arising out of and in the course of his employment and that the accident occurred while performing services arising out of and in the course of his employment. But when she introduced proof of facts raising a natural and reasonable inference that the accident arose out of and in the course of his employment and occurred when Simpson was performing services arising out of and in the course of his employment, the burden then rested upon the Cement Company, it having denied those facts, to show the contrary.
Where there is substantial evidence that the death of an employee resulted from accident and that the accident occurred during his hours of work, at a place where his duties required him to be, or where he might properly have been in the performance of such duties, the jury or other trier of the issues of fact may reasonably conclude therefrom, as a natural inference, that the accident arose out of and in the course of the employment. In some of the decided cases the statement will'be found that such facts, when proven, create a presumption that the accident arose out of and in the course of the employment. However, since the burden is on the claimant to prove that the accident arose out of and in the course of the employment, either by direct evidence or evidence from which those facts may be legitimately inferred, we think the presumption referred to is not a legal presumption, but one of fact, that is, a natural inference drawn from proven facts.
Where a salesman while traveling in an automobile suffers an accidental death, during his hours of work and at a place where the performance of his duties may reasonably have .required him to go, there is a natural inference that the accident arose out of and in the course of his employment.
Simpson arrived in Santa Fe about 1 P. M., September 4, 1941. From the time of his arrival at Santa Fe until the bids were opened and the contract awarded about 11 A. M. on the following day, he was required to remain on duty. His duties were to make contacts with contractors, to furnish them with cement quotations, freight rates, and other pertinent data, to assist them in making out their bids, and to foster their good will by social entertainment. It was incumbent upon him to make and maintain these contacts wherever the contractors gathered at hotels, night clubs, or elsewhere. It was customary for the contractors, after the La Fonda bar closed, to go to the Trianon and other night clubs. Simpson was found dead in an automobile furnished him by the Cement Company at a point a short distance from the Trianon. It had been Simpson’s practice to contact contractors at the Trianon and he told Doty he was going there on the night of the accident. While the automobile was traveling away from the Trianon and in the direction of Albuquerque at the time of the accident, another night club was situated a short distance from the Trianon in the direction in which the automobile was traveling at the time of the accident. Thus, it will be seen the evidence established that the accident occurred while Simpson was traveling in the automobile furnished him by the Cement Company during the hours he was required to be on duty and where he might properly have been in the performance of his duties in making and maintaining contacts with the contractors.
From the foregoing facts, the jury, under proper instructions, might have •drawn the inference that Simpson’s death was proximately caused by an accident arising out of and in the course of his employment and that such accident occurred while he was performing services arising out of and in the course of his employment.
However, the court in effect instructed the jury that it might find from the evidence that Simpson at the time of the accident was on his way home from Santa Fe, where he had been in the performance of his duties, and conclude therefrom that the accident arose out of and in the course of the employment. At the time of the accident Simpson was traveling on the Santa Fe-Albuquerque highway in the direction of Albuquerque. Aside from that fact, there is nothing in the evidence indicating in the slightest degree that he was returning to Albuquerque. The accident occurred a short distance from Santa Fe, where Simpson’s duties required him to be. He had engaged a room at the La Fonda. He left his traveling effects in the room. His duties required him to be in Santa Fe and to remain there until the bids were opened and the contract awarded on September 5. Had he returned to Albuquerque in the early morning of September 5, it would have been necessary for him almost immediately to turn around and return to Santa Fe. The evidence disclosed no reason for him to return to Albuquerque. Every known reason impelled him to remain in Santa Fe. To draw the conclusion that he was on his way to Albuquerque at the time of the accident would be illogical and “Unreasonable under the evidence. Such a conclusion would rest on mere surmise or conjecture. We accordingly conclude that the court erred in giving the quoted instruction.
Special interrogatory No. 1 also should have covered both prerequisites to the righ-t to compensation set forth in § 57-906, supra.
The judgment is reversed and the cause remanded with instructions to grant the Cement Company a new trial on the issues raised by the first defense.
BRATTON, Circuit Judge, is of the opinion that the judgment should be affirmed.
Hereinafter called the claimant.
Hereinafter called the Cement Company.
§§ 57-901 to 57-932, N.M.S.A. 1941.
The second defense was predicated on § 57-908, N.M.S.A.1941, which provides that no compensation shall become due or payable from any employer for injuries or death “occasioned by the intoxication of” the employee. It was submitted to tbe jury by special interrogatory No. 3, reading: “Were the injuries suffered by the decedent, John Ernest Simpson, resulting in his death occasioned by his intoxication?” The jury answered in the negative. Counsel for the Cement Company admit that the jury’s special verdict is supported by substantial evidence and that it is concluded thereby on this appeal.
Ætna Life Insurance Company v. Schmiedeke, 192 Wis. 574, 213 N.W. 292, 293; New Amsterdam Casualty Co. v. Sumrell, 30 Ga.App. 682, 118 S.E. 786, 789, 790; Cook’s Case, 243 Mass. 572, 137 N.E. 733, 735, 29 A.L.R. 114; Empire Health & Accident Ins. Co. v. Purcell, 76 Ind.App. 551, 132 N.E. 664, 666; United States Casualty Co. v. Superior Hardware Company, 175 Wis. 162, 184 N.W. 694, 695; Schroeder & Daly Co. v. Industrial Commission, 169 Wis. 567, 173 N.W. 328, 329; Capital Paper Co. v. Conner, 81 Ind.App. 545, 547, 144 N.E. 474, 475; Wahlig v. Krenning-Schlapp Grocer Co., 325 Mo. 677, 29 S.W.2d 128, 131.
Wishcaless v. Hammond, Standish & Co., 201 Mich. 192, 166 N.W. 993, 995; Papinaw v. Grand Trunk R. Co. of Canada, 189 Mich. 441, 155 N.W. 545, 547; Grant v. Glasgow Ry. Co., 1 B.W.C.C. 17.
Saunders v. New England Collapsible Tube Co., 95 Conn. 40, 110 A. 538, 539; Owens v. Ocean Forest Club, 196 S.C. 97, 12 S.E.2d 839, 841, 842; Capital Paper Co. v. Conner, 81 Ind.App. 545, 144 N.E. 474, 475; Flucker v. Carnegie Steel Co., 263 Pa. 113, 106 A. 192, 194; American Mutual Liability Ins. Co. v. Hardy, 36 Ga.App. 487, 137 S.E. 113, 114, 115; Standard Acc. Ins. Co. v. Kiker, 45 Ga.App. 706, 165 S.E. 850, 851; Heileman Brewing Co. v. Shaw, 161 Wis. 443, 154 N.W. 631.
Czuczko v. Golden-Gary Co., Inc., 94 Ind.App. 47, 177 N.E. 466, 467, 179 N.E. 19; Progress Laundry Co. v. Cook, 101 Ind.App. 235, 198 N.E. 807, 808; Fisher v. City of Decatur, 99 Ind.App. 667, 192 N.E. 844, 845; Tully v. Gibbs & Hill, Inc., 171 A. 313, 314, 12 N.J. Misc. 275; Sullivan v. Suffolk Peanut Co., 171 Va. 439, 199 S.E. 504, 506, 120 A.L.R. 677.
Nardone v. Public Service Electric & Gas Co., 113 N.J.L. 540, 174 A. 745, 750; Dietz v. Eagle Grocery Co., 184 A. 216, 218, 14 N.J..Misc. 240.
See Owens v. Ocean Forest Club, 196 S.C. 97, 12 S.E.2d 839, 841; Standard Acc. Ins. Co. v. Kiker, 45 Ga.App. 706, 165 S.E. 850, 851; Capital Paper Co. v. Conner, 81 Ind.App. 545, 144 N.E. 474, 475; Saunders v. New England Collapsible Tube Co., 95 Conn. 40, 110 A. 538, 539, 540; and cases cited in Note 6, ante.
Henry v. D. A. Odell Motor Car Co., 191 Minn. 92, 253 N.W. 110, 112; Keeler v. Sears, Roebuck & Co., 121 Conn. 56, 183 A. 20, 22; Beaver v. George W. Boyd Co., 106 Pa.Super. 24, 161 A. 900, 903; Swift & Co. v. Industrial Commission, 350 Ill. 413, 183 N.E. 476, 478; Note, 120 A.L.R. p. 688.
Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number.
Answer:
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songer_appel1_7_5
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A
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine which of these categories best describes the income of the litigant. Consider the following categories: "not ascertained", "poor + wards of state" (e.g., patients at state mental hospital; not prisoner unless specific indication that poor), "presumed poor" (e.g., migrant farm worker), "presumed wealthy" (e.g., high status job - like medical doctors, executives of corporations that are national in scope, professional athletes in the NBA or NFL; upper 1/5 of income bracket), "clear indication of wealth in opinion", "other - above poverty line but not clearly wealthy" (e.g., public school teachers, federal government employees)." Note that "poor" means below the federal poverty line; e.g., welfare or food stamp recipients. There must be some specific indication in the opinion that you can point to before anyone is classified anything other than "not ascertained". Prisoners filing "pro se" were classified as poor, but litigants in civil cases who proceed pro se were not presumed to be poor. Wealth obtained from the crime at issue in a criminal case was not counted when determining the wealth of the criminal defendant (e.g., drug dealers).
Gwyneth HELBUSH, Appellant, v. Herman H. HELBUSH, Appellee.
No. 6447.
Circuit Court of Appeals, Ninth Circuit.
Oct. 30, 1931.
Harry I. Stafford, of San Francisco, Cal., and George Clark, of Los Angeles, Cal., for appellant.
Sullivan, Roche, Johnson & Barry and Hiram W. Johnson, all of San Francisco, Cal., for appellee.
Before WILBUR and SAWTELLE, Circuit Judges, and JAMES, District Judge.
PER CURIAM.
Upon consideration of briefs of respective parties, ordered appeal affirmed.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Which of these categories best describes the income of the litigant?
A. not ascertained
B. poor + wards of state
C. presumed poor
D. presumed wealthy
E. clear indication of wealth in opinion
F. other - above poverty line but not clearly wealthy
Answer:
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songer_circuit
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G
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What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case.
Ronald SANTELLA, Plaintiff-Appellant, v. CITY OF CHICAGO, Defendant-Appellee.
No. 89-3188.
United States Court of Appeals, Seventh Circuit.
Argued Nov. 7, 1990.
Decided July 9, 1991.
John L. Gubbins, Gubbins & Associates, Robert P. Sheridan, Chicago, Ill., for plaintiff-appellant.
Kelly R. Welsh, Ruth M. Moscovitch, Appeals Div., Jean Dobrer, Asst. Corp. Counsel, and L. Anita Richardson, Corp. Counsel, Office of the Corp. Counsel, Chicago, Ill., for defendant-appellee.
Before BAUER, Chief Judge, POSNER, and RIPPLE, Circuit Judges.
BAUER, Chief Judge.
It has been said that when it comes to getting a city job in Chicago, quite often “It ain’t what you know, but who you know.” Although he thought he did, Appellant Ronald Santella did not know the right people — or, at least, not enough of them. Santella was hired by the Motor Maintenance Division (“Division”) of the Chicago Police Department (“CPD”) on June 1, 1980. His brother Rick just happened to be the director of the Division. Santella thought he was going to be a motor maintenance supervisor, a “career service” position that carries with it certain job protections, including a grievance procedure and for-cause disciplinary procedure with notice and hearing. Santella soon found out, however, that only one motor maintenance supervisor position existed, and it already was filled. So Santella was appointed instead to a vacant slot, that of electrical mechanic (now a career service position, but not at the time Santella was hired).
In the ordinary world, when one applies for a job that is held by someone else, that is the end of the matter. The City of Chicago takes a somewhat different approach. When it chooses to do so, the City will hire individuals into a vacant title “in lieu of” another, unavailable position. The individual is paid out of funds allocated to the department for personnel services. The “true” title is assigned after it is included in the following year’s budget.
The hiring “in lieu of” scheme commonly is used, even though the City has a perfectly good set of Personnel Rules in place. The Rules are promulgated by the City Director of Personnel pursuant to the Chicago Municipal Code. They require that a person complete seven steps prior to appointment to a career service position. Briefly, the applicant first must fill out an employment application. Then, he must take and pass a career service examination. Next, his name must be placed on the general employment list in rank order based on his examination score. Once these steps have been completed, an applicant becomes eligible for appointment to an existing career service title, but no appointment may be made until the Personnel Commissioner sends the department head a list of eligible candidates for the position and the applicant’s name is selected from the list. Thus, according to the Rules, the Superintendent of Police — the department head of the CPD — is the only official with the authority to make career service appointments within the CPD. If the department head selects one of the certified applicants from the list, then the following individuals must sign off on the appointment on a “PER-14” form: the department head, the Personnel Commissioner, the Budget Director, and the Comptroller.
Santella did not jump through any of these hoops because he was an electrical mechanic “in lieu of” of the motor maintenance supervisor position. All in all, it was not a bad deal; he received the higher motor maintenance supervisor’s salary. At first, he was reluctant to take the job because of the somewhat ephemeral nature of the title and because he wanted the added protection of career service status. James Zurawski, the Deputy Superintendent of the Police Department’s Bureau of Administrative Services (the organizational unit that included Santella’s department), assured Santella that an additional motor maintenance supervisor title would be included in the 1981 budget and that he would be appointed to that title. Santella’s brother Rick told him the same thing. Both were half right. Another supervisory title was added to the City’s Annual Appropriations Ordinances for 1981 through 1984. Rick Santella even prepared the official form to facilitate his brother’s reclassification to “Supervisor of Motor Maintenance.” Although the form was approved by all levels of the CPD and was submitted to the Department of Personnel, the position remained vacant.
While waiting for reclassification, both Santella and his brother made sure that City officials were kept aware of the situation. Several of them were prodded into action. The City Budget Director reviewed the matter with the patronage chief, the union, and Santella’s brother, and then approved the reclassification. After Santel-la’s department underwent a reorganization and became the Bureau of Technical Services, CPD Deputy Superintendent Matt Rodriguez, who had been appointed to oversee the Bureau, assured Santella (through Rick) that he would receive the supervisory title. Both the Administrative Assistant to the Mayor and the City Comptroller were told by CPD higher-ups that Richard Brzeczek (one of the three individuals who held the post of Superintendent of Police during these events) had approved Santella’s change of title. That information was relayed to Santella. In reality, not Brzeczek, Joseph DiLeonardi (his predecessor), or Fred Rice (his successor) ever authorized the appointment.
In 1984, Rick was replaced as head of the Division by Richard Grishaber. Grishaber assured Santella that he could continue to perform supervisory duties, but mere assurances were not enough for Santella. After patiently waiting for reclassification for more than four years, he decided to file a grievance. When Grishaber got wind of this plan, he informed Santella that he would not be receiving the motor maintenance supervisor title after all because of department reorganization. Grishaber also told Santella that another employee would be assuming Santella’s supervisory duties and responsibilities. Grishaber ordered Santella to work as an electrical mechanic (a job, by the way, for which Santella was unqualified) or face termination. Since then, things have not gone well for Santel-la. He did not win his grievance. He never worked as an electrical mechanic because he suffered a job-related injury on October 24, 1984. He has been on disability leave ever since.
Santella filed a three-count complaint against the City and Grishaber, individually and in his official capacity as Commander of the Motor Maintenance Division of the CPD. He alleged that defendants breached his employment agreement and violated 42 U.S.C. § 1983 by depriving him of the supervisory title that he had been promised and by demoting him in violation of the Due Process Clause of the Fourteenth Amendment. Santella further claimed that the demotion violated the First Amendment because it was taken in retaliation for his filing a grievance. In two opinions, Santella v. Grishaber, 654 F.Supp. 428 (N.D. Ill.1987) and Santella v. Grishaber, 672 F.Supp. 321 (N.D.Ill.1987), the district court dismissed Grishaber from the case and dismissed Santella’s first amendment count. Many of Santella’s other claims either were dismissed or withdrawn. The breach of employment contract claim survived “to the extent it [was] based on alleged contractual commitments made while appropriations for the Supervisor position were in place.” 672 F.Supp. at 330. The district court directed Santella to file an amended complaint to clarify exactly what commitments were made to him during the relevant period.
Santella did just that. In a second amended complaint, he listed the several occasions on which City officials had promised him the supervisory title. He alleged that, through these promises, he had acquired a property interest in the title and was deprived of that interest without due process of law and in violation of state contract law. As before, he asked for declaratory and injunctive relief and lost compensation and benefits. The district court granted the City’s motion for summary judgment on the grounds that Santella could not have acquired a property interest in the title because the City officials who promised it to him did not have the authority to make such a promise. The court also ruled that Santella failed to qualify for the position under the City’s Personnel Rules. Santella v. City of Chicago, 721 F.Supp. 160, 167 (N.D.Ill.1989). The pendent state breach of contract claim was dismissed without prejudice to allow Santella to pursue it in state court.
We review de novo the district court’s grant of summary judgment to the City. “[W]e must decide whether the record shows that there is no genuine issue as to any material fact and that the moving party is entitled to the judgment as a matter of law.” Wolf v. City of Fitchburg, 870 F.2d 1327, 1329 (7th Cir.1989). A genuine issue of material fact exists only when “there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). If the evidence presented by the nonmovant is merely colorable or is not significantly probative, summary judgment is proper. Id. at 249-50, 106 S.Ct. at 2510-11.
Did Santella have a protected property interest in the supervisory title? The district did not think so because “the only person with ultimate authority to have made the appointment was and is CPD’s Superintendent, and no Superintendent (including Brzeczek) has ever appointed San-tella to the Supervisor’s title.” Santella, 721 F.Supp. at 165. To counter that argument, Santella primarily relies on Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972), a case in which a nontenured college professor was denied renewal of his annual contract without a hearing. The professor alleged that he had a property interest in his employment fostered by the college administration having written in its official faculty guide that a faculty member should feel secure that he had permanent employment as long as his work was satisfactory. The Supreme Court stated that, “A person’s interest in a benefit is a ‘property’ interest for due process purpose if there are such rules or mutually explicit understandings that support his claim of entitlement to the ben-efit_” Id. at 601, 92 S.Ct. at 2699 (emphasis supplied).
The assurances given to Santella that he would be reclassified cannot be considered such “mutually explicit understandings.” We indicated in Wolf that it is now “firmly established” that “the ‘mutually explicit understandings’ that constitute property interests under the holding of Perry cannot be based on the representations of government officials who are not authorized to make such representations.” 870 F.2d at 1334. See also Shlay v. Montgomery, 802 F.2d 918, 923 (7th Cir.1986) (city corporation counsel’s promise that a new hire would have a career position is unenforceable against the city and thus does not give rise to a property right); Hadley v. County of DuPage, 715 F.2d 1238, 1242 (7th Cir.1983) (no entitlement to public employment where county board not bound by unauthorized assurances of continued employment by individual board members), cert. denied, 465 U.S. 1006, 104 S.Ct. 1000, 79 L.Ed.2d 232 (1984). The City Personnel Rules unequivocally state that the department head —here, the Superintendent of Police—is the only individual vested with the authority to make career service appointments within his own departments. Promises may have been made to Santella. They might even have been made by some very influential people. But because they were not made by the only person who counted, they were unauthorized, nonbinding, and without legal effect.
The district court had yet another reason for holding that Santella could not have had a legitimate expectation of receiving the supervisory title: the officials who assured him that the reclassification was a “done deal” were acting in contravention of City regulations that mandate a set procedure for career service appointments. The district court put it succinctly: “Promises, however well-intended and sincere, cannot take the place of the required formal action.” Santella, 721 F.Supp. at 165. Santella agrees with the district court that career service positions must be secured by the procedures set forth in the Personnel Rules, but he and the court part company over the role of the hiring “in lieu” scheme. Santella contends that in addition to the procedures provided in the Personnel Rules, hiring “in lieu” represents a second, de facto method of obtaining a job title in Chicago and that he had every right to rely upon it to support his claim of entitlement. He believes that the district court fundamentally misunderstood how hiring “in lieu” works, in that the court concluded that “the title was something independent from the position it described, and that reclassification was a special undertaking which was, under the system, contingent and uncertain even though hiring to the position had been accomplished.” Appellant’s Brief at 32. Santella suggests that, in his case, appointment to a nonconforming title in lieu of his “actual” title was purely for budgetary reasons. The reclassification of title was “to reflect the reality” of the position that he already held. Id. at 31. He insists that because he was hired de facto for the position of supervisor, and performed the role of supervisor, he was entitled to enjoy the benefits of the position.
Santella’s argument seems to be that “in lieu” hiring results in automatic accession to a position once it is created, funded, or included in the annual budget. The district court disagreed and determined that merely giving someone a job “is not the same as conferring the legal title of Supervisor (the only thing in which Santella could even arguably seek to assert the ‘property’ interest needed to implicate the Due Process clause).” Id. (emphasis in original). Like the district court, we find that Santella has come up empty-handed. He has failed to muster any facts to support a theory that title “in lieu” is tantamount to an actual appointment to a career service position. Santella’s evidence describes in detail how the “in lieu” system works and suggests that “in lieu of” hiring was for payroll purposes only, but nowhere does it state that movement to a career service title is a fait accompli once a hiree starts drawing a salary and the “proper” title is added to the annual budget. A good example is the affidavit of Anthony Fratto, former City Comptroller. Fratto stated that after a City department requests that the individual be hired into a specific job title “in lieu of” a vacant title, his salary comes out of the department’s personnel service account. The title then is included in the next appropriation ordinance and the paperwork at City Hall reflects the change. This much we know, but there is no statement to the effect that a person in such a position somehow magically ascends to the title reflecting his actual job duties. To the contrary, Fratto acknowledged that such a hiring arrangement would fall apart if there were no available funds in the personnel services account and the City intended to pay for the services from an account earmarked for items other than personnel services.
Hiring “in lieu” is an established policy that has provided the City of Chicago with greater flexibility to handle personnel problems. The City’s Personnel Policy manual refers to hiring “in lieu” and even provides forms for the process. With hiring “in lieu,” a department head need not be hampered by rigid appropriation rules when a particular person is essential for a job and no position is available. With hiring “in lieu,” it also is possible to endrun the bureaucracy in order to finagle a spot on the City payroll for a close relative. Despite the fact that the practice has been around for a while, it is no substitute for personnel rules providing for formal application and approval by a department head. Nor is it sufficiently certain to give rise to a legitimate property interest in the titles to which “in lieu” hirees aspire. Thus, for the reasons discussed in this opinion, the judgment of the district 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_respond2_1_3
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G
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to determine what category of business best describes the area of activity of this litigant which is involved in this case.
Clarence E. BENNETT, et al., Appellants, v. Kenneth BERG, et al., Appellees. Dan R. SANDFORD, Jr., et al., Appellants, v. Kenneth BERG, et al., Appellees.
No. 81-1418.
United States Court of Appeals, Eighth Circuit.
Submitted Nov. 10, 1981 .
Decided Aug. 11, 1982.
Rehearing and Rehearing En Banc Denied in Part and Granted in Part Sept. 16,1982.
Robert Plotkin, Robert P. Schuwerk, Plotkin & Jacobs, Ltd., Chicago, 111., Jim Tom Reid, Shockley, Reid & Roger, Kansas City, Mo., for appellants.
James M. Beck, Steven M. Leigh, Johnson, Lucas, Bush, Snapp & Burgess, Kansas City, Mo., for John Knox Village.
Baker & Botts, James G. Ulmer, Randall A. Hopkins, Donna C. Kline, Robert E. Goodman, Jr., Houston, Tex., Swanson, Midgley, Gangwere, Clarke & Kitchin, James H. McLarney, Kansas City, Mo., for the Prudential Ins. Com. of America, appellee.
John H. Altergott, Jr., Suzanne K. Loseke, Shughart, Thomson & Kilroy, P. C., Kansas City, Mo., for appellee G. Dennis Sullivan.
James Borthwick, Shirley W. Keeler, Blackwell, Sanders, Matheny, Weary & Lombardi, Kansas City, Mo., for Snyder, Grant & Muehling.
Albert Thomson, Linde, Thomson, Fair-child, Langworthy, Kohn & Van Dyke, Kansas City, Mo., for appellees Kenneth Berg, Jeanne Berg, Christian Services Intern., Inc., Evangelical Christian Social Services, Inc., Lee Felsburg, Nat. Village Church Center, Lottie Jones, Irma Waddell, Elson Herndon, Floyd Sauer, Chris Coates, Glenn Smead, Maude Walker, Paul Edwards, Harvey Arbonies, and Mike Swingle.
Before HENLEY and ARNOLD, Cir-' cuit Judges, and NICHOL, Senior District Judge.
As indicated, was vember 10, 1981. However, it was held in abeyance pending decision in United States v. Bledsoe, 674 F.2d 647 (8th Cir. 1982), and United States v. Lemm, 680 F.2d 1193 (8th Cir. 1982).
Judge Henley assumed senior status on June 1, 1982.
The Honorable Fred J. Nichol, Senior District Judge, District of South Dakota, sitting by designation.
HENLEY, Senior Circuit Judge.
This appeal arises upon the district court’s granting of defendants’ motion to dismiss for failure to state a claim. Fed.R. Civ.P. 12(b)(6). The case involves two consolidated complaints in which plaintiffs-appellants seek, inter alia, treble damages and equitable relief under the civil remedies provisions of the title popularly known as RICO. Title IX of the Organized Crime Control Act of 1970, “Racketeer Influenced and Corrupt Organizations,” Pub.L.No.91-452, §§ 901-904, 84 Stat. 922, 941-48, codified at 18 U.S.C. §§ 1961-68 (1976). Appellants’ basic allegation is that their retirement community, known as John Knox Village, has been subject to financial mismanagement and self-dealing such that they are in danger of losing the “life care” which they were promised.
The district court held that appellants’ complaint was subject to dismissal because it failed to allege the existence of an identifiable “enterprise” within the meaning of RICO, and because the equitable relief sought by appellants is not available to a private plaintiff. Federal jurisdiction was predicated entirely upon the RICO Act. Dismissal of the RICO counts therefore resulted in dismissal of pendent state claims.
We reverse in part and affirm in part the district court’s dismissal.
I. BACKGROUND.
Plaintiffs-appellants are present and former residents of the John Knox Village retirement community in Lee’s Summit, Missouri. The facility is owned and operated by a not-for-profit corporation of the same name organized under the general corporation law of Missouri. The Village is exempt from federal taxation pursuant to 26 U.S.C. § 501(c)(4), and is exempt from Missouri state and local taxation by virtue of its not-for-profit status.
The residential community consists of approximately 2,500 residents who occupy units in the facility pursuant to Occupancy Agreement contracts. Under the terms of the occupancy agreements, pay.ment of an initial lump sum, or “Entrance Endowment,” entitles a resident to occupy a specific apartment for life. Appellants allege that the endowment fee paid by various plaintiffs ranged in amount from $9,000.00 to more than $50,000.00.
In addition to the entrance endowment, the occupancy agreements call for the payment of a “monthly lodging and/or service charge ... in such amounts as determined by the Board of Directors of the Village.” The agreements state that “the Village proposes to provide” some fifty-one services and facilities out of the monthly charges, including tray and diet service, building and grounds maintenance, scheduled transportation service, laundry service and various medical services.
Appellants allege that the Village is on the verge of bankruptcy, that services have markedly deteriorated, and that they face the loss of the “life care” which they expected and would have received but for fraud both in the inducement of residents to live in the community and in the operation of the Village. Their complaints in eleven counts stated causes of action for common law fraud under state law; violation of Missouri’s Merchandising Practices Act, Mo.Rev.Stat. §§ 407.010 et seq. (1978); breach of fiduciary duty; and RICO violations. Only the RICO counts are directly at issue in this appeal.
The complaints include two RICO counts. In Count I, all defendants except John Knox Village are charged with participation in a pattern of racketeering through numerous acts of mail fraud, and conspiracy to engage in such a course of conduct, in violation of RICO provisions codified at 18 U.S.C. §§ 1961(5), 1962(a), (b), (c), and (d). Count II incorporates the factual allegations of Count I against John Knox Village with a prayer for equitable relief in the form of reorganization of the Village.
The essence of the scheme alleged is that various defendants fraudulently promoted the retirement community with materially false statements as to the Village’s financial soundness and the promise of affordable “life care.” Defendants are further alleged to have breached their fiduciary duty in operating the Village through a pattern of self-dealing. Finally, various defendants, including the Village’s mortgage lender and former accountants, are charged with conspiracy to conceal the fraudulent promotion and operation of the Village.
The named defendants are the not-for-profit corporation John Knox Village; the founder of the Village, Kenneth Berg (hereinafter “Berg”); various not-for-profit corporations allegedly controlled by Berg; the mortgage lender to the Village, Prudential Life Insurance Company of America (hereinafter “Prudential”); the Village’s former accountants, Snyder, Grant & Muehling (hereinafter “SG&M”); two former attorneys employed by various defendants; and various officers and directors of the Village and other not-for-profit organizations named in the complaint.
On March 11, 1981 the district court entered an order granting various defendants’ motions to dismiss, followed by an unpublished memorandum opinion, order and judgment dismissing the complaints in both actions. The court held that the complaints failed to allege an “enterprise” within the meaning of RICO, and that the relief sought in Count II, a reorganization of defendant John Knox Village pursuant to 18 U.S.C. § 1964(a), was not available to private plaintiffs under the RICO Act.
On appeal, appellees renew their contention that (1) appellants failed to allege such “injury to [their] business or property” as is cognizable under RICO, 18 U.S.C. § 1964(c); (2) appellants failed to allege a RICO “enterprise” separate from the “pattern of racketeering”; (3) appellants failed to allege a RICO “enterprise” separate from the “person” or persons who may be culpable under RICO; (4) appellants failed to allege a “pattern of racketeering activity”; (5) appellants failed to allege that defendants “invested” racketeering proceeds in an enterprise, “acquired an interest in” an enterprise through racketeering activity, or “associated with” an enterprise to conduct the enterprise’s affairs through a pattern of racketeering; (6) appellants failed to allege that organized crime was involved in their injury; and (7) the equitable relief requested is not available to private plaintiffs.
This litany of grounds for affirmance includes a number of issues of first impression in the Circuit Courts of Appeals. In reversing, we stress that today’s decision is rendered on the pleadings without the benefit of a full factual record. Moreover, we are bound by a stringent standard in reviewing a Rule 12(b)(6) dismissal. “[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45—46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957) (footnote omitted). A complaint must be viewed in the light most favorable to the plaintiff and should not be dismissed merely because the court doubts that a plaintiff will be able to prove all of the necessary factual allegations. “Thus, as a practical matter, a dismissal under Rule 12(b)(6) is likely to be granted only in the unusual case in which a plaintiff includes allegations that show on the face of the complaint that there is some insuperable bar to relief [citations omitted].” Fusco v. Xerox Corp., 676 F.2d 332, 334 (8th Cir. 1982), quoting Jackson Sawmill Co. v. United States, 580 F.2d 302, 306 (8th Cir. 1978), cert. denied, 439 U.S. 1070, 99 S.Ct. 839, 59 L.Ed.2d 35 (1979).
Pleadings should be construed to do substantial justice. Fed.R.Civ.P. 8(f). Specificity sufficient to supply fair notice of the nature of the action will withstand a motion under Rule 12(b)(6). Bramlet v. Wilson, 495 F.2d 714, 716 (8th Cir. 1974); 5 C. Wright & A. Miller, Federal Practice and Procedure, § 1216 at 120-121 (1969).
We are uncertain whether the facts developed at trial will sustain a cause of action under RICO. We are compelled under these standards, however, to reverse in part the district court’s dismissal.
II. DISCUSSION.
A. Standing.
Appellees JKV, Prudential, and SG&M argue as a preliminary matter that appellants failed to allege the kind of injury which supports standing to bring a civil RICO suit. RICO provides that a civil action for treble damages may be brought by “[a]ny person injured in his business or property by reason of a violation of section 1962.” 18 U.S.C. § 1964(c).
Appellants’ complaints alleged several forms of monetary loss. Appellants’ entrance endowment payments are alleged to be worth 10% of what appellants bargained for, due to appellees’ alleged conversion to their own use of funds which were deposited in trust for “life care.” Monthly service charges are also alleged to be higher than expected due to appellees’ unlawful conduct.
Appellees respond that the complaints do not allege a RICO injury for two reasons. First, the complaints are said to assert no breach of contract. Thus they allegedly do not state any injury whatsoever. Alternatively, any injury stated in the complaints allegedly is not an “injury to property” recognizable under the RICO Act. RICO is said to require competitive injury.
We are not convinced. Even if breach of contract is not directly and clearly stated in the complaints, this is irrelevant. Appellants’ basic contention is that the value of their occupancy agreements was misrepresented ab initio, and that appellees’ conduct has further lessened the value of their contracts. The essence of this alleged injury is not so much that contractual terms have been breached, but that the value of the contracts is different than appellants were led to expect through ex-tracontractual statements and promises. The allegation sounds as one of injury flowing from fraud rather than breach of contract. Appellants claim essentially to have been deprived of the benefit of their bargain.
Appellees’ second argument is somewhat more troublesome. They contend that even if appellants have alleged an injury, they have not alleged an “injury to property” within the meaning of Section 1964(c). Section 1964(c) provides a private cause of action modelled on the antitrust laws. S.Rep.No.617, 91st Cong., 1st Sess., 80-82, 125, 160 (1969) (hereinafter cited as S.Rep. No.617); 115 Cong.Rec. 6993 (1969) (statement of Sen. Hruska); id. at 39,907 (statement of Sen. McClellan); 116 id. at 585 (1970) (synopsis of S. 30, 91st Cong., 1st Sess. (1969)); id. at 35,916 (statement of Rep. Celler); id. at 35,201 (statement of Rep. McCulloch); id. at 36,296 (statement of Sen. Dole). Appellees argue from this fact that the “injury to property” alleged under Section 1964(c) must be an injury to competitive or commercial interests.
This argument has found favor with some courts. Van Schaick v. Church of Scientology, 535 F.Supp. 1125 (D.Mass.1982) (requiring commercial harm though not competitive injury); North Barrington Development, Inc. v. Fanslow, - F.2d -, No. 80-C-2644 (N.D.Ill. Oct. 9, 1980) (requiring competitive injury).
We acknowledge that RICO was intended in part to combat the threat posed by racketeer influences in the free market system. H.R.Rep.No.1549, 91st Cong., 2d Sess. 57, reprinted in [1970] U.S.Code Cong. & Ad. News 4007, 4033 (hereinafter cited as H.R. Rep.No.1549); S.Rep.No.617; United States v. Turkette, 452 U.S. 576, 591 & nn. 13, 14, 101 S.Ct. 2524, 2532 & nn. 13, 14, 69 L.Ed.2d 246 (1981) (and citations to legislative history therein). This does not mean, however, that RICO should be viewed as an extension of antitrust law in all respects. Different policies underlie the two bodies of law. To ruin an antitrust defendant, usually a legitimate businessman, would generally lessen competition and increase concentration in a particular industry. RICO, on the other hand, is concerned to “strik[e] ... a mortal blow against the property interests of organized crime.” 116 Cong.Rec. 602 (1970) (statement of Sen. Hruska). In a RICO context, there are few countervailing reasons to lessen the impact of RICO remedies by importing the limitations on standing which apply in antitrust law. In other words, although RICO borrowed the tools of antitrust law to combat organized criminal activity, we do not believe the RICO Act was limited to the antitrust goal of preventing interference with free trade. Congress did not see the objectives of RICO and the antitrust laws as coterminous. See S.Rep. No.617 at 81-82; 115 Cong.Rec. 6993 (statement of Sen. Hruska); id. at 9567 (statement of Sen. McClellan); 116 id. at 607 (1970) (statement of Sen. Byrd); id. at 35,-193 (statement of Rep. Poff).
We conclude that an allegation of commercial or competitive injury is not required by the RICO Act. Prudential Lines, Inc. v. McKeon, No. 80 Civ. 5853 (S.D.N.Y. April 21, 1982); Landmark Savings & Loan v. Rhoades, 527 F.Supp. 206, 208 (E.D.Mich. 1981); Hellenic Lines, Ltd. v. O’Hearn, 523 F.Supp. 244, 248 (S.D.N.Y.1981) (RICO does not countenance racketeering activity merely because it is done uniformly among competing concerns); see also Note, Civil RICO: The Temptation and Impropriety of Judicial Restrictions, 95 Harv.L.Rev. 1101, 1109— 1114 (1982) (hereinafter cited as Note, Civil RICO); Blakey & Gettings, Racketeer Influenced and Corrupt Organizations (RICO): Basic Concepts-Criminal and Civil Remedies, 53 Temple L.Q. 1009, 1040-1043 (1980) (hereinafter cited as Blakey & Gettings, Basic Concepts); Seiling, Standing Rules and the RICO Treble Damage Action, 1 Materials on RICO 533-73 (R. Blakey ed. 1980); but see Comment, Reading the “Enterprise” Element Back into RICO: Sections 1962 and 1964(c),” 76 Northwestern L.Rev. 100, 125-26 (1981) (private damage suit under RICO may be brought only where there is competitive injury resulting from an “enterprise’s” distinct involvement in the racketeering activity) (hereinafter cited as Comment, Reading the “Enterprise” Element Back into RICO ).
B. “Enterprise” Distinct From the “Pattern of Racketeering.”
Turning to the substantive elements of a RICO claim, appellees next contend that the complaints fail to allege the existence of an enterprise distinct from the alleged pattern of racketeering. This contention, and several others that follow, requires attention to the complex syntax of the RICO statute, which appellants have been all too inclined to ignore.
The RICO Act makes it unlawful for any person to conduct the affairs of an “enterprise” through a pattern of racketeering activity. 18 U.S.C. § 1962(c). Significantly, the statute forbids the predicate acts of racketeering only insofar as an “enterprise” is involved. By requiring proof of an “enterprise,” RICO requires proof of a fact other than the facts required to prove the predicate acts of racketeering. United States v. Anderson, 626 F.2d 1358, 1367 (8th Cir. 1980), cert. denied, 450 U.S. 912, 101 S.Ct. 1351, 67 L.Ed.2d 336 (1981). RICO is not a recidivist statute with enhanced penalties for acts of racketeering that are elsewhere proscribed in the criminal code. Id. at 1368 n.17. “The . . . enterprise at all times remains a separate element which must be proved[.]” United States v. Turkette, 452 U.S. at 583, 101 S.Ct. at 2528; United States v. Anderson, 626 F.2d 1538.
In the present case, the district court assumed that the enterprise alleged in the complaint, if any, is the corporate entity John Knox Village. The court noted that the complaint portrayed the Village as “pervasively fraudulent.” In light of this fact, the court concluded that the Village was not alleged to have an existence apart from the acts of racketeering.
We disagree, although our finding of a RICO enterprise is circumscribed as to Count II for the reasons discussed in Section C.
The complaint alleges and appellees themselves stress that John Knox Village provides numerous legitimate services. As an entity providing such services, and as an incorporated body under the laws of the State of Missouri, the John Knox Village corporation has an ascertainable structure apart from any predicate acts of mail fraud. As we held in Anderson and as the Supreme Court noted in Turkette, an enterprise may be said to exist where such separateness from the acts of racketeering can be found. Discrete existence, rather than the legality or illegality of the enterprise’s activities or goals, is the test. United States v. Turkette, 452 U.S. at 585, 101 S.Ct. at 2530; United States v. Anderson, 626 F.2d at 1372 (“[W]e do not rest our holding on the word ‘legitimate’ but rather on the need for a discrete economic association existing separately from the racketeering activity.”).
An enterprise is particularly likely to be found where, as here, the enterprise alleged is a legal entity rather than an “associational enterprise.” Legal entities are garden-variety “enterprises” which generally pose no problem of separateness from the predicate acts. E.g., United States v. Swiderski, 593 F.2d 1246 (D.C.Cir.1978), cert. denied sub nom. McGowan v. United States and Swiderski v. United States, 441 U.S. 933, 99 S.Ct. 2056, 60 L.Ed.2d 662 (1979) (legitimate restaurant serving as front for narcotics trafficking); United States v. Brown, 583 F.2d 659 (3d Cir. 1978), cert. denied sub nom. Greenblatt v. United States, 440 U.S. 909, 99 S.Ct. 1217, 59 L.Ed.2d 456 (1979) (auto dealership); United States v. Weatherspoon, 581 F.2d 595 (7th Cir. 1978) (beauty college); United States v. Forsythe, 560 F.2d 1127 (3d Cir. 1977) (bail bond agency); United States v. Parness, 503 F.2d 430 (2d Cir. 1974), cert. denied, 419 U.S. 1105, 95 S.Ct. 775, 42 L.Ed.2d 801 (1975) (foreign hotel and gambling casino).
We conclude that John Knox Village appropriately is named as an enterprise in the complaints for purposes of stating a RICO claim. We do not presently decide whether the various not-for-profit corporations named in the complaint are also “enterprises” within RICO. We further do not decide whether Kenneth Berg, founder of the Village, or other individual defendants may be enterprises. See 18 U.S.C. § 1961(4) (enterprise includes “any individual”); United States v. Elliott, 571 F.2d 880, 898 n.18 (5th Cir.), cert. denied sub nom. Delph v. United States, 439 U.S. 953, 99 S.Ct. 349, 58 L.Ed.2d 344 and Hawkins v. United States, 439 U.S. 953, 99 S.Ct. 349, 58 L.Ed. 344 (1978); United States v. Hawkins, 516 F.Supp. 1204, 1206 (M.D.Ga.1981) (single individual may be an enterprise).
C. “Enterprise” Distinct From the Culpable “Person.”
The RICO Act proscribes conduct in which one party, the “person” subject to the statute, acts upon an entity, the “enterprise,” in such a manner that the enterprise’s affairs are conducted through a pattern of racketeering. Appellee Prudential separately argues that an “enterprise” was not alleged apart from the “person” who “associated with” an enterprise for purposes of racketeering. We agree as to Count II of the complaints.
Count II is marked by a realignment of the defendant parties. In Count I, appellants seek treble damage relief from all defendants except for John Knox Village, leaving the Village in the role of the “enterprise” affected by the other defendants’ allegedly illegal acts. In Count II, equitable relief is sought from JKV. Accordingly, this count places the Village in the role of the “person” responsible for conducting the affairs of an enterprise through a pattern of racketeering activity. In this formulation, appellants may intend to place the residential community in the role of the RICO “enterprise.” The residential community, so perceived, would arguably be an “association in fact” for purposes of RICO. 18 U.S.C. § 1961(4). This allegation, however, has not been clearly set forth. For this reason, we conclude that the RICO claim as stated in Count II against John Knox Village cannot stand. Van Schaick v. Church of Scientology, 535 F.Supp. 1125 (D.Mass.1982). Compare United States v. Hartley, 678 F.2d 961 (11th Cir. 1982), reaching a somewhat different result in unique context in a criminal case.
We suggest that on remand appellants should be permitted to amend their complaint, if indeed they fairly may, so as to include some of what is now in Count II, but containing at least an appropriate “enterprise” allegation. Rule 15(a) declares that leave to amend “shall be freely given when justice so requires,” and this mandate is to be heeded. See generally 3 J. Moore, Moore’s Federal Practice, UK 15.08, 15.10 (1982); Asay v. Hallmark Cards, Inc., 594 F.2d 692, 695-96 (8th Cir. 1979). The pleading rules have been interpreted in accord with the principle that the purpose of pleading is to facilitate a proper decision on the merits. Id. at 695.
D. Pattern of Racketeering.
Appellees next contend that the complaints fail to allege a “pattern of racketeering.” Although “multiple incidents” of mail and wire fraud are alleged, and although racketeering activity includes mail and wire fraud, 18 U.S.C. § 1961(1), the complaints are said to lack the specificity required for pleadings of fraud under Fed. R.Civ.P. 9(b). We find some merit in this argument.
Rule 9(b) requires that “the circumstances constituting fraud ... be stated with particularity.” “Circumstances” include such matters as the time, place and contents of false representations, as well as the identity of the person making the misrepresentation and what was obtained or given up thereby. See generally 2A J. Moore & J. Lucas, Moore’s Federal Practice, 19.03 at 9-18 — 9-24 (1982).
The complaints state the time, place and content of only some of the defendants’ alleged misrepresentations. The location of other allegedly false statements is said to be a “pamphlet,” “promotional material,” or “a typical life-care contract.” These allegations are not sufficiently particular to satisfy Rule 9(b). The complaints also fail to attribute certain false statements to identified defendants. Instead “various other defendants” are alleged to be responsible for the statements. These allegations utterly fail to apprise defendants of the claims against them and the acts relied upon as constituting the fraud charged. See 5 C. Wright & A. Miller, Federal Practice and Procedure, § 1297 at 404 (1969); Felton v. Walston & Co., 508 F.2d 577, 581 (2d Cir. 1974).
We hold that on remand allegations which fail in particularity, see nn. 14, 15, should be struck without prejudice. Insofar as some paragraphs contain allegations against both identified and unidentified defendants, these paragraphs may stand as to named defendants if, as to the named defendants, the paragraphs are otherwise specific in stating the time, place and content of the misrepresentations.
Appellees JKV and Prudential also argue that a pattern of racketeering has not been alleged because no allegations of wire or mail fraud are made. This argument ignores numerous allegations of particular false statements. See n.13, supra. Use of the mails and wire fraud is also alleged.
In sum, we conclude that a pattern of racketeering was alleged, and that fraud was alleged with sufficient particularity except for the allegations identified in nn.1415.
E. Involvement of Organized Crime.
Appellee SG&M finally contends that a RICO complaint will lie only where the involvement of organized crime is alleged. This argument has found some degree of support, Waterman Steamship Corp. v. Avondale Shipyards, Inc., 527 F.Supp. 256, 260 (E.D.La.1981); Adair v. Hunt International Resources Corp., 526 F.Supp. 736, 746-48 (N.D.Ill.1981); Barr v. WUI/TAS, Inc., 66 F.R.D. 109, 113 (S.D.N.Y.1975), from courts which may have been swayed by Congress’s evident concern with organized crime in the passage of RICO. See United States v. Turkette, 452 U.S. at 588-93 & nn. 11, 12, 13, 14, 101 S.Ct. at 2531-33 & nn. 11, 12, 13, 14 (and legislative history cited therein); H.R.Rep.No.1549, reprinted in [1970] U.S.Code Cong. & Ad.News 4007; S.Rep.No.617; see also Comment, Organized Crime and the Infiltration of Legitimate Business: Civil Remedies for “Criminal Activity,” 124 U.Pa.L.Rev. 192, 205 (1975).
We are convinced that the better reasoned approach is one which rejects any attempt to interpret RICO as creating a status offense aimed only at organized crime in any colloquial sense of that phrase. The legislative history of the Act suggests that RICO is aimed more broadly at organized criminal activity as well. 116 Cong. Rec. 35, 344 (1970) (statement of Rep. Poff) (Organized crime “serve[s] simply as a shorthand method of referring to a large and varying group of individual criminal offenses committed in diverse circumstances. ). In fact, a restriction of the statute’s applicability to organized crime, defined as a specific group of individuals, appeared constitutionally suspect to the bill’s sponsor. Id. at 35,204 (statement of Rep. Poff). When Representative Biaggi proposed an amendment that would have specifically criminalized membership in the Mafia or La Cosa Nostra, Representative Celler objected that such terms were “imprecise, uncertain and unclear” and that mere membership in an organization should not be punished. Id. at 35,343-44 (statement of Rep. Celler, citing Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962); Scales v. United States, 367 U.S. 203, 81 S.Ct. 1469, 6 L.Ed.2d 782 (1961); Lanzetta v. New Jersey, 306 U.S. 451 (1939)).
We join an increasing number of courts and commentators in concluding that RICO suits are not limited to contexts in which a tie to organized crime is alleged. United States v. Aleman, 609 F.2d 298,303-04 (7th Cir. 1979), cert. denied, 445 U.S. 946, 100 S.Ct. 1345, 63 L.Ed.2d 780 (1980); United States v. Campanale, 518 F.2d 352, 363-64 (9th Cir. 1975), cert. denied sub nom. Matthews v. United States, 423 U.S. 1050, 96 S.Ct. 777, 46 L.Ed.2d 638 (1976); Hellenic Lines, Ltd. v. O’Hearn, 523 F.Supp. at 247-48; Engl v. Berg, 511 F.Supp. 1146, 1155 (E.D.Pa.1981); Parnes v. Heinhold Commodities, 487 F.Supp. 645, 646 (N.D.Ill. 1980); United States v. Gibson, 486 F.Supp. 1230, 1240-41 (S.D.Ohio 1980); United States v. Chovanec, 467 F.Supp. 4
Question: This question concerns the second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case?
A. agriculture
B. mining
C. construction
D. manufacturing
E. transportation
F. trade
G. financial institution
H. utilities
I. other
J. unclear
Answer:
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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.
CREEDON v. BABCOCK.
No. 5596.
Circuit Court of Appeals, Fourth Circuit.
Aug. 14, 1947.
Nathan Siegel, Sp. Appellate Atty., of Washington, D. C. (Hugo V. Prucha, of Cleveland, Ohio, and Irving M. Gruber, of Washington, D. C., on the brief), for appellant.
Cornelius P. Mundy and Edward A, Smith, both of Baltimore, Md., for appel-lee.
Before PARKER, SOPER and DOBIE, Circuit Judges.
DOBIE, Circuit Judge.
This is an appeal by the successor to the Price Administrator (hereinafter referred to as OPA) from a judgment of the United States District Court for the District of Maryland, dismissing (except to a limited extent) an action for statutory damages instituted pursuant to Section 205(e) and Section 205(a) of the Emergency Price Control Act of 1942, as amended, (50 U.S.C.A.Appendix •§ 925(e), (a) (hereinafter referred to as the Act), for alleged violations of the Rent Regulation for Housing, 7 F.R 4902, 8 F.R. 7322, as amended 8 F.R. 9020, 9 F.R. 11335, 10 F.R. 2401 (hereinafter referred to as the Regulation). The principal issue on this appeal was raised when Babcock, defendant and appellee, made a motion to dismiss on the grounds that the statute of limitations barred the suit. The opinion of the lower court may be found in D.C., 65 F.Supp. 380.
The material facts are not disputed and may be summarized by a brief chronology. Babcock, owner of a basement apartment, changed the apartment from an unfurnished to a furnished apartment, and rented it as a furnished apartment for the first time on December 14, 1943, fixing a new rental of $100 per month. At that time the controlling Regulation provided:
"Maximum rents. — Maximum rents (unless and until changed by the Administrator as provided in section 5) shall be: * * *
(j) Changed on or after July 1, 1943, or the effective date of regulation, whichever is the later, from unfurnished to furnished. For housing accomodations changed on or after July 1, 1943, or the effective date of regulation, whichever is the later, from unfurnished to fully furnished, the first rent for such accommodations after such change. The Administrator may order a decrease in the maximum rent as provided in section 5 (c) (1).
Within 30 days after the accommodations are first rented fully furnished, the landlord shall register the accommodations as provided in section 7. If the landlord fails to file a registration statement within the time specified, the rent received from the time of such first renting, shall be received subject to refund to the tenant of any amount in excess of the maximum rent which may later be fixed by an order under section 5 (c) (1). In such case, the order under section 5 (c) (1) shall be effective to decrease the maximum rent from the time of such first renting. The foregoing provisions and any refund thereunder do not affect any civil or criminal liability provided by the act for failure to file the registration statement required by section 7.” 8 F.R. 9020, 9 F.R. 11336-7.
Instead of registering the premises within 30 days of December 14, 1943, as required by the Regulation quoted, Babcock delayed 10 months before registering on October 14, 1944.
On November 25, 1944, the Area Rent Director, OPA, pursuant to authority contained in Section 5 (c) of the Regulation, reduced the maximum rent for the furnished apartment to $72.50 per month, effective beginning with “the next regular rent payment period.”
Shortly thereafter OPA notified Bab-cock that the order would be modified so as to make the reduction in rent retroactive to December 14, 1943, (the first day the apartment was rented furnished). Babcock did not exercise her right, stated in the Notice, to file objection to this proposed modification. Accordingly, on December 30, 1944, a new order was issued, changing the order of November 25, 1944, by making the effective date of the order relate back to the date the apartment was rented furnished. This order also provided: “All rent received by you since the effective date of this order, in excess of the maximum legal rent established hereby, namely $72.50 per mo., is subject to refund to the tenant. Upon your failure to make such refund within 30 days from the date hereof, the excess payment received will be considered an overcharge within the meaning of Section 205 (e) of the Emergency Price Control Act of 1942, as amended, subjecting you to a damage action in accordance with that section.”
Babcock refused to comply with this order of December 30, 1944, directing her to refund the overcharges. The tenant failed to sue and OPA filed a complaint for treble damages. This complaint was filed on September 6, 1945.
Whether there is a statutory limitation barring this suit hinges upon the construction to be given Section 205 (e) of the Act. This Section provides: “If any person selling a commodity violates a regulation, order, or price schedule prescribing a maximum price or maximum prices, the person who buys such commodity for use or consumption other than in the course of trade or business may, within one year from the date of the occurrence of the violation, except as hereinafter provided, bring an action against the seller on account of the overcharge. * * * ' For the purposes of this section the payment or receipt of rent for-defense-area housing accommodations shall be deemed the buying or selling of a commodity, as the case may be; and the word ‘overcharge’ shall mean the amount by which the consideration exceeds the applicable maximum price. If any person selling a commodity violates a regulation, order, or price schedule prescribing a maximum price or maximum prices, and the buyer either fails to institute an action under this subsection within thirty days from the date of the occurrence of the violation or is not entitled for any reason to bring the action, the Administrator may institute such action on behalf of the United States within such one-year period. If such action is instituted by the Administrator, the buyer shall thereafter be barred from bringing an action for the same violation or violations. * * * The amendment made by subsection (b), insofar as it relates to actions by buyers or actions which may be brought by the Administrator only after the buyer has failed to institute an action within thirty days from the occurrence of the violation, shall be applicable only with respect to violations occurring after the date of enactment of this Act. * * * ” (Italics added.)
It should be noted at the outset that the validity of the order of December 30, 1944, is not before us since that question could not be raised in the court below. Bowles v. Meyers, 4 Cir., 149 F.2d 440; Porter v. Eastern Sugar Associates, 4 Cir., 159 F.2d 299.
Failure to register gave no right to sue .and therefore does not govern the limitation period. Compare Rawlings v. Ray, 312 U.S. 96, 61 S.Ct. 473, 85 L.Ed. 605. Until the last day on which refund could be made in compliance with the OPA order, that is, 30 days after the order was issued, or January 30, 1945, there could be no violation. This must be so since a refund payment prior to that date would have been in full compliance with the order and hence would have given no foundation for suit. It follows necessarily from the plain and imperative words of the Act — “within one year from the date of the occurrence of the violation” — that the limitation period started the day following January 30, 1945, which was the date of the occurrence of the violation. The lower court so ruled as to the date of the occurrence of the violation, Bowles v. Babcock, D.C., 65 F. Supp. 380, 384, and this is in accord with the weight of authority. Porter v. Butts, D.C., 68 F.Supp. 516; Haber v. Garthly, D.C., 67 F.Supp. 774; Porter v. Sandberg, D.C., 69 F.Supp. 29; Parham v. Clark, D. C. , 68 F.Supp. 17; Fleming v. Schleicher, D. C., 72 F.Supp. 895. But compare Thompson v. Taylor, D.C., 62 F.Supp. 930.
The court below reasoned further, however, that recovery was limited to the period from September 6, 1944, (one year prior to the date of the complaint) to November 11, 1944, (the date Babcock reduced the rent to $72.50). To limit recovery from September 6, 1944, correlates the limitation period of the Act to the time when the overcharges were received. In other words, by treating the violation as synonymous with and the overcharge period coeval. This, we think, is an erroneous construction of the Act.
It becomes apparent, upon a close reading of the Act, that the word lÁolation is used in a sense that is quite separate and distinct from the word overcharge. Particularly significant is the first sentence of Section 205 (e) quoted above: “If any person selling a commodity violates a * * * order * * * prescribing a maximum price * * * the person who buys such commodity * * * may, within one year from the date of the occurrence of the violation * * * bring an action against the seller on account of the overcharge * * Violation is used to indicate the point from which the statute begins to run, whereas overcharge indicates the basis of, and the yardstick for, damages.
Appellee challenges this construction by pointing to the history of the Act. It is quite true that Section 205 (e) provided before amendment, 56 Stat. 33, that suit should be brought within one year after the “rent is paid.” That language, of course, favored the defendant in a suit of this sort. Next, the contention is made that there was never any intention on the part of the Congress to tamper with the provisions relating to the limitation period because the legislative committee reports disclose no such intention. See Report of the Senate Committee on Banking and Currency, Sen.Rep. No. 922, 78th Congress, 2d Session, p. 13. The committee reports appear to be entirely silent on this subject. But however persuasive this line of reasoning might be in some situations, it cannot prevail here for it ignores a cardinal rule of statutory construction. There is little or no place for extrinsic aids when a statute employs words that are made plain by the very terms of the statute. Caminetti v. United States, 242 U.S. 470, 37 S.Ct. 192, 61 L.Ed. 442, L.R.A.1917F, 502, Ann. Cas.1917B, 1168. Surely such subjective and nebulous conclusions as might arise from the silence of a committee report must yield to the literal but clear words on the face of the statute. Especially is this true when the result thereby reached is practical. We think the language of the Act makes a clear distinction between violation and overcharge. We conclude, therefore, that none of the claim here involved is barred by the statute of limitations. This conclusion fully accords with the generally established rule that a limitation period begins to run only after the accrual of the right to prosecute a claim or cause of action. 34 Am.jur. (Limitation of Action) § 113. There was no such right here until the “occurrence of the violation,” and that, as we have pointed out, did not come into being until Babcock refused to comply with the order of December 30, 1944.
Question has also been raised of the lower court’s ruling that Babcock was not liable for treble damages. An amendment to Section 205 (e) of the Act provides that treble damages are not to be assessed “if the defendant proves that the violation of the regulation, order, or price schedule in question was neither willful nor the result of failure to take practicable precautions against the occurrence of the violation.” (Italics ours.) We find nothing in the recitation of facts in the complaint from which it could be said as a matter of law that Babcock was entitled to this so-called “Chandler defense” against treble damages. No evidence was taken below and the case went off on a motion to dismiss. We conclude, therefore, that the lower court was in error in ruling on the question without some kind of hearing. It may be that upon such hearing the facts set forth in the complaint together with evidence of lack of intent to violate the act and evidence of reasonable care in the premises may justify a finding of defendant’s right to relief under the “Chandler defense”; but this is a matter to be determined upon the proofs in the further hearing of the case. It should be noted, also, that whether triple damages' are to be assessed is left to the discretion of the trial judge, the language of the statute with regard thereto being “such amount not more than three times the amount of the overcharge or the overcharges, upon which the action is based as the court in its discretion may determine.” (Italics ours.)
The judgment appealed from is reversed and the cause remanded to the District Court for further proceedings, in accordance with this opinion.
Reversed and remanded.
Question: What party initiated the appeal?
A. Original plaintiff
B. Original defendant
C. Federal agency representing plaintiff
D. Federal agency representing defendant
E. Intervenor
F. Not applicable
G. Not ascertained
Answer:
|
songer_initiate
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify what party initiated the appeal. For cases with cross appeals or multiple docket numbers, if the opinion does not explicitly indicate which appeal was filed first, assumes that the first litigant listed as the "appellant" or "petitioner" was the first to file the appeal. In federal habeas corpus petitions, consider the prisoner to be the plaintiff.
John D. McALLISTER, Appellant, v. Roy D. DRIEVER, t/a Skyway Auto Parts, Appellee.
No. 8892.
United States Court of Appeals Fourth Circuit.
Argued March 28, 1963.
Decided June 3, 1963.
Marvin Ellin, Baltimore, Md., for appellant.
Thomas G. Andrew, Baltimore, Md., (A. Freeborn Brown, Bel Air, Md., and Rollins, Smalkin, Weston & Andrew, Baltimore, Md., on brief) for appellee.
Before HAYNSWORTH, BOREMAN and BRYAN, Circuit Judges.
BOREMAN, Circuit Judge.
This is an appeal by plaintiff, McAllister, from the District Court’s grant of motion for judgment n. o. v. in favor of defendant, Driever, after the jury had returned a verdict awarding damages to McAllister for personal injuries and damages to his automobile resulting from collision with Driever’s unattended tow truck.
At the time of the collision, approximately 4:00 A.M. on May 31, 1961, defendant’s unattended and unlighted tow truck was standing motionless in the right westbound lane of U. S. Route 40 near Havre de Grace, Maryland, about 150 feet from Driever’s service station building. The jury finding, unchallenged here, was that McAllister, traveling west in the right-hand lane of U. S. Route 40 at a speed less than posted limit and in darkness, was not guilty of contributory negligence. The evidence showed that at about 10:00 or 11:00 P.M. on May 30, 1961, an employee of defendant had parked the tow truck with the brake set and the key in the ignition switch at a point on the private driveway of defendant’s auto repair shop, junkyard and service station about 50 feet from the westbound lane of the highway; that the tow truck was so placed between the gas pumps and other parked vehicles that it could not possibly have drifted onto the highway, and that no one connected with defendant or his business moved the truck or authorized any other person to move it after it was so parked. A state trooper investigating the accident found the manifold and crankcase oil of the tow truck still warm about thirty minutes after the accident and further found skid marks of the truck on the highway indicating that the truck’s emergency brake was set at the time of impact. Although there was evidence to indicate that defendant had theretofore reported to the State police the theft of auto parts from his business premises, there was no evidence to show that any theft or unauthorized moving of a motor vehicle was known by the defendant to have occurred on his premises prior to the night of the accident. It appeared from the testimony that because the truck was used as an emergency vehicle, it was always parked, with the key in the ignition switch, on defendant’s service station premises within about 50 feet of heavily traveled U. S. Route 40, and thus readily available to any one of defendant’s several employees who might need to use it.
In this action brought under the diversity jurisdiction of the federal courts, 28 U.S.C. § 1332, involving an accident which occurred in Maryland, the law of that state must govern. Pertinent here is article 66½, section 247, Annotated Code of Maryland (1957), which provides:
Ҥ 247. Unattended motor vehicle.
“No person driving or in charge of a motor vehicle shall permit it to stand unattended without first stopping the engine, locking the ignition and removing the key, or when standing upon any perceptible grade without effectively setting the brake thereon and turning the front wheels to the curb or side of the highway.”
At the trial the District Court held as a matter of law that Driever had violated this statute and was negligent in failing to remove the ignition key but submitted the questions of proximate cause and contributory negligence to the jury. Upon motion, the court later granted judgment n. o. v. in favor of defendant but did not disclose its reasons therefor in either an oral or written opinion.
The issues presented by this appeal are whether, under Maryland law and the facts as shown, the leaving of the key in the ignition switch of defendant’s unattended tow truck can be held (1) to breach a statutory duty of care owed by defendant to plaintiff, and (2) to be the proximate cause of plaintiff’s injuries.
The case most helpful in determining the principles of Maryland law governing this case is Liberto v. Holfeldt, 221 Md. 62, 155 A.2d 698 (1959). There the plaintiff sought recovery on the theory that defendant was negligent in leaving the key in the ignition switch of her parked car in violation of the unattended motorist statute, art. 66%, § 247, supra, and that this negligence was the proximate cause of plaintiff’s injuries. The facts were that the defendant left the key in the ignition switch of her automobile which she had parked on a city street for a very short time and when she returned the car was gone. The plaintiff was injured five days later at a considerable distance across Baltimore from the place where the ear was parked when an unauthorized stranger, who was apparently the thief, negligently drove the defendant’s car through a red light. The Maryland Court of Appeals stated that two interrelated questions were involved: (1) Did the act of violating the unattended motorist statute constitute a breach of a duty owed by the defendant to the plaintiff; and (2), if that be established, was the negligent act of leaving the key in the ignition switch the proximate cause of the injuries sustained? The court answered both questions in the negative and found the defendant free of liability.
Emphasizing the element of foreseeability throughout its opinion in Liberto, the court held that the injury sustained by the plaintiff was too remote, both in time and space, from the negligent act of the defendant in failing to remove the ignition key for any duty created by the statute to run to the benefit of the plaintiff. The meaning of the unattended motorist statute was explained in these words, 221 Md. at 66, 155 A.2d at 701:
“ * * * The duty to the public created by the statute was primarily to protect against a theft of or tampering with a motor vehicle and to prevent them from moving under their own momentum should the brakes fail. Such duty, in all reasonableness, cannot be said to extend to all the world, but must be a foreseeable duty to a class of which the plaintiff was a member. [Citation omitted.] If a duty not to injure was created by the statute, it must be one of more immediate foreseeability and not so remote as was the case here. In the recent case of Corinti v. Wittkopp, 1959, 355 Mich. 170, 93 N.W.2d 906, the Court in interpreting the effect of a statute almost identical with § 247, supra, stated [at page 909 of 93 N.W.2d]:
“ ‘To our knowledge, no court has yet held such a statute * * to impose upon a driver a duty to remove his keys running to the benefit of any person whom a thief or his successor in possession might meet and injure hours, days or weeks after the theft.’ ”
In finding that the negligence of the defendant was not the proximate cause of the injury, the Liberto court emphasized the burden upon the plaintiff to show that the violation of the statute was the proximate cause of the injury and said, 221 Md. at 67, 155 A.2d at 701:
“ * * * Again, we agree with the majority of the courts and hold that in this case the negligence of the defendant was not the proximate cause of the injury both on the basis that it was not foreseeable that the thief would be involved in an accident five days later and that the negligence of the thief was an independent intervening cause which was in fact the proximate cause of the accident.”
In (determining whether the law discussed in Liberto, supra, is applicable to the present case, it is necessary to consider several facts which distinguish this case from Liberto. Remoteness in time and space was found to be significant in the Liberto court’s holding that no duty of care extended from the plaintiff to the defendant and that it was not foreseeable the thief would be involved in an accident five days later. In the case at bar, plaintiff’s collision with the tow truck took place within six hours and only 150 feet from the position in which the last authorized driver had parked the tow truck. Another distinguishing fact is that the tow truck was parked on the private property of the defendant and not on a public street or highway as was the car of the defendant in the Liberto case. That the unattended motorist statute applies to public streets and highways is not open to question (see Liberto, supra; Hochschild, Kohn & Co. v. Canoles, 193 Md. 276, 66 A.2d 780 (1949)), but the Maryland Court of Appeals, insofar as we have been able to determine, has not definitely held that the unattended motor vehicle statute applies to a vehicle parked on private property. See Brill v. Wilbanks, 222 Md. 248, 159 A.2d 657 (1960), and Waltzinger v. Birsner, 212 Md. 107, 128 A.2d 617 (1957). It is true, as plaintiff contends, that in the Waltzinger case the court held the statute correctly stated the standard of due care to be observed when leaving a motor vehicle unattended on a roadway which visitors to a large convalescent home or home for the aged are invited to use. But no unauthorized person undertook to move the car in the Waltzinger case and the invitation to the public to use the nursing home’s roadway was clearly general and factually distinguishable since, in the instant case, there was no implied invitation to use defendant’s partially blocked driveway at his unlighted premises, not then open for business and late in the night.
Therefore, we cannot say whether the Maryland court would construe and apply the statute as establishing a standard of care under the particular facts of this case. The court belmv apparently concluded that a standard of care imposed by the statute was violated when it instructed the jury to accept, as proved, the fact that there was negligence on the part of the defendant. Whether the District Court adhered to or receded from this view in granting defendant’s motion for judgment n. o. v. cannot be ascertained from the record, since the judge failed to disclose his reasons for granting the motion. In any event, it is not clear to us that the statutory standard of care would necessarily apply in this case. In view of the evidence adduced by the defendant to show a plausible reason for leaving the key in the tow truck and the sparsity of evidence to indicate that the theft of the tow truck was foreseeable, we believe the question of defendant’s negligence in leaving the key in the ignition switch of the tow truck, parked on his own private property, was one on which reasonable men could differ and which should have been submitted to the jury for determination.
On the issue of proximate cause, however, the applicability of the law of Liberto, supra, to the facts of this case is apparent. There the negligence of the thief in driving the defendant’s car through a red light was held to be both unforeseeable and an independent intervening cause which was the proximate cause of the accident. That this holding was an alternative basis for denying recovery to the plaintiff in Liberto, sufficient in itself to relieve the defendant of liability, is clear from the court’s language, quoted supra, and from Anderson V. Theisen, 231 Minn. 369, 43 N.W.2d 272 (1950), which was cited to support it. In Anderson the defendant parked his unlocked car on a public street with the keys in the ignition switch and the motor running in violation of a Minneapolis city ordinance, and the person who stole the car, while in flight from the scene of the theft, negligently drove the defendant’s car into the decedent’s car, causing decedent’s death. The court held in effect that, even assuming the defendant’s violation of the ordinance to be negligence, the thief’s negligent driving was the proximate cause of the collision and any negligence of the defendant was too remote to constitute the proximate cause of the death. Also cited at this point in Liberto was the Maryland case of Bloom v. Good Humor Ice Cream Co., 179 Md. 384, 387, 18 A.2d 592 (1941), as supporting the proposition that where the negligence of one person is merely passive and potential and the negligence of another is the moving and effective cause of the injury, the latter is the proximate cause and determines the liability. Other cases cited in Liberto as representing the view of the majority of the courts with which the Liberto court expressed its agreement also held that the negligent conduct of a thief was an intervening cause which the respective defendants were not bound to anticipate and guard against. See Galbraith v. Levin, 323 Mass. 255, 81 N.E.2d 560 (Mass. 1948); Permenter v. Milner Chevrolet Co., 229 Miss. 385, 91 So.2d 243 (Miss. 1956); Wannebo v. Gates, 227 Minn. 194, 34 N.W.2d 695 (Minn.1948); Slater v. T. C. Baker Co., 261 Mass. 424, 158 N.E. 778 (Mass.1927).
The uncontradicted evidence in the instant case showed that the tow truck could not have been moved, without human manipulation, from its last parking place on defendant’s property to the position on U. S. Route 40 where it was struck by McAllister’s car; that it had not been parked on the highway by defendant or his employee; that its emergency brake was set at the time of the collision, and that its engine was warm thirty minutes after the accident. The only permissible inference to be drawn by the trier of fact from this evidence was that an unknown and unauthorized third person moved the tow truck from its safe position on defendant’s private property and parked it without lights in the right westbound lane of U. S. Route 40 where it hazardously obstructed the right of way. Under the circumstances, the unauthorized action of the unknown person in leaving the tow truck unlighted and on the traveled portion of the highway was clearly negligent and in violation of the Maryland statutes. See art. 66½, §§ 244, 271 and 276, Annotated Code of Maryland (1957) (Supp. 1962), and cases there noted. Such negligence by an unknown third person was no more foreseeable to the defendant here than was the negligence of the various third party thieves and intermeddlers foreseeable to the respective defendants in Liberto and the above mentioned cases therein cited. In each of those cases the court held that any prior negligence of the defendant in leaving the key in the motor vehicle in violation of a statute or ordinance was too remote to be the proximate cause of the accident. We find the situation in the instant case sufficiently similar so that it should be governed by the reasoning of Liberto and the cited cases therein approved and followed. The negligence of the unknown and unauthorized driver was an independent intervening cause which was the proximate cause of the collision and plaintiff’s injuries.
In order to sustain his cause of action, it was incumbent upon plaintiff to show not only that defendant owed him a duty of care and breached it, but also that the breach of that duty had not been interrupted by a break in the chain of causation. We are of the opinion that plaintiff failed to prove that the leaving of the key in the tow truck was the proximate cause of the accident. Therefore, under the applicable law of Maryland, the action of the trial court in granting defendant’s motion for judgment n. o. v. was proper.
Affirmed.
. In Liberto, the Maryland Court of Appeals, in its footnote 1, 221 Md. at 66, 155 A.2d at 700, indicated that it had considered and rejected several ont-of-state cases which were decided on the theory that theft and subsequent negligence in the use of the stolen vehicle were foreseeable and were proximate results of leaving the key in an unattended vehicle in violation of a statute or municipal ordinance. In Ross v. Hartman, 78 U.S.App. D.C. 217, 158 A.L.R. 1370, 139 F.2d 14 (D.C.Cir.1943), cert. denied, 321 U.S. 790, 64 S.Ct. 790, 88 L.Ed. 1080 (1944), one of the cases rejected in Liberto, the theft and accident occurred within two hours after the ignition key was left in the unattended truck, and it was held as a matter of law that the violation of the District of Columbia safety ordinance was negligence and a proximate cause of plaintiff’s injuries because it created the hazard and thereby brought about the harm which the ordinance was intended to prevent. The further comment was made: “The fact that the intermeddler’s conduct was itself a proximate cause of the harm, and was probably criminal, is immaterial.” (139 F.2d at 16.) In Ostergard v. Frisch, 333 Ill.App. 359, 77 N.E.2d 537 (Ill.App.1948), also rejected,’the accident occurred six and one-half blocks from the place of theft, and it, was held that a jury could find the violation of the safety statute was the proximate cause of the plaintiff’s injuries, the court explaining, “ * * * a statute may by its obvious intent enlarge upon the general definition of proximate cause.” The Liberto court also noted Ney v. Yellow Cab Co., 2 Ill.2d 74, 117 N.E.2d 74 (1954), and Garbo v. Walker, Ohio Com.Pl., 129 N.E.2d 537 (C.P., Ohio 1955), in both of which the thief was fleeing the scene in the stolen automobile when the accident occurred and where causation and foreseeability were held to be jury questions. The rejection of these cases by the Maryland Court of Appeals is a further indication of its acceptance of the view that the intervening actions of a thief break the causal chain, leaving neither foreseeability nor proximate cause for jury determination.
Question: What party initiated the appeal?
A. Original plaintiff
B. Original defendant
C. Federal agency representing plaintiff
D. Federal agency representing defendant
E. Intervenor
F. Not applicable
G. Not ascertained
Answer:
|
sc_petitioner
|
058
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the petitioner of the case. The petitioner is the party who petitioned the Supreme Court to review the case. This party is variously known as the petitioner or the appellant. Characterize the petitioner as the Court's opinion identifies them.
Identify the petitioner by the label given to the party in the opinion or judgment of the Court except where the Reports title a party as the "United States" or as a named state. Textual identification of parties is typically provided prior to Part I of the Court's opinion. The official syllabus, the summary that appears on the title page of the case, may be consulted as well. In describing the parties, the Court employs terminology that places them in the context of the specific lawsuit in which they are involved. For example, "employer" rather than "business" in a suit by an employee; as a "minority," "female," or "minority female" employee rather than "employee" in a suit alleging discrimination by an employer.
Also note that the Court's characterization of the parties applies whether the petitioner is actually single entity or whether many other persons or legal entities have associated themselves with the lawsuit. That is, the presence of the phrase, et al., following the name of a party does not preclude the Court from characterizing that party as though it were a single entity. Thus, identify a single petitioner, regardless of how many legal entities were actually involved. If a state (or one of its subdivisions) is a party, note only that a state is a party, not the state's name.
GOMEZ v. PEREZ
No. 71-575.
Argued December 6, 1972
Decided January 17, 1973
Stanley Dalton Wright argued the cause for appellant. With him on the brief were Melvin N. Eichelbaum and Harry B. Adams III.
Joseph Jaworski, by invitation of the Court, 408 TJ. S. 942, argued the cause and filed a brief as amicus curiae in support of the judgment below.
Norman Dorsen, Melvin L. Wulf, and Sanford Jay Rosen filed a brief for the American Civil Liberties Union as amicus curiae urging reversal.
Crawford C. Martin, Attorney General, Nola White, First Assistant Attorney General, Alfred Walker, Executive Assistant Attorney General, and J. C. Davis and Pat Bailey, Assistant Attorneys General, filed a brief for the State of Texas as amicus curiae urging affirmance.
Per Curiam.
The issue presented by this appeal is whether the laws of Texas may constitutionally grant legitimate children a judicially enforceable right to support from their natural fathers and at the same time deny that right to illegitimate children.
In 1969, appellant filed a petition in Texas District Court seeking support from appellee on behalf of her minor child. After a hearing, the state trial judge found that appellee is “the biological father” of the child, and that the child “needs the support and maintenance of her father,” but concluded that because the child was illegitimate “there is no legal obligation to support the child and the Plaintiff take nothing.” The Court of Civil Appeals affirmed this ruling over the objection that this illegitimate child was being denied equal protection of law. 466 S. W. 2d 41. The Texas Supreme Court refused application for a writ of error, finding no “reversible error.” We noted probable jurisdiction. 408 U. S. 920.
In Texas, both at common law and under the statutes of the State, the natural father has a continuing and primary duty to support his legitimate children. See Lane v. Phillips, 69 Tex. 240, 243, 6 S. W. 610, 611 (1887) ; Tex. Fam. Code §4.02 (1970) (husband's duty). That duty extends even beyond dissolution of the marriage, Tex. Rev. Civ. Stat., Art. 4639a (Supp. 1972-1973); Hooten v. Hooten, 15 S. W. 2d 141 (Tex. Ct. Civ. App. 1929), and is enforceable on the child’s behalf in civil proceedings and, further, is the subject of criminal sanctions. Tex. Penal Code § 602. The duty to support exists despite the fact that the father may not have custody of the child. Hooten v. Hooten, supra. The Court of Civil Appeals has held in this case that nowhere in this elaborate statutory scheme does the State recognize any enforceable duty on the part of the biological father to support his illegitimate children and that, absent a statutory duty to support, the controlling law is the Texas common-law rule that illegitimate children, unlike legitimate children, have no legal right to support from their fathers. See also Home of the Holy Infancy v. Kaska, 397 S. W. 2d 208 (Tex. 1965); Lane v. Phillips, supra, at 243, 6 S. W., at 611; Bjorgo v. Bjorgo, 391 S. W. 2d 528 (Tex. Ct. Civ. App. 1965). It is also true that fathers may set up illegitimacy as a defense to prosecutions for criminal nonsupport of their children. See Curtin v. State, 155 Tex. Cr. R. 625, 238 S. W. 2d 187 (1950); Beaver v. State, 96 Tex. Cr. R. 179, 256 S. W. 929 (1923).
In this context, appellant’s claim on behalf of her daughter that the child has been denied equal protection of the law is unmistakably presented. Indeed, at argument here, the attorney for the State of Texas, appearing as amicus curiae, conceded that but for the fact that this child is illegitimate she would be entitled to support from appellee under the laws of Texas.
We have held that under the Equal Protection Clause of the Fourteenth Amendment a State may not create a right of action in favor of children for the wrongful death of a parent and exclude illegitimate children from the benefit of such a right. Levy v. Louisiana, 391 U. S. 68 (1968). Similarly, we have held that illegitimate children may not be excluded from sharing equally with other children in the recovery of workmen’s compensation benefits for the death of their parent. Weber v. Aetna Casualty & Surety Co., 406 U. S. 164 (1972). Under these decisions, a State may not invidiously discriminate against illegitimate children by denying them substantial benefits accorded children generally. We therefore hold that once a State posits a judicially enforceable right on behalf of children to needed support from their natural fathers there is no constitutionally sufficient justification for denying such an essential right to a child simply because its natural father has not married its mother. For a State to do so is “illogical and unjust.” Id., at 175. We recognize the lurking problems with respect to proof of paternity. Those problems are not to be lightly brushed aside, but neither can they be made into an impenetrable barrier that works to shield otherwise invidious discrimination. Stanley v. Illinois, 405 U. S. 645, 656-657 (1972); Carrington v. Rash, 380 U. S. 89 (1965).
The judgment is reversed and the case remanded for further proceedings not inconsistent with this opinion.
It is so ordered.
Section 4.02 became effective after the commencement of appellant’s suit, but the provision is identical (except for punctuation) to its predecessor, Tex. Rev. Civ. Stat., Husband and Wife, Art. 4614, in 1 Tex. Laws, c. 309, p. 736 (60th Legislature, Reg. Sess. 1967). Section 4.02 was enacted as part of a codification of Texas family law.
Tr. of Oral Arg. 24. There was some question at argument whether the statutory scheme relating to paternal support of children was properly drawn into question in the state courts. In the circumstances of this case, we need not resolve the question. First, the State of Texas asserts no prejudice from appellant’s apparent failure to explicitly draw attention to the individual statutes that make up the so-called Texas rule regarding support of legitimate and illegitimate children. On the contrary, the State asserted here that it was prepared to meet appellant’s constitutional attack on its statutes on the merits. Tr. of Oral Arg. 28. Second, under our cases, “the unrestricted notation of probable jurisdiction of the appeal is to be understood as a grant of the writ” of certiorari on “nonap-pealable” issues presented in the case. Mishkin v. New York, 383 U. S. 502, 512 (1966). Appellant’s federal claim, which was rejected in the state courts, that her child was being denied equal protection of laws is, therefore, properly before us in any event.
See also Davis v. Richardson, 342 F. Supp. 588 (Conn.), aff’d, post, p. 1069 (1972); Griffin v. Richardson, 346 F. Supp. 1226 (Md.), aff’d, post, p. 1069 (1972).
Question: Who is the petitioner of the case?
001. attorney general of the United States, or his office
002. specified state board or department of education
003. city, town, township, village, or borough government or governmental unit
004. state commission, board, committee, or authority
005. county government or county governmental unit, except school district
006. court or judicial district
007. state department or agency
008. governmental employee or job applicant
009. female governmental employee or job applicant
010. minority governmental employee or job applicant
011. minority female governmental employee or job applicant
012. not listed among agencies in the first Administrative Action variable
013. retired or former governmental employee
014. U.S. House of Representatives
015. interstate compact
016. judge
017. state legislature, house, or committee
018. local governmental unit other than a county, city, town, township, village, or borough
019. governmental official, or an official of an agency established under an interstate compact
020. state or U.S. supreme court
021. local school district or board of education
022. U.S. Senate
023. U.S. senator
024. foreign nation or instrumentality
025. state or local governmental taxpayer, or executor of the estate of
026. state college or university
027. United States
028. State
029. person accused, indicted, or suspected of crime
030. advertising business or agency
031. agent, fiduciary, trustee, or executor
032. airplane manufacturer, or manufacturer of parts of airplanes
033. airline
034. distributor, importer, or exporter of alcoholic beverages
035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked
036. American Medical Association
037. National Railroad Passenger Corp.
038. amusement establishment, or recreational facility
039. arrested person, or pretrial detainee
040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association
041. author, copyright holder
042. bank, savings and loan, credit union, investment company
043. bankrupt person or business, or business in reorganization
044. establishment serving liquor by the glass, or package liquor store
045. water transportation, stevedore
046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines
047. brewery, distillery
048. broker, stock exchange, investment or securities firm
049. construction industry
050. bus or motorized passenger transportation vehicle
051. business, corporation
052. buyer, purchaser
053. cable TV
054. car dealer
055. person convicted of crime
056. tangible property, other than real estate, including contraband
057. chemical company
058. child, children, including adopted or illegitimate
059. religious organization, institution, or person
060. private club or facility
061. coal company or coal mine operator
062. computer business or manufacturer, hardware or software
063. consumer, consumer organization
064. creditor, including institution appearing as such; e.g., a finance company
065. person allegedly criminally insane or mentally incompetent to stand trial
066. defendant
067. debtor
068. real estate developer
069. disabled person or disability benefit claimant
070. distributor
071. person subject to selective service, including conscientious objector
072. drug manufacturer
073. druggist, pharmacist, pharmacy
074. employee, or job applicant, including beneficiaries of
075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan
076. electric equipment manufacturer
077. electric or hydroelectric power utility, power cooperative, or gas and electric company
078. eleemosynary institution or person
079. environmental organization
080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer.
081. farmer, farm worker, or farm organization
082. father
083. female employee or job applicant
084. female
085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of
086. fisherman or fishing company
087. food, meat packing, or processing company, stockyard
088. foreign (non-American) nongovernmental entity
089. franchiser
090. franchisee
091. lesbian, gay, bisexual, transexual person or organization
092. person who guarantees another's obligations
093. handicapped individual, or organization of devoted to
094. health organization or person, nursing home, medical clinic or laboratory, chiropractor
095. heir, or beneficiary, or person so claiming to be
096. hospital, medical center
097. husband, or ex-husband
098. involuntarily committed mental patient
099. Indian, including Indian tribe or nation
100. insurance company, or surety
101. inventor, patent assigner, trademark owner or holder
102. investor
103. injured person or legal entity, nonphysically and non-employment related
104. juvenile
105. government contractor
106. holder of a license or permit, or applicant therefor
107. magazine
108. male
109. medical or Medicaid claimant
110. medical supply or manufacturing co.
111. racial or ethnic minority employee or job applicant
112. minority female employee or job applicant
113. manufacturer
114. management, executive officer, or director, of business entity
115. military personnel, or dependent of, including reservist
116. mining company or miner, excluding coal, oil, or pipeline company
117. mother
118. auto manufacturer
119. newspaper, newsletter, journal of opinion, news service
120. radio and television network, except cable tv
121. nonprofit organization or business
122. nonresident
123. nuclear power plant or facility
124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels
125. shareholders to whom a tender offer is made
126. tender offer
127. oil company, or natural gas producer
128. elderly person, or organization dedicated to the elderly
129. out of state noncriminal defendant
130. political action committee
131. parent or parents
132. parking lot or service
133. patient of a health professional
134. telephone, telecommunications, or telegraph company
135. physician, MD or DO, dentist, or medical society
136. public interest organization
137. physically injured person, including wrongful death, who is not an employee
138. pipe line company
139. package, luggage, container
140. political candidate, activist, committee, party, party member, organization, or elected official
141. indigent, needy, welfare recipient
142. indigent defendant
143. private person
144. prisoner, inmate of penal institution
145. professional organization, business, or person
146. probationer, or parolee
147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer
148. public utility
149. publisher, publishing company
150. radio station
151. racial or ethnic minority
152. person or organization protesting racial or ethnic segregation or discrimination
153. racial or ethnic minority student or applicant for admission to an educational institution
154. realtor
155. journalist, columnist, member of the news media
156. resident
157. restaurant, food vendor
158. retarded person, or mental incompetent
159. retired or former employee
160. railroad
161. private school, college, or university
162. seller or vendor
163. shipper, including importer and exporter
164. shopping center, mall
165. spouse, or former spouse
166. stockholder, shareholder, or bondholder
167. retail business or outlet
168. student, or applicant for admission to an educational institution
169. taxpayer or executor of taxpayer's estate, federal only
170. tenant or lessee
171. theater, studio
172. forest products, lumber, or logging company
173. person traveling or wishing to travel abroad, or overseas travel agent
174. trucking company, or motor carrier
175. television station
176. union member
177. unemployed person or unemployment compensation applicant or claimant
178. union, labor organization, or official of
179. veteran
180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL)
181. wholesale trade
182. wife, or ex-wife
183. witness, or person under subpoena
184. network
185. slave
186. slave-owner
187. bank of the united states
188. timber company
189. u.s. job applicants or employees
190. Army and Air Force Exchange Service
191. Atomic Energy Commission
192. Secretary or administrative unit or personnel of the U.S. Air Force
193. Department or Secretary of Agriculture
194. Alien Property Custodian
195. Secretary or administrative unit or personnel of the U.S. Army
196. Board of Immigration Appeals
197. Bureau of Indian Affairs
198. Bonneville Power Administration
199. Benefits Review Board
200. Civil Aeronautics Board
201. Bureau of the Census
202. Central Intelligence Agency
203. Commodity Futures Trading Commission
204. Department or Secretary of Commerce
205. Comptroller of Currency
206. Consumer Product Safety Commission
207. Civil Rights Commission
208. Civil Service Commission, U.S.
209. Customs Service or Commissioner of Customs
210. Defense Base Closure and REalignment Commission
211. Drug Enforcement Agency
212. Department or Secretary of Defense (and Department or Secretary of War)
213. Department or Secretary of Energy
214. Department or Secretary of the Interior
215. Department of Justice or Attorney General
216. Department or Secretary of State
217. Department or Secretary of Transportation
218. Department or Secretary of Education
219. U.S. Employees' Compensation Commission, or Commissioner
220. Equal Employment Opportunity Commission
221. Environmental Protection Agency or Administrator
222. Federal Aviation Agency or Administration
223. Federal Bureau of Investigation or Director
224. Federal Bureau of Prisons
225. Farm Credit Administration
226. Federal Communications Commission (including a predecessor, Federal Radio Commission)
227. Federal Credit Union Administration
228. Food and Drug Administration
229. Federal Deposit Insurance Corporation
230. Federal Energy Administration
231. Federal Election Commission
232. Federal Energy Regulatory Commission
233. Federal Housing Administration
234. Federal Home Loan Bank Board
235. Federal Labor Relations Authority
236. Federal Maritime Board
237. Federal Maritime Commission
238. Farmers Home Administration
239. Federal Parole Board
240. Federal Power Commission
241. Federal Railroad Administration
242. Federal Reserve Board of Governors
243. Federal Reserve System
244. Federal Savings and Loan Insurance Corporation
245. Federal Trade Commission
246. Federal Works Administration, or Administrator
247. General Accounting Office
248. Comptroller General
249. General Services Administration
250. Department or Secretary of Health, Education and Welfare
251. Department or Secretary of Health and Human Services
252. Department or Secretary of Housing and Urban Development
253. Interstate Commerce Commission
254. Indian Claims Commission
255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement
256. Internal Revenue Service, Collector, Commissioner, or District Director of
257. Information Security Oversight Office
258. Department or Secretary of Labor
259. Loyalty Review Board
260. Legal Services Corporation
261. Merit Systems Protection Board
262. Multistate Tax Commission
263. National Aeronautics and Space Administration
264. Secretary or administrative unit of the U.S. Navy
265. National Credit Union Administration
266. National Endowment for the Arts
267. National Enforcement Commission
268. National Highway Traffic Safety Administration
269. National Labor Relations Board, or regional office or officer
270. National Mediation Board
271. National Railroad Adjustment Board
272. Nuclear Regulatory Commission
273. National Security Agency
274. Office of Economic Opportunity
275. Office of Management and Budget
276. Office of Price Administration, or Price Administrator
277. Office of Personnel Management
278. Occupational Safety and Health Administration
279. Occupational Safety and Health Review Commission
280. Office of Workers' Compensation Programs
281. Patent Office, or Commissioner of, or Board of Appeals of
282. Pay Board (established under the Economic Stabilization Act of 1970)
283. Pension Benefit Guaranty Corporation
284. U.S. Public Health Service
285. Postal Rate Commission
286. Provider Reimbursement Review Board
287. Renegotiation Board
288. Railroad Adjustment Board
289. Railroad Retirement Board
290. Subversive Activities Control Board
291. Small Business Administration
292. Securities and Exchange Commission
293. Social Security Administration or Commissioner
294. Selective Service System
295. Department or Secretary of the Treasury
296. Tennessee Valley Authority
297. United States Forest Service
298. United States Parole Commission
299. Postal Service and Post Office, or Postmaster General, or Postmaster
300. United States Sentencing Commission
301. Veterans' Administration
302. War Production Board
303. Wage Stabilization Board
304. General Land Office of Commissioners
305. Transportation Security Administration
306. Surface Transportation Board
307. U.S. Shipping Board Emergency Fleet Corp.
308. Reconstruction Finance Corp.
309. Department or Secretary of Homeland Security
310. Unidentifiable
311. International Entity
Answer:
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songer_appel1_1_3
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J
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to determine what category of business best describes the area of activity of this litigant which is involved in this case.
WYNDHAM ASSOCIATES et al., Plaintiffs-Appellants, v. David C. BINTLIFF, A. G. McNeese, Jr., L. B. Tybor, American Stock Exchange, Moroney, Beissner & Co., Inc., A. G. Becker & Co., Inc., Defendants-Appel-lees, and Goodkind, Neufeld & Co., Inc., Defendant-Appellant. Maurice M. FRIEDMAN et al., Plaintiffs-Appellants, v. David C. BINTLIFF, the Chase Manhattan Bank, N. A., A. G. McNeese, Jr., L. B. Tybor, American Stock Exchange, Moroney, Beissner & Co., Inc., A. G. Becker & Co., Inc., Defendants-Appellees, and Goodkind, Neufeld & Co., Inc., Defendant-Appellant.
Nos. 457, 458, Dockets 31976, 31977.
United States Court of Appeals Second Circuit.
Argued May 7, 1968.
Decided June 26, 1968.
Certiorari Denied Dec. 9, 1968.
See 89 S.Ct. 444.
Paul J. Goldberg, New York City, (Davis & Cox, Howard M. Jaffe, New York City, on the brief), for plaintiffs-appellants.
Leo T. Kissam, New York City, (Kissam & Halpin, William R. Eckhardt, Houston, Tex., Anthony S. Genovese, Theodore S. Halaby, New York City, and Vinson, Elkins, Weems & Searls, Houston, Tex., on the brief), for defendant-appellee David C. Bintliff.
Satterlee, Warfield & Stephens, F. W. H. Adams, Henry J. Formon, Jr., New York City, on the brief, for defendants-appellees A. G. McNeese and L. P. Ty-bor.
Burton L. Knapp, New York City, (Forsythe, McGovern, Pearson & Nash, Knapp & Berson, New York City, on the brief), for-defendant-appellee American Stock Exchange.
Battle, Fowler, Stokes & Kheel, Raymond F. Gregory, Joel M. Walker, Richard M. Messina, New York City, on the brief, for defendant-appellee A. G. Becker & Co., Inc.
Stuart D. Wechsler, New York City, (Matson, Kass, Goodkind & Wechsler, and Gerald Raskin, New York City, on the brief), for defendant-appellant Goodkind, Neufeld & Co., Inc.
Milbank, Tweed, Hadley & McCloy, Edward J. Reilly, Jr. and Briscoe R. Smith, New York City, on the brief, for defendant-appellee The Chase Manhattan Bank, N. A.
Olwine, Connelly, Chase, O’Donnell & Weyher, New York City, for defendant-appellee Moroney, Beissner & Co., Inc.
Before LUMBARD, Chief Judge, and SMITH and ANDERSON, Circuit Judges.
LUMBARD, Chief Judge:
These two class actions involve claims against eight defendants for alleged violations of the federal securities laws. On November 30, 1967, the District Court for the Southern District of New York, Sylvester J. Ryan, J., entered orders severing the claims against two of the eight defendants and transferring the actions against the remaining six defendants to the District Court for the Southern District of Texas, Houston Division. The plaintiffs and one of the transferred defendants — Goodkind, Neu-feld & Co., Inc. — appeal from these orders, the District Court having certified that the orders involve a controlling question of law as to which there is a substantial ground for difference of opinion and that an immediate appeal may materially advance the ultimate termination of the litigation, and this Court having granted the applications of plaintiffs and Goodkind for leave to appeal pursuant to 28 U.S.C. § 1292(b). For the reasons stated below, we affirm the orders of the District Court.
Seven of the defendants were named in the Wyndham action. The subsequent Friedman complaint essentially repeats the allegations of the Wyndham complaint, but names one additional defendant, The Chase Manhattan Bank, N. A. For the purposes of these appeals, we shall treat the two actions as one.
The plaintiffs are shareholders of Westec Corporation who bought their shares on the American Stock Exchange. Westec is a Nevada corporation with its principal office in Houston, Texas. Eighteen of the twenty-one plaintiffs are citizens of New York; two are citizens of Connecticut and one is a citizen of California.
Defendant Bintliff is a financier who owned a substantial number of shares of Westec common stock. Defendants McNeese and Tybor are officers of the Bank of the Southwest of which Bintliff was a director. Bintliff, McNeese and Tybor are citizens and residents of Texas.
The defendants Moroney, Beissner & Co., Inc. (hereafter Moroney), A. G. Becker & Co., Inc. (hereafter Becker), and Goodkind, Neufeld & Co., Inc. (hereafter Goodkind) are stock brokerage firms. Moroney has its principal office in Houston, Texas; Becker’s principal office is in Illinois; Goodkind’s princ-pal office is in New York.
The defendant American Stock Exchange (hereafter Exchange) is located and operates only in New York. Defendant Chase Manhattan Bank, N. A. (hereafter Chase), is a national banking association established within the Southern District of New York.
[The complaint alleges that Bintliff engaged in a scheme to manipulate the market price of Westec stock and that Moroney, Becker and Goodkind aided and abetted the manipulative scheme by making false and misleading statements concerning Westec stock and by their participation in transactions in Westec stock. It alleges that McNeese and Ty-bor aided and abetted the unlawful conduct of Bintliff and the other defendants by inducing and arranging financing for transactions in Westec stock; and that the Chase aided and abetted the manipulative scheme by participating, as co-registrar and co-transfer agent, in a distribution of Westec stock, despite the fact that Chase knew or should have known that the stock, although subject to registration under the 1933 Securities Act, was not in fact registered) The complaint alleges that the (Exchange, although it knew or should have known of the other defendants’ unlawful conduct, permitted the defendants and others to use its facilities to manipulate the price of Westec stock, failed to take action to prevent such unlawful conduct, and failed to carry out properly the supervisory obligations imposed upon it by Section 6 of the Securities Exchange Act of 1934)
The defendants Bintliff, Moroney, Becker, McNeese and Tybor moved to transfer the action to Texas. Plaintiffs and the defendants Goodkind, Exchange and Chase opposed the transfer; each of these three defendants also moved for a severance of the claims against itself.
The district court severed the claims against the Exchange and the Chase and denied the motion to transfer as to these two defendants; the court ordered that the action against the remaining six defendants be transferred to Texas, and denied Goodkind’s motion for a severance.
In ruling on these motions, the district court took note of the numerous proceedings relating to the affairs of Westec and alleged manipulations of Westec stock which are currently pending in the district court in Houston. Westec itself is in reorganization proceedings in that court under Chapter X of the Bankruptcy Act. In addition, Westee filed an action in that court for a declaratory judgment against Ernest M. Hall, Jr., Westec’s former president, and James W. Williams, former chairman of its board, seeking an adjudication whether they had violated any provisions of the securities acts in connection with transactions in Westee stock, and a Westee stockholder filed a representative action against Hall, Westee and 21 other defendants claiming violations of the securities acts resulting from manipulations in Westee stock. Three other actions have recently been filed in the Houston district court — one naming Bintliff, Moroney, Becker and 29 other defendants; one naming Bin-tliff, Moroney and 55 other defendants; one naming Bintliff, Becker, Goodkind and 22 other defendants. Furthermore, eleven cases concerning the Westee stock manipulations had already been transferred from the Southern District of New York to the Southern District of Texas. Judge Allén B. Hannay of the Houston court has been designated as statutory judge in the Westee reorganization and all suits pending in that district arising out of the affairs of Westee or related to them, including the eleven cases transferred from New York, have been assigned to Judge Hannay.
Ten of the actions previously transferred from the Southern District of New York were transferred by order of Judge Weinfeld, Schneider v. Sears, 265 F.Supp. 257 (1967). He found that “All ten actions are brought by stockholders of Westee and allege representative claims on behalf of other Westee stockholders similarly situated. * * * The gist of all the actions is that Hall and others in the highest levels of management, acting in concert with each other and with others, engaged in a fraudulent scheme to inflate artificially the price and value of Westee stock.” Having noted the actions already pending in the Southern District of Texas with regard to the affairs and transactions in West-ec stock, Judge Weinfeld concluded that —in light of the location of the witnesses and documentary evidence, the strong policy favoring litigation of related claims in the same tribunal, and the relative calendar conditions in the two districts — the convenience of parties and witnesses and the interests of justice would best be served by transferring the actions to the Southern District of Texas, Houston Division.
The eleventh action, which asserts claims against Bintliff and others arising out of the alleged manipulation of Westee stock, was transferred to Texas by order of Judge Palmieri, Cosmos Bank v. Bintliff et al., 67 Civ. 1984, July 20, 1967. He stated that “[T]he alleged conspiracy to manipulate the market in Westee was carried on in Texas. * * Although this action, unlike those transferred in Schneider v. Sears, supra, is based on a specific loan transaction negotiated and consummated in New York, it is similar to those actions with respect to the allegations concerning the market manipulations of Westee stock.” Judge Palmieri concluded that “It is clear * * * that a heavy balance of convenience weighs in favor of transfer to the Southern District of Texas.”
In the present case Judge Ryan, after considering the opinions of Judges Weinfeld and Palmieri, stated: “It will serve no good purpose to again recite what our brothers have so carefully set forth in their opinions. The basic charges of fraud, misrepresentations and manipulation of the market price are common to all of these suits. We have concluded that transfer should be granted and that unless substantial objections are presented by a defendant, a severance should not be granted so as to retain the suit as to it in this District.”
As to the Exchange, Judge Ryan found that there was no allegation that the Exchange directly participated in or profited from the alleged manipulative activities of Bintliff and his alleged co-conspirators and that at most the complaints plead a claim against the Exchange for alleged supervisory omissions. Judge Ryan concluded that fair presentation of the claims against the Exchange required that these claims be severed and that transfer of the actions be denied as to the Exchange.
With regard to the Chase, Judge Ryan noted that a suit cannot be transferred to the Southern District of Texas unless it might have been filed originally in that District, Hoffman v. Blaski, 363 U.S. 335, 80 S.Ct. 1084, 4 L.Ed.2d 1254 (1960). Judge Ryan held that Section '94 of the National Banking Act, 12 U.S.C. § 94, which provides that a national banking association may be sued only “within the district in which such association may be established,” was not impliedly repealed by any of the venue provisions of the Securities Act, and that therefore the Chase, a national banking association established in the Southern District of New York, could not have been sued originally in the Texas court. See Bruns, Nordeman & Co. v. American National Bank & Trust Co., 394 F.2d 300 (2d Cir. 1968). Therefore, Judge Ryan concluded that transfer as to the Chase must be denied and that the suit as to the Chase should be severed.
On this appeal, plaintiffs argue that a district court may not sever the claims against properly joined defendants in order to permit transfer of the action against the remaining defendants to a more convenient forum in which venue would not have been proper as to the severed defendants. 28 U.S.C. § 1404(a) provides “For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.” Plaintiffs contend that “civil action” as used in this section must be interpreted as “the action as originally brought,” and that a district court may not sever properly joined claims in order to transfer the remainder of the action. We agree that this section authorizes the transfer only of an entire action and not of individual claims. However, we do not agree that an entire action must mean the action as originally brought. Where certain claims are properly severed, the result is that there are then two or more separate “actions,” and the district court may, pursuant to § 1404(a), transfer certain of such separate actions while retaining jurisdiction of others.
Rule 21 of the Federal Rules of Civil Procedure provides that “Any claim against a party may be severed and proceeded with separately.” We believe that this provision authorizes the severance of any claim, even without a finding of improper joinder, where there are sufficient other reasons for ordering a severance. See Sporia v. Pennsylvania Greyhound Lines, 143 F.2d 105 (3d Cir. 1944).
The severance as to the Exchange was based upon the court’s finding that there was no allegation of such relationship between the Exchange and the other defendants as would justify the inclusion of the claims against the Exchange in these actions. However, the severance of the claims against the Chase rested only upon the determination that the action against the Chase could not have been brought in the district court in Houston, thus presenting the question whether a severance may be ordered solely for the purpose of facilitating transfer.
We believe that where the administration of justice would be materially advanced by severance and transfer, a district court may properly sever the claims against one or more defendants for the purpose of permitting the transfer of the action against the other defendants, at least in eases where, as here, the defendants as to whom venue would not be proper in the transferee district are alleged to be only indirectly connected to the manipulations which form the main subject matter of the action. There is ample authority for this procedure. See General Elec. Credit Corp. v. James Talcott, Inc., 271 F.Supp. 699 (S.D.N.Y.1966); Leesona Corp. v. Cotwool Mfg. Corp., Judson Mills Div., 204 F.Supp. 139 (W.D.S.C.), appeal dismissed, 308 F.2d 895 (4th Cir. 1962); 3A Moore, Federal Practice ¶ 21.05 at 2911-12; 1 Barron & Holtzoff, Federal Practice and Procedure § 82.2 (1967 Supp.) at 284. Otherwise, a plaintiff could preclude the court from considering whether transfer would serve the interest of justice by including a defendant, not subject to suit in the more convenient district, who was in some manner peripherally involved in the alleged wrongdoing.
Plaintiffs also argue that in this case the district court abused its discretion in transferring to Texas the action against the six defendants remaining after severance of the claims against the Exchange and Chase. Plaintiffs contend that the special venue provisions in the securities acts require that special weight be given to the plaintiffs’ choice of forum; that the witnesses, who were specifically identified, and the documents which plaintiffs intend to use are for the most part located in New York and are beyond the jurisdiction of the Texas court; that transfer to Texas would severely handicap the plaintiffs’ case by depriving plaintiffs of the live testimony of these witnesses; that the orders of the district court will require the plaintiffs to prove their case three times in three separate actions in two widely separated districts, a result which is inconsistent with judicial economy and which will impose on the plaintiffs a financial burden which they may be unable to bear.
Certainly, these considerations are entitled to serious consideration in determining whether a transfer would be in the interest of justice. However, we conclude that in this case they are outweighed by other factors.
There is a strong policy favoring the litigation of related claims in the same tribunal in order that pretrial discovery can be conducted more efficiently, duplicitous litigation can be avoided, thereby saving time and expense for both parties and witnesses, and inconsistent results can be avoided. We have reviewed above the claims asserted in the present actions and the situation with regard to the proceedings currently pending in the Southern District of Texas concerning the affairs of Westec and the alleged manipulations of Westec stock. The relative calendar conditions of the two courts involved are a factor which the court may properly consider on a motion to transfer. It is clear that this factor supports transfer in this case, as calendar conditions in the District Court in Houston will permit a much earlier trial than could be had in the Southern District of New York.
Furthermore, as Judge Palmieri stated in his opinion transferring the case of Cosmos Bank v. Bintliff et al., 67 Civ. 1984, July 20,1966 (S.D.N.Y.):
Overriding, however, all that has been said is a consideration affecting the expeditious management of court business which argues persuasively for the transfer. Judge Allen B. Han-nay of the United States District Court in Houston has been designated to supervise the Westec reorganization proceedings and the cases related thereto. In addition, Judge Hannay has been designated to sit in the ten derivation actions transferred from this district and in a number of stockholder actions filed in the District Court in Houston. His familiarity with the legal problems, attorneys, witnesses, and exhibits relating to the affairs of Westec constitutes a precious asset, increasing in value with the passage of time, and which will undoubtedly lighten the burden of litigants and courts alike. It would be a disservice to the overburdened multi-judge court in the Southern District of New York, as well as to the litigants, to permit the litigation to remain here in the light of Judge Han-nay’s designation. In short, the husbanding of judicial effort and the importance of rendering expeditious service to litigants, support transfer rather than retention of the case.
In view of these considerations, we find that there is a substantial balance in favor of severance and transfer in these cases, and that there was ample basis for the orders entered by Judge Ryan.
We now come to the questions raised by Goodkind’s appeal. With regard to Goodkind, Judge Ryan noted that the complaints in the present actions allege that Goodkind knowingly and actively participated in the alleged manipulative operations, and that Goodkind is named as a defendant in one of the suits recently filed in the Southern District of Texas, which contains similar allegations of Goodkind’s knowing participation in the charged manipulative scheme. Judge Ryan carefully weighed Good-kind’s objection that it will not be able to bear the expense of litigating the present actions if they are transferred to Texas, but concluded that this objection was outweighed by the factors favoring centralization in the Houston court of suits of a similar nature involving the Westec stock manipulations. He ordered that as to Goodkind severance be denied and the suit be transferred to Texas.
Goodkind objects to these orders on the grounds that Goodkind is not subject to venue in Texas and that there was no clear showing that the balance of convenience favored transfer of the action against Goodkind to Texas. Section 27 of the Securities Exchange Act provides that suit to enforce liabilities under the Act or any rule or regulation thereunder may be brought in any district wherein any act or transaction constituting the violation occurred. The jurisdiction of the Texas court does not depend on whether Goodkind performed an act or transaction in that district; it is sufficient if there occurred in that district “any act or transaction” by any defendant in furtherance of a manipulative scheme in which Goodkind knowingly participated. Clapp v. Stearns & Co., 229 F.Supp. 305 (S.D.N.Y.1964); Schneider v. Sears, 265 F.Supp. 257 (S.D.N.Y.1967). In this case the alleged acts by other defendants in Texas are sufficient to satisfy this venue requirement. Furthermore, it is alleged that Goodkind accepted orders from Bintliff and his associates for the purchase of Westec stock and bought and sold for Bintliff Westec stock for the purpose of manipulating the price of the stock. Even though these purchases and sales by Goodkind may have taken place in New York, it seems likely that they involved the transmission or receipt of interstate communications in Texas, which would be sufficient to support venue in Texas under section 27 of the Act. See, e. g., Hooper v. Mountain States Sec. Corp., 282 F.2d 195, 204-205 (5th Cir. 1960), cert. denied, 365 U.S. 814, 81 S.Ct. 695, 5 L.Ed.2d 693 (1961); Matheson v. Armbrust, 284 F.2d 670 (9th Cir. 1960), cert. denied, 365 U.S. 870, 81 S.Ct. 904, 5 L.Ed.2d 860 (1961).
With regard to the balance of convenience, Goodkind argues that its only office is in New York, that its activities are wholly confined to the State of New York, that it had no contact with Texas, and that it is a small brokerage firm which will not be able to bear the expense of litigating this action in Texas. Judge Ryan considered these points and concluded that there was nevertheless a substantial balance of convenience in favor of transfer. In cases involving numerous defendants from different states, it is inevitable that some party will be inconvenienced no matter where the suit is tried. The weighing of the relative inconveniences and the determination of which forum the balance of convenience favors is a matter committed to the discretion of the district court. See, e. g., Lykes Bros. Steamship Co. v. Sugarman, 272 F.2d 679 (2d Cir. 1959); American Flyers Airline Corp. v. Farrell, 385 F.2d 936 (2d Cir. 1967). We cannot say that in this case Judge Ryan abused his discretion or that there was no basis for his order.
Goodkind also argues that the district court erred in denying its motion to dismiss the actions as to it for failure to state a claim upon which relief can be granted. Judge Ryan, in his opinion, considered this motion and stated that the motion to dismiss was denied. However, the orders entered November 30, 1967, do not contain an order denying the motion to dismiss and no such order was ever entered in the court below. Therefore, this court does not have jurisdiction to rule on this issue.
The orders appealed from are affirmed.
. It should be noted that under the recently enacted Multidistrict Litigation Act, 28 U.S.C. § 1407 (36 U.S.L.W. 99, April 29, 1968), civil actions pending in different distriets which involve one or more common questions of fact may be transferred, by the judicial panel on multidistrict litigation, to any district for coordinated or consolidated pretrial proceedings if the panel determines that transfer for such proceedings will be for the convenience of parties and witnesses and will promote the just and efficient conduct of the actions. Thus, where a severance has been ordered to permit transfer of the remaining action to a more convenient district in which venue is not proper as to the severed defendants, the severed actions may nevertheless be transferred to that district for consolidated pretrial proceedings.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case?
A. agriculture
B. mining
C. construction
D. manufacturing
E. transportation
F. trade
G. financial institution
H. utilities
I. other
J. unclear
Answer:
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sc_decisiondirection
|
A
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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.
CHICAGO, MILWAUKEE, ST. PAUL & PACIFIC RAILROAD CO. et al. v. ACME FAST FREIGHT, INC.
No. 65.
Argued December 8, 1948.
Decided April 4, 1949.
Joseph Walker and Rowland L. Davis, Jr. argued the cause for petitioners. With them on the brief were William F. Zearfaus, Arthur C. Patterson, Thomas L. Ennis, Joseph Rosch and H. Brua Campbell.
Paul A. Crouch argued the cause and filed a brief for respondent.
Me. Chief Justice Vinson
delivered the opinion of the Court.
In 1942, Congress enacted what is popularly known as the Freight Forwarder Act. This legislation, which appears as Part IV of the Interstate Commerce Act, was designed to define freight forwarders, to prescribe certain regulations governing forwarder operations, and to bring this essential transportation business within the control of the Interstate Commerce Commission. The legislative and judicial history culminating in the Act need not now be detailed. See United States v. Chicago Heights Trucking Co., 310 U. S. 344 (1940); Acme Fast Freight, Inc. v. United States, 30 F. Supp. 968, aff’d 309 U. S. 638 (1940).
Freight forwarders consolidate less-than-carload freight into carloads for shipment by rail, truck, or water. Their charges approximate rail less-than-carload rates; their expenses and profits are derived from the spread between the carload and 1. c. 1. rates. Forwarders are utilized by 1. c. 1. shippers because of the speed and efficiency with which they handle shipments, the unity of responsibility obtained, and certain services which forwarders make available.
Forwarders are required by § 413 of the Act, 49 U. S. C. § 1013, to issue bills of lading to their customers, covering the individual package shipment from time of receipt until delivery to the ultimate consignee. When the freight is consolidated into carloads, the railroad gives the forwarder its bill of lading in which the forwarder is designated as both consignor and consignee. The contents are noted as “one carload of mixed merchandise” and usually move under an “all-commodity” carload rate. The destination set out in the railroad bill of lading is the forwarder's break-bulk point. At that point the carload is broken up; some shipments may be distributed locally, some sent by truck to off-line destinations, and some consolidated into carloads for reshipment to further break-bulk points. The railroad has no knowledge of the contents of the car, the identity of the individual shippers, or the ultimate destinations of the consignments. The forwarder has an unqualified right to select the carrier and route for the transportation of the freight.
The forwarder thus has some of the characteristics of both carrier and shipper. In its relations with its customers, a forwarder is subjected by the Act to many of the requirements and regulations applicable to common carriers under Parts I, II, and III of the Act. In its relations with these carriers, however, the status of the forwarder is still that of shipper. It is this duality of character that raises the question in this case.
Section 1013 provides that the Carmack Amendment, 34 Stat. 593, as amended, 49 U. S. C. § 20 (11) and (12), shall apply to freight forwarders “in the case of service subject to this chapter” (Part IV), and that the freight forwarder shall be deemed both the receiving and delivering transportation company for the purposes of such § 20 (11) and (12). Incorporation of the Car-mack Amendment requires, as has been noted, that the forwarder issue bills of lading to its shippers, covering transportation of the individual shipments to their ultimate destinations. There can be no question but that under § 20 (11), the forwarder is liable to its shipper for loss or damage to the freight exactly as if it were an initial carrier subject to Parts I, II, and III. We are now asked to decide whether the right-over given by § 20 (12) to an initial carrier against its connecting carriers applies in the case of forwarders who have paid loss and damage claims to their shippers and seek recompense from the carrier responsible for the loss.
In this action, respondent freight forwarder sought a declaratory judgment that it is not bound by the nine-month limitation period provided in the railroad bill of lading for the filing of loss or damage claims. If § 1013, by its incorporation of § 20 (11) and (12), makes the forwarder an initial carrier with a right-over against the carrier responsible for the loss or damage, the nine-month period is not applicable. If, however, the forwarder is still a shipper vis-á-vis the railroads, it must file its claims within the period specified in the railroad bill of lading. The District Court held, on an agreed statement of facts, that the forwarder must file its claims within the nine-month period. The Court of Appeals for the Second Circuit reversed, holding that for the purposes of § 1013 alone forwarders are to be considered carriers and as such are entitled to the right-over given by § 20 (12). 166 F. 2d 778. We granted the petition for a writ of certiorari, 335 U. S. 807, to resolve this important question under Part IV of the Interstate Commerce Act.
First. The railroads contend that Part IV of the Act was not intended to change the shipper-carrier relationship that had for many years existed between forwarder and railroad. Their position is that while the previously prevailing duties and responsibilities owed by the forwarder to the public were changed by the Act, the language of the Act and its legislative history negative the forwarder’s claim to carrier status. They read the language of § 1013, that “the provisions of section 20 (11) and (12) of this title . . . shall apply with respect to freight forwarders, in the case of service subject to this chapter . . .,” to mean that, while the forwarder is liable to its shippers under § 20 (11) for loss or damage no matter whose the ultimate responsibility, its right-over under § 20 (12) is limited to losses or damage occurring in "service subject to this chapter” — i. e., in the business of forwarding freight. Thus limited, the right-over would apply as against other freight forwarders with whom joint loading agreements authorized by § 1004 (d) were in effect, and against motor carriers who are permitted by § 1013 to issue bills of lading on behalf of the forwarders. The right-over would not, however, apply against railroads, water carriers, and line-haul motor carriers.
“Service subject to this chapter” is defined in § 1002 as “any or all of the service in connection with the transportation in interstate commerce which any person undertakes to perform or provide as a freight forwarder . . . .” While use of the word, “provide,” lends some support to respondent’s thesis that the definition should be read broadly to include the service performed by common carriers for the forwarders, the House Committee report indicates the contrary. It defines “service subject to this chapter” as:
“the term used throughout part IV when referring to the business or operations of freight forwarders which it is proposed to regulate. The definition is intended to be broad enough to cover everything the freight forwarder does, in connection with forwarding by surface facilities, in the course of carrying out his undertaking to the shipper whom he serves. On the other hand, it is not broad enough, of course, to bring under regulation, under part IV, the service performed by the carriers whose services the freight forwarder utilizes in performing his undertaking.” (Italics added.)
The emphasis supplied by the phrase is emphasis on the freight forwarder’s activities, not upon the service performed by underlying carriers. Since the forwarder contracts with its shipper to deliver the shipment safely to its ultimate destination, its undertaking is obviously part of the “service subject to this chapter.” But inclusion of that phrase in § 1013 indicates a limitation of applicability of the right-over under § 20 (12) to the forwarder’s business, which, we are told by the House Report, does not include “the service performed by the carriers whose services the freight forwarder utilizes in performing his undertaking.”
The importance of the phrase, “service subject to this chapter,” in the Freight Forwarder Act is accentuated by a contemporaneous amendment to Part II of the Interstate Commerce Act, which pertains to motor carriers. The Motor Carrier Act had made § 20 (11) applicable to motor carriers but had omitted § 20 (12). As a part of the Freight Forwarder legislation, Congress amended § 219 of the Interstate Commerce Act to make § 20 (12) applicable to motor carriers. It did so without including the qualifying phrase. The amendment reads simply:
“Sec. 219. The provisions of section 20 (11) and (12) of this Act, together with such other provisions of such part (including penalties) as may be necessary for the enforcement of such provisions, shall apply with respect to common carriers by motor vehicle with like force and effect as in the case of those persons to which such provisions are specifically applicable.” 56 Stat. 300.
Unless we are to assume that Congress, in enacting § 1013, included the phrase, “in the case of service subject to this chapter,” for no purpose whatsoever, while at the same time approving a similar section which did not include the qualifying phrase, we must give it the effect contended for by petitioners. Respondent suggests no other.
That meaning is supported by the explanation of § 1013 given by Representative Wolverton, a member of the committee which drafted the section. However, doubt is cast upon the correctness of this interpretation by a contrary statement in the House Committee report. This report states flatly that “in case the loss of or damage to the property transported occurs on the line of a carrier whose service the freight forwarder utilizes, the freight forwarder will have the right of subrogation against the carrier under section 20 (12).”
We are warned, however, that the report is to be discounted in some particulars. Representative Wolverton prefaced his section-by-section analysis of the bill with this significant statement:
“In some respects the report which accompanies this bill is not as complete as it might be. Due to limitations of time the report was not submitted to the members of the committee or subcommittee, and therefore it may not be out of place to include in these remarks some further explanations which may be helpful to the Members in their consideration of the measure. In a few instances, which will be mentioned later, the report may not be so phrased as to convey fully the sense of what was intended.”
That he had § 1013 specifically in mind is clearly shown by his remarks explaining that section:
“In its explanation of section 413 [§ 1013], the report which accompanied the bill is not strictly accurate in interpreting the intended legal effect of making section 20 (11) and (12) of part I applicable to freight forwarders. It should be understood that, insofar as a given service to its shipper is covered by the published rate of a freight forwarder, the latter is the only person to which such shipper is entitled to look for recovery of damages, and it is in this sense that the forwarder is to ‘be deemed both the receiving and delivering transportation company.’ If damage to a shipment occurs on the line of a common carrier whose services are being utilized by the forwarder, the forwarder has no right of subrogation under section 20 (12), since its own shipper never had any right of action against such carrier. The forwarder’s recovery against the carrier would be upon the bill of lading issued to it by such carrier and under the provisions of law applicable thereto. The reference to paragraph (12) of section 20 was included in section 413 [§1013] to cover a combination of services performed directly for the owner of the goods, such as would occur where the services of two or more forwarders were involved.”
In weighing the relative importance of this statement and the committee report, a number of additional facts assume importance. The bill under consideration was reported unanimously by the House Committee on Interstate and Foreign Commerce. Congressman Wolverton, who was the ranking minority member of the committee, spoke in behalf of the bill and presented the only extended exposition of its provisions. His explanation of its meaning was not challenged or contradicted by any member of the committee. On the contrary, his part in its drafting was recognized by the chairman of the committee, and his remarks have been quoted as authority by the Interstate Commerce Commission.
In this posture of events, the committee report can be given little weight. A report not previously submitted to members of the committee and expressly contradicted without challenge on the floor of the House by a ranking member of the committee can hardly be considered authoritative. The Committee of Conference, of which Representative Wolverton was a member, adopted § 1013 exactly as it appeared in the House amendment. It bore, at that time, the gloss placed upon it on the floor of the House. Under those circumstances, we cannot construe the statute to give forwarders the right-over against underlying carriers under § 20 (12).
Second. Such a construction would, moreover, be out of harmony with the previously existing relationship between forwarders and carriers regulated by Parts I, II, and III of the Interstate Commerce Act, a relationship which Part IV unquestionably accepted and continued. Prior to the enactment of the Forwarder Act, this Court held in a number of cases that forwarders are shippers insofar as carriers are concerned, and that the latter cannot discriminate in favor of or against forwarders, nor enter into joint or proportional rates with them absent legislative authority. Interstate Commerce Commission v. Delaware, L. & W. R. Co., 220 U. S. 235 (1911); Great Northern R. Co. v. O’Connor, 232 U. S. 508 (1914); Lehigh Valley R. Co. v. United States, 243 U. S. 444 (1917); United States v. Chicago Heights Trucking Co., supra; Acme Fast Freight v. United States, supra.
It is clear that this relationship was not altered by the enactment of Part IV. Nowhere in the Act are freight forwarders referred to as carriers. Congress defined the term “freight forwarder” in § 1002 (5) to mean any person which “otherwise than as a carrier subject to” Part I, II, or III of this title consolidates goods for shipment, etc. In one section where, by inadvertence, forwarders were referred to as carriers, an amendment was passed less than two months later striking out “carrier” and substituting “freight forwarder.” The statements by committee members on the floor of the House leave no doubt that it was not the intent of Congress to alter the forwarders’ status as shippers vis-á-vis carriers by rail, highway, and water.
The fact that Congress studiously avoided characterizing forwarders as carriers, while at the same time subjecting them to many of the duties and responsibilities of such carriers, serves to emphasize the distinction drawn by the Act. The reason for this distinction has already been suggested. In their relations with shippers, forwarders unquestionably perform functions and have duties similar to the functions and duties of common carriers. Their activities are not essentially different from those of express companies, which are common carriers by definition, under § 1 (3) of the Interstate Commerce Act, 49 U. S. C. § 1 (3). Nevertheless, Congress recognized that forwarders occupy a different position in their dealings with the carriers whose services they utilize. For that reason, they refused to sanction the joint rates that forwarders had established with certain motor carriers. See Acme Fast Freight, Inc. v. United States, supra. According to Representative Wolver ton’s statement on the floor of the House, “it would be illogical and anomalous to permit the making of so-called joint rates in such a situation. The maintenance of a joint rate by a carrier and a shipper would be an absurdity. If nevertheless permitted, it would enable such shipper to receive rebates through the medium of divisions of the joint rate.” Carriers subject to Parts I, II, and III were permitted by § 1008 to establish so-called “assembling and distribution” rates, which were designed to give the forwarder the benefit of rates lower than those available to other shippers, because of savings to the carriers effected by some services performed by the forwarder. This was thought to be consistent with the position of the forwarder as shipper, however, and such rates could not be lowered beyond an amount which would reflect the savings. It is significant, too, that these rates were not applicable to line-haul or carload freight, but only to the services performed by carriers in bringing less-than-carload shipments from off-line points to the forwarder’s concentration point and from break-bulk point to final destination. It is therefore clear beyond argument that Congress intended to preserve the existing shipper-carrier relationship between forwarders and those carriers regulated by Parts I, II, and III of the Act.
Third. The Court of Appeals, while conceding that forwarders are still shippers vis-a-vis carriers under the Act, held that for the purposes of § 1013 alone, they are to be regarded as initial carriers, while the railroads, motor vehicles, and boats whose services are utilized by forwarders are to be considered connecting carriers. Respondent goes farther. It contends not only that the liability provisions of the uniform rail bill of lading issued to the forwarder for his carload shipment may be disregarded, but that the railroad need not issue its bill of lading at all. In its view, Missouri, Kansas & Texas R. Co. v. Ward, 244 U. S. 383 (1917), which struck down conditions in the bill of lading issued without consideration by a connecting carrier, is decisive of the invalidity of the conditions imposed by the rail bill of lading here in controversy.
We do not agree, nor can we believe that the contention is seriously made. The underlying carrier’s haul involves a different shipment, a different consideration, a different origin, a different destination, and a different consignor and consignee than are involved in the forwarder’s undertaking. Furthermore, respondent’s contention leads to the conclusion that railroads, whose bills of lading have long been prescribed by the I. C. C. and filed with rail tariffs, must transport freight on bills of lading subject to change at will by the forwarder and possibly different in many respects from the uniform rail bill. See e. g., Chain Deliveries Express, Inc., 260 I. C. C. 149, 151 (1943). That certainly has not been the position taken by the I. C. C. since enactment of Part IV, nor was the contention accepted by either of the courts below in this case.
The real issue is whether, granting that both forwarder and underlying carrier must issue bills of lading, the liability provisions of bills issued by the latter are to be considered null and void when forwarder freight is being hauled. We think that the whole scheme of the Act, its language and history, negative that proposition. As has been noted, the forwarder remains a shipper in its relations with underlying carriers under the Act. It is a shipper to whom carriers are forbidden to give any undue or unreasonable preference in any respect whatsoever, under the specific provisions of the Act. § 1004 (c). On the other hand, forwarders, like other shippers, may discriminate as they choose between carriers. § 1004 (b).
If the liability provisions of the carrier bill of lading are inapplicable, other difficulties are presented. Since they are not bound to use the uniform bill of lading, forwarders may adopt a limitation period for the submission of claims longer than nine months, the minimum period permitted by § 20 (11). Since the rail bill of lading, which prescribes a nine-month period, would apply to all shippers other than shippers by freight forwarder, the former would thus be discriminated against contrary to § 1004 (c).
Similarly, a shipper by freight forwarder might wish to contract for common-law liability by paying the higher tariff to the forwarder, as he must be permitted to do under § 20 (11). Cincinnati, N. O. & T. P. R. Co. v. Rankin, 241 U. S. 319 (1916). The forwarder, on the other hand, pays the lower declared value rate to the railroad for the carload shipment. If the shipment were lost or damaged, the shipper could undoubtedly recover its actual value from the forwarder, but under ordinary circumstances the latter would be confined to recovery from the railroad of a proportional part of the declared value of the carload shipment. Section 20 (12) provides, however, that the right-over is in the amount of the loss, damage, or injury as may be evidenced by any receipt, judgment, or transcript thereof. Under respondent’s theory, its bill of lading would be controlling, and the forwarder would be entitled to full recovery despite the fact that it had contracted with the carrier at the reduced rate. This result is clearly contrary to Great Northern R. Co. v. O’Connor, supra, which was relied on by the Court of Appeals in the present case.
In addition, the factors which Congress felt made the original Carmack Amendment workable are totally absent in the case of freight forwarders. Congressman Richardson, in explaining its purpose to the House, said:
“The reasons inducing us to do that [make the initial carrier liable for loss or damage] was that the initial carrier has a through-route connection with the secondary carrier, on whose route the loss occurred, and a settlement between them will be an easy matter, while the shipper would be at heavy expense in the institution of a suit. If a judgment is obtained against the initial carrier, no doubt exists but the secondary carrier would pay it at once. Why? Because the arrangement, the concert, the cooperation, the through-route courtesies between them would be broken up if prompt payment was not made. We have done that in conference.” See Atlantic Coast Line R. Co. v. Riverside Mills, 219 U.S. 186, 201 (1911).
The railroads have done exactly as was suggested. Elaborate freight-claim rules have been established covering the investigation, settlement, and defense of claims and the allocation of liability between carriers when, as is frequently the case, responsibility for loss or damage cannot be precisely ascertained. Arbitration boards settle disputes arising between carriers under the rules. As a practical matter, the right-over given by § 20 (12) is very little used by carriers, and indeed it is of no value when responsibility cannot definitely be placed upon any one carrier.
The considerations that made § 20 (12) workable as applied to railroads are not, however, applicable to freight forwarders. They enter into no “arrangements,” “concerts,” “cooperation,” or “through-route courtesies” with railroads. As shippers they are forbidden by law to do so. Furthermore, the forwarder will always be in the position of a receiving or delivering carrier seeking the right-over against “connecting” carriers, never in the position of a carrier against whom the right-over is asserted. A railroad against which a claim has been filed as receiving or delivering carrier will ordinarily represent the connecting carrier as if no right-over existed, since it must depend in other cases upon similar representation by other roads. Details of such representation are, in fact, prescribed by the Freight Claim Rules, which are subscribed to by nearly all railroads. But the forwarder is always its own representative, and as between its customer, the shipper, and an underlying carrier allegedly responsible for loss or damage, the forwarder’s tendency would naturally be to placate the former at the expense of the latter if the right-over existed and was applicable. These facts are, we feel, persuasive that Congress meant the right-over given in § 1013 to extend no farther than to actions against those with whom forwarders are permitted to enter into cooperative arrangements — i. e., against those to whom the forwarder does not bear the relation of shipper.
Fourth. Two arguments are made as to the inequity that will result from requiring forwarders to comply with the requirements of § 20 (11) without giving them the rights of initial carriers under § 20 (12). It is said that Congress could not have intended to make the forwarder an insurer of freight while requiring at the same time that it file and prove claims against carriers as if it were an ordinary shipper. Secondly, it is argued that the forwarder must, under § 20 (11), allow at least nine months for the filing of claims by shippers, and if the forwarder is subject to a similar limitation period, there will necessarily be some claims filed by shippers at the end of the period which the forwarder will not be able to refile against the carrier in time.
The first contention is the result of a serious misconception as to the liability of freight forwarders prior to enactment of Part IV. This misconception is based on a failure to distinguish between two very different kinds of “forwarders.” The term was originally applied to persons who arrange for the transportation by common carrier of the shipper’s goods. The forwarder did not necessarily consolidate the individual consignments into carload lots, and its duties, as agent of the shipper, went no farther than procuring transportation by carrier and handling the details of shipment. Forwarders of this type charged fees for their services, which the shipper paid in addition to the freight charges of the carrier utilized for the actual transportation.
Later, a different type of forwarding service was offered. This forwarder picked up the less-than-carload shipment at the shipper’s place of business and engaged to deliver it safely at its ultimate destination. The freight forwarder charged a rate covering the entire transportation and made its profit by consolidating the shipment with others in carload quantities to take advantage of the spread between carload and 1. c. 1. rates. It held itself out not merely to arrange with common carriers for the transportation of the goods, but rather to deliver them safely to the consignee. The shipper seldom if ever knew which carrier would be utilized in the carriage of his shipment.
This difference in function was recognized very early by the courts, and differing standards of liability were imposed. When goods handled by an agent-forwarder were lost or damaged, it was liable to the shipper only for its own negligence, including negligence in selecting a carrier. If, on the other hand, the shipment had been entrusted to a forwarder of the second type — i. e., one who contracted to deliver the goods to the consignee at rates set by itself — the forwarder was subjected to common carrier liability for loss or damage whether it or an underlying carrier had been at fault. The fact that the forwarder did not own the carriers whose services it utilized was held to be immaterial. Its undertaking was to deliver the shipment safely at the destination. Common carrier liability was the penalty for failure of fulfilment of that undertaking.
The Freight Forwarder Act encompasses only the second type of forwarder described above. Section 1002 (a) (5) defines “freight forwarder” as
“Any person which . . . holds itself out to the general public to transport or provide transportation of property . . . and which, in the ordinary and usual course of its undertaking, (A) assembles and consolidates or provides for assembling and consolidating shipments of such property, and performs or provides for the performance of break-bulk and distributing operations with respect to such consolidated shipments, and (B) assumes responsibility for the transportation of such property from point of receipt to point of destination, and (C) utilizes, for the whole or any part of the transportation of such shipments, the services of a carrier or carriers subject to chapters 1, 8, or 12 of this title.” (Italics added.)
As to this group, as has been pointed out, the liability of common carrier to its shippers has always been the rule. By making § 20 (11) applicable to these forwarders, Congress did two things: (1) required forwarders to issue bills of lading; and (2) made a matter of federal law what had been uniformly adopted by the states as the rule of liability for loss or damage. As applied to railroads, the Carmack Amendment made a significant change, since it prevented the initial carrier from exercising the right given by decision in a majority of states to limit its liability to loss or damage occurring on its own lines. But that right had never been granted to forwarders of the type regulated by Part IY. Their liability has, from the beginning, been extended to loss or damage to the consignment occurring at any time between pick-up at the point of origin and delivery at destination. As shippers, they have, of course, always had a right of action against the underlying carrier at fault. The defense that the goods are not those of the forwarder is not open to the carrier, since, as we have held, the carrier is not concerned with questions of ownership, but must treat the forwarder as shipper. Interstate Commerce Commission v. Delaware, L. & W. R. Co., supra.
The Act thus leaves the freight forwarder in substantially the same position it had previously held with respect to its liability to shippers and its rights against underlying carriers. The hearings, committee reports and debates are bare of any suggestion that forwarders needed relief from the requirement that they file their claims against carriers like other shippers. They have done so for over a century. They have continued to do so since enactment of the Freight Forwarder Act. See, e. g., Merchant Shippers Assn. v. Kellogg Express efe Draying Co., 28 Cal. 2d 594, 170 P. 2d 923 (1946); J. R. Kelly Freight Forwarder Application, 260 I. C. C. 315, 318 (1944); Hugh F. Gannon, Inc., Freight Forwarder Application, 260 I. C. C. 219, 220 (1944). We would require a much clearer showing than has been made to find that Congress intended, without increasing the liabilities of forwarders regulated by the Act, to give them a right-over against railroads, ship lines, and line-haul motor carriers as initial carriers under § 20 (12).
It is true that under the provisions of § 20 (11) forwarders are now forbidden to limit the period within which claims must be filed by shippers to less than nine months. If forwarders must, in turn, file claims with carriers within nine months, respondent contends that in the case of claims filed against a forwarder during the last day or two of the period, it will not have enough time to refile the claim with the proper carrier and will thus have no recourse after having paid the claim. This objection obviously applies to an insignificant proportion of the total claims. Furthermore, if the Interstate Commerce Commission considers the matter to be of sufficient importance, it has the experience and authority to prescribe the proper corrective. In any event, this single inconsistency is hardly sufficient to justify the contention that Congress intended that § 1013 be interpreted to make the forwarder an initial carrier with right-over against common carriers who must treat the forwarder as a shipper for all purposes.
The decision of the Court of Appeals is
Reversed.
Mr. Justice Black, Mr. Justice Douglas, and Mr. Justice Rutledge would affirm the judgment for reasons stated by Judge Frank, writing for the Court of Appeals. See 166 F. 2d 778.
56 Stat. 284, 49 U. S. C. § 1001 et seq.
For a full description of freight forwarder practices, see United States v. Chicago Heights Trucking Co., 310 U. S. 344 (1940); Freight Forwarding Investigation, 229 I. C. C. 201; Bills of Lading of Freight Forwarders, 259 I. C. C. 277.
“§ 1013. Bills of lading and delivery of property. The provisions of section 20 (11) and (12) of this title, together with such other provisions of chapter 1 of this title (including penalties) as may be necessary for the enforcement of such provisions, shall apply with respect to freight forwarders, in the case of service subject to this chapter, with like force and effect as in the case of those persons to which such provisions are specifically applicable, and the freight forwarder shall be deemed both the receiving and delivering transportation company for the purposes of section 20 (11) and (12) of this title. When the services of a common carrier by motor vehicle subject to chapter 8 of this title are utilized by a freight forwarder for the receiving of property from a consignor in service subject to this chapter, such carrier may, with the consent of the freight forwarder, execute the bill of lading or shipping receipt for the freight forwarder. When the services of a common carrier by motor vehicle subject to chapter 8 of this title are utilized by a freight forwarder for the delivery of property to the consignee named in the freight forwarder’s bill of lading, shipping receipt, or freight bill, the property may, with the consent of the freight forwarder, be delivered on the freight bill, and receipted for on the delivery receipt, of the freight forwarder.”
So far as pertinent here, §20(11) provides: “Liability of initial and delivering carrier for loss; limitation of liability; notice and filing of claim. Any common carrier, railroad, or transportation company subject to the provisions of this chapter receiving property for transportation . . . shall issue a receipt or bill of lading therefor, and shall be liable to the lawful holder thereof for any loss, damage, or injury to such property caused fey it or by any common carrier, railroad, or transportation company to which such property may be delivered or over whose line or lines such property may pass within the United States or within an adjacent foreign country when transported on a through bill of lading, . . . and any such common carrier, railroad, or transportation company so receiving property for transj portation . . . shall be liable
Question: What is the ideological direction of the decision?
A. Conservative
B. Liberal
C. Unspecifiable
Answer:
|
songer_casetyp1_7-3-5
|
C
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation - misc economic regulation and benefits".
MINIMUM WAGE BOARD OF PUERTO RICO v. LUCE & CO., S. EN C.
No. 3989.
Circuit Court of Appeals, First Circuit
May 22, 1946.
Paul A. Sweeney, Atty., Department of Justice, of Washington, D. C. (John F. Sonnett, Asst. Atty. Gen., David L. Kreeger, Sp. Asst. to Atty. Gen., Warner Gardner, Sol., Department of Interior, Irwin W. Silverman, Chief Counsel, Division of Territories and Island Possessions, Department of Interior, and Shirley Ecker Boskey, Atty., Department of Interior, all of Washington, D. C., and Ismael Soldevila, General Counsel, Minimum Wage Board of Puerto Rico, of San Juan, Puerto Rico, on the brief), for appellant.
John T. Noonan, of Boston, Mass. (William J. Hession, of Boston, Mass., on the brief), for appellee.
Before MAGRUDER, MAHONEY and WOODBURY, Circuit Judges.
MAGRUDER, Circuit Judge.
. The appeal in the instant case is taken from that portion of a judgment of the Supreme Court of Puerto Rico, entered on September 23, 1943, which set aside decree No. 2 issued on February 27, 1943, by the Minimum Wage Board of Puerto Rico. After full consideration we have concluded that the Supreme Court of Puerto Rico was not “inescapably wrong” in holding, as a matter of statutory construction, that the Minimum Wage Act of April 5, 1941, as amended on April 23, 1942, by Act No. 44, did not apply “to contracts for services entered into and executed” before the effective date of the said amendment. It thus becomes unnecessary for us to decide various other issues which would have been presented had we taken a contrary view on the construction of the statute.
Act No. 8, approved April 5, 1941, Laws P.R.1941, p. 302, created the Minimum Wage Board of Puerto Rico. The board is charged with the duty of studying the wages, working hours, and labor conditions which prevail in the different occupations, businesses, and industries in Puerto Rico, and of making investigations regarding the health, safety, and well-being of the workers. Whenever the wages paid in any occupation, business, or industry are insufficient to satisfy the normal needs of workers and are detrimental to the maintenance of the minimum standard of living necessary for their health, efficiency, and general well-being, it becomes the duty of the board to appoint a Minimum Wage Committee to investigate the labor conditions prevailing in such occupation, business, or industry, and within a period of three months to report to the board its findings with reference to the minimum wages, the number of working hours, and the labor conditions, indispensable to the maintenance of the health, safety, and general well-being of the workers in such occupation, business, or industry. On the basis of the report by such Minimum Wage Committee, and after a public hearing, the board is empowered to prescribe minimum wages, maximum working hours, and labor conditions by mandatory decree effective sixty days after its promulgation. Violation of the terms of such mandatory decree becomes a misdemeanor subject to punishment by fine or imprisonment. Any person aggrieved by a decree of the board may, within twenty days after promulgation of such decree, apply to the board for reconsideration. A review of the final decision rendered by the board may be obtained in the Supreme Court of Puerto Rico within fifteen days after the service thereof, and the court may affirm or set aside the decision of the board.
In January and February of 1942, a serious strike took place in the Puerto Rican sugar industry. Representatives of the insular government intervened, and the men went back to work on February 16, 1942.
There had been delay in the organization of the Minimum Wage Board, which did not hold its inaugural session until February 9, 1942, while the strike was still pending. At its first ordinary session, on February 11, 1942, the board resolved to make a study of the sugar cane industry for the purpose of regulating minimum wages, hours of work and working conditions.
Shortly after the termination of the strike, an amendment was made to the Minimum Wage Act by Act No. 44, approved April 23, 1942, Laws P.R.1942, p. 476. Since the Act was not passed by a vote of two thirds of all the members elected to each house, it did not become effective until ninety days thereafter, that is, on July 23, 1942, as provided in § 34 of the Organic Act, 39 Stat. 961, 48 U.S.C.A. § 825. The pertinent portions of Act No. 44 are as follows:
“Section 1. — Statement of Motives.— Without prejudice to the sacred right of striking, which belongs to workmen in order to better their living or working conditions, it is advisable and necessary to insure the permanence of industrial activities in Puerto Rico and to prevent the workmen from leaving their work when controversies arise between them and their employers in regard to wages, which controversies may be solved through the prompt fixing of reasonable wages. For such purpose, it is the duty of the State to determine proceedings which, guaranteeing to the workmen their right to claim better compensation, permit them to continue receiving the means indispensable for meeting their needs, and permit the industry to ■continue using the services of such workmen until their claims are aired. In times ■of emergency, when the uninterrupted activity of all industries is still more necessary, the establishment of special proceedings for the prompt fixing of wages, which, being applied in some cases with a retroactive effect, thus avoid the stoppage of the industry or the temporary deprivation of the workmen of their means of livelihood, is made more advisable.
“Section 2. — A new section numbered 10-A is hereby added to Act No. 8, * * * which section shall read as follows :
“Section 10-A. — Notwithstanding the provisions of other sections of this Act, the Governor of Puerto Rico, through a proclamation for that purpose, may require at any time that the Minimum Wage Board appoint a Minimum Wage Committee to investigate the working conditions prevailing in a certain occupation, business, or industry, where there exists or has existed within the six (6) months preceding the date of the Governor’s proclamation, a state of strike, lockout, emergency, or controversy between workmen and employers, in regard to wages, and fix the minimum wages that shall be paid in the occupation, business, or industry in question.
“The Governor, on issuing the proclamation provided for in this section, shall set forth that the wages that the board may fix shall have retroactive effect to the date on which the laborers returned, or may return, to work. * * *
“(b) That the mandatory decree which the board shall issue, in accordance with Section 10 of this Act, shall be effective immediately and shall also have retroactive effect, as to the wages fixed, to the date on which the laborers in the industry in question returned, or may return, to work, if that act occurred prior to the promulgation of the decree of the board. The board shall determine the date of the return of the laborers to their work.”
Purporting to act under the authority of the new Section 10-A, the governor on July 29, 1942, issued the following proclamation :
“By the Governor of Puerto Rico
A Proclamation.
Directing the Minimum Wage Board to fix Minimum Wages for the Sugar Industry.
Whereas, It is of public knowledge that at the commencement of the sugar grinding season of this year in Puerto Rico and during the second fortnight of January and the first one of February, 1942, a large part of the laborers engaged in the sugar industry were on strike, and
Whereas, The said laborers returned to their work on the understanding that the Minimum Wage Board was to study the sugar industry of Puerto Rico and fix proper minimum wages,
Now, therefore, I, R. G. Tugwell, Governor of Puerto Rico, pursuant to the authority vested in me by Section 10-A of Act No. 8 of April 5, 1941 as amended by Act 44, approved April 23, Í942, do hereby require the Minimum Wage Board to appoint a Minimum Wage Committee to investigate labor conditions existing in the sugar industry of Puerto Rico so that the Board may fix the minimum wages that should be paid to the employees of said industry.
The wages fixed by the Board, in due course and in accordance with the provisions of Section 10-A of the above mentioned Act, shall have retroactive effect to the date on which the laborers who were on strike returned to their work, said date to be determined by the Board.
In witness whereof, I have hereunto set my hand and caused to be affixed the Great Seal of Puerto Rico at the City of San Juan, this 29th day of July A.D.-, nineteen hundred and forty-two. (Seal) R. G. Tugwell, Governor.”
On August 14, 1942, the Minimum Wage Board appointed a Minimum Wage Committee for the sugar industry as required by the terms of the governor’s proclamation. The board decided that the members of the committee so appointed should act and proceed also as a separate committee under § 6 of the original Act, pursuant to which a prospective mandatory decree might be issued prescribing minimum wages, maximum hours, and working conditions; and accordingly, on August 21, 1942, appointed said members as such separate committee.
The committee, in its dual capacity, conducted hearings during August and September, 1942, and submitted its recommendations to the Minimum Wage Board. The first recommendation dealt with the minimum wages which should be paid in the sugar industry from February 16, 1942, the date on which the workers had returned to work; the second dealt with the minimum wages which should be paid and the maximum hours and labor conditions which should obtain in the future.
After receipt of these recommendations from the committee, the Minimum Wage Board held public hearings between November 25 and December 18, 1942, at which hearings the present appellee appeared and participated. At the conclusion of the hearings the board issued two orders, known respectively as decree No. 2 and decree No. 3. Decree No. 3, which was prospective in its operation and did not derive its statutory authority from the new Section 10-A, fixed the minimum wage for workers in the sugar industry prospectively, and prescribed certain working conditions. Decree No. 2, which was issued pursuant to Section 10-A, prescribed minimum wage rates for workers in the agricultural and industrial phases of the sugar industry,- and directed that such wages be paid to the workers retroactively to February 16, 1942, the “date when the workmen who were on strike returned to their work.” Appellee filed with the board a petition for reconsideration of both decrees, setting forth that they were in excess of the board’s authority on several enumerated grounds. After a hearing thereon, the petition for reconsideration was disallowed by the board.
Thereafter, appellee duly filed its petition in the Supreme Court of Puerto Rico, under § 24 of the Minimum Wage Act, seeking review of mandatory decrees Nos. 2 and 3. That court upheld the validity of decree No. 3, and this phase of the litigation is not now before us. We are, however, concerned with decree No. 2, which was held invalid as beyond the competence of the Minimum Wage Board on the ground that the provisions of Section 10-A were not, as a matter of statutory construction, retroactively applicable to a strike which had ended before the enactment of Act No. 44. In this connection the court below said:
“It is a universal principle of law, embodied in Section 3 of the Civil Code, that civil statutes of a substantive nature shall not have a retroactive effect unless they expressly so provide, and even then, in no case shall they prejudice rights acquired under the provisions of prior legislation.
“If Section 10-A which we are discussing is examined, it will be readily seen that it fails to provide, either expressly or even impliedly, that it should have a retroactive effect. On the contrary, the pertinent part of the statement of motives, as well as the purposes of the law itself, clearly show that such was not the intention of the lawmaker. The evident purpose of the law, as the same appears from the statement of motives, is to prevent laborers from leaving their work while their claims are pending determination, thus depriving themselves of the means indispensable to provide for their needs, while at the same time they paralyze the industry by depriving it of their labor. Such being the purpose of the law, it is easy to understand that its provisions can have no application to a situation which it is unnecessary to prevent, nor could it be prevented, because it had -come to an end long before the act itself went into effect.”
Board’s Exhibit 22 is a book edited as an official publication by “Government of Puerto Rico — Minimum Wage Board — Division of Researches and Statistics”. In this book the following statement appears: “The strike of the cane workers affiliated with the General Confederation of Workmen of Puerto Rico produced a stoppage in the sugar industry, which started on January 19, 1942. It ended when the workmen returned to their jobs on February 16, with the understanding that the Minimum Wage Board would make as soon as possible a study of the sugar industry in order to fix adequate minimum wages and that the Minimum Wage Act would be amended to make the wages set by the Board retroactive to the date of the return of the workmen to their jobs.”
The record also contains extracts from the official publication “Minutes of the Senate of Puerto Rico, Fifteenth Legislature, Second Regular Session, 1942”, giving statements made on the floor of the Senate by the majority and minority floor leaders just after the vote had been taken on the final passage of the amendatory bill. Appellant insists that these statements disclose an understanding on the part of these two senators that Act 44 was intended to apply retroactively to the strike in the sugar industry which had terminated on the previous February 16. These statements seem to us to be somewhat inconclusive.
Appellant has also submitted to us, in the form of an appendix to its reply brief, various excerpts from a newspaper published in San Juan designed to show that as a matter of common knowledge, of which this court might take judicial notice, the workers had been induced to terminate their strike in the sugar industry on February 16, 1942, on the strength of assurances by the president of the Senate that he would endeavor to have the Minimum Wage Act amended so as to empower the board to prescribe minimum wages in the sugar industry retroactive to the date the men returned to work. Appellee objects to our reception and consideration of this material; but in the view we take the point is unimportant. If such assurances were given to the workmen on strike, they could not, of course, bind the legislature as to its future action. Incidentally,-appellant’s assertion as to the nature of the assurances which brought the particular strike to an end is not borne out by the recital in the governor’s proclamation, which merely stated: “The said laborers returned to their work on the understanding that the Minimum Wage Board was to study the sugar industry of Puerto Rico and fix proper minimum wages”.
In ascertaining the intention of the legislature, the Supreme Court of Puerto Rico excluded from consideration everything outside the text of Act 44 itself. This it was at liberty to do, for the Supreme Court of the United States has emphasized as a cardinal principle of review in appeals involving the interpretation of local legislation “that the mere fact that our own system of law and statutory construction would call for the application of one rule to a given set of facts, does not preclude the adoption of a different one by the insular courts.” De Castro v. Board of Commissioners, 1944, 322 U.S. 451, 455, 64 S.Ct. 1121, 1123, 88 L.Ed. 1384. In addition to that, the view of the Supreme Court of Puerto Rico as to the canon of construction applicable here is fortified by the provision in § 3 of the Civil Code of Puerto Rico (1930 Ed.) that “Laws shall not have a retroactive effect unless they expressly so decree.”
Quite obviously the construction of Act 44 urged by appellant, and rejected by the court below, would involve giving Act 44 a retroactive effect. It would mean that an Act passed April 23, 1942, and not effective until July 23, 1942, empowered the Minimum Wage Board to impose upon employers in the sugar industry an obligation to pay additional compensation to their workers for services rendered from and after February 16, 1942, thus affecting contracts of employment already performed before the Act was passed. Whether the legislature might constitutionally have done this we need not now inquire, but we cannot say that the court below manifestly erred in concluding that the language of Act 44 contains no clear expression of such legislative purpose, in the absence of which the Act should be taken as having a prospective operation only.
Act 44 does indeed specifically provide that retroactive effect shall be given to minimum wage decrees of the board issued under Section 10-A. That is, when Act 44 becomes effective, if a strike thereafter occurs and the men later return to work, a wage decree under Section 10-A may be promulgated with retroactive effect to the date on which the strike terminated. But this is not to say that Act 44 itself is to be effective retroactively so as to authorize the fixing of minimum wages for services that had already been rendered prior to the passage of the Act.
As applied prospectively, in accordance with the construction adopted by the court below, Act 44 is intelligible legislation fully accomplishing the purpose set forth by the legislature in its formal Statement of Motives. In the future, if a strike occurs of such importance as to justify the governor in invoking the provisions of Section 10-A, the men can be persuaded to go back to work upon the assurance of the governor that he' will by proclamation require the Minimum Wage Board to proceed under Section 10-A, with the result that the eventual minimum wage order issued by the board in an accelerated proceeding will be retroactive to the date the men returned to work.
Appellant also contends that Act 44 on its face does expressly authorize retroactive application of a minimum wage order to services already rendered before the Act was passed, in that the governor’s proclamation of July 29, 1942, invoking the provisions of Section 10-A, was authorized by the literal language of that section. That section authorizes such action by the governor “where there exists or has existed within the six (6) months preceding the date of the Governor’s proclamation, a state of strike, * * * in regard to wages. * * * ” Since the strike in the sugar industry did not end until February 16, 1942, it can be said that a “state of strike” in the particular industry existed within six months preceding the date of the governor’s proclamation. But on the face of Act 44, it does not appear to be ad hoc legislation. Rather, it is general legislation amending the permanent structure of the Minimum Wage Act so as to afford an orderly method of dealing with acute strike situations which may occur in the future. Section 10-A does not expressly state that it shall apply retroactively to strikes which had already terminated. In the absence of some indication to that effect, in unmistakable terms, the court below was at liberty to construe the six-months provision as referring to strikes which might occur after the passage of the Act. To borrow a phrase from one of our earlier opinions, we would need a touch of arrogance to be able to say that the unanimous decision of the court below as to the meaning of'Act No. 44 was “inescapably wrong”.
The judgment of the Supreme Court of Puerto Rico is affirmed.
Question: What is the specific issue in the case within the general category of "economic activity and regulation - misc economic regulation and benefits"?
A. social security benefits (including SS disability payments)
B. other government benefit programs (e.g., welfare, RR retirement, veterans benefits, war risk insurance, food stamps)
C. state or local economic regulation
D. federal environmental regulation
E. federal consumer protection regulation (includes pure food and drug, false advertising)
F. rent control; excessive profits; government price controls
G. federal regulation of transportation
H. oil, gas, and mineral regulation by federal government
I. federal regulation of utilities (includes telephone, radio, TV, power generation)
J. other commercial regulation (e.g.,agriculture, independent regulatory agencies) by federal government
K. civil RICO suits
L. admiralty - personal injury (note:suits against government under admiralty should be classified under the government tort category above)
M. admiralty - seamens wage disputes
N. admiralty - maritime contracts, charter contracts
O. admiralty other
Answer:
|
songer_procedur
|
C
|
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant.
Charles G. BLACK, Trustee in Bankruptcy for the Butler-Poster Milling Company, a Missouri corporation, Petitioner, v. Marion S. BOYD, United States District Judge for the Western District of Tennessee, Respondent.
No. 13079.
United States Court of Appeals Sixth Circuit.
Sept. 23, 1957.
Before ALLEN, MILLER and STEWART, Circuit Judges.
PER CURIAM.
This cause having been considered by the Court upon the petition for a Writ of Mandamus, the respondent’s response to the order to show cause why the writ should not issue, and the oral arguments and briefs of counsel for the respective parties;
And the Court being of the opinion that a part of the relief prayed for by the petitioner should be granted and a part denied and that the Writ should issue for the purpose of putting such ruling into effect, as set out in the opinion of the Court, 248 F.2d 156, filed this day,
It Is Ordered that this Writ of Mandamus issue out of this Court and that the Honorable Marion S. Boyd, United States District Judge for the Western District of Tennessee, take the necessary action in his official capacity to vacate and set aside so much of an order entered by him on October 22, 1956, in the case of Continental Grain Company, a corporation, v. The First National Bank of Memphis, Tennessee, a national banking corporation, and Charles G. Black, Trustee in Bankruptcy for the Butler-Foster Milling Company, a Missouri corporation, being Civil Action No. 2860 in the United States District Court for the Western District of Tennessee, as strikes from the record or denies the demand of said Trustee for a trial by jury of his cross-claim against the First National Bank of Memphis, Tennessee, and orders that the trial of the issues raised by said cross-claim and the answer of the Bank thereto be before the Court without a jury;
And It Is Further Ordered that other relief prayed for by the petition for Writ of Mandamus be denied and that the remainder of said order of October 22, 1956, be unaffected by the action taken by the respondent in compliance with this Writ.
It Is Further Ordered that no costs be allowed to the petitioner. Ewing v. Gardner, 341 U.S. 321, 71 S.Ct. 684, 95 L.Ed. 968.
Question: Did the interpretation of federal rule of procedures, judicial doctrine, or case law by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
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songer_direct1
|
D
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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.
FERNANDEZ’ HEIRS v. FERNANDEZ.
No. 4525.
United States Court of Appeals, First Circuit.
Nov. 13, 1950.
Rehearing Denied Nov. 27, 1950.
Herbert S. McConnell and McConnell & Valdés, San Juan, P. R., for appellants.
Leopoldo Tormes and Herminia TormesGarcia, Pon-ce, P. R., for appellees.
Before MAGRUDER, .Chief Judge, and WOODBURY, Circuit Judge.
PER CURIAM.
In a filiation suit brought by José Antonio Antonetti against the Sucesión of Dr. Eugenio Fernández-García, the Tribunal of the Judicial District of San Juan on January 23, 1947, after a trial on the merits, rendered judgment declaring Antonetti to be a recognized natural child of Dr. Fernández-García. This judgment was affirmed by the Supreme Court of Puerto Rico. Antonetti v. Fernández-García, 68 P.R.R. 447 (1948). Upon further appeal to this court, it appearing that the case turned on contested issues of fact in re- • spect to which the concurring judgments of the two courts below could not be said to be “inescapably wrong” or “patently erroneous”, we entered judgment on November 9, 1948, under our Rule 39(b), affirming the judgment of the Supreme Court of Puerto Rico.
Thereafter, on December 14, 1948, the Sucesión filed in the Tribunal of the Judicial District of San Juan an independent suit against Antonetti praying' for a declaration that the aforesaid judgment of January 23, 1947, in the filiation suit “is null and void and lacks any .legal force and effect.” By order of court, this suit for nullity was removed to the District Court for the Judicial District of Ponce. The defendant Antonetti moved for summary judgment in his favor, but the District Judge on September 28, 1949, denied the motion. ' Thereafter Antonetti petitioned the Supreme Court of Puerto Rico for a writ of certiorari, which was granted. Upon full consideration; in an elaborate opinion by Mr. Justice Snyder, the Supreme Court of Puerto Rico concluded that there was no genuine controversy as to the facts, and that the District Court should have granted the motion of the defendant for a summary judgment. Since on certiorari the Supreme Court of Puerto Rico is authorized to enter the final judgment which the District Court should have entered, the Supreme Court on March 31, 1950, entered its own judgment, vacating the order of the District Court of Ponce and dismissing the complaint in the nullity proceedings.
The Sucesión duly appealed to this court from the judgment of the Supreme Court of Puerto Rico. Appellee Antonetti filed a motion under our Rule 39(b) for summary affirmance. Upon consideration of the statement on appeal filed by appellants, of appellee’s motion to affirm, with supporting brief, of the opposition thereto filed by appellants, and after careful examination of the typewritten transcript of record, including the opinion of the Supreme Court of Puerto Rico, we have concluded that the judgment must 'be affirmed.
The ground of asserted nullity of the judgment in the filiation suit is 'that the case was tried, and the judgment rendered, by a person who was neither de jure nor de facto a judge of the Tribunal for the Judicial District of San Juan. This person was the Honorable Jesús A. González,, who was not a regular member of the judiciary but was at the time an Assistant Attorney General of Puerto Rico. González acted in the premises by virtue of a written appointment by the Governor of Puerto Rico. In this document the Governor, after reciting that Honorable Borinquen Marrero, judge of the Tribunal of the District of San Juan, was on temporary leave of absence, designated “Atty. Jesús A. González, Assistant Attorney General, to act as substitute Judge of the aforesaid Court during the absence of the Honorable Borinquen Marrero, or until further order.” In making this designation the Governor acted under authority of a provision in § 21 of the Code of Civil Procedure of Puerto Rico (1933 ed.) to the effect that “if the regularly appointed judge is otherwise engaged, the Governor may appoint a substitute judge to act during the time the regular judge shall be disqualified”.
The federal questions sought, to be raised in this appeal are two: (1) that in so far as the above-quoted provision of § 21 of the Code of Civil Procedure purports to authorize the Governor, without the consent of the Senate, to appoint for a temporary period a substitute judge who is not a member of the regular judiciary, the same is invalid because' in conflict with § 49 of the Organic Act, 39 Stat. 967, 48 U.S.C. A., § 873. Subject to the provision for recess appointments contained in § 26, 39 Stat. 959, 48 U.S.C.A. § 812, § 49 provides that “all judges, * * * of courts established or that may hereafter be established in Puerto Rico, and whose appointment by the President is not provided for by law, shall be appointed by the governor, by and with the advice and consent of the Senate of Puerto Rico”; (2) that in any event, since the aforesaid Jesús A. González failed to take an oath to support the Constitution of the United States and the laws of Puerto Rico before entering up•on his duties as substitute judge, he thus failed to qualify as a judge of the Tribunal ■of the Judicial District of San Juan, because § 10 of the Organic Act, 39 Stat. '955, 48 U.S.C.A. § 874, requires that all ■officials “before entering upon the duties ■of their respective offices, shall take an ■oath to support the Constitution of the United States and the laws of Puerto Rico.”
As to the first point, the Supreme Court •concluded that § 21 of the Code of Civil Procedure, as interpreted by it, was not in ■conflict with § 49 of the Organic Act, for that section did not “prohibit the Legislature from making a supplementary provision for appointment by the Governor alone of substitute judges who will act for a brief period in an emergency to avoid a temporary breakdown in the administration of justice.” However, the court found it unnecessary to rest exclusively upon this ruling, because it went on to hold that González was at least a de facto judge, as the doctrine of de facto officers is understood and applied in Puerto Rico.
With reference to the second point raised on appeal, as to the failure to take the oath, the court below found it unnecessary to decide whether such failure deprived González of standing as a judge de jwe “■because the authorities are virtually unanimous that the failure to take the oath of office does not prevent an official who has the other necessary requisites from acting as a de facto officer.”
The Supreme Court, in its opinion, pointed out that the Sucesión perhaps could have questioned the validity of González’s appointment as a substitute judge during the course of the original filiation suit. “But it failed to do so, although it knew or should have known all the alleged defects in Gouzález’s status at that time. It remained silent while the case was being litigated in the San Juan Tribunal, this Court and the Court of Appeals. If it had won on the merits, it would have been the first to support the authority of González to decide the case. Having lost, it now wishes to ignore everything that has gone before and start all over again. But since it did not raise this issue in the filiation case, it cannot now make a collateral attack on the judgment, provided González fulfilled the requirements of a de facto judge. * * * Indeed, one of the purposes of the de facto doctrine is precisely to avoid such a contingency.”
In reaching its conclusion that González was at least a de facto judge, whose judgment in the filiation suit was not utterly void and subject to collateral attack, the Supreme Court of Puerto Rico did not, so far as we can see, apply any unorthodox criteria. But we need not examine this matter in detail, for the judicially developed doctrine of de facto officers, and the extent to which a judgment of a de facto judge may be immune from collateral attack, are questions of the local law of Puerto Rico. The Supreme Court of Puerto Rico is free to formulate a local doctrine of de facto officers which may not in all respects coincide with the doctrine as generally applied in the courts here on the Continent. In quite an analogous situation presented in Monagas v. Vidal, 1 Cir., 1918, 170 F.2d 99, 106, certiorari denied 1949, 335 U.S. 911, 69 S.Ct. 483, 93 L.Ed. 444, we held that the Supreme Court of Puerto Rico must be given similar latitude in formulating and applying the local doctrine of res judicata, for it is the primary function of that court “to establish the rules of insular judicial administration to conform with its view of insular public policy”.
Since the judgment of the Supreme Court of Puerto Rico is supportable upon an adequate ground of purely local law, as to which we cannot say that the determination of that court is “inescapably wrong”, it is clear that the judgment must be affirmed. De Castro v. Board of Commissioners, 1944, 322 U.S. 451, 64 S.Ct. 1121, 88 L.Ed. 1384.
The judgment of the Supreme Court of Puerto Rico is 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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